writ petition (criminal ) no. 83 of 2007 javed akhtar & anr
TRANSCRIPT
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Reference: Writ Petition (Criminal) No. 31 of 2007 B.G. YergheseVs.Union of India & Ors.
withWrit Petition (Criminal ) No. 83 of 2007 Javed Akhtar & anr.Vs. State of Gujarat & ors.
I have perused the orders of Hon'ble Supreme Court dated l2th
December, 2018. The facts that led to the setting up of the Special Task Force
and the Monitoring Authority have been dealt with in the final report submitted
by me on the 26th February, 20L8. However, I need to give a short background
in the matter for the purpose of inis reply. While the writ petitions were pending
disposal in the Hon'ble Supreme Court, the State Government of Gujarat vide
order dated the 2nd of April, 2011 constituted a Special Task Force of police
officials to investigate the cases of alleged fake encounters and by notification
dated the 16'h September, 2010 constituted a Monitoring Authority to monitor
and direct the investigation. The Monitoring Authority was given wide ranging
powers under paragraph 3 of the Gujarat Government Notification dated lgth
September, 2010 . No authority, however, was conferred on the Monitoring
Authority to submit aiy report, interim or final, with regard to the investigation.
However, in its order dated 251h January, 2012 the Hon'ble supreme court
issued comprehensive directions pertaining exclusively to the chairman of the
Monitoring Authority and directing that :
" .....The Chairman of the Monitoring Authority may give hearingto the petitioners in these cases or to any aggrieved person,
Bar & Bench (www.barandbench.com)
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Chairman of the Monitorin a Authoritv would come to this Court
The Supreme Court, on the 2nd March, 2012,while appointing me the Chairman
of the Monitoring Authority, made the following order:-
"On January 25, 2012, this Court passed an order requesting Mr.
fustice M.B.Shah, a former Judge of this Court, who was
including the kin or associates of the victims of the encounter
deaths. For investigating the cases, the chairman of the
Monitoring Authority may constitute different teams of fficers
from within the Special Task Force or from outside. Needless to
say that while constituting investigating teams, the chairman would
bear in mind the sensitivity of the matter and the possibility of
interestedness of some of the officers in the State Police. It will be
open to the Chairman, for the purpose of inquiry, to call for the
police recordslcourt records or the record lrom the National
Human Rights Commission(NHRC) relating to the cases under
inquiry. Any case which is under consideration by orders of this
Court or by the Gujarat High Court will not come within the
inquiry by the Chairman of the Monitoring Authority in terms of
this order. If the Chairman of the Monitoring Authority considers
it just, reasonable and proper, it will also be open to him to pass
directions for grant of interim or final monetary compensation to
the kin of the victims of the alleged fake encounters. Let copies of
the writ petitions complete with annexures be sent to Hon'ble Mr.
Justice M.B.Shah, the Chairman of the Monitoring Authoriry
constituted for investigation of police encounters deaths in
Gujarat. It is expected that a reportlinterim report from the
within three months from toda!. Put up on receipt of the report. "
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appointed as Chairman, of the Monitoring Authority constituted by
the State of Gujarat, to look into all the cases of alleged fake
encounters, as enumerated in these two writ petitions and to have
them thoroughly investigated so that the full and complete truth
comes to light in each case.
Mr. Justice M.B.Shah, by his letter dated February 1, 2012
expresseed his inability to look into all cases of alleged fake
encounters and made a request to relieve him from the assignment
as Chairman of the Monitoring Committee for the reasons stated in
the letter.
The two writ petitions along with Mr. Shah's letter were put up
before the court on February 24, 2012. On that date, Mr. Ranjit
Kumar, learned senior advocate, appearing for the State of
Gujarat, produced before the Court a copy of the Notification
dated February 23, 2012, by which Mr. Justice K.R.Vyas a former
Chief Justice of the Bombay High Court, was appointed as the
Chairman of the Monitoring Authority.
On a query, why the Notification was issued on February 23, 2012,
when the case was to come up before the Court on February 24,
2012, Mr. Ranjit Kumar stated that after the previous order was
passed on January 25, 2012, the officers of the State Government
contacted Mr. Justice M.B.Shah. To them also Mr. Justice Shah
expressed his inabiliry b accept the assignment and in those
circumstances the State Government deemed it fit to issue the
notification even before the case came to be taken up by this Court.
