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IN THE COURT OF SH VINOD KUMAR ADDITIONAL SESSIONS JUDGE NEW DELHI Sessions Case No. 68/97 CBI Vs:1 Satyavir Singh Rathi S/o Late Sh Kaley Singh R/o C26, Anand Vihar, Delhi (Assistant Commissioner of Police Inter State Cell Crime Branch Delhi Police) 2 Anil Kumar S/o Mahender Singh R/o B-9-T, Delhi Police Apartment Mayur Vihar, Phase I Delhi (Inspector of police, Inter State cell Crime Branch Delhi Police) Ashok Rana S/o Rampal Singh Rana R/o A10 New Police Lines, GTB Nagar Delhi (Sub inspector of police inter State Cell Crime Branch Delhi Police) Shiv Kumar S/o Mehar Singh R/o VPO Asauda, District Rohtak, Haryana (Head constable, No 42 C, Inter State cell Crime Branch Delhi Police) Tejpal Singh s/o Zile Singh R/o 68 Police colony, Ashok Vihar, Delhi (Head constable No 14 DRP, Inter State cell Crime Branch Delhi Police) Mahavir Singh S/o Chiman Singh R/o A1/13 Chankya Place, Delhi
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Head constable No 25 DRP (Inter State cellCrime Branch Delhi Police) 7 Sumer Singh S/o Rati Ram, r/o Vill. Mohna Tehsil Balabgarh, Haryana (Constable No 90 DRP Inter State cell Crime Branch Delhi Police) Subhash Chand s/o Chandan Singh R/oKhanpur Kala, Distt Sonipat Haryana (constale 124-C Inter State cell Crime Branch Delhi Police) Sunil Kumar s/o Ved parkash R/oF41 Arya Samaj road, Uttarm Nagar, Delhi (constable No. 292/C Inter State cell Crime Branch Delhi Police) Kothari Ram S/o Sribhagwan R/o 2nd Battalion, Police lines, Kingsway Camp, New Delhi (Constable No. 1681/DAP Inter State cell Crime Branch Delhi Police)
JUDGMENT 1. At the beginning of the final arguments in the present case I put following questions to Sh. S. K. Saxena, Ld. Special Public Prosecutor : “Would the accused persons still be guilty if instead the two innocent business man, Mohd. Yaseen a desperate criminal been killed by the accused persons ?''
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2. Ld. Special Public Prosecutor answered in affirmative and presented the prosecution case as under : Mohd. Yassen is a desperate criminal and was wanted by Delhi Police in a murder case. Accused S. S. Rathi was heading Inter State Crime Cell in capacity of Additional Commissioner of Police. His team along with many other teams of Delhi Police were working to develop information about Mohd. Yaseen ( PW70 ). Inspector Ram Mehar ( PW15 )was also posted in the said Inter States Cell. With arrangement from the Airtel, he started hearing the conversations of the mobile phone of Mohd. Yaseen on a parallel line and started writing a diary about the conversations of Mohd. Yaseen with any other person. From this conversations PW15 Ram Mehar came to know that Mohd. Yaseen would be coming to Mother Dairy, Parparganj in a blue colour Esteem car. Accused S. S. Rathi in capacity as Assistant Commissioner of Police, and Incharge of Inter State Cell directed accused Anil Kumar (Inspector) to keep a watch upon the movements of Mohd. Yaseen. Accused Inspector Anil Kumar along with accused HC Shiv Kumar and accused Ct. Sumer Singh having their respective fire arms with a
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wireless set of devil net left Crime Branch Office in a private Maruti Car and at 1:25 pm they reached at Mother Dairy, Parparganj Road. They saw two young persons eating ice-cream and talking to each other. As per the version of inspector Anil, one of those persons was having trimmed beard and his description matched with Mohd. Yaseen (PW70). After eating the ice-cream both of these persons went on foot on the left side of the road and thereafter crossed the road towards right side before the red light. At the place one Maruti Esteem car of blue colour with no. UP14F-1580 was parked. They talked to the driver of the said vehicle and sat in the car. The vehicle proceeded towards Shakarpur. Accused Inspector Anil Kumar along with his staff i.e. accused HC Shiv Kumar and accused Ct. Sumer Singh started following the Esteem car. Inspector Anil Kumar informed accused ACP S. S. Rathi that the bearded person looks like Mohd. Yaseen and he has two more boys with him. He requested more staff to follow them. Inspector Anil also informed ACP S. S. Rathi that now the Esteem car was going on Vikas Marg on ITO Bridge. ACP S. S. Rathi informed Inspector Anil Kumar that he was also reaching
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there with the staff. At that time the Esteem car had crossed the ITO Bridge and after passing from PHQ (Police Head Quarter) on Deen Dayal Upadhyay Marg, it had reached Minto Bridge. Thereafter the Esteem car stopped opposite DENA Bank at outer circle, Connaught Place. One person (later on identified as Pradeep Goel the deceased) came out of the said car and went inside Connaught Place and came back after sometime. Thereafter the bearded person (later on identified as Jagjit Singh as deceased) started driving the car. At that very time ACP S. S. Rathi along with his staff reached in his official Gypsy and in one private Maruti Car. The staff of ACP S. S. Rathi included SI A. Abbas, SI Ashok Rana (accused), ASI Shamshuddin, HC Shiv Kishan, HC Tejpal, HC Mahavir Singh, Ct. Subhash Chand, Ct. Sunil, Ct. Kothari Ram, Ct. Om Niwas and Ct. Bahadur Singh. Except Ct. Om Niwas and Ct. Shiv Kishan, all these officials were having official arms and ammunitions officially supplied to them. ACP S. S. Rathi and Inspector Anil while talking on devil net made a plan to stop this Esteem car at the next red light. On the next red light all the accused persons encircled the Esteem car and under the command and supervision of
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accused ACP S. S. Rathi and Inspector Anil, the accused persons fired indiscriminately on the car. The driver of the car namely Jagjit Singh (who allegedly resembled Mohd. Yaseen) and Pradeep Goel sitting on the co driver seat were pulled out of the car and were shot at. Both Jagjit Singh and Pradeep Goel died at the spot. Whereas the third boy namely Tarun (PW11) sitting on the back seat of the car ducked himself and was saved, although he was seriously injured . One PCR Van headed by ASI Om Vir (PW 13) reached at the spot and took all the three persons to RML Hospital. By chance a few photographers (PW1,2,3 and PW67 ) of Statesman newspaper were present at the spot and took photographs of the car almost immediately after the incident. At the same time SHO PS Connaught Place reached at the spot and found that one pistol Italian make, two empty cartridges and seven bullets in a magazine were lying in the Esteem car. On opening it was found that one bullet was stuck up in the pistol. Inspector Anil (accused) wrote a complaint alleging that when he knocked the driver side door of the Esteem car and asked the driver to come out, the driver of the car without opening the glass of his car
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fired from inside. This bullet hit Ct. Sunil Kumar (accused) at his left hand. The driver (i.e. Jagjit Singh the deceased) fired a few more shots. Therefore in these circumstances the police party fired in self defence to immobilize the occupants of the car. In the meantime Ct. Subhash Chand (deceased) also shouted that he had received a bullet injury. One message was sent on devil net to Control Room, New Delhi District and the firing was got stopped. This complaint was given by Inspector Anil Kumar (accused) to SHO PS Connaught Place who got an FIR no. 448 dated 31.3.1997 under Section 307/186/353/34 IPC and 25/27 Arms Act, PS Connaught Place. On the complaint of Dinesh Chand Gupta the father in law of Pradeep Goyal, another FIR no 453/97 was registered in PS Connaught Place. Inspector Niranjan Singh ( PW42), SHO PS Connaught Place proceeded to investigate the case. On 1.4.1997 the case was transferred to the CBI. CBI registered RC No. 10 ( the presentcase) on the basis of FIR No 453/97 lodged on the complaint of Dinesh Chand Gupta and also registered another case RC no. 11 on the basis of FIR No. 448/97 registered on the complaint of accused Inspector Anil. However,
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all the investigation was conducted in RC no. 10. During investigation it was found that in one photograph taken by the photographer of Statesman Newspaper, all the glasses of Esteem car was found broken except the glass of the driver seat. This proved the fact that the glass of driver side door was found to be intact. Hence no fire came from inside the car as alleged in the FIR at the instance of Inspector Anil Kumar. Further more there was no bullet marks on the left side door of the co driver seat, however when the door was opened there were three bullet marks on the rim of the door. This could have only be possible if the bullets were shot after opening the door. Further more there are many bullet injuries on and above just about the buttock area of Pradeep Goel and one photograph shows that Pradeep Goel was lying on the road at a distance of about 3 or 4 feet away from Esteem car. Moreover one photograph shows Jagjit Singh lying in such a position with right leg entangled in the seat of the car and remaining body out of the said car. This also shows that he was dragged out of the car and was shot at. Ld. Special Prosecutor argued that even if the deceased would have been Mohd. Yaseen instead of Jagjit Singh still it
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was a cold blooded murder by the police officials i.e. accused persons who had already planned to kill him. It is pointed out by Ld Special Prosecutor that investigation proves that the Italian pistol, eight cartridges and two fired cartridges had been planted by the accused persons in the Esteem car. Furthermore, at DENA Bank, accused Jagjeet Singh was sitting alone in the Esteem car and Inspector Anil with his staff could have arrested him. Furthermore, none of the police officials fired at the tyres of the Esteem car when they encircled the said vehicle, rather directly shot at the occupants of the car.” CHARGE 3. All the accused persons were charged u/S 302/307 read with section 120 B IPC for committing murder of Jagjeet Singh and Pradeep murder Tarun. Apart from this all the accused persons were charged U/S 193/120-B IPC for hatching a criminal live conspiracy and planting an Italian pistol No. 3685 of 7.65 mm and one loaded live cartridge and seven other cartridges in Maruti Esteem Car no UP14F-1580 and thereby fabricated false evidence against the occupants of the car. Goyal and attempting to
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charged U/S 302/307/193 IPC read with Section 34 IPC on the above stated allegations. Accused Satyavir Singh Rathi PS and Anil Kumar were charged U/S 211/34 IPC for lodging an FIR no 448/97, Connaught Place against deceased Jagjeet Singh and A charge U/S 193 IPC was framed against accused Satyavir Singh Rathi for sending a false report to higher police officers regarding the shoot out taken place on 31.3.1997 at 2.30 pm at traffic signal, Barakhamba road so that the higher police authorities could form an erroneous opinion about the incident and the same against injured Tarun. Another charge u/s 201/34 IPC was framed against accused Anil Kumar and Satyavir Singh Rathi alleging that they caused the evidence of the said offence to disappear and intentionally gave false information of the shoot out to police authorities with intention to screen themselves as well as the co accused persons. A charge U/S 203/34 IPC was framed against accused Satyavir Singh Rathi and accused Anil Kumar alleging that despite knowing that an offence of murder was committed by them and their co accused persons, gave a could be used deceased Jagjeet Singh, Pradeep Goyal and Pradeep Goyal and injured Tarun without any just cause.
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false information in respect of the said offence in form of FIR no 448/97 PS Connaught Place which they knew to be false. A charge U/S 193 IPC was framed against accused Anil Kumar alleging that he fabricated a false entry in the daily diary of the office about receiving an information that movement of suspected criminal Yaseen and used this information for lodging false thereafter for complaint
registration of FIR no 448/97, PS Connaught Place so that the higher police authorities make an erroneous opinion and could use the same against the occupants of Esteem Car in question. All the accused persons pleaded not guilty and claimed trial . 4. Prosecution examined 74 witnesses in all . The summary of their testimonies is given in the list of witnesses attached herewith and the same may be read as part and parcel of this judgment. 5. Statements of all the accused persons were recorded U/S 313 CrPC. However, they did not prefer to lead evidence in defence. The final arguments were heard on about 50 hearings and Ld. Counsels for defence put a spirited defence. I take the same one by one.
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POSSESSION PRECEEDS PLANTATION 6. Sh. R. K. Naseem, adv. for accused Mahavir argued that if prosecution wants to prove that the pistol of 7.65 bore was planted in the car, the prosecution must prove that the same was in possession of the accused persons. If the prosecution has been unable to prove the possession of the pistol in question with the accused persons, the prosecution theory of plantation of the fire arm by the accused persons in the Esteem car must be discarded. I disagree with the submissions of Ld. Defence Counsel. I am of the opinion that once the plantation of fire arm and the ammunition is proved beyond reasonable doubt, the same leads to only one conclusion that the said fire arm and ammunition was in possession of the accused persons. 7. Sh. R. K. Naseem, adv. has hit the bull's eye when he argued that the charge framed under Section 193 IPC is the foundation upon which the edifice of prosecution case is built. If the charge under Section 193 IPC goes, the The charge under prosecution case would fall to dust.
