# SATYAVIR SINGH RATHI v. STATE THR. C.B.I

- **Citation:** [2011] 6 S.C.R. 138
- **Court:** Supreme Court of India
- **Decided:** 2011-05-02
- **Case number:** Criminal Appeal No. 2231 of 2009
- **Bench:** Harjit Singh Bedi, Chandramauli Kr. Prasad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satyavir-singh-rathi-v-state-thr-c-b-i-27813
- **Pages:** 72

## Headnote

Penal Code, 1860:
ss. 302134, 307134, 193, 201134 and 203134 - Police
shoot out - Two innocent citizens killed in mistaken identity
of a hardcore criminal and third one grievously injured - FIR
by father of one of the deceased, against police personnel -
0 Investigation by CBI - Conviction by trial court u/ss 3021120B and 3071120-B of ten police officials - Two of them further
convicted u/ss 193, 201134 and 203134 -High Court
convicting the accused ulss 302 and 307 with the aid of s.34
and maintaining the sentence of imprisonment for life -
Conviction of two accused u/ss 193, 201134 and 203134 also
E maintained - HELO: It has been established that the police
party surrounded the car of the victims and fired
indiscriminately at the car due to which two occupants died
and the third one grievously injured - The defence that the
one of the occupants of the car, when asked to come out, fired
F at the police party which thereafter opened fire in self-defence
has not been supported by the evidence on record - Though
the prosecution is bound to prove its case beyond reasonable
doubt, obligation on an accused uls 105 of Evidence Act is
to prove it by preponderance of probabilities - The trial court
G and the High Court have accordingly opined on the basis of
the overall assessment that the defence version was a
concoction and that the prosecution story that it was the
unprovoked firing by the appellants which had led to the death
of the two persons and grievous gun shot injuries to the other
H
138
SATYAVIR SINGH RATH! v. STATE THR. C.B.I.
139
had been ptoved on record - Therefore, High Court rightly A
convicted the accused u/ss 302134, 307134- Evidence Act,
1872 - s.105 - Code of Criminal Procedure, 1973 - ss. 313
and 386(b)(ii).
s.300 - Exception 3 - Death caused by public servants
- Police shoot out - Two innocent citizen killed in mistaken
8
identity of a hardcore criminal - HELD: The Exception presupposes that a public servant who causes death must do so
in good faith and in due discharge of his duty - The accused
police officials fired without provocation killing two innocent C
persons and injuring grievously the third one - Trial court and
High Court rightly rejected the defence.
s. 34 -
Common intention -
Police shoot out - A
notorious criminal being tracked by police party - A person
resembling the criminal, spotted and he along with his two
D
friends in the car followed by police personnel - More police
force requisitioned - At the place of incident both the police
parties joined together in indiscriminate firing resulting in
death of two occupants of the car and grievous injuries to the
third one - HELD: The courts below have observed that E
keeping in mind the background in which the incident happed
it was pursuant to the common intention to kill the notorious
criminal - The High Court was, therefore, justified in holding
that in the light of the facts, it was not necessary to assign a
specific role to each individual accused as the firing at the
F
car was undoubtedly with a clear intention to annihilate those
in it and was resorted to in furtherance of the common
intention of all the accused.
ss. 79 and 34 - Police shoot out -
Ten police officials
prosecuted for two murders - Plea of some of the accused
G
that they acted on the directions of superior officer - HELD:
There is absolutely no evidence that the firing had been
resorted to by seven accused on the direction of the senior
officer, but it was pursuant to the common intention of all the
H
140
SUPREME COURT REPORTS
(2011) 6 S.C.R.
A accused that the incident had happened- s.315 CrPC makes
an accused a competent witness in his defence - The
accused did not choose to come into the witness box to
support their plea - Code of Criminal Procedure, 1973 -
s.315.
B
Code of Criminal Procedure, 1973:
s.386(b)(ii) read with s.220- Power of appellate court to
alter the finding of trial court while maintaining the sentence
- Charge framed by trial court u/ss 3021120-B and 3071120

## Text

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A
B
c
[2011] 6 S.C.R. 138
SATYAVIR SINGH RATHI
v.
STATE THR. C.B.I.
(Criminal Appeal No. 2231 of 2009)
MAY 2, 2011
[HARJIT SINGH BEDI AND CHANDRAMAULI KR.
PRASAD, JJ.]
Penal Code, 1860:
ss. 302134, 307134, 193, 201134 and 203134 - Police
shoot out - Two innocent citizens killed in mistaken identity
of a hardcore criminal and third one grievously injured - FIR
by father of one of the deceased, against police personnel -
0 Investigation by CBI - Conviction by trial court u/ss 3021120B and 3071120-B of ten police officials - Two of them further
convicted u/ss 193, 201134 and 203134 -High Court
convicting the accused ulss 302 and 307 with the aid of s.34
and maintaining the sentence of imprisonment for life -
Conviction of two accused u/ss 193, 201134 and 203134 also
E maintained - HELO: It has been established that the police
party surrounded the car of the victims and fired
indiscriminately at the car due to which two occupants died
and the third one grievously injured - The defence that the
one of the occupants of the car, when asked to come out, fired
F at the police party which thereafter opened fire in self-defence
has not been supported by the evidence on record - Though
the prosecution is bound to prove its case beyond reasonable
doubt, obligation on an accused uls 105 of Evidence Act is
to prove it by preponderance of probabilities - The trial court
G and the High Court have accordingly opined on the basis of
the overall assessment that the defence version was a
concoction and that the prosecution story that it was the
unprovoked firing by the appellants which had led to the death
of the two persons and grievous gun shot injuries to the other
H
138
SATYAVIR SINGH RATH! v. STATE THR. C.B.I.