So far as the appointment of Mr. Justice Vyas as Chairman of the
Monitoring Authority is concerned, this Court has nothing to say in
the matter. But since he was sought to replace Mr. Justice
M.B.Shah, who was appointed by this Court to head the
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investigation of the cases of alleged fake encounters, his
appointment could only be made with the express permission of the
Court and it was not proper for the State Government to issue the
Notification just a day before the case was to be taken up by this
Court.
On that date the case adjourned to February 27, 2012.
On February 27, 2012 on a request made by Mr. Tushar Mehta,
learned Additional Advocate General, State of Gujarat, the case
was adjourned for today.
Today, Mr. Mehta prayed for further time (that would adjourn the
case to the next miscellaneous day on March 12, 2012), stating that
he himself along with the Advocate General of the State of Guiarat
had met Mr. Justice M.B.Shah and he was hopeful that he would
persuade Mr. Justice Shah to recall his letter to this Court and
make him agree to accept the assignment.
We do not think this to be the proper course. We would rather
respect the wishes of Mr. Justice Shah and would not like to burden
him with an assignment which he is unwilling to take up for very
good reasons, as stated inhis letter ofFebruary 1,2012.
By the letter(sic) dated January 25, 2012, this Court had clearly
held that there was a need for investigation of the cases of atleged
fake encounters as enumerated in the two writ petitions and we
must proceed ahead from that point. Now that Mr. Justice
M.B.Shah is not available to head and supervise the investigations
we need someone whose neutrality and impartiality is completely
beyond question.
We accordingly, deem fit and proper to request Mr. Justice
H.S.Bedi, a former Judge of this Court, to head and monitor the
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investigation of the cases of alleged fake encounters, as
enumerated in the two writ petitions.
It is made clear that so far as the investipation of the cqses in
cluestion is concerned, Mr. Justice H.S.Bedi shall exercise all the
powers and author in of the Monitorins Authori constituted bv
the State of Guiarat vide Notification dated Set)tember 16. 2010
published in the Guiarat Government Gazettee Extraordinary
dated September, 18, 2010.
All the directions contained in the order dated Janum 25, 2012
includins the followins are reiterated and those shall form part of
this order agwell.
"The Chairman of the Monitoring Authority may give hearing to
the petitioners in these coses or to any aggrieved person, including
the kin or associates of the victims of the encounter deaths.
For investigating the cases, the chairman of the Monitoring
Authority may constitute dffirent teams of fficers from within the
Special Task Force or from outside. Needless to say that while
constituting investigating teams, the chairman would bear in mind
the sensitivity of the matter and the possibility of interestedness of
some of the officers in the State Police.
It will be open to the Chairman, for the purpose of inquiry, to call
for the police recordslcourt records or the record from the
National Human Rights Commission(NHRC) relating to the cases
under inquiry.
Any case which is under consideration by orders of this Court orby the Gujarat High Court will not come within the inquiry by the
Chairman of the Monitoring Authority in terms of this order.
If the Chairman of the Monitoring Authority considers it just,
reasonable and proper, it will also be open to him to pass
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directions for grant of interim or final monetary compensation to
the kin of the victims of the allegedfake encounters. "
The State of Gujarat shall extend full faciliry and cooperation to
Mr. Justice Bedi for a meaningfuland effective investigation in all
thecases enumerated in the nto writ petitions.
It is expected that an interim reoort frorn the Chairman of the
Monitorinp Authoritr would come to this Court within three
months omt
Put up on receipt of the report. "
It will be seen that the Monitoring Authority had absolutely no authority to give
any report and the power to submit a report, interim or final, was conferred
on the Chairman of the Monitoring Authority. I need to emphasize that the
evidence collected by the Special Task Force was discussed in the meetings of
the Monitoring Authority held from time to time wherein members of the
Special Task Force dealing with particular cases and the counsel for the parties
were also present and while submissions were heard by the Monitoring
Authority the ultimate decision was mine alone as that was the purport of the
orders ofthe Hon'ble Supreme Court quoted above. This aspect has been dealt
with by me on pages 30 and 31 of my final report. To my mind it could not be
otherwise as the mmposition of the Monitoring Authority precluded any report
as the members were almost exclusively State Government officials- viz sewing
District Judges, the Additional/ principal chief Secretary(Home) State of
Gujarat, Director General of police, Director of the F.s.L. Gujarat and the
I.G.(Law and order). It is in this background that the final report submitted on
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the 26th February, 2018 was not shared with the other Members of the
Monitoring Authority. I might also add that the interim reports to which
reference has been made by the Hon'ble Bench are in fact status reports which
do not deal with the merits of the cases discussed or the conclusions drawn but
pertain to the proceedings of the Monitoring Authority held from time to time
and are in fact minutes thereof. I must also submit that I would not have had
the slightest hesitation in sharing the contents of the report with anyone but in
the light of the background and facts given above, it was to my mind, within
the exclusive domain of the Chairman of the Monitoring Authority to submit a
report. Should it be opined otherwise by the Hon'ble Bench, I would
unhesitatingly submit the report for consideration as directed.