Section 193/34 IPC was framed against all the accused persons for planting an Italian pistol no. 3685 of 7.65 mm loaded with one live cartridge and seven live cartridges in a match box into Maruti Esteem car no. UP14F-1580. Another charge under Section 193 IPC was framed against accused Satyavir Singh Rathi and accused Anil Kumar for fabricating
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false complaints in the firing report and the FIR respectively. 8. If this charge is proved, the same would lead to the inference that accused persons had already decided and thereby conspired to kill Mohd. Yaseen, whether he is armed or unarmed. But if the above stated charges are not proved, the prosecution case would fail. 9. Ld. Defence Counsels have drawn my attention to the testimony of PW11 Tarunpreet Singh in which he had stated that all the glasses of the driver side had broken in the incident. This witness is the boy who was sitting on the back seat of the Esteem car. Ld. Defence Counsels have drawn my attention to the testimony of PW13 ASI Omvir Singh the Incharge of the PCR Van who reached at the spot after hearing the gun shots. He testified in cross examination that glass pane of the driver side door of the Esteem car was found broken. PW15 Inspector Ram Mehar also reached at the spot soon after the incident and he testified that the glass pane of all the four doors the said car were found broken. It is argued by Ld. Defence Counsels that PW26 Avtar Singh is a public person who received a bullet injury in the firing incident. He also testified in cross examination that glasses of all the four doors of the car were found by him to be broken. Ld. Defence Counsels argued that while all the other police officials reached after few minutes from the shoot out, PW26 Avtar Singh was very
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much present at the time of incident and therefore his testimony in cross examination that all the glasses of the car were found broken by him should be relied upon. Ld. Defence Counsels have drawn my attention to the testimony of PW35 Inspector Rishidev, PW37 Roop Singh the ballistic expert from CBI, PW41 Ct. Samrat Lal, PW42 Inspector Niranjan Singh SHO PS Connaught Place, PW54 Ct. Jaiveer, PW57 SI Sunil Kumar and PW73 Qamar Ahmad the then DCP Crime who have testified that all the four glasses of the doors of the car were found broken. It is argued that there is sole testimony of PW45 Rajiv Gupta that he saw all the glasses of the car broken except the glass on the side of door of the driver seat. It is argued by Ld. Defence Counsels that in view of overwhelming evidence of so many witnesses including PW26 Avtar Singh, who was present at the spot at the time of incident, the testimony of PW45 Rajiv Gupta should be rejected. 10. them. I disagree with Ld. Counsels for defence. The court does not count the witnesses rather weighs A truthful testimony of a single witness will the false evidence of numerous Now in this case there are two sets of overshadow witnesses.
witnesses. On one side there is PW45 Rajiv Gupta and on the other side the other witnesses referred to by Ld. Defence Counsels above. The testimony of PW45 Rajiv Gupta is
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corroborated by the photographs Ex.P1/14, EXP1/2 and EXP1/6. These photographs were taken by PW67 photographs Shehnawaj and PW2 Sayeed Ahmed. The
show that all the glasses of the doors of the car are broken, however the glass of the driver's side door is intact. It is pertinent to note that as per prosecution case, all the glasses of the car were drawn up and were closed at the time of incident because as per the testimony of PW11 Tarunpreet Singh, the AC of the car was on. The fact that all the glasses of the case were drawn up has also been admitted by the accused persons. The fact that driver side glass of the door of Esteem car was drawn up and was intact at the time of the incident disproves the defence version that Jagjeet Singh (the deceased and the driver of the car) had fired many shots from inside the car through the closed window and drawn up glass. Had there been any firing from inside the Esteem car, the driver side glass of the door must have been broken. Since the photographs clearly show that this glass was intact, it is clear that the defence of the accused persons is false and no such firing took place from the side of Jagjeet Singh. PW11 Tarunpreet Singh the The photograph surviver of the shoot out specifically testifies that Jagjeet Singh had not fired bullet. EXP1/2 and EXP1/14 showing the driver's side glass intact corroborates the version of PW11 Tarunpreet Singh also.
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Therefore the testimony of PW11 Tarunpreet Singh that no bullet was fired by Jagjeet Singh and testimony of PW45 Rajiv Gupta that he found the driver's side glass intact have been corroborated by these photographs. Therefore in view of the well corroborated evidence on record I place reliance on the testimony of PW11 Tarunpreet Singh that Jagjeet Singh had not fired from inside the car. I also place reliance on the testimony of PW45 that the driver's side glass of the car was intact. and A careful perusal of the photographs the inside of the car would EXPW64/13, EXPW64/14, EXPW64/15 and EXPW64/16 EXPW64/17 showing show that whereas the splinters of glasses of all the three doors have fallen on their respective seats, however there is no splinter of glass on the driver's seat. The photograph Ex.P1/6 also shows that the splinters of the broken glasses were lying on the corresponding places on the road. However no splinter is lying on the road which corresponds to the driver's side door. The makes it amply clear that the glass of the door of driver seat was intact at the time of shooting. Although the PW11 has stated that all the glasses of the windows of the car had broken in the incident, however it must be born in mind that as soon as the firing by police officers started, he ducked himself in the car instinctively and was seriously injured and therefore it cannot be expected that he could have seen whether all the
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glasses were broken or not. 11. There is nothing on record to suggest that Jagjeet Singh the deceased was having a fire arm. No suggestion has been given to this witness by the accused persons that Jagjeet Singh was having in his possession the Italian pistol with ammunition. In view of these circumstances, I am of the opinion that it stands proved that Jagjeet Singh was not having any fire arm and ammunition and he also did not fire through the glass of the driver side. Therefore the only inference which can be raised in the present case is that the fire arm, cartridges and the two empty cartridges have been planted by the accused persons in the car. Once plantation of fire arm and the ammunition by the accused persons has been proved, it necessarily leads to the presumption that this weapon and the ammunition and two empty cartridges were already in possession of one of the accused persons, who were involved in commission of the offence. 12. The doctrine “the possession precedes plantation” in fact goes as propounded by Sh. R. K. Naseem, adv. against the accused persons. 13. Since it stands proved that accused persons were having possession of an Italian pistol, seven live cartridges and two empty cartridges, which they planted in the car, this fact shows that accused persons had already decided and conspired that whether Mohd. Yaseen is armed or unarmed,
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he has to be killed. WHETHER DEFENCE 14. The Defence Counsel have raised the plea of self defence. The circumstances mentioned above clearly show that there was no firing from the inside of the car, therefore the plea of self defence taken by the accused persons stands proved false. WHETHER MURDER 15. As discussed above, the accused persons had conspired to kill Mohd. Yaseen. This court is to see whether there is any factor which reduces the offence from murder to culpable homicide not amounting to murder. The offence in question does not fall in Exception 1 to Section 300 IPC as there was no grave and sudden provocation from the side of the occupants of the car. Exception 2 of the Section is not applicable because it is proved that accused persons had not acted in private defence. Exception 3 deals with a situation where a public servant acting for advancement of public justice kills a person by exceeding his powers. In the present case the accused persons are public servant but the circumstances show that they had already conspired to kill ACCUSED PERSONS ARE GUILTY OF ACCUSED PERSONS ACTED IN SELF
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The present case could have fallen in this response to the fire shot by
exception provided the accused persons had retaliated by exceeding their powers in Jagjeet Singh. However the facts of the case show that in fact no firing took place from inside the car. 16. Exception 4 envisages a situation where murder is committed in a sudden fight in heat of passion. This is not the case here. 17. Therefore it is clear that offence in question does not reduce to Section 304 IPC. Accused persons had fired upon the occupants of the Esteem car with intention to kill Mohd. Yaseen and therefore liable to be convicted U/S 302 IPC. MISTAKEN IDENTITY 18. It is argued by Ld. Defence Counsels that it is a case of mistaken identity. This fact is born out of the record that the accused persons were tracing the movements of Mohd. Yaseen a hard core criminal. PW15 Ram Mehar had been recording the conversation of Mohd. Yaseen in his diary ( EXPW15/B). Mohd. Yaseen was dreaded criminal and he was examined as PW70. He testified that he was using a mobile phone no. 9810071368. Public Prosecutor had argued This is the phone number that since this diary which was being tapped by PW15 Ram Mehar. Ld. Special
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Ex.PW15/B has been written in the same pen and same flow, it means that it was fabricated later on. I am of the opinion that the court would not be swayed by imagination and conjectures. If this diary is fabricated then prosecution should have brought cogent evidence to prove this fact. Therefore I am not inclined to accept this argument of Ld. Special Public Prosecutor. It is pointed out here that Ld. Special Public Prosecutor had drawn my attention to the telephone numbers written in the diary and argued that the same do not tally with the print outs of call records. Ld. Defence Counsels had argued that in print outs one digit is missing otherwise the number of the mobile phone is the same. Ld. Special Public Prosecutor was requested to verify this fact and later on Ld. Special Public Prosecutor after verification, withdrew this submission. 19. PW17 Mohd. Yaseen has testified that on 31.3.1997 i.e. the date of incident, he was at his house in Mandoli, Parparganj. He received a call from Hafiz that he wanted to meet him and accordingly he asked Hafiz to meet him at 1:00 or 1:30 pm near Mother Dairy, Parparganj. He testified that he was having a Maruti Esteem car of blue car at that time. Hafiz came to him at 1:15 pm at the crossing of Mother Dairy and thereafter they went away in the said car. He also stated that the said Maruti Esteem car was having registration of U. P. State. He also testified that
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sometimes he grows beard and sometimes he remains clean shaven. Although, the prosecution has assailed his testimony to the extent that it was in contradiction to his statement U/S 161 CrPC in which he had stated that he had no Esteem car and that he had only a blue car in which he met Hafiz at Anand Vihar bus stand, however, if his testimony before the court is taken to be true, it was unfortunate for the deceased in the present case that they also came at Mother Dairy, Parparganj and proceeded in Esteem car of blue colour having number plate of U.P. Ofcourse, Mohd. Yaseen a dreaded criminal was fortunate enough. I therefore agree with Ld. Defence Counsels that it was a case of mistaken identity. 20. Mohd. Yaseen (PW70) is a desperate criminal. In his cross examination he admitted that he was wanted by Delhi Police in two cases of serious nature. He also admitted that he was a convict in a murder case of Madhya Pradesh and was undergoing a sentence for life imprisonment. However he escaped from the custody from the court premises with 11 other persons on 24.2.2003 at Aligarh. 21. PW73 Qamar Ahmad, the then DCP Crime testified that Mohd. Yaseen was wanted in many cases of Delhi as well as of Uttar Pradesh. One of the important case in which he was wanted was abduction and murder of one Mr. Saud Alam, who was a resident of Panchsheel Park and was
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Engineer by professor. Yaseen. 22.
He also testified that a reward of
Rs.50,000/- was also announced for the arrest of Mohd. It is argued by Ld. Defence Counsel that the
antecedents of Mohd. Yaseen show that he is a criminal of such a nature that he would have no compunctions in firing at the police party and the police party also presumed that he must be having a sophisticated fire arm with his accomplices. Ld. Defence Counsels have drawn my attention to the testimony of PW73 that when Mohd. Yaseen was arrested weapon was recovered from him at one time. On subsequent arrest also he was found in possession of fire arm and ammunition. Ld. Defence Counsels have drawn my attention to the fact that those were the days when the terrorism in Punjab and Delhi was at peak. Those were the days when it was a battle of nerves and when it came to facing hardened criminals and the terrorists, the one who fires first would survive. It is argued that even if it is presumed that no fire was shot from inside the car, still considering the nature of the criminal they were expecting to face, the police party was fully justified in firing first on the occupants of the Esteem car. 23. The submissions of Ld. Defence Counsels would have some substance provided there had been some inkling that the occupant of the car was going to use a fire arm. All
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the occupants were visible through the transparent glasses of the Esteem car. If the driver of the car takes out his pistol, this will also show some activity on the part of the driver. At the cost of repetition I point out that the defence version of Jagjeet firing from inside the car has been proved false. There is nothing on record to show that any of the Moreover in the present case the Inspector Anil has taken the It shows that the accused occupants of the car did any overt act prompting the police party to fire at them. information was not that of a terrorist. Mohd. Yaseen was only a hard core criminal. defence that he knocked the driver side door of Esteem car and asked him to come out. persons were not fearing use of any fire arm from the occupants of the car, which is apparent from the fact that accused Inspector Anil was standing very close to the driver side door. The entry points of bullets on wind screen show that one of the accused had fired from the front side and therefore the occupants of the car were fully visible to the accused persons. The Esteem car was encircled by the accused persons having the service weapon with them. In such circumstances a criminal howsoever dreaded he might be would not make a mistake of firing at the police party. Therefore I am of the opinion that arguments raised by Ld. Defence Counsels that it was a question as to who fires first is not tenable.