139
had been ptoved on record - Therefore, High Court rightly A
convicted the accused u/ss 302134, 307134- Evidence Act,
1872 - s.105 - Code of Criminal Procedure, 1973 - ss. 313
and 386(b)(ii).
s.300 - Exception 3 - Death caused by public servants
- Police shoot out - Two innocent citizen killed in mistaken
8
identity of a hardcore criminal - HELD: The Exception presupposes that a public servant who causes death must do so
in good faith and in due discharge of his duty - The accused
police officials fired without provocation killing two innocent C
persons and injuring grievously the third one - Trial court and
High Court rightly rejected the defence.
s. 34 -
Common intention -
Police shoot out - A
notorious criminal being tracked by police party - A person
resembling the criminal, spotted and he along with his two
D
friends in the car followed by police personnel - More police
force requisitioned - At the place of incident both the police
parties joined together in indiscriminate firing resulting in
death of two occupants of the car and grievous injuries to the
third one - HELD: The courts below have observed that E
keeping in mind the background in which the incident happed
it was pursuant to the common intention to kill the notorious
criminal - The High Court was, therefore, justified in holding
that in the light of the facts, it was not necessary to assign a
specific role to each individual accused as the firing at the
F
car was undoubtedly with a clear intention to annihilate those
in it and was resorted to in furtherance of the common
intention of all the accused.
ss. 79 and 34 - Police shoot out -
Ten police officials
prosecuted for two murders - Plea of some of the accused
G
that they acted on the directions of superior officer - HELD:
There is absolutely no evidence that the firing had been
resorted to by seven accused on the direction of the senior
officer, but it was pursuant to the common intention of all the
H
140
SUPREME COURT REPORTS
(2011) 6 S.C.R.
A accused that the incident had happened- s.315 CrPC makes
an accused a competent witness in his defence - The
accused did not choose to come into the witness box to
support their plea - Code of Criminal Procedure, 1973 -
s.315.
B
Code of Criminal Procedure, 1973:
s.386(b)(ii) read with s.220- Power of appellate court to
alter the finding of trial court while maintaining the sentence
- Charge framed by trial court u/ss 3021120-B and 3071120C B and alternative charge u/ss 302134 and 307134 - Conviction
by trial court uls 3021120-B, 3071120-B, 1931120-B, altered by
High Court to s.302134, 307134, 193134, while maintaining the
sentence - HELD: Justified -Charges had been framed in the
alternative and for cognate offences having similar ingredients
D as to the main allegation of murder - In the instant case, the
relevant provision is s.38(b)(ii), which empowers the High Court
to alter the finding while maintaining the sentence - Besides,
accused were aware of all the circumstances against them -
Penal Code, 1860 - ss.302134, 307134, 193134.
E
s.313 - Examination of accused - HELD: Prejudice must
be shown by an accused before it can be said that he was
entitled to acquittal over a defective and perfunctory statement
uls 313 - In the instant case, all the accused police officials
filed their written statements but no objection had been raised
F as to defective 313 statements in the trial court - Penal Code,
1860 - ss.302134, 307134, 193134.
s.197 - Sanction for prosecution of police personnel
involved in shoot out - HELD: It has come in evidence that
G request of CBI for according sanction for prosecution of
accused, alongwith the documents, was referred to Law
Department, then to Home Department, to Chief Secretary
and finally to Lt. Governor, who granted the sanction -
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I.
141
.-
4dequate material for sanction had been made available to
A
the sanctioning authority.
Delhi Police Act, 1978:
s. 140 - Prosecution of police officials for causing death
8
of two persons in a police shoot out - Umitation for - HELD:
The date of cognizance taken by the Magistrate would be ·the
date for the institution of the criminal proceedings - However,
a case of murder would not fall within the expression 'colour
of duty' - s. 140 would, therefore, have no relevance to the
case.
One 'MY', a hardcore criminal, wanted by the Delhi
Police and the police of other States in several serious
criminal cases, was being tracked by the Inter-State Cell
c
of the Crime Branch of the Delhi Police. A-1, the Assistant o
Commissioner of Police and In-charge of the Inter-State
Cell of the Crime Branch, received information that 'MY'
would be visiting the place near Mother Dairy, Patparganj,
Delhi at about 1.30 p.m. on 31.3.1997. A-2, the Inspector
of the Crime Branch was detailed by A-1 to keep a watch
E
near the said Mother Dairy booth. Two youngmen,
namely, 'JS' (deceased-1) and PW-26 had come from
Haryana to the area at about the same time to meet their
friend 'PG' (deeased-2) who had his office near Mother
Dairy. But as 'PG' was not in the office, and would be
reaching there within a short time, PW-26 and 'JS' went
F
to Mother Dairy and after buying Ice-cream were waiting
for 'PG'. A-2 who had a photo of 'MY' with him spotted
'JS' and PW-26 at 1.30 p.m. near Mother Dairy and as 'JS'
resembled 'MY', he was mistaken by A-2 as 'MY' and he
called for reinforcement from A-1, the ACP, who In turn
G
along with a police party of 12 police personnel armed
with service weapons left to assist the police team led by
A-2. Meanwhile on PG's arrival the three friends, namely
PW 26, 'JS' and 'PG' left for connaught place in blue
H
142
SUPREME COURT REPORTS
[20t1] 6 S.C.R.