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Mohd. Yaseen is a desperate criminal but still he
has right to life under the Constitution of India. This right to life can be taken away only in accordance with the due process of law or in exercise of right of private defence or when actual encounter takes place. their hands. 25. Due to this evidence coming on record, I had that instead of Jagjeet Singh, the dreaded asked Ld. Special Public Prosecutor to argue his case presuming 26. criminal Mohd. Yaseen has been killed. After hearing the arguments I am convinced with the prosecution arguments that even if, instead of Jagjeet Singh and Pradeep Goel, the wanted criminal Mohd. Yaseen would have been killed, the accused persons would still be guilty of murder by virtue of the doctrine of '' transferred malice'' contained in Section 301 IPC. RIGHT OF SELF DEFENCE 27. Section 100 IPC deals with the situation when a person can cause death of another person in exercise of his right of private defence. As per the first clause to Section 100 IPC, the right to private defence can extend to causing death provided there is an assault as may reasonably cause the apprehension that death will otherwise be There is no other circumstance in which the accused persons can take law in
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consequence of such assault. 28. Therefore, if the defence version had been proved to be true that Jagjeet Singh fired at them, the accused persons would have definitely got the right of private defence to kill him. However, this defence has been found to be false as discussed above. No other overt act by the occupants of the Esteem car has been alleged so as to reach a conclusion that there was some activity on part of occupants of the car, which could be termed as ''assault''. Therefore, the right of private defence is not available to the accused persons. ROOP SINGH THE BALLISTIC EXPERT 29. CFSL. Ld defence counsels have strongly relied upon the This witness had inspected the Esteem car and had Ld testimony of PW37 Roop Singh, Principal Scientific Officer, also given his opinion in respect of the fire arms including the planted fire arm 7.65 mm pistol and the bullets. defence counsels have drawn my attention to the following portion of his testimony recorded on 26.11.99. I reproduce the same as under: ''At this stage another sealed packet sealed with the seal of CFSL is opened and is found to contain one deformed fire bullet of 380. I have seen this bullet. It was examined by me and it is EXPW37/23. In the aforesaid packet there is another bullet head of lead of 7.65 calibre has been found. It isEXPW37/24.''
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It is argued by Ld defence counsels that
in fact It is
the CBI had replaced 7.65 bullet recovered from the finger of constable Sunil (accused ) with a .38 bullet lead. argued that by mistake of CBI, the 7.65 bullet remained in the pulanda. Therefore, the presence of bullet head of lead of 7.65 calibre in the packet opened by PW37 Roop Singh in the court shows that in fact Jagjeet Singh had fired from 7.65 bore pistol which hit constable Sunil and constable Subhash ( the accused persons ). 31. I have considered the submissions of Ld defence counsels and I disagree with them. In fact PW37 Roop Singh has deliberately introduced this bullet head EXPW37/24 in the court while recording his evidence. In this regard I would like to reproduce an application moved by Ld Special Prosecutor after some time of this evidence. The same is reproduced as under: APPLICATION ON BEHALF OF THE PROSECUTION FOR CORRECTION OF MISTAKES IN THE RECORD OF EVIDENCE OF PW37 SHRI ROOP SINGH, PRINCIPAL SCIENTIFIC OFFICER, RECORDED ON NOLVEMBER 26,1999. The applicant aforementioned respectfully submits as under:1. That further statement in examination in chief on November 26,1999 wherein some inadvertent errors and or mistake have crept in, which requires to be
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corrected. 2. That at page no. 1, line no. 1 the number of the Maruti esteem car (UP14F-1580) have not been mentioned. 3. That at page no. 2, line no. 9 and 10, it has been recorded as under: ''In the aforesaid packet there is another bullet head of lead of 7.65 calibre has been found. It is EXPW37/24.'' The aforementioned bullet head was not in the packet in which was only one bullet which has been marked as ExPW37/23 when the said bullet was exhibited, Shri Vivek Singh, one of the advocate representing accused S.S Rathi produced the said bullet head representing to the Hon'ble court that it was lying on the floor. Thereupon the learned defence counsel enquired from the witness the calibre of the ---PAGE 2---bullet head, whereupon the witness after examining the same said that it was of 7.65 calibre. The witness at no point of time admitted or said that it was in the packet. The bullet was recovered in parcel no. 12 marked as exhibit no. 107/97 in CFSL. It was first examined in Biology Division. In the aforesaid parcel no. 12 there was only one deformed .380 fired bullet, which was examined by the witness and is EXPW37/23. After examination it was put in a small envelope in which the descript was noted. Thereafter it was sealed in a bigger envelope
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which was sealed. On this bigger sealed envelope also description of the articles is mentioned. On both the envelopes it is mentioned that it contains one bullet of .380 calbire. 4 That in the circumstance it is in the interest of justice, and also as to what actually and truthfully transpired in the Hon'ble court, it is essential that the record of the evidence of pw37 recorded on November 26,1999 be corrected as stated herein above. It is therefore, humbly prayed that necessary corrections in the record of the statement of pw37 Roop Singh as stated herein above may be made so that the record truthfully represents about the proceedings of the Hon'ble court. December 4,1999 New Delhi 32. (Anil Kumar Gupta) Special Public Prosecutor
The above stated portion of evidence of PW37 26.11.99. It is argued by Ld there is no
Roop Singh was recorded on
defence counsels if such an incident as alleged in the application had happened in the court, explanation as to why Ld Special Public Prosecutor did not point out this fact to the court on that very date. In fact he moves an application on 6.12.99 for making the corrections in the statement of PW37. 33. Accused S.S Rathi strongly opposed this application by filing the following reply: Reply to application dt. 4.12.99 of prosecution regarding correction of alleged mistakes in the record of evidence of PW37 Sh Roop Singh
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Sir, The respondent accd.submits , in reply to the aforesaid application:1. That the application of the prosecution is wrong to the extent that the circumstance mentioned therein is absolutely false. The praiseworthy reply is as under: 2. That the allegation in para no. 2 is denied. There are neither any such errors nor mistake. The record is correct as deposed by Sh Roop Singh. 3. That the allegation in para no. 3 has nol value. It is not necessary that the number of Esteem car may be mentioned. It was recorded as deposed by the witness. Even otherwise there cannot be mistake by omission of the number of the car one and only one esteem car is involved in this. 4. That the allegations in para no.3 are false hence totally denied, the aforesaid bullet head was recovered from parcel no. 12 marked as Exb. No. 107/97 in CFSL. It is denied that it was picked up from the ground by Sh Vivek Singh, one of the defence counsel. He at no stage represented to the Hon'ble court that .... Page 2.... it was lying on the floor. Court recorded as correctly made. It is an after thought and the prosecution is trying to cover a fact detrimental to the case, The deposition of the PW was dictated in open court. It is not a question of mistake of a word, but 3 sentences were dictated. No objection was ever raised. On the other hand objection is raised on 4th Dec. 1999 after due consultation of the prosecution with investigating agency. The prosecution should
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not be allowed to correct a loop hole later on after one week. It is, therefore, prayed that the record may not be changed, as it is correct and according to deposition made by Sh Roop Singh. 4.1.2000 (B.L. Kalra) Counsel for S.S Rathi.
WHEN CAUGHT, PW 37 OFFERS SOME EXPLANATION 34. In his testimony dt. 4.1.2000, he gave explanation I reproduce as to how the 7.65 bullet head got exhibited. his relevant testimony as under :
'' The parcel no, 12 mentioned in my report at item no. 8 was received in the CFSL vide letter no. 1574/3/10(S)/97-SIU.V/ SIC II dated 7.4.97 Mark PW37/A. The description in mark PW37/A at serial no. 12 of this parcel is '' one sealed parcel containing bullet recovered from constable Sunil Kumar's hand and sample seal''. In CFSL it was first examined in Biology Division. Thereafter it was received in Ballistic department where I examined it. In the parcel I found one deformed .380 fire byullet which was marked by me is BC/16. There was no other object in it. It was received in sealed condition from Biology Department. The seal was of Dr. G.D Gupta and at that time he was SSO one Biology. At this stage the parcel no. 12 with the seal of the court is opened. It is found to contain one .380 deform fired bullet which is already exhibited as PW37/23. This bullet is kept in one small envelope. The description has been noted on the small envelope and is initialled by me at point A. Parcel No. 12 also contains one 7.65 mm fired bullet. When the parcel was received by me from the Biology department this 7.65 mm bullet was not in the parcel received by me and was not examined also by me.
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Q Can you explain how this 7.65 mm bullet came in parcel no. 12? A When this parcel was opened on the earlier hearing and at that time after .380 bullet was exhibited the other bullet ie of 7.65 mm ( EXPW37/24) was found lying on the table. And so in these circumstances the said 7.65 mm bullet was exhibited. In the envelope on which India Govt. Service is printed ( which was also lying in the bigger envelope ie parcel no. 12) the bullet Expw37/23 was received from Biology Department. After examination of the bullet the same was returned to the CBI after sealing the same in bigger envelope. The bigger envelope is mark EXPW37/B ........''
In view of this explanation, the prosecution did not
press his application for correction in the statement of PW37 recorded on 26.11.99. WAS THE BULLET HEAD PARCEL NO. 12 ? 36. It is argued by Ld defence counsels that since the prosecution did not press their application for correction in the testimony of PW37 recorded on 26.11.99, it means that no correction was made in the said testimony and therefore the same should be read in evidence in favour of the accused persons. Ld defence counsels argue that this bullet had 7.65 bore was extracted from the finger of constable Sunil Kumar at RML hospital by doctor Vikas Tandon. However, this doctor was never examined by the 7.65 BORE PRESENT IN
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prosecution although he was very much available. 26.8.2003 prosecution examined record
clerk PW69 Ram
Niwas of RML hospital and got identified the signature of Dr Vikas Tandon on EXPW69/1 in his statement. It is argued by Ld defence counsels that due to this reason there is no evidence as to what bullet was extracted by the doctor and possibility cannot be ruled out that before sending the same to CFSL, the CBI planted one bullet of .38( which was found in parcel no. 12) in order to falsely implicate the accused persons. As per prosecution case, this bullet was fired from the weapon of Tejpal Singh accused. It is argued by Ld defence counsel that testimony of PW37 was recorded in presence of Sh B.L. Kalra advocate, Sh KK Sood advocate and Sh R.S Malik, advocate on behalf of accused persons and in presence of Ld Prosecutors. It is argued that there should be no doubt about the fact that a bullet of 7.65 bore was found in parcel no. 12. 37. counsels. I have considered the arguments of Ld defence It is correct that doctor Vikas Tandon was very
much available and therefore, prosecution has erred in not examining him. However, the faults of prosecution are many and not only this one. At the same time this fault on part of prosecution does not demolish the prosecution case with regard to recovery of the bullet .38 from the hand of
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accused constable Sunil. It is admitted case of prosecution as well as of the defence that constable Sunil received hospital. PW32 constable Netar Singh testified that a on bullet injury and a bullet was extracted by the doctor at RML 31.3.97, he was working at RML hospital as Duty Constable and he received sealed packets one of which was stated to contain a bullet taken out from the right hand of constable Sunil during treatment. challenged this testimony. 38. The accused persons have not On this date the investigation during the Constable PW42
had not yet been transferred to CBI. PW42 Niranjan Singh testified that course of investigation, he went to RML hospital. Netarpal (PW32) produced sealed pulandas.
inspector Niranjan Singh seized one pulanda containing bullet head which was recovered from the left hand of constable Sunil Kumar and sample seal vide memo EXPW29/C. PW74 inspector A.G.L Kaul, the Investigating Officer of CBI testified that on transfer of investigation to CBI, the investigation file and the case property seized by local police was taken in possession by him. In his testimony dt. 1.6.2005, PW74 testified that the case
property seized by him from the police station was in sealed condition and seal of the same remained intact during his possession and when he deposited the same in malkhana. No suggestion has been given to these
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witnesses that the seals
of the pulanda was tampered at
any time during their custody or during the transit to CFSL. In view of these circumstances, even if the prosecution has not examined Dr.Vikas Tandon, still it stands proved that the bullet extracted from the hand of constable Vikas (accused) reached CFSL in a pulanda with seals intact. PW37 has testified in his explanation referred above that in parcel No. 12, there was only one deformed .380 fired bullet which was stated to have been recovered from constable Sunil's hand and there was no other object in it. in his report. 39. In view of these circumstances I do not find any substance in the argument of Ld defence counsel that actually the bullet 7.65 bore was sent for examination by CBI. I have already discussed that this bullet was introduced by PW37 when testifying in the court. In his testimony dated 26.11.99, he has stated that in this packet there is another bullet head of lead of 7.65 calibre and he exhibited the same as EXPW37/24. Subsequently, he testified that he exhibited the same because this bullet was lying on the table. In his application the Public Prosecutor says that one Sh Vivek Singh advocate pointed out that one bullet head was lying on the floor. How PW37 could pick up the said bullet head from the table or from the floor of the court and In fact there is no mention of 7.65 bore bullet having been examined by PW37
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thereafter testify that ( number 12).
the same is found
in the packet
It is clear that PW37 Roop Singh the
ballistic expert has knowingly and willfully given false evidence and has fabricated false evidence in his testimony by introducing and exhibiting head of 7.65 calibre be with used intention in evidence 40. should evidence a bullet such with and that
intention to help the accused persons. In view of the seriousness of this act, I deem it necessary and expedient in interest of justice that this witness should be tried summarily for giving and fabricating false evidence. Let he be proceeded U/S 344 CrPC.