A Marutl Esteem Car bearing No. UP-14-F-1580 belonging
to 'PG'. The police party led by A-2 followed them. Since
'PG' had some work in Dena Bank he went inside the
Bank. When he came out, he sat on the front seat and PW
26 sat on the rear seat. 'JS' drove the car towards
B Barakhamba Road and when they stopped at the red
light, both the police parties led by A-2, the Inspector, and
A-1, the ACP, surrounded the car and fired from almost
all the sides killing 'PG' and 'JS' instantaneously and
causing grievous injuries to 'PW 26'. On receiving
c information of the shoot out, PW-42, the SHO, Connaught
Place and other police officials reached the place of
incident. He recovered a 7.65 mm pistol loaded with 7 live
cartridges, a misfired cartridge in the breach and two
spent cartridge cases of 7.65 mm bore inside the car. AD 2 handed him over a written complaint stating that after
the car had stopped at the red light, he knocked at the
driver's window asking the occupants to come out, but
'JS' fired at the police party from inside the car resulting
in gun shot injuries to two Constables A-9 and A-8 and
that it was thereafter that the police personnels opened
E fire at the car with a view to immobilizing the occupants
and to prevent their escape. Consequently, FIR No. 448/
97 for offences punishable u/ss 186/353/307 IPC and 25
of the Arms Act was registered against the occupants of
the car .•
F
The following day, the father of deceased 'PG' made
a complaint to the Lt. Governor on which another FIR No.
453/97 was registered against the police personnel
involved in the shoot out for an offence punishable u/s
G 302/34 IPC. Later, the investigation was entrusted to CBI.
H
The trial court framed charges against 10 police officials
and found all of them guilty of the offences punishable
inter alia, u/ss 120-8, 3021120-B, 307/120-B IPC and
sentenced them to life imprisonment. A-1 and A-2 were
SATYAVIR SINGH RATHI v. STATE THR. C.B.I.
143
further convicted u/ss ~93, 201/34 and 203/34. IPC. On
A
appeal, the High Court held that conviction of appellants
u/s 302/120-B IPC could not be sustained and insted
convicted all of them, u/ss 302 and 307 with the aid of s.34
IPC and sentenced each of them to imprisonment for life.
Conviction of A-1 and A-2 u/ss 193, 201/34 and 203/34 IPC
B
was also maintained. Aggrieved, the accused police
officials filed the appeals.
Dismissing the appeals, the Court
HELO: 1. Several facts appear to be admitted on
C
· record but are compounded by a tragedy of errors. These
relate to the place and time of incident, the presence of
the appellants duly armed with most of them having fired
into the car with their service weapons, that 'MY' was
admittedly a notorious criminal and that 'JS' (deceased)
D
had been mistaken by A-2 for 'MY', and that deceased 'PG'
owned a blue Esteem Car with an Uttar Pradesh number
plate, and had his office in Patparganj near the Mother
Dairy Booth. Further, A-2 and his two associates had
followed the car driven by 'PG' to the Dena Bank Branch
E
at Connaught Place and it was after 'PG' and the others
had left the Dena Bank premises and were near the
Barakhamba Road crossing that the two police parties,
one headed by A-2, and the other by A-1, had joined
forces and surrounded the car as it stopped at a red light,
F
and had fired into it killing two persons and injuring one.
[para 11) [176·F·H: 177-A·B]
2.1. The case of the defence that after the car had
been surrounded, A-2 had knocked at the driver's
window asking the occupants to come out but instead G
of doing so 'JS' had fired two shots at the police which
had led to a fusillade in self defence, cannot be accepted
in view of the evidence on record. [para 11] [177-B-C]
H
144
SUPREME COURT REPORTS
[2011] 6 $.C.R.
A
2.2. It is true that it Is not always necessary for the
accused to plead self· defence and If the prosecution
story itself spells it out, it would be open to the court to
examine this matter as well. (para 11) (177-C·F]
B
Mohan Singh & Anr. vs. State of Punjab 1962 Suppl.
SCR 848 = AIR 1963 SC 174; Javed Masood & Anr. vs.
State of Rajasthan 2010 (3) SCR 236 = 2010 (3) SCC 538,
relied on.
2.3. It must also be observed that though the
C prosecution is bound to prove its case beyond
reasonable doubt, the obligation on an accused u/s. 105
of the Evidence Act, 1872 is to prove it by a
preponderance of probabilities. [para 11) [177-G·HJ
o
2.4. PW 13 and another witness 'AS' did state that a
single shot had been followed by multiple shots
thereafter. 'AS', however, apparently did not receive a
bullet injury as the simple abrasion on him had been
apparently caused by a flying splinter from the tarmac but
E there is extremely independent evidence on this score as
well. However, PW-1, the Chief Photographer of the
Statesman Newspaper, which has its office adjacent to
the red light on Barakhamba Road, deposed that on the
31-03-1997 at about 2 • 2.30 p.m. while he was sitting in
F his room along with his colleagues, PWs 2 and 67 and
another person, they had heard the sound of firing from
the Barakhamba Road side and that he along with the
other PWs had come out to the crossing along with their
camera equipment and saw a blue Esteem Car standing
there with two bodies lying alongside and one injured
G person sitting on the road with a large number of police
men, including some in mufti, present. He stated that on
his directions PWs 2 and 67 took a large number of
photographs of the site and 14 of them were also
produced as Exs. P-1 to P-14. He further stated that a
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I.