CONFLICTING DEFENCES 41. The shooting incident has not been denied by the accused persons. In the present case accused persons have taken conflicting defences. Accused S.S Rathi has taken the defence that at the time of incident, his gypsy stopped at a distance of about 25-30 metres behind the Esteem car while the car of SI Ashok Rana was moving ahead of his Gypsy and the said car of SI Ashok Rana ( accused ) stopped on the right side of the blue Esteem car. He stated that from his Gypsy he noticed that the Esteem car has been encircled by Inspector Anil and SI Ashok Rana with some staff from their vehicle. Seeing these police officials going towards Esteem
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constable Sunil and constable Kothari Ram ( both Accused S.S Rathi stated that
accused persons ) got down from Gypsy and rushed towards the car to nab Mohd Yaseen. the co accused persons had fired upon the occupants of the car, while he himself was still sitting in his gypsy having no control over the police party. Taken by surprise, he immediately got off from Gypsy and rushed towards Esteem car . In the meantime firing had stopped. 42. On the other hand, all other accused persons have stated in their statements U/S 313 CrPC that accused S.S Rathi, ACP was very much present at the spot and the firing took place under his supervision and that ACP S.S Rathi. 43. Inspector Anil took the defence that he did not fire and his role was limited to keeping a watch upon Mohd. Yaseen. When accused S.S Rathi directed him to stop the Esteem car, he only knocked the door. However, when Jagjeet Singh fired from inside the car, his staff retaliated in self defence by firing at the occupants of the Esteem car. DEFENCE OF ACCUSED S.S. RATHI 44. He has stated that he had instructed his staff to arrest accused Mohd Yaseen and had never given any command to kill him. His counsel has drawn my attention to they had acted in obedience to the lawful command of their superior
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the fact that accused S.S Rathi has not fired even a single shot. It is argued by Sh R.S malik, advocate for accused S.S Rathi that the complaint EXPW42/C Anil Kumar accused, only mentions Esteem vehicle on next red light. written by inspector that S.S. Rathi
interacted with him on devil net and made a plan to stop the When the said vehicle stopped after covering some distance, he (accused Inspector Anil) along with his staff came out of their respective vehicles and encircled the said vehicle. There is no mention in this complaint EXPW42/C of Inspector Anil that ACP S.S Rathi also encircled the Esteem car. In fact, after this point there is no mention of any role of ACP S.S Rathi in the shoot out incident. It is argued by Ld defence counsel that this complaint squarely proves that accused S.S Rathi has no role in the shooting incident and that entire shooting took place under the command of Inspector Anil. defence counsel that It is argued by Ld Inspector Anil had filed a suit for
damages against a T.V. channel in High court and even in that suit, accused Inspector Anil did not mention that he was acting under the command of ACP place under his command. 45. SS Rathi. Rather support Inspector Anil testifies in the said suit that shoot out took These circumstances the defence of the accused S.S Rathi that he is innocent. Sh R.K. Naseem, advocate had argued that this complaint of Inspector Anil, upon which the FIR was
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registered in P.S Connaught Place, has no value in eyes of law as the same is not a substantive piece of evidence. counsel Court 1929 Ld has referred to para 15 of AIR 2005 Supreme in which it was held that FIR is not a
substantive piece of evidence and can only be used to corroborate the statement of maker and to contradict him U/S 145 of Indian Evidence Act. It can neither be used as evidence against 46. the maker who is facing the trial nor to corroborate or contradict other witnesses. I am of the opinion that by referring to this complaint written by inspector Anil, accused S.S Rathi might be shifting his guilt upon his co accused inspector Anil Kumar. However, at the same time if anything substantial comes out ground. 47. Ld counsel for accused S.S Rathi has also drawn my attention to the firing incident report EXPW40/E prepared by him and submitted that this report is almost exact translation of the complaint inspector Anil Kumar. Expw42/c written by It is argued that in none of these from this document in favour of accused S.S Rathi, the said benefit cannot be withheld on a technical
documents, it is borne out that ACP S.S Rathi was present at the spot at the time of incident. In fact, he was in his Gypsy at some distance from Esteem car.
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I have carefully gone through the complaint and firing incident report EXPW40/E. The
firing incident report was prepared on 1.4.1997. This report has been written as if he himself had seen the entire incident. Moreover, this firing report was written by ACP S.S Rathi after one day from the incident and he was having an opportunity to put the entire incident as it happened according to him. ACP S.S Rathi was a very senior officer and he could have ordered action against the police officials who had planted the fire arm in the Esteem car. argued by Sh R.S Malik,advocate that EXPW42/C It is S.S Rathi prepared However,
the firing report exactly on the same lines of the complaint prepared by inspector Anil Kumar. accused S.S Rathi has given no explanation as to why he did not specify in this firing incident report that his co accused indulged in firing while he was still sitting in his Gypsy at some distance from Esteem car. 49. The perusal of the firing report Ex.PW40/C In this prepared by S. S. Rathi is at variance from the defence taken by him in his statement under Section 313 CrPC. firing report he does not mention that his security guard commando Kothari Ram and Ct. Sunil left him in Gypsy and ran towards the Esteem car and shot at its occupant. In this firing report he does not state that he reached at the spot only after the firing. Accused S. S. Rathi was writing his
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firing report in cool contemplation of the incident. Whereas Inspector Anil had written his complaint Ex.PW42/C after a short interval from the incident. Therefore if there was anything missing or incorrect in the complaint of Inspector Anil, accused S. S. Rathi was having an opportunity to write the correct facts in his firing report. 50. It is made clear that I am not reading the These complaint of Inspector of Anil and the firing report prepared by accused S. S. Rathi as substantive evidence. documents have been referred by the accused S. S. Rathi as a part of his defence. A perusal of the firing report prepared by S. S. Rathi does not support his version in his statement under Section 313 CrPC that he was still sitting in his Gypsy when the shooting incident took place. 51. It is pertinent to note that accused S. S. Rathi was in a position to examine five witnesses in his defence. As per his own statement under Section 313 CrPC by accused S. S. Rathi, SI A. Abbas (who was discharged in the present case having not fired, though armed) who was driving the official Gypsy of S. S. Rathi as the official driver Ct. Jaiveer was not immediately available. Apart from SI A. Abbas, SI Shamshudin, Head constable Shrikrishna, constable eye Omniwas and constable Bahadur Singh were also the
witnesses of the incident. They were not prosecuted in the present case, although they were part of the team of
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accused S.S Rathi.
The accused S. S. Rathi could have
examined anyone of them to prove that he was sitting in his Gypsy and that firing incident took place without any direction from him. It was held in AIR 1975 Supreme Court 1703 that non examination of material defence witnesses to prove defence version in a criminal case is the strongest possible circumstance to discard the defence version. 52. Ld. Counsels for remaining accused persons have drawn my attention to the specific defence taken by them in their statements under Section 313 CrPC that they were acting under the command and supervision of accused S. S. Rathi and that accused S. S. Rathi was very much present at the spot when the incident took place. However I hold that the statement of these accused persons cannot be read to the disadvantage of accused S. S. Rathi. 53. 54. Therefore, I hold that there is no force in the Now there are following facts and circumstances defence of accused S.S Rathi. which prove that accused S. S. Rathi was present at the spot and the firing took place under his command. 1. PW73 Qamar Ahmad, the then DCP was informed by accused S. S. Rathi at about 1:00/1:30
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pm telephonically that accused Mohd. Yaseen would be visiting Parparganj and Inspector Anil had been detailed at to 2:40 keep pm watch on the movement of Mohd. Yaseen PW73 received the information on wireless set about the shoot out. PW73 reached the spot immediately and found ACP S. S. Rathi, Inspector Anil Kumar along with other staff at the spot. PW13 ASI Omvir Singh who was incharge the Fire of PCR Gypsy which was parked just outside Building, Station Place Connaught
reached immediately after the incident and found accused S. S. Rathi at the spot. 2. PW73 testified that inter state team headed by S. S. Rathi was deputed to nab accused Mohd. Yaseen. He also testified that when ACP S. S.
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on has PW73 This
telephone about the fact that Inspector sought reinforcement, with staff.
directed ACP S. S. Rathi to rush personally proves that accused S. S. Rathi along with the staff reached at the spot. 3. Accused S. S. Rathi also admits in his statement under Section 313 CrPC that he was following the Esteem car along with his staff. He also admits that commando constable Kothari Ram and constable Sunil were with him in his Gypsy. 4. As per record both constable Kothari Sunil Ram had and constable upon As Kothari Ram the per accused was The fired
occupants. EXPW40/B, constable attached
with S.S Rathi, ACP
as Commando constable.
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duty of a Commando is to remain with his officer for his security. Kothari accused another namely If the commando Ram S.S attached Rathi and of Sunil with his staff are
present at the spot and are firing at Esteem car, it leads to only one conclusion that accused S.S Rathi was present at the spot and firing took place under his supervision and command. 5. In his statement U/S 313 CrPC he has stated that SI A.Abbas, constable Shrikishan, constable Omniwas were still in the gypsy of accused S.S Rathi when the firing took place. It is pertinent to note that these police officials have not fired and therefore If were all not these prosecuted.