145
reporter of the Statesman had also been present. PW-2
A
and PW-67 supported the story given by PW-1. He also
proved the photograph marked Ext. 'X' which shows that
the driver's window was intact. It has come in the
evidence of PW-26 that the car A.C. was on when the
firing took place and the windows had been drawn up.
B
[para 12] [178-A-H]
2.5. Likewise, it is also to be seen that had the shots
been fired through the driver's window or the windshield
some powder residues would have been left around the C
bullet holes as the shots would have been fired from
almost a touching distance. PW-37 from the Central
Forensic Science Laboratory, who had examined the car
very minutely, detected no such residue and also testified
that the appreciable powder distance of a 7 .65 mm pistol
could be one to two feet but would depend on the sitting D
posture of the person firing. He also stated that in all at
least 29 bullet holes had been detected on the car of 9
mm, 7.62 mm and .380 calibre weapons and that most of
the seven exit holes in the car could have been caused
by bullets fired from the rear and left side into the car and
E
exiting thereafter, although the possibility of an exit hole
being caused by a bullet fired from inside the car could
also not be ruled out. He further pointed out that as the
bullet fired at Constable A-8 remained embedded in his
body a11ct had not been taken out for medical reasons, it F
ws& not possible to give an opinion whether it was a
bullet of 7.65 mm calibre. [para 12] [178-H; 179-A-D]
2.6. The defence story that Constables A-9 and A-8
had suffered injuries on account of the firing of two shots G
from inside the car, is further belied by the medical
evidence. PW-16, the doctor, who carried out the medico
tegal examination of C•>nstable A-8 (Ext.PW16/B), found
three bullet injuries on his person, which indicated
blackening. Thc~e injuries could not have been caused
H
146
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A by firing from inside the car as the blackel'.'ling from a
pistol would be, at the most, from a foot or two. Likewise,
PW-17 the doctor, who had examined Constable A-8, also
found three separate gun shot injuries on his person. He
also produced in evidence his treatment record (Exbt.
B PW17/B). This doctor was not even cross-examined by
the prosecution. It needs to be emphasized that all the
weapons used in the incident fired single projectiles (i.e.
bullets), whereas the distance between the gun shot
injuries on the two injured policemen show at least 3
c different wounds of entry on each of them. On the
contrary, it appears that the injuries suffered by them
were caused by the firing amongst the policemen as they
had surrounded and fired into the car indiscriminately and
without caution ignoring that they could be a danger to
0 themselves on cross-fire on uncontrolled firing. It has, in
fact, been pointed out that A-1 had written to his
superiors pointing to the ineptitude of his team of officers
but he had been told that no other staff was available.
[para 12] [179-0-H; 180-A-B]
E
2.7. In this background, the evidence of PWs 1, 2 to
7 and the two Constables PWs 50 and 51, becomes
extremely relevant. The ASI, PW-13, who was the Officer
In-Charge of the PCR Gypsy parked near the Fire Station
Building adjoining Barakhamba Road, had undoubtedly
F supported the defence version that a single shot had
been followed by a volley. PWs 50 and 51, the two
Constables, who were present along with ASI PW-13,
categorically stated that they had not heard any single fire
and it was only the continuous firing that had brought
G them rushing to the site and having reached there, they
had taken the three victims to the ftM.L. Hospital. Their
story Is corroborated by the evidence of the three
newspaper employees. PW-26 was also categoric that no
shot had been fired from inside the car. The story
H
SATYAVIR SINGH RATH! v. STATE THR. C.B.I.
147
therefore that 'JS' had fired at the police party when A
accosted is, therefore, on the face of it, unacceptable. In
this overall scenario even if it is assumed that the driver's
window had been found broken as contended by the
defence, it would still have no effect on the prosecution
story. [Para 12] (180-B-F]
B
2.8. As regards the recovery of the 7 .65 mm bore
pistol allegedly used by 'JS' first and foremost, it appears
that even prior to the arrival of the SHO, PW-42, the Car
had already been searched and the site violated, as a cell C
phone belonging to one of the victims had been picked
up by appellant ASI 'A· 3' and handed over to the SHO.
The fact that undue interest had been taken by the
offending police officials is also clear from Ext. P/10 a
photograph showing A-3 looking into the car. More
significantly, however, PW-12, the official Photographer D
of the Delhi Poliee, took two photographs (Ext. PW12/28
and PW12/29) of the driver's seat from very close range
but they show no pistol or empty shells. Even more
significantly A-1 submitted a detailed written report
(Ext.D.16/8) on 1.4.1997 to his superior officer in which he E
talks about the firing by 'JS' but makes no mention as to
the recovery of a pistol from the car although as per the
defence story the weapon had been picked up by the
SHO soon after the incident. Likewise, in the report Ext.
PW-42/C lodged by the appellant A-2 with the Connaught F
Place Police immediately after the incident, there js no
reference whatsoever to the presence of a 7.65 mm pistol
in the car. It is also relevant that the pistol had been sent
to the Central Forensic Science Laboratory but PW-46,
who examined the weapon, could find no identifiable G
finger prints thereon. [Para 13] [180-G-H; 181-A-D]
2.9. The cumulative effect of the evidence adduced
reveals the starkly patent fact that the defence story
projected was a palpably false one and the police officials H
148
SUPREME COURT REPORTS
[2011) 6 S.C.R.
A involved having realized almost immediately after the
incident (perhaps on questioning PW-26 that they had
made a horrific mistake, immediately set about creating
a false defence. The trial court and the High Court have
accordingly opined on the basis of the overall
B assessment that the defence version was a concoction
and that the prosecution story that it was the unprovoked
firing by the appellants which had led to the death of the
two deceased and grievous gun shot injuries to PW-26,
had been proved on record. [Para 14] [181-A-G]
c
3.1. It can not be said that the accused were entitled
to claim the benefit of Exception 3 to s. 300 IPC. This
Exception pre-supposes that a public servant who
causes death, must do so In good faith and in due
discharge of his duty as a public servant and without illD will towards the person whose death is caused. In the
light of the fact that the positive case set up by the
defence has been rejected by the trial court, the High
Court as well as by this Court, the question of any good
faith does not arise. On the contrary, the appellants had
E fired without provocation at the Esteem Car killing two
innocent persons and injuring one. The obligation to
prove an exception Is on the preponderance of
probabilities but it nevertheless lies on the defence. Even
on this touchstone the defence cannot succeed. [Para
F 15] [181-G-H; 182-A-C]
3.2. It is true that the High Court has acquitted the
appellants of planting the 7.65 mm bore pistol in the car.
However, this acquittal has been rendered only on the
G ground that it was not possible to pinpoint the culprit who
had done so. This can, by no stretch of imagination, be
taken to mean that the story that the pistol had been
planted in the car has been disbelieved by the High
Court. Though, the recovery of the 7 .65 mm weapon
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I.
149
appears to be an admitted fact, but with the rider that it A
had been planted to help the defence. [Para 15) [182-C·
F]
Mohan Singh & Anr. vs. State of Punjab 1962 Suppl.
SCR 848 =AIR 1963 SC 174; and James Martin vs. State · B
of Kera/a 2004 (2) SCC 203; and Javed Masood & Anr. vs.
State of Rajasthan 2010 (3) SCR 236 = 2010 (3) SCC 538
- held inapplicable.
4.1. As regards the plea that CBI conducted a
partisan and motivated investigation, it is true that all C
witnesses have not been examined but in the
circumstances this was not necessary. It will also be seen
that as per the prosecution story, appellants. A-9 and A-8
had been caused injuries by shots fired from the weapons
of Head Constable A-5 and the Constable A-10. As per D
the report of the CFSL Ext.P/37F, the bullet recovered
from the person of A-9 had been fired from the .380
revolver of A-5 and as per the evidence of PW-37, the
possibility that the metallic bullet which was embedded
on the person of A-8 could be the steel core portion of a
E
shattered 7.62 mm bullet of the weapon of A-10. PW-37
stated in his examination-in-Chief that he had received
parcel no. 12 and when he opened it, he found one .380
calibre bullet and no other object therein and he resealed
the bullet in the parcet It appears from the evidence of F
PW-37 that parcel No.12 was again opened in Court and
at that stage it was found to contain not only a .380
calibre bullet but also one fired 7.65 mm bullet. The
witness, however, stated that when the parcel had been
received by him in the Ballistics Department from the G
Biology Department of the Laboratory, the 7.65 mm bullet
had not been in it. In the light of the fact that the trial court
and the High Court have already held (and also held by
this Court) that no shot had been fired from inside the car
from the 7.65 mm pistol, the possibility of a 7;65 mm bullet
H
150
SUPREME COURT REPORTS
[2011f 6 S.C.R.
1
A being in the parcel become~ suspect. In any case, the
1
creation of some confusion vis-a-vis the bullets, is a
matter which would undoubtedly help the defence and a
presumption can thus be raised that this had been stage '
managed by the defence. This aspect too cannot be
B ignored. [Paras 16, 18 and 19) [183-F-G; 184-A-C; F-H;
185-A]
3.2. So far as the recovery of a bullet from the ashes
of deceased 'JS', is concerned, the High Court has
C rejected the prosecution story by observing that the trial
court had ignored the evidence on this score as PW-8,
the brother of deceased 'JS' had nowhere stated that he
had picked up a bullet from the ashes and handed it over
to the Sub-Inspector and more particularly as the two
doctors who had X-Rayed the dead body had found no
D trace of bullet. This Court endorses the finding of the High
Court in the light of the uncertain evidence on this score,
but to allege that the CBI officials had a hand in planting
the bullet is unwarranted. [para 20] [185-C-G]
E
4.3. It must be seen that the police party comprised
15 personnel. Only 10 who played an active role had
been prosecuted. This background points to a fair
investigation. Therefore, no fault whatsoever can be
found in the investigation made by the CBI. [Para 20] [186F B·C]
5.1. As regards the primary plea of absence of
common intention in causing the murders, admittedly,
the target was 'MY', concededly a notorious criminal with
a bounty on his head, as he had been involved in a large
G number of very serious criminal matters. The incident
happened on account of a mistake as to the identity of
'JS' who could pass off as a Muslim and it is nobody's
case that the police party had intended to eliminate 'JS'
and his friends. The courts below have been very clear
H on this score and have observed that keeping in mind
SATYAVIR SINGH RATH! v. STATE THR. C.B.I.