persons were in gypsy with
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accused S.S Rathi when the offence took place, they were the best witnesses who could have been examined to prove the defence of accused S.S Rathi. The failure of accused S.S Rathi to examine these witnesses in defence is the strongest possible circumstance to discredit the defence version ( AIR 1975, SC 1703, Gajender Singh Vs State of UP) 55. All these facts and circumstances disprove the
defence of accused S.S Rathi. I am of the opinion the prosecution has proved beyond reasonable doubt that although accused S.S Rathi has not fired any shot, however the shooting by the co accused persons was done under his supervision and command. 56. Even for a moment it is presumed that accused S.S Rathi was still sitting in his gypsy when his subordinates namely commando Kothari Ram and constable Sunil left his gypsy and rushed to the spot and fired at the occupants of Esteem car, the same could have happened only on the
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directions of accused S.S Rathi. Had they not acted under the directions of accused S.S. Rathi, accused S.S Rathi should have recommended action against them specially against accused commando Kothari Ram whose duty was to remain like a shadow of accused S.S Rathi for his protection. In fact, the presence of accused Kothari Ram at the spot and firing took place. DEFENCE OF ACCUSED INSPECTOR ANIL KUMAR 57. Accused inspector Anil Kumar has taken the Sh S.P. defence that he was not acting in furtherance of common intention alongwith his co accused persons. Ahluwalia, advocate has argued that that the duty assigned to accused inspector Anil Kumar was only to keep a watch on Mohd Yaseen. He did not apprehend the persons ( the deceased) at DENA Bank because they were five in number ( three were the occupants of the car and two persons were with pradeep Goyal when he was coming out of the bank ). Since inspector Anil Kumar was having only two more persons namely Head constable Shiv Kumar and constable Sumer Singh ( both the accused persons ) and he expected that Mohd Yaseen and his accomplices must be having fire arms, instead of attempting to arrest those commando constable by him proves that
accused S.S Rathi was also present at the spot while firing
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Furthermore, since S.S Rathi,
he was acting under the command of he only encircled the
Inspector Anil would not go beyond the
instructions of his boss and that
Esteem car when it was so directed by ACP S.S Rathi. It is argued by Ld defence counsel that apart from watching the movement of Esteem car and stopping it at red light, he had no other instructions. but he did not fire. persons. Although, he was having a fire arm This shows that Inspector Anil Kumar
was not sharing the common intention with his co accused He argued that all the police officials who had fired were acting under the command of ACP SS Rathi and were not under the command of Inspector Anil Kumar. 58. counsel. I have considered the submissions of Ld defence Accused Inspector Anil Kumar was having the
immediate command of two accused persons namely accused Head constable Shiv Kumar and accused constable Sumer Singh. It is not disputed that both of them had fired at the occupants of the Esteem car. It is not in dispute that Head constable Shiv Kumar fired two bullets and constable Sumer Singh fired three bullets from their respective .38 Revolvers. Accused Anil Kumar was present at the spot and had knocked the driver side door of the Esteem car. already been proved false. This is a His defence that driver of the Esteem car fired upon them has circumstance which
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goes against the innocence of accused. Although, accused Inspector Anil had not fired but the entire circumstances discussed above prove that he was not only a privy to the conspiracy to commit the murder in question but also he was acting in furtherance of prosecution of the object of the conspiracy with his co accused persons at the time of shooting. The falsity of his defence that Jagjeet Singh the deceased fired one shot which hit constable Sunil and a few more shots has further substantiated the prosecution version about his active involvement in the present crime. DEFENCE OF ACCUSED MAHAVIR SINGH 59. Sh R.K Naseem, advocate for this accused argued that this accused was having one .38 Revolver and had fired only one shot. It is argued that as per prosecution case, the bullet fired from this Revolver was lodged in the body of Jagjeet Singh. Jagjeet Singh was cremated in Kurushetra his native place and his elder brother Didar Singh ( PW8 ) found the said bullet from his ashes. ( PW49) police station As per prosecution case, This on Didar Singh handed over this bullet lead to SI Ram Dutt
City Thanesar, Kurushetra.
bullet lead was later on handed over to CBI and with the fire arm of accused Mahavir.
examination by the Ballistic Expert, the same was connected It is argued by Ld defence counsel that although PW8 Didar Singh was
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examined by the prosecution but this witness is silent about recovery of any bullet lead from the ashes of deceased Jagjeet Singh. Furthermore, PW24 Dr. Yashoda Rani, who conducted postmortem of Jagjeet Singh testified that there were two entry wounds and two exit wounds of bullets on the body of Jagjeet Singh. She also testified in cross She examination that the x ray of the body of Jagjeet Singh was taken but no bullet lead was found inside the body. also testified that after exploration of the entire body at the time of postmortem, no bullet or its fragment was found. Ld defence counsel argues is any evidence that that neither this bullet was found the same was recovered from the Ld defence counsel has lodged in the body of the deceased Jagjeet Singh nor there ashes of the deceased shows that this bullet was planted by CBI in order to strengthen its case. in which he stated that when drawn my attention to the defence of accused Mahavir Singh the shooting incident took place, the public started collecting around them. In order to disperse the public, Head constable Mahavir Singh fired one shot in air. Ld defence counsel argues that in view of the lack of evidence about the recovery of the bullet from the ashes of Jagjeet Singh, the defence of accused has become worthy of credence. 60. Ld Special Prosecutor submits that due to mistake, PW8 Didar Singh could not be examined by the prosecution
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on the point of recovery of bullet head from the ashes of Jagjeet Singh. However he relies upon the testimony of Ld Special Prosecutor argued that PW49 SI Ram Dutt.
sometimes the bullet gets hidden in some bone or beneath it. Therefore, it is not uncommon that if a bullet is lodged in the body, the same does not come to the notice of the autopsy doctors. Regarding two entry points on the person of Jagjeet Singh, it is argued by Ld. Special Prosecutor that it is possible that the two bullets might have entered from the same hole. 61. doctors. 62. PW49 SI Ram Dutt has testified that in April 1997, he was posted as ASI in police station City I agree with Ld Prosecutor that the bullet in question might have escaped the attention of the autopsy
Thanesar. On 5.4.97, Didar Singh and Ranjeet Singh came to police station and produce one lead piece'' chala hua sikka'' which they claimed to have recovered from the ashes of Jagjeet Singh after his cremation from the cremation ground on 2.4.97. They told him that it was recovered by them on 3.4.97. The lead piece was sealed by him in a plastic dibbi with a seal of RD vide seizure memo EXPW49/A written by Head constable Dharampal on his dictation. The seizure memo bears the signature of Didar Singh and Ranjeet Singh.
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In his cross examination
suggestion that in connivance with CBI and Niranjan Singh, the father of deceased Jagjeet Singh, he deliberately and wrongly prepared bogus documents to help CBI in framing a false case. In the entire cross examination, it was nowhere challenged by the accused that the bullet lead was not handed over to PW 49 by PW8 Didar Singh, the elder brother of deceased Jagjeet Singh. Otherwise also there is no reason the disbelieve the testimony of PW49. The recovery memo EXPW49/A bears the signature of PW8 Didar Singh and other relatives of the deceased. In cross examination the accused persons have nowhere challenged the testimony of PW49 was recovered from the ashes of evidence of PW49 is hearsay evidence. 64. I am of the opinion that this portion of evidence and the utterance of Didar Singh by PW49 is relevant U/S 6 of Indian Evidence Act therefore admissible as wherein he testified that Didar Singh told him that the said bullet lead the deceased Jagjeet Singh. It is argued by Ld defence counsel that this portion of
regarding as to from where the bullet lead was recovered is connected with the issue as to why PW49 seized the same. Therefore, once this testimony has not been challenged, this court has no reason to disbelieve as to what was stated by Didar Singh while handing over the bullet to PW49. Since
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accused persons have not challenged this part of testimony in cross examination, there is no hitch in accepting the same as truthful. 65. PW8 on Though, the prosecution should have examined this point, however, the circumstances and
statement of Didar Singh made to PW49 leave me in no doubt about the truthfulness of the prosecution story as to how the said bullet head was recovered. I also do not find any reason as to why Didar Singh or the CBI would fabricate a false defence. It is not in dispute that this bullet head was connected with the fire arm of accused Mahavir as per the report of ballistic expert. around the place of incident. If accused Mahavir had fired in No suggestion has been given air, its bullet head should have been recovered from or to PW74 Inspector Niranjan Singh that the bullet head was picked up from the spot and was later on planted by CBI. All these circumstances lead to only one inference that accused Head constable Mahavir had fired the bullet upon Jagjeet Singh and the said bullet head was recovered from his ashes. He has also taken defence in his statement U/S 313 CrPC that there was a sudden firing from inside the car. This defence has been proved false and therefore, this is an additional circumstance against the accused. 66. Further more his defence that he fired in air at the time of shooting also does not find any support from any
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document or testimony of any witness. PW26 Avtar Singh was very much present at that time of shooting. Present accused has not cross examined this witness on this point. Therefore I do not find the defence of accused Mahavir to be reliable. DEFENCE OF REMAINING ACCUSED PERSONS. 67. All the remaining accused persons have taken the defence that they were acting in obedience of lawful command of accused S.S Rathi, ACP at the time of shooting. Moreover, they fired only when the occupant of the car fired at them. At the cost of repetition, I point out that the defence of the accused persons that to be false . Jagjeet Singh, the
driver of Esteem car fired at the police party has been held Moreover, the fact that one pistol along with accused eight live cartridges and two fired empties were planted by the accused persons shows the intention of the even if he was unarmed. persons that they had already decided to kill Mohd. Yaseen It is proved that accused persons had fired upon the occupants of the Esteem car without any overt act from the side of the occupants of the car. Although all the accused persons were acting under the obedience of accused SS Rathi and inspector Anil Kumar, however, in the present case they had acted under the unlawful command of their superiors. In fact, the falsity of defence of the accused persons and plantation of fire arm and ammunition and two
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empty cartridges in Esteem car shows that they had already planned to kill Mohd Yaseen. Prosecution argues that this was done to earn out of turn promotion. the menace of a dreaded criminal. It is also possible that they had acted with a motive to rid the society from Whatever the motive they had, they were under a duty to work within the legal limitations and they had no power to commit murder even of a dreadful criminal. TWO EMPTY CARTRIDGES FOUND IN THE ESTEEM CAR 68. It is argued by Ld defence counsels that no charge and therefore accused persons cannot be was framed with regard to planting of two Khokhas ( empty cartridges) convicted for planting these two empty cartridges in Esteem car. In such a situation, it has to be presumed that some firing took place from inside the car, otherwise there was no question of finding two empty cartridges. I partly agree with the submission of Ld defence counsels. It is correct that the accused persons cannot be convicted for planting two empty cartridges. However, evidence on judicial record has proved that these two empty cartridges were found in the Esteem car, although no firing took place from inside the car. PW45 has specifically testified that he did not see any fire arm in the Esteem car. Therefore, the planting of two empty cartridges in the fire arm and ammunition in the Esteem car
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stands proved. This piece of evidence can be used against the accused persons because these fired from inside the car. WHO PLANTED THE FIRE ARM ETC IN THE ESTEEM CAR 69. Ld defence counsel has drawn my attention to the recovery memo of the mobile phone of Jagjeet Singh which was handed over to PW42 Inspector Niranjan Singh, SHO PS Connaught Place by accused SI Ashok Rana. As per the testimony of PW42 the same was taken in possession vide memo Ex.PW35/J and SI Ashok Rana told him that the same was taken out by him from the Esteem Car. It is argued that since this accused had entered the car and had taken out the mobile phone lying in Esteem car, it was he who could have planted the fire arm and ammunition. I am of the opinion that it cannot be said definitely as to which of the accused planted the arm and ammunition in the car. DID THE ACCUSED PERSONS PULLED OUT PRADEEP GOYAL AND JAGJEET SINGH AND THEREAFTER SHOT AT THEM. 70. Ld. Public Prosecutor has drawn my attention to the photographs Ex.PW64/4, Ex.PW64/5, Ex.PW64/6 in which no bullet mark is seen on the left side front door. two cartridges were planted to show that actually deceased Jagjeet Singh had
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However when this door was opened, three bullet marks were seen on the rim (panel) of left front door. Ld. Special Public Prosecutor has drawn my attention to the photographs Ex.PW64/95 and Ex.PW64/126 which show the said bullet marks. Ld. Defence Counsel has also drawn my attention to the sketch of co driver seat which show the five bullet marks in a row on the upper side of the back of the co driver seat. It is further pointed out that the deceased Pradeep Goyal received many bullet injuries on his left buttock. It is argued that this situation could have been possible only when deceased Pradeep Goyal would have been pulled out from the car and was shot. Public Prosecutor has drawn my Ld. Special to the attention
photographs Ex.P1/12 which shows the dead body of Pradeep Goyal lying at some distance from the Esteem car. Moreover the position of Jagjeet Singh lying on the road with one leg inside the car also shows that he could have been pulled out and shot. 71. In order to convince myself, I had inspected the The bullet marks on the panel of left Esteem car myself. was open.
side front door show that the same were fired when the door Whether accused persons opened the door or PW11 whether deceased himself opened the door cannot be decided in view of the evidence coming on record. Tarunpreet Singh although in ducked position could have at
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least sensed that Jagjeet Singh and Pradeep Goyal were being dragged out by the accused persons. this court. However he does not make any such statement in his evidence before Although the place where Pradeep Goyal received bullet injuries and the photographs pointed out by Ld. Special Public Prosecutor create some suspicion against the accused persons but still the evidence on record is not sufficient to reach to a conclusion that accused persons had pulled out the deceased and thereafter had shot upon him. However one thing stands proved that firing was resorted to by one of the accused when the left side front door of the Esteem car was open. Due to this reason, the left side front door did not get any bullet mark but the rim of the said door received three bullet marks. My observations of the bullet marks on the rim/panel is that the same could not have received any bullet mark if the said door were closed at the time of firing. AN AMERICAN TRIAL 72. Sh. S. P. Ahluwalia, adv. for accused Inspector Anil has filed in the court the complete proceedings of a shoot out case in America. The same is available on inter net. In the said case police fired numerous shots at one person namely Diallo and killed him. All the police officials were acquitted on the ground that when the deceased took out a
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purse from the pocket of his pant, the accused police officials fired at him because due to darkness, they thought that the deceased was taking out the weapon to fire at them. The Jury took the view that the police officials were trained to react in split of seconds and the manner in which the deceased acted, it was justified for those police officers to fire at him. 73. said trial. I have carefully perused the proceedings of the It is not known whether any appeal was filed
against the said judgement. However the reading of entire trial point out the weaknesses and the problems of jury trial. In India we have forsaken this type of trial for good reasons. ENGLISH INSTANCE 74. Sh. S. P. Ahluwalia, adv. has placed before me In the said case the literature taken from the inter net.