151
was not the outcome of an act in self-defence but was
A
pursuant to the common intention to kill 'MY'. As to the
role of A-1 and A-2, the High Court has found that it was
A-1 who was the leader of the police party in his capacity
as the A-1 and, therefore, it was not necessary for him to
be in the forefront of the attack on the Esteem car and AB
2 who had admittedly knocked at the window could be
treated likewise as being the next officer in the hierarchy.
The site plan indicates that A-1 was sitting in his Gypsy
about 15 meters away from the car when the incident
happened. It has come in evidence that when A-2 had . c
conveyed the fact of presence of 'JS' and PW-26 af the
Mother Dairy Booth at Patparganj, A-1 had got together
a police party of heavily armed officers, briefed them, and
they had thereafter moved on to Connaught Place. It has
been found as a matter of fact that when A-2 had followed
0
the Car to the Dena Bank, 'JS' had been left behind in the
car alone for quite some time but A-2 and his two
associates had made absolutely no attempt to apprehend
him at that stage or to counter check his identity though
A-2 had MY's photograph with him. Even more
significantly A-2 made no attempt to identify 'PG' or PWE
26 whatsoever, although admittedly he was in close
wireless contact with A-1. This is the pre-incident conduct
which is relevant. [Para 23) [187-A-H; 188-A-B]
5.2. The facts as brought reveal a startling state of
F
affairs during the incident. The case of the defence that
the car had been surrounded to immobilize the inmates
and to prevent them from escaping and that it was with
this intention that A-2 had knocked on the driver's
window asking the inmates to get out but he had been
G
answered by firing from inside the car, has already been
rejected. Moreover, PW-37 testified that there were no
bullet marks on the tyres and they remained intact even
after the incident, despite 34 shots being fired at the car,
and 29 bullet holes, most of them of entry, thereon. On
H
152
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A the other hand, the appellants presupposed that one of
the Inmates was 'MY', the wanted criminal and that the
firing was so insensitive and indiscriminate that some of
the shots had hit A-8 and A-9. [Para 23) [188-B-E]
8
5.3. The post-facto conduct of the appellants Is again
relevant. A·2 gave a report on the 01-04-1007 immediately
after the incident, which was followed by a report by A-1
the next day giving the counter version. This has been
found to be completely untenable. The High Court was,
C therefore, justified in holding that in the light of the facts,
it was not necessary to assign a specific role to each
individual appellant as the firing at the Car was
undoubtedly with a clear intent to annihilate those In it
and was resorted to in furtherance of the common
intention of all the appellants. [Para 23) (188-E-G]
D
5.4. The appellants were, therefore, liable to
conviction u/ss 302/34 etc. of the IPC. [Para 24) [189-E·F]
Abdul Sayeed Versus State of M.P. 2010 (10) SCC 259
E • relied on.
6. So far as the argument with regard to the deemed
acquittal theory of the appellants for the offence u/ss 302,
307 read with s. 34 IPC by the trial court is concerned, it
is pertinent to note that the trial court had framed a
F charge u/ss. 302 and 307 read with s. 120-B IPC and an
alternative charge u/ss. 302 and 307 read with s. 34 IPC
but without opining on the alternative charge, convicted
the appellants u/ss. 302 and 307 read with s. 120-B IPC.
The charges had indeed been framed in the alternative
G and for cognate offences having similar ingredients as to
the main allegation of murder. Section 386 Cr.P.C. refers
to the power of the appellate court, and the provision In
so far relevant for the purpose of this case, Is sub-clause
(b) (ii) which empowers the appellate court to alter the
H finding while maintaining the sentence. It Is significant
SATYAVIR SINGH RATHI v. STATE THR. C.B.I.
153
that s.120·8 IPC is an offence and positive evidence on
A
this score has to be produced for a successful
prosecution whereas s. 34 does not constitute an offence
and is only a rule of evidence and inferences on the
evidence can be drawn. Therefore; the question of
deemed acquittal in such a case where the substantive
B
charge remains the same and a charge u/s 302/1208 arid
an alternative charge u/s 302/34 IPC had been framed,
there was nothing remiss in the High Court in modifying
the conviction to one u/ss. 302/307/34 IPC. It is also self·
evident that the accused were aware of all the c
circumstances against them. [Para 25 and 27) [189-F-H;
191-F-H; 192-A-8]
Lachhman Singh & Ors. Vs. The State 1952 SCR 839 =
AIR 1952 SC 167; and Dalbir Singh vs. State of U.P. 2004
(5) sec 334 - relied on
D
Sangaraboina Sreenu vs. State. of A.P. 1997 (3) SCR
957 = 1997 (5) SCC 348; and Lakendra Singh vs. State of
M.P. 1999 sec (Crl) 371 stood overruled.
E
Bimla Devi & Anr. vs. State of J & K 2009 (7 ) SCR 486
= 2009 (6) sec 629 - held per incurium .
Lakhan Mahto vs. State of Bihar 1966 (3) SCR 643 -
held inapplicable.
Pradesh vs. Thadi Narayana 1962 (2) SCR 904 -
distinguished.
Kishan Singh vs. Emperor AIR 1928 P.C'. 254 - referred
to.
7. As regard the plea that the trial court failed to put
F
G
all relevant questions to the accused while recording their
statements u/s 313 Cr.P.C:, the latest position in law·
appears to be that prejudice musf be shown by an
accused before it can be held that he was entitled to
H
154
SUPREME COURT REPORTS
[2011) 6 S.C.R.