British police were looking for a suspect terrorist involved in the blast in the tube train. The police officials chased one Brazilian youth thinking him to be the terrorist and chased him and thereafter fired at him without any provocation. It is argued by Ld. Counsel that British Prime Minister regretted for the incident but he made it clear that such incidents are possible in war against terrorism. It is argued by Ld. Defence Counsel that the police officials involved in the said shooting were never prosecuted rather the shooting in
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question did not come in the way of promotion of those police officers. It is argued by Ld. Counsel that at that time (and even now) India was facing the height of terrorism and the police officers were trained to fire in fraction of seconds. Therefore the fire committed by the accused persons is only due to misjudgement of whole situation. Hence they should be acquitted. LAW IN INDIA 75. The American and British instances pointed out by Sh. S. P. Ahluwalia, adv. would show that in both the instances the police officers involved in the shooting did not plant any weapon upon the persons killed by them. Further more, if there is any dilution of human rights in any other country, the same cannot become precedence in India. Even at the height of terrorism in India, the law makers as well as the judiciary have upheld the high standards set by the Constitution of India in Article 21 which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Even a hardened criminal and a terrorist enjoys this protection. In the present case Jagjeet Singh and Pradeep Goyal were killed because accused persons had conspired to kill Mohd. Yaseen.
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Supreme Court was considering the similar facts as in the present case. Police officers had taken the defence that the occupants of the car had fired at them and therefore they retaliated by firing at the occupants of the car in self defence. The ballistic report however showed that pistols Therefore the defence of the accused found near the dead bodies were never used as the same were defective. persons was found to be false and Supreme Court held that all the police personnel developed common intention to kill and thereby upheld the conviction of the police officials under Section 302 IPC. INVESTIGATION OF RC NO.11. 77. complaint It is argued by Ld. Defence Counsels that RC No.11 of accused Inspector Anil has never been registered on the basis of FIR No. 448/97 lodged on the investigated nor the same has been cancelled. Till the said case is cancelled and the same is accepted by Magistrate, it cannot be said that the defence of accused persons has been rejected by investigation. I disagree with the In the present case submissions of Ld. Defence Counsels.
Investigating Officer has jointly investigated RC No.10 and RC No.11 because the facts of the case are based on the same incident. Since accused have been prosecuted in RC
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No.10, it means that RC No.11 has been cancelled. WHITHER PROSECUTION ? 78. After perusing the entire file I am constrained to say that case was not prosecuted properly. Was it the sheer negligence of the prosecution or there was something else, I am not inclined to comment. However I put on record the following points which should be considered by the CBI and the State. (a) Why the prosecution did not ask the photographers (PW1, 2, 3 and 67) who took the photographs of the car initially, at time of their examination, as to whether the right side window glass of the front door was open or closed. (b) Why the prosecution did not examine PW8 Didar Singh the elder brother of the deceased Jagjeet Singh regarding the ashes of bullet head from the ashes of the deceased. (c) When PW37 introduced a bullet head of 7.65 mm and exhibit the same in the court, why Ld. Prosecutor did not point out. (d) Why Ld. Prosecutor withdrew the application for correction in the evidence of PW37 without praying for initiating action against PW37 and the advocate namely Vivek Singh, who as per the application moved by Ld. Special Prosecutor had taken up the said bullet head from the ground and gave it to PW37? (e) Why Dr. Vikas Tandon who had extracted the bullet from the finger of Ct. Sunil Kumar (accused), was not examined, although he was very much available. (f) Why the prosecution did not prove the site plan prepared by Investigating Officer which shows the position of each accused around Esteem car?
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(g) Why the prosecution did not examine the witness namely Trilok Sharma.? He is the witness who has stated in his statement U/S 161 CrPC that when SHO Niranjan Singh picked up the pistol from the Esteem car and checked it, one round was stuck in it. However, the magazine of the pistol was empty. He also stated in their statements U/S 161 CrPC that SHO also found in a matchbox on the Dash Board of the Esteem car. When SHO checked the matchbox, it was found to contain seven cartridges. It appears that this very important piece of evidence has been withheld by the prosecution deliberately. SANCTION U/S 197 CrPC 79. Sh. B. L. Garg, adv. and Sh. M. K. Singh, adv. have assailed this sanction to prosecute the accused persons. It is argued that the sanction has been accorded by Lt. Governor under the impression of media publicity and also suffers from lack of application of mind. PW48 C. B. Verma the Deputy Secretary Home proved the said sanction as Ex.PW48/A. It is argued that the testimony of this witness shows that the draft of sanction order was received from CBI and the Lt. Governor accorded the sanction on the same lines. I disagree with Ld. Defence Counsel. The draft sent by CBI is only a procedural aspect. application of mind. SANCTION U/S 140 OF DELHI POLICE ACT 80. It is argued that no separate sanction has been accorded under Section 140 of Delhi Police Act. I am of the There is nothing on record to show that the sanction was granted without
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opinion that a sanction under Section 197 CrPC overrides this provision. separately. LIABILITIES OF THE ACCUSED PERSONS 81. It is proved that under the command and supervision of accused S. S. Rathi, the accused persons had fired at Esteem car and on its occupants. PW45 Rajiv Gupta reached at the spot almost immediately after the incident. He saw that all the glasses of the car were broken except the glass on the side of door of driver's seat. His testimony is corroborated by the photographs Ex.P1/14 which was taken by PW67 Shahnawaj Khan the Senior Photographer of the Statesman Newspaper. This photographs clearly shows the glass of the driver side window fully drawn up. The other glasses of the car are seen broken. The photograph Ex.P1/6 does not show the glass splinters on the road corresponding to driver side door of the car, although the splinter of glasses are lying on the portion of the road which corresponds to back side right door. lying on entire back seat. The photograph Ex.PW64/13, The photograph Ex.PW64/16 Ex.PW64/14 and Ex.PW64/15 show the glass splinters shows the splinters of glass lying on the co driver seat but no such splinters is lying on the driver's seat. The photograph Ex.PW64/17 also shows no splinters on the driver's seat of Therefore there is no requirement for according a sanction under Section 140 of Delhi Police Act
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Had the glass of driver side door being broken
during the incident, its splinters must have fallen on the driver's seat as well as on the corresponding portion of the road. This entire evidence proves that the glass of driver's side door was not broken at the time of incident. Had Jagjeet Singh fired more than one shots from the pistol through the glass of driver's side window still drawn up, the said glass must have been broken. The intact glass proves that there was no firing from the side of deceased Jagjeet Singh. This leads to the presumption that two empty cartridges were planted by the accused persons in the Esteem car so as to show that Jagjeet Singh had fired at them. These two empty cartridges are of 7.65 mm bore matching to the Italian pistol and eight cartridges of the
same bore. Therefore, this leads to the only conclusion that even this fire arm and ammunition have been planted by the accused persons in the said car. PW11 Tarunpreet Singh has denied that accused Jagjeet Singh fired from the car. These circumstances prove beyond doubt that accused persons had conspired to kill Mohd. Yaseen even if he was unarmed and therefore they were ready with a weapon and cartridges with two empty cartridges to plant the same so as to show that first the occupant of the Esteem car had fired. 82. In these circumstances, I am of the opinion that prosecution has proved its case beyond reasonable doubt
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against all the accused persons. criminal Mohd. Yaseen. 83.
I therefore convict all of
them under Section 120B IPC for conspiring to eliminate I further convict all of them for committing murder
of Jagjeet Singh and Pradeep Goyal in pursuance of the criminal conspiracy and therefore I convict them under Section 302 IPC read with Section 120 B IPC. 84. I further convict all the accused persons for to cause death of Tarunpreet Singh in attempting
prosecution of the object of criminal conspiracy under Section 307 IPC read with Section 120 B IPC. 85. I further convict all the accused persons under Section 193 IPC read with Section 120B IPC for planting one pistol no. 3685 of 7.65 mm loaded with eight live cartridges in Esteem car. 86. Since there were no criminal proceedings against Jagjeet Singh, Pradeep Goyal and Tarun, I acquit all of them under Section 211 IPC. 87. report Prosecution has proved beyond reasonable doubt and accused Anil Kumar fabricated a false that accused Satyavir Singh Rathi fabricated a false firing complaint for lodging FIR No. 448/97 and section 25/27 Arms Act, PS Connaught Place so that the higher authorities to form an erroneous opinion and could use the same against deceased Jagjeet Singh, Pradeep Goyal and Injured Tarun. I
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therefore convict both of them under Section 193 IPC. 88. I further convict accused Satyavir Singh Rathi and Anil Kumar for giving a false information respecting the offence in question by way of firing report and the complaint upon which FIR No. 448/97 IPC was registered. I therefore convict both of them under Section 203 IPC. 89. I further convict accused Satyavir Singh Rathi in their firing report and the and Anil Kumar U/S 201 IPC for giving false information respecting the offence complaint. Announced in open court on 16.10.07.
VINOD KUMAR ADDL. SESSIONS JUDGE NEW DELHI.
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SESSIONS CASE NO. 68/97 PROSECUTION WITNESSES: PW1 Geeta Ram Sharma He is a chief Photographer in a Newspaper. Immediately after the shoot out, his colleagues PW2 Sayed Ahmed and PW67 Shahnawaj took the photographs and their negatives. photographs of Esteem Car and the place of incident. This witness brought The photograph EXP1/6 and EXP1/14 PW2 Sayed Ahmed This photographer took the photograph EXP2, EXP4, EXP6, EXP9, EXP10 and EXP11. Esteem Car to be intact. PW3 Varinder Saklani He is another colleague of PW1 and PW2 who reached the spot immediately. PW4 Dinesh Chand Gupta He is father in law of deceased Pradeep Goyal and testified that he never saw Pradeep Goyal having a licensed or unlicensed weapon. He also made a written complaint EXPW4/A on 1.4.1997 to Lieutenant Governor The photograph EXP6 (EXP1/6) shows the driver side window glass of the show that the driver side window
glass of the Esteem Car UP14F-1580 was intact.
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Sh Tejender Khanna for registration of a case against Delhi Police and for investigation of the case by CBI. Place. PW5 Goyal. PW6 PW7 Dinesh Goyal He is younger brother of deceased Pradeep He took a developed photograph Vikram Singh He is father of injured Tarun. Karamjeet Singh He is the nephew of deceased Jagjeet Singh. He identified the dead body of Jagjeet Singh. PW8 Didar Singh He is identified his dead body. PW9 Anil Kumar Aggarwal. He is assistant, RTO Ghaziabad, UP. He proved that the Maruti Esteem Car No UP-14F-1580 was registered in the name of M/S Tirupati Cylinders Ltd, C/o Jagdamba Steel, Meerut road, Ghaziabad. PW10 Yogeshwar Dyal Mathur He is an officer in DENA bank brother of Jagjeet Singh who from Statesman Newspaper and handed it over to DSP Sh. S. Paul. On his complaint, FIR No 453/97 was registered at P.S Connaught
Connaughut Place. He testified that in his branch, there is a current account No.10833 in the name of M/S Tirupati
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On 31.3.1997, at about 12-12.30 pm, two
persons came to his office in the bank to close the said current account and produced an application alongwith resolution of company for closure of account. Those persons were asked to surrender the unused chequebook. At about 2 pm -2.15 pm , Pradeep Goyal alongwith two above stated persons came to Thereafter Pradeep PW11 Sh Goyal Pradeep as the bank and surrendered the Goyal he was left one the of office. his In unused chequebook and then the account was closed. crossexamination the witness testified that he knew valued customers. Tarunpreet Singh he was travelling on 31.3.97 in the above stated Esteem Car. He testified about his movements and also about the incident. He testified that he was saved because he had ducked between the rear and front seat of the car. He further testified that Jagjeet Singh did not have any fire arm and that all the window glass panes were closed as the air conditioner was working inside the car. PW12 Sant Lal, Constable Photographer He was called by SHO PS Connaught Place at Red Light junction on Barakhamba road at 3.30 pm on 31.3.1997. He took 21 photographs of Esteem Car which are
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EXPW12/1-21. He took 11 photographs EXPW12/22 to EXPW12/32 of the inner and outer portion of the car at police station Connaught Place. PW13 ASI Omvir Singh working as ASI in PCR Gypsy alongwith the fire He was
constable Rajender which was parked outside
station building Connaught Place. On hearing gun shots at about 2.30 pm, he contacted Control Room of PCR Victor-1 and reached at Barakhamba road within one minute. He found three injured persons lying on the road. He testified that as per the directions of ACP S.S Rathi, he took the injured to hospital. He also testified in crossexamination that he first heard the sound of one gun shot and after some time he heard the sound of volley of gun shots. He also testified that glass pane of driver side door was found broken. PW14 Gyan Parkash Sindhi, advocate He is an acquaintance of deceased Pradeep Goyal and Jagjeet Singh. He testified that on 31.3.1997, he alongwith his wife, deceased Jagjeet Singh, Vikram Singh and his son Tarunpreet Singh and his daughter had come to Karnal by car. Then, his wife, Tarunpreet Singh and Jagjeet Singh came to Delhi by bus and alighted at ISBT Bus Stand at Delhi at 12 noon. The witness and his wife went to Dilshad Garden to
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meet their relatives whereas Jagjeet Singh and Tarunpreet Singh went to Patparganj to meet know about the incident. Pradeep Goyal. He testified that at about 9 pm on the fateful day he came to He also testified that Pradeep persons of criminal Goyal and Jagjeet Singh were not PW15 Inspector Ram Mehar
character and he never saw them carrying any fire arm. He testified that he was posted at IGI Airport but was specifically attached with Inter State Crime cell as he was having the information concerning the dreaded gangster Yaseen of Aligarh, wanted by Delhi Police in dacoity and murder cases. He developed the information and feeding it to a team headed by ACP S.S. Rathi. In the end of March 1997, he got information that Mohd Yaseen was having mobile telephone No. 9810071368 of Airtel. On 28.3.1997, he gave a written letter to Director ( Operation ) of Airtel and asked him to allow the facility to monitor the telephone calls incoming as well as outgoing on the said mobile phone. This request was allowed and the calls of the said mobile phone were directed in parallel on cell phone no. 9810001264 which this witness was carrying. On 30.3.97, he was listening the incoming and outgoing conversation on the mobile phone of Mohd Yaseen and was also noting down the conversation in his diary EXPW15/B. After recording this conversation, he immediately passed
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the information to ACP
Then there were
discussions between this witness, ACP Rathi and inspector Anil Kumar. ACP Rathi asked this witness to remain in touch with Airtel and continue to collect the data from Airtel. Inspector Anil Kumar was directed to keep watch on Mother Dairy Patparganj. On 31.3.1997, this witness at page 8 heard conversation of Mohd Yaseen on parallel line at 1.20pm and recorded the same at point B to B of EXPW12/B. The recording of this conversation shows that Yaseen told the responder to reach at Mother Dairy Patparganj quickly and that he would also meet him there. It is further stated by Yaseen that there would be a blue car stationed there and he should enter it. The witness conveyed this information to ACP S.S Rathi on telephone at about 1.20 pm. At that time SS Rathi was in his office. This witness was on the way to meet one Mr Malhotra of Airtel to collect the record, when he heard this conversation and conveyed the same to S.S Rathi. When he was leaving the office of Mr Malhotra, he heard a call from ACP Rathi but due to disturbance he could not hear it. This witness reached back in his office at Chankyapuri at 2.40 pm. told him that Constable Vikram Singh who was on wireless duty came rushing towards him and a wireless message was coming on
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wireless set that firing Place near Fire Brigade.
is taking place
in Connaught He parked his
On hearing this message, he
immediately left for Connaught Place. accident.
vehicle on the left side of Maruti Esteem involved in the Local police had already arrived. ACP Rathi asked him to identify the injured . He was told that a mobile phone was also recovered from the car. In order to identify it, he rang up phone no. of Yaseen. It was found that the mobile phone found in the car was not the one used by Mohd Yaseen. In crossexamination this witness admitted that Yaseen was notorious gangster. He also testified that the staff was briefed by ACP Rathi and inspector at the time of raid for the arrest of the dreaded gangster, no force is to be used unless the gangster forcibly resists. In that event, minimum and necessary force was He directed to be used to immobilize the gangster.
further testified that no conspiracy was hatched to kill gangster Yaseen and the effort was only to arrest him. In crossexamination he testified that glass panes of all the four doors of the said Esteem Car were found broken and one pistol was lying near the driver seat. He further testified that he continued the operation to arrest Yaseen with the team of ACP Ajay
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Kumar and Yaseen was arrested on 4.4.1997 and a blue colour Maruti car with U.P No. plate was also recovered from him. He further testified that gangster was of desperate nature and five bullet proof jackets were got issued to be used at the time of his arrest and Yaseen told that he was supporting a beard but after reading the news of shoot out, he shaved himself off. He testified that Yaseen was involved in 40 criminal cases in different States. PW16 Dr. Harmeet Kapur. He medically examined Ct. Sunil Kumar on 31.3.1997, who was brought in RML Hospital at 2:50 pm by SI A. Abbas. Injured was having a history of fire arm injury on the left ring finger. This injury was CLW of about 3 cm. PW16 prepared his MLC Ex.PW16/A. At about 3:00 pm Ct. Subhash Chand was brought by Ct. A. Abbas. This injured was having following injuries: 1.A wound .5 x .5 cm with inverted margin black collar over abdomen 4 inches below umbilicus. 2.An over wound 1.5 x 1 inch with blackening was present over interior aspect of right thigh about knee right joint. 3.An over wound 1 cm x ½ cm over posterior aspect of right thigh. 4.Abrasion over interior aspect of right thigh.
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5.CLW left thumb. 6.CLW over left index finger. The MLC of Ct. Subhash Chand is Ex.PW16/B. At about 3:10 pm patient Tarun was brought to casualty by ASI Ombir Singh PCR and following injuries were found on his person : 1.Wound of entry on ight side of chest over in shape with no exit wound, swelling around th wound. 2.CLW two in number in neck below the occipital region. One was 3.5 cm and the other was 2 by 4 cm. The injury was opined to have been caused by fire arm and blunt object. MLC of Tarun is Ex.PW16/C. At the time of medical examination of Ct. Subhash vide MLC Ex.PW16/B, Dr. Harmeet Kapur had taken yellow colour shirt with cut mark and blood stained jeans/pant with cut mark. These cloths were kept in a parcel, sealed with the seal of CMO RML Hospital. At 3:30 pm one Avtar Singh was brought by Ct. Tribhuvan with history of fire arm injury. One abrasion on the left wrist 1 inch x ½ inch was found on examination. The MLC of Avtar Singh is Ex.PW16/D. At about 3:10 pm Jagjeet Singh (the deceased) was brought dead by ASI Ombir Singh. his person : He was bleeding from nose, mouth and left ear. Following injuries were found on
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1.CLW approximately 2 inches in occipital region. 2.Injury on right shoulder 1 cm. 3.Inverted wound on left thigh 3 x 2 cm. 4.Lacerated injury 4 x 2 cm on lateral aspect of left thigh. Dr. Harmeet Kapur prepared a death report Ex.PW16/F. At about 3:10 pm Pradeep Goel (deceased) was brought dead with alleged history of fire arm. Dr. Harmeet Kapur found following injuries on his person : 1.A wound 3 x 1 cm and 1 x 1 cm over left hip margin rugged black and everted. 2.Another wound 3 x 1 cm over left side of back above hip. 3.Another wound .5 by 2 cm over left hip. 4.Another wound 1 by 3 cm inverted margin below right scapula. 5.Another wound .5 by .5 cm over above left inguinal region. The MLC of Pradeep Goel is Ex.PW16/G. The death report of Pradeep Goel is Ex.PW16/H. PW17 Dr. Neeraj Saxena. He testified that on 31.3.1997 Ct. Subhash Chand was admitted in the surgical ward under CR No. 10826. He was treated in surgical ward. The patient had suffered a gun
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shot wound in abdominal area around 2 – 3 inches below his neval. He has suffered another gun shot wound on his right thigh just above the knee. The bullet had passed through his right side just above knee and the entry and exit wound were at the eight of 60 cm from the ground level and parallel to ground. Another bullet had hit in his sub umbilical region and height of that injury wound was 95 cm from ground level. The patient was operated upon and he participated in the surgery both during the pre-operation as well as post operation phase. The X-ray of abdominal region of the patient showed that the bullet after entering into the abdominal area had caused extensive damaged to the intestine and had travelled forward and downward and ultimately lodge itself just adjacent to his sacrum (Tale Bone between the buttock). The X-ray abdomen area of injured was taken and the situation of bullet inside the abdomen has been shown in the skiagram. Dr. Neeraj Saxena testified that it was considered not feasible to take out the bullet and therefore the bullet was left in the body of the injured. On inquiry by CBI, Dr. Neeraj Saxena mentioned in his reply Ex.PW17/C that injury no.3 i.e. on left hand (thumb and index finger) was 70 cm from the ground level when the hand is kept by his side.
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Hospital. examined X-ray concerning injured/accused Ct. Subhash, injured/accused Ct. Sunil and injured Tarun. PW19 HC D. S. Dalal. He was posted as incharge Malkhana and used to maintain register in Malkhana regarding the issuing of arms and ammunition. PW20 HC Kushal Pal. He handed over the case property to Inspector A.G.L. Kaul the Investigating Officer against memo Ex.PW20/A. PW21 HC Rattan Singh. He handed over the relevant files to CBI. PW22 Ct. Vikram Dat. He is the duty officer in Inter State Crime Branch. He proved DD no.4 Ex.PW22/A, DD no.5 Ex.PW22/B. DD No. 6 to 9 Ex.PW22/C1 to C4. DD No. 10 Ex.PW22/D (written in the hand of Inspector Anil Kumar). He also proved DD no. 11 to 15 which are Ex.PW22/E1 to Ex.PW22/E5, DD no. 16 Ex.PW22/F. He also proved the entries of returning the fire arms by the accused persons and other police officials. PW23 Dr. G. K. Sharma, Director and Professor, Head of Department of Forensic Department, Lady Harding
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Medical College. He conducted postmortem of Pradeep Goel. In cross examination he stated that body of Jagjeet Singh was Xrayed but no bullets was seen in his body. PW24 Dr. Yashoda Rani. She conducted postmortem of the body of Jagjeet Singh. She found two entry wound and two exit wound apart from two abrasions. She testified that no foreign material was found in the body. PW25 Narinder Kumar Arora. He is the owner of Maruti Car No. DL7C-5133. On 29.3.1997 Inspector Ram Mehar borrowed this car from him and returned the same on 7.4.1997. He also testified that his cell phone number 9810001264 was also with Ram Mehar. PW26 Avtar Singh. On the date of incident he was present at the spot and he sustained a bullet injury on his right hand. In cross He examination he testified that the blue colour car was just 10/15 paces from him when he sustained injuries. were shouting “come out come out”. admitted that some persons were thumping that car and He testified that first one solitary bullet was fired and thereafter there was a volley of fire. Glasses of all the four doors were found by him to be broken.
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PW27 Anil Vashisht. He is the owner of Maruti Car No. DL8CA-8931 and that Inspector Anil Kumar took that car for two days on 30.3.1997. PW28 Sunil Mehta. He is the owner of Maruti Car No. DL3CE-7115 and the same was borrowed by accused Ashok Rana. PW29 SI Rajender Singh. He collected the MLCs of Pradeep Goel, Tarun, Ct. Sunil Kumar, CMO. Avtar Singh, Ct. Subhash and Jagjeet Singh along On the same day he also received a sealed parcel with the parcels of various articles sealed with the seal of from Ct. Narinder containing a bullet extracted from the body of Tarun. He also collected the parcel containing the bullet taken out of the left hand of Ct. Sunil Kumar vide memo Ex.PW29/C. He received the articles of Pradeep Goel and cloths of Ct. Subhash. He also received the articles He handed over the belonging to deceased Jagjeet Singh. PW30 SI Girdhari Lal. He was incharge of control room in 1997 and his duty was to supervise the wireless network used by police control room. PW31 SI Anup Singh. He was working at wireless store, New Police Line,
parcels to SHO vide memo Ex.PW29/G on 1.4.1997.