A acquittal over a defective and perfunctory statement u/s
313. In the course of the evidence, the entire prosecution
story with regard to the circumstances Including those
of conspiracy and common Intention had been brought
out and the witnesses had been subjected to gruelling
B and detailed cross-examinations. Besides, the Incident.
has been admitted, although the defence has sought to
say that It happened In different circumstances. It Is also
slgnally Important that all the accused had filed their
detailed written statements In the matter. All these facts
c become even more significant In the background that no
objection had been raised with regard to the defective 313
statements In the trial court. It must be assumed,
therefore, that no prejudice had been felt by the
appellants even assuming that some Incriminating
0 circumstances In the prosecution story had been left out.
[Para 28, 32] [194-D; 195-E-G]
Shivaji Sahebrao Bobde vs. State of Maharashtra AIR
1973 SC 2622, Santosh Kumar Singh vs. State thr. CBI 2010
(9) SCC 747, Shobhit Chamar & Anr. vs. State of Bihar 1998
E (2) SCR 117 =1998 (3) sec 455, relied on.
Hate Singh Bhagat Singh vs. State of Madhya Bharat
AIR 1953 SC 468, Vikramjit Singh vs. State of Punjab 2006
(9) Suppl. SCR 375 = 2006 (12) SCC 306) and Ranvir
F Yadav vs. State of Bihar 2009 (7) SCR 653 = 2009 (6) SCC
595 - referred to.
8.1. With regard to the plea that the prosecution was
barred bys. 140 of the Delhi Police Act, 1978, it is relevant
to note that s. 140 of the Delhi Police Act, 1978 postulates
G that in order to take the shelter of the period of three
months referred to therein the act done or the wrong
alleged to have been done by the police officer should
be done under the colour of duty or authority or in
excess of such duty or authority or was of such
H character, and In no other case. Though, the facts of the
SATYAVIR SINGH RATHI v. STATE THR. C.B.I.
155
instant case show that the cognizance had been taken
A
by the Magistrate beyond three months from the date of
incident, In the light of the decisions of this Court, It
cannot, by any stretch of imagination, be claimed by
anybody that a case of murder would fall within the
expression 'colour of duty'. There is absolutely no B
connection between the act of the appellants and the
allegations against them. Section 140 of the Delhi Police
Act would, therefore, have absolutely no relevance in this
case. [Para 32, 36-37 and 43) [195-D-G; 196-D-F; 198-DH; 199-B; 203·B·D]
c
Prof. Sumer Chand vs. Union of India & Ors. 1993 ( 2 )
Suppl. SCR 123 = 1994 (1) SCC 64; The State of Andhra
Pradesh vs. N. Venugopal & Ors. AIR 1964 SC 33 State of
Maharashtra vs. Narhar Rao AIR 1966 SC 1783, State of
Maharashtra vs. Atma Ram AIR 1966 SC 1786, ~hanuprasad D
Hariprasad Dave & Anr. vs. The State of Gujarat 1969 SCR
22 =AIR 1968 SC 1323; and Jamuna Singh & Ors. vs.
Bhadai Shah 1964 SCR 37 =AIR 1964 SC 1541 - relied
on.
8.2. As regards the sanction u/s 197 Cr.P.C., PW-48
deposed that a request had been received from the CBI
for. according sanction for the prosecution of the
appellants along with the investigation report and a draft
E
of the sanction order. He further stated that on receipt of F
the documents the matter had been referred first to the
Law Department of the Delhi Administration, then
forwarded to the Home Department and thereafter to the
Chief Secretary and finally, the entire was file put up
before the Lt. Governor who had granted the sanction for
the prosecution of the ten officials. It is true that certain G
other material which was not yet available with the CBI
at that stage could not obviously have been forwarded
to the Lt. Governor, but from the various documents on
record, it is evident that even on the documents, as laid,
H
156
SUPREME COURT REPORTS
[2011) 6 S.C.R.
A adequate material for the sanction was available to the
Lt. Governor. The sanction order dated 10-10- 2001 is
extremely comprehensive as all the facts and
circumstances of the case had been spelt out In the 16
pages that the sanction order runs Into. [para 46] [204B B·F]
State of Karnataka vs. Ameerjan 2008 (1) SCC (Crl) 130;
S.B.Saha & Ors. vs. M.S.Kochar 1980 (1) SCR 111 =AIR
1979 SC 1841 - referred to.
C
9.1. So far as the plea for acquittal of Head Constable
A-6 that as he did not fire at the car is concerned,
admittedly, as per his own showing, he had used his
service weapon and fired one shot therefrom. The
prosecution story is that he had fired at the car whereas
o the defence is that he had fired the shot in the air to keep
the crowd away. It appears that the crowd had collected
only after the shooting had ceased. There is no evidence
whatsoever to show that any crowd had collected while
the firing was going on or that a single shot had been fired
E after the volley of 34 shots. The large number of
photographs of the site show that the crowd that had
gathered after the shooting, was perfectly disciplined and
keeping a reasonable distance away from the Esteem car
and the dead bodies lying around it. Admittedly, there is
F absolutely no evidence with regard to the defence taken
by A-6. The story projected by him in his 313 statement
is not supported by any evidence whatsoever. His case,
therefore, cannot be distinguished from the other seven
accused who had admittedly fired at the car. [para 50)
G [207-8-H]
9.2. It is significant that these seven police officers
had admitted to firing into the vehicle but it is their case
in their statements u/s 313 of the Cr.P.C. as also their
written statements that they had done so only on the
H direction of A-1, a superior officer. They have accordingly
SATYAVIR SINGH RATHI v. STATE THR. C.B.I.
157
direction of A-1, a superio·r officer. They have accordingly
A
sought the benefit of s. 79 IPC. However, there is
absolutely no evidence that the fl.ring had been resorted
to by the seven appellants on the_ order of A-1 as it has
been found that it was pursuant to the common intention
of all the accused that the incident had happen~d. It is B
also relevant that the statements made by these seven
appellants are not admissible in evidence against A-1,
being a co-accused. [para 52 and 54] [208-B, G-H; 209-A·
B]
Vijendrajit Ayodhya Prasad Goel vs. State of Bombay C
AIR 1953 SC 247 and SP.Bhatnagar & Anr. vs. The State
of Maharashtra AIR 1979 SC 826 - relied on
9.3. Section 315 Cr.P.C. now makes an accused a
competent witness in his defence. The seven appellants
D
did not choose to come into the witness box to support
their plea based on the orders of A-1, a superior officer,
and, therefore, in the face of no evidence, the story
projected by them cannot be believed. [para 54] [209-C-
~
E
1 O. On an overall view of the evidence in the case,
this Court finds no fault with the judgments of the trial
court as well as the High Court. [para 55] [209-E-F]
Ram Nath Madhoprasad & Ors. vs. State of M. P. AIR
F
1953 SC 420; Lakhjit Singh & Anr. vs. State of Punjab 1994
Suppl. (1) SCC 173; Dinesh Seth vs. State of NCT of Delhi
2008 (12) SCR 113 = 2008 (14) sec 94. cited
Case Law reference:
2010 (3 ) SCR 236
AIR 1953 SC 420
1997 (3) SCR 957
retied on
cited
para 5
para 5
stood overruled
para 5
G
H
158
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A
1999 sec (Crl) 371
stood overruled
para 5
2009 (7 ) SCR 486
held per incurium para 5
AIR 1928 P.C. 254
referred to
para 5
B
1966 (3) SCR 643
held inapplicable
para 5
1962 (2) SCR 904
distinguished
para 5
AIR 1953 SC 468
referred to
para 5
2006 (9) Suppl. SCR 375 referred to
para 5
c
2009 (7) SCR 653
referred to
para 5
1964 SCR 37
relied on
para 5
1993 ( 2 ) Suppl. SCR 123 relied on
para 5
D
2008 (1) sec (Crl) 130
referred to.
Para 5
1962 Suppl. SCR 848
relied on
para 7
1994 Suppl. (1) sec 173 cited
para 9
E
2004 (5) sec 334
relied on
para 9
2008 (12) SCR 113
cited
para 9
1998 (2) SCR 117
relied on
para 9
F
2010 (9) sec 747
relied on
para 9
AIR 1964 SC 33
relied on
para 9
AIR 1966 SC 1783
relied on
para 9
AIR 1966 SC 1786
relied on
para 9
G
1969 SCR 22
relied on
para 9
1980 (1) SCR 111
referred to
para 9
2004 (2) sec 203
held inapplicable
para 10
H
201 o (1 O) sec 259
relied on
para 22
SATYAVIR SINGH RATHI v. STATE THR. C.B.I.
159
1952 SCR 839
AIR 1973 SC 2622
AIR 1953 SC 247
AIR 1979 SC 826
relied on
relied on
relied on
relied on
para 25
A
para 26
para 53
para 53
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2231 of 2009.
B
From the Judgment & Order dated 18.9.2009 of the High
Court of Delhi at New Delhi in Crl. Appeal No. 671 of 2007.
c
WITH.
Crl. Appeal Nos. 2476, 2477-2483 & 2484 of 2009.
H.P.
Raval,
ASG,
Amarendra
Sharan,
R.
D
Balasubramanian, Uday U. Lalit, S. Chandra Shekhar. Manoj
Kumar, Sanchit Guru, Suraj Rathi, Somesh Chandra, Ram
Raghvendra, S. Sadashiv Reddy, S. Usha Reddy, Vineet
Dhanda, J.P. Dhanda, Raj Rani Dhanda, Amrendra Kr. Singh,
N.A. Usmani, Manu Sharma, Vinay Arora, Sanjay Jain, P.K.
E
Dey, Padmalakshmi Mridul, Madhurima Mridul, Anirudh
Sharma, Harsh N. Parekh, Anando Mukherji, S.K. Saxena,
Subash Kaushik, Ranjana Narayana, Arvind Kumar Sharma,
Anil Karnwal, Chander Shekhar Ashri for the appearing parties.
The Judgment of the Court was delivered by
HARJIT SINGH BEDI, J. 1. This judgment will dispose
of Criminal Appeal Nos.2231of2009, 2476 of 2009 and 24772484 of 2009. The facts have been taken from Criminal Appeal
F
No. 2231 of 2009 (Satyavir Singh Rathi vs. State thr. C.B.I.).
G
2. On the 31st March 1997 Jagjlt Singh and Tarunpreet
Singh PW-11 both hailing from Kurukshetra in the State of
Haryana came to Delhi to meet Pradeep Goyal in his office
situated near the Mother Dairy Booth in Patparganj, Delhi. They
reached the office premises between 12.00 noon and 1.00 p.m.
H
160
SUPREME COURT REPORTS
[2011) 6 $.C.R.
A but found that Pradeep Goyal was not present and the office
was locked.