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Kingsway Camp. He handed over the photocopy of the entry in which three devil sets were issued to SI Ashok Rana (accused). PW32 Ct. Netra Singh. He handed over the sealed packets received from the doctor. PW33 Vinod Gandhi S.O. to ACP Chanakya Puri. He took part in investigation on 1.4.1997. PW34 Inspector O. P. Arora. He testified that on 8.4.1997 he handed over five weapons to Inspector A. G. L. Kaul of CBI. PW35 Inspector Rishidev. On the fateful day, he was posted as Additional SHO PS Connaught Place. On receiving the message on wireless set about the shoot out he reached at the spot. He testified that when the Esteem car in question was checked, a pistol was found lying between the door and the driver seat. In cross examination he stated that two empty cartridges were also recovered from the car and glasses of all the four doors were found broken. PW36 Dr. G. D. Gupta, Principal Scientific Officer, CFSL CBI. He signed the report Ex.PW36/A. PW37 Roop Singh, Principal Scientific Officer. He inspected the pistol recovered from the Esteem car.
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He also inspected the Esteem car and gave his detailed report about the entry and exit holes as well as the bullet marks. He also examined the fire arms and the bullets, bullet heads etc. PW38 Dr. V. K. S. Chauhan, Department of Radiology. He testified that he handed over the X-ray plate of injured Ct. Sunil, Ct. Subhash and Tarun to Investigating Officer on 3.5.1997. PW39 H.C. Laxman Singh. He was working as duty officer at PS Connaught Place and recorded the FIR Ex.PW39/A. PW40 ACP Jaipal Singh. He proved the posting orders of the accused persons. PW41 Ct. Samrat Lal. He reached at the spot with Niranjan Singh SHO Connaught Place and took rukka to police station and got the FIR registered. PW42 Inspector Niranjan Singh. He was the SHO PS Connaught Place. On 31.3.1997 he got the information of shoot out vide DD no. 13A Ex.PW42/A at about 2:47 pm. He found a pistol Italian
make lying in the car between driver seat and the door. Accused Inspector Anil Kumar wrote a complaint and handed the same over to PW42. He wrote a rukka Ex.PW42/C and got the FIR registered. He recovered the pistol from the car
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and found that seven live cartridges were loaded in the magazine and one cartridge was stuck in the barrel of the pistol. Two empty cartridges of 7.65 pistol were also lying in the car. The same were also seized. He is the initial I.O. of the present case. He also called the CFSL team who inspected the car. He got the postmortem of the dead bodies and also seized the weapons and the arms and ammunitions from the accused persons. SI Ashok Rana produced one cellular phone recovered from the Esteem car and the same was seized by him. On 2.4.1997 the entire record of the case was handed over by this witness to CBI. In cross examination he testified that all the glass panes of the door of Esteem car were broken. PW43 P. K. Jalal. He was the Joint Secretary in Ministry of Home Affairs. On 1.4.1997 the investigation of the case was entrusted to CBI vide letter Ex.PW43/A. PW44 Ct. Anil Kumar. He was deputed to keep a watch on dead bodies. PW45 Rajiv Gupta. He was a Deputy Manager in M/s Tripati Cylinder. He testified that deceased Pradeep Goel was the Director of the said firm. He testified that on 31.3.1997 Pradeep Goel telephonically called him at his residence. When he reached
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his residence, Pradeep Goel instructed him to go to Tisco Office at Jeevan Tara Building, Parliament Street to deposit Rs.20,000/with Dena Bank in Connaught Place for preparing a bank draft. This witness went to Dena Bank, got a draft prepared and requested the Branch Manager to close the account of M/s Tripati Cylinders. This witness telephoned Pradeep Goel on his mobile phone in Ghaziabad and told him to reach Dena Bank with the check book to be returned to the bank. He testified that Pradeep Goel reached the bank between 1:45 – 2:00 pm in a his car no. UP14F-1580 and Jagjit Singh (deceased) was also sitting in the car. Pradeep Goel parked his car on the road and requested Jagjit Singh to sit on driver seat so that the car may not be towed away by traffic police. Pradeep Goel with this witness went inside the bank and asked Vikram to get his briefcase from the car. When Vikram came back inside the bank, he was accompanied by some boy. Pradeep Goel closed his bank account and came out at 2:20 pm. Pradeep Goel instructed PW45 to go to home. Pradeep Goel sat on the co driver seat and Jagjit Singh drove that car towards Bara Khamba Road. Soon thereafter this witness and Vikram heard sound of fire shots and saw traffic jammed on the road. PW45 and Vikram went towards the place of firing and recognized the car and found the body of Jagjit Singh lying out of the car but his one leg was inside the car. He
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however did not find Pradeep Goel inside the car rather he was lying on the road at a distance of 2 or 3 feet from the car. The dead bodies were taken by Gypsy to the hospital and PW45 accompanied them. Thereafter he went to public call booth and informed the brother of Pradeep Goel. He further testified that he saw all the glasses of the car broken except the glass on the side door of driver seat. PW46 S. K. Chadha, Senior Scientific Officer, CFSL. He testified that non identifiable chance print were found on the pistol recovered from the car. PW47 Dr. Rajender Singh, Senior Scientific Officer, Grade 1. He examined the bunch of hair and opined that sharp edges cuts of hair can be caused by grazing of bullet. PW48 C. B. Verma, Deputy Secretary, Government of Delhi. He proved the sanction under Section 197 CrPC accorded by Lt. Governor to prosecute the accused persons. The sanction order is Ex.PW48/A. PW49 SI Ram Datt. In April 1997 he was posted as ASI at police station City Thanesar, District Kurukshetra, Haryana. On 5.4.1997 Didar Singh, the brother of deceased Jagjit Singh came to the police station and produced one lead piece (Chala Hua
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Sikka) and told him that it was recovered from the ashes of deceased Jagjit Singh. He seized the same vide memo Ex.PW49/A. CBI took in possession the said lead piece vide memo Ex.PW49/D on 11.4.1997. PW50 Ct. K. K. Rajan. He was on duty in the PCR van headed by PW13 ASI Omvir. PW51 Ct. Rajenderan Pillai. On 31.3.1997 he was on duty in a PCR Van of which ASI Ombir Singh was incharge. This PCR Gypsy reached at the spot soon after the incident and took the injured persons to RML Hospital. PW52 Varun Bhattacharya, Inspector CBI. On 10.4.1997 he went to RTO Ghaziabad and obtained a certified copy of registration of the Esteem car. The copy of registration certificate is Ex.PW9/1. The car was found registered in the name of M/s Tirupati Standard.
PW53 D. S. Srivastav, Senior Scientific Officer, CFSL, CBI. He gave his report about the groups of blood and compared the same with the clippings of the articles. report is Ex.PW36/B. PW54 Ct. Jayvir. His
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He was a driver on the official vehicle of ACP S. S. Rathi. He proved the log book of the vehicle. However on the said date this witness was not driving the vehicle of the ACP S. S. Rathi. However he came to know about the firing incident and therefore he along with Ct. Jogender Singh reached Connaught Place on a motorcycle. PW55 Shiv Mohan. He runs a stall of Pan/Cigarette in Connaught Place but this witness did not support the prosecution case. PW56 Vijender Kumar. He was working as Ahlmad in the Court of Sh. R. C. Yaduvanshi, Ld. Additional Sessions Judge. He testified that a certificate was issued by the court that on 31.3.1997 accused S. S. Rathi might have been present in the court till 12:15 pm. The certificate is Ex.PW56/C. PW57 SI Sunil Kumar. On getting the information of firing he along with Yashpal reached at the spot and took part in investigation being carried out by SHO PS Connaught Place. PW58 Ct. Tribhuvan. He took the injured Avtar Singh to RML Hospital. PW59 Inspector Ranbir Singh Shekhawat, CBI. He took part in investigation conducted by Inspector A. G. L. Kaul.
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PW60 Vijender Gandhi. He is an official of Bharti Cellular Ltd. On the request of CBI, he gave prints out of the mobile phones. PW61 Anil Kumar Ohri, Additional S.P. CBI. He recorded the statement of Dinesh Chand Gupta on 21.4.1997. PW62 SI Ombir Singh. He took part in investigation conducted by SHO Connaught Place and he is witness to the two Maruti cars and one Gypsy used by accused. PW63 HC Raghuraj Singh. He recorded FIR Ex.PW42/N. PW64 Gautam Roy, Senior Scientific Officer, CBI. He took photographs of the car from various angles as well as of the place of occurrence. PW65 Surender Pal, Additional S.P. CBI. He seized the photographs of Jagjit Singh vide seizure memo Ex.PW5/A. PW66 HC Prem Chand, PS Thanesar City. He testified that deceased Jagjit Singh had no criminal recorded nor he posses any fire arm license. However his father Sh. Niranjan Singh has been licensed for two weapons. PW67 Shah Nawaj Khan, Senior Photographs Statesman Newspaper.
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He testified that on hearing the firing, he and another photographer Shahid rushed with his equipments to the spot and took photographs of the car. He proved the photographs Ex.P1/1 to Ex.P1/14. PW68 Dr. K. N. Srivastava. He proved the file of treatment given to Tarun. The file is Ex.PW68/1. He also proved the file of treatment of Ct. Sunil Kumar, which is Ex.PW68/2. PW69 Ram Niwas, record clerk, RML Hospital. He proved the MLC prepared by Dr. Vikas Tandon. The same is Ex.PW69/1. PW70 Mohd. Yaseen. He was the wanted criminal. He testified that he was using a mobile phone no. 9810071368. On 31.3.1997, he received a call from one Hafiz and he asked Hafiz to meet him at about 1:00 or 1:30 pm near Mother Dairy, Parparganj. He testified that they met at the crossing of Mother Dairy and went away in the Maruti Esteem Car of blue colour, which this witness was using at that time. He testified that this car had a registration number of U.P. He also stated that he escaped from judicial custody but has been apprehended again. He also admitted that he was involved in two criminal cases of serious nature and that he was a convict a murder case in M.P. and was undergoing a sentence of life imprisonment. However he escaped from
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custody from the court premises on 24.2.2003 in Aligarh. PW71 Than Singh. He was working as Chief Security Officer at Gopal Dass Bhawan near the spot but he did not support the prosecution case. He however admitted that a pistol and seven live cartridges and two spent cartridges were found in the Esteeme Car. He testified that All the window glasses of the car were broken. PW72 Inspector Sunit Kumar Sharma, CBI. He took part in investigation. On 11.4.1997 he went to Kurukshetra and seized a photo copy of partnership deed Ex.PW8/A. He took the sealed container containing the bullet lead from ASI Ram Datt. On 24.4.1997 he recorded statement of a few witnesses. PW73 Qamar Ahmad. He was posted as DCP Crime at that time. He testified that one criminal Mohd. Yasin was wanted in many criminal cases in Delhi and U.P. In one case he was wanted in a murder of one Saud Alam and many teams of Delhi Police were working to nab him. He testified that ACP S. S. Rathi was incharge of Inter State Cell, Crime Branch and was developing the information regarding the movement of Mohd. Yasin. In the end of March 1997 PW73 received the information on 31.3.1997 at abut 1/1:30 pm telephonically of proposed movement of Mohd. Yasin in Delhi and that
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accused Inspector Anil Kumar has been detailed to keep watch on the movement of Mohd. Yasin and in case he comes to Delhi efforts would be made to nab him. At 2:40 pm he came to know about the shoot out and immediately reached the spot. He proved the file containing the report of S. S. Rathi as Ex.PW40/8. On the request of DIG CBI, he sent various records for example deployment of the police officials, commandos, log books of Gypsy and the register regarding issue of weapon. He testified that a reward of Rs.50,000/- was announced for the arrest of Mohd. Yaseen. In cross examination he admitted that Mohd. Yaseen was a desperate and ruthless criminal. He further testified that there was no conspiracy to kill Mohd. Yaseen. Inspector Anil Kumar had demanded reinforcement. He He further testified that ACP S. S. Rathi informed him that testified that he directed ACP Rathi to rush personally with the staff to nab Mohd. Yaseen. He also testified that when accused Mohd. Yaseen was arrested later on, a fire arm was recovered from him. PW74 Inspector A. G. L. Kaul, CBI. He is the Investigating Officer of the case. As per his investigation, the window glass of driver side of the Esteem car was intact. This proves that no shot was fired from inside the car. As per his investigation the pistol, cartridges
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and two spent cartridges (which were recovered from the Esteem car by SHO PS Connaught Place) were planted by the accused persons. He also found that the rim of the left side front door was having three bullet marks. This was possible only if bullets are fired directly after opening the window. Moreover, the tyres of the Esteem car were found in tact having no bullet marks. VINOD KUMAR ADDL. SESSIONS JUDGE NEW DELHI.
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