) V,^6-4" S1^\^{-=...
(Justice H.S.Bedi)
December 26,2018
Final Report by Justice H.S.Bedi,
(former Judge, Supreme Court of India)
Chairman, Monitoring Authority, Ahmedabad(Gujarat)
Writ Petition (Criminal) No.31 of 2007
B,G. Verghese Vs.Union of India and others
with
Writ Petition (Criminal ) No.83 of 2007
Javed Akhtar and anr. Vs. State of Gujarat & others
writ Petltion (Criminal) No. 3l ol2007 B.G' Verghese Vs.union of lndia and Others
with
writ Petition (Criminal ) No. 83 of 2OO7 Javed Akhtar & anr. v5. state of Gujarat and others
INDEX
Sr. No. Detail of the case Pages
1 Preface
) C.R.No, l-35/2004, Police StationVasad under Section 397,395,332,333of I.P.C. and Section 135 of B.P.Act.
I-C.R.No.34/2003 Police StationPandesara, Surat City U/S 307 IPCand 25(l) of the Arms Act.
41-51
I-C.R.No. 36/20(H Police StationUmara Surat City under Sections307 12241353 l.P.C. and 25(1-8) A, 27and 2E of the Arms Act.
5l-65
5 I-C.R.No. 7612005 Police StationBorsad District Anand, under Sections30712241332 LP.C. and 27(2) the ArmsAct.
65-78
78-84
84-87
88-94
94-r01
r-32
33-41
1
4
-C.R.No. 227120/04 Police Station
7 I.C ,R,No.180/2004 Police Station B
8 I.C.R.No. 4012004 B Division police
I.C.R.N o. 12412005 Jetpur City poticeStation, District Rajkot, under
6 IKarelibagh District Vadodara, underSections 307 I.P.C. and 25(l) the ArmsAct.
Division, Rajkor Ciry U/S 307,332,1E6and 506 IPC and 135( l) of rhe B.p.Act
Station Raj kot City, under Sections307/332/r8E I.P.C.
3 I
9
Sections 307 397 333 186
I
i
I
I
I
I.P.C. and 25 (1) A, 27 Q) the Arms Actand 3,7 of Danage to the PublicProperty Act 1984
l0 I-C.R.No. 22112005 Police StationVapi District Valsad, under Sections307 I.P.C. and 135(1) of the B.P. Act
10r-106
11 I-C.R.No. 7712004 Polics Station SheelDistrict Junagadh, under Sections307,5ffi(2)I.P.C. and Sections 25 (1)(B) (A),27(1) the Amrs Act
I-C.RNo. 14612006 Police StationShahibaugh Ahmedabad, underSections 279,3M(A) I.P.C.and underSections 177,184,134(B) of the MotorVehicles Act
115-136
\,/
13 I-C.R.No. 11.12006 Police StationValsad District Valsad, under Sections307 I.P.C., Sections 25(1)BXA), 27(1)
/the Arms Act and Sections 135 ofB.P.Act
137.150
t4 I-C.R.No. 8/2003 D.C.B. Police StationAhmedabad City, utrder Sections 120-8,212, l2lA\ 122, 123,307, 353, lg6rr,d 224 I.P.C. and 25(1)B(A) of theArms Act and u/s 135(1) of B.P.Act
150-155
l5 I.C.R.No.94l204 P. S. VyaraDistrict,Sural under Sections 307, 332,353,392 I.P.C., & under Sections 25(l) B, A and 27(2) the Arms Act
r55-167
t6 I-C.RNo. 33612004 Police StationUmargaon District Valsad, underSections 307 I.P.C., & under Sections25(1)B)l 27(2) the Arrns Act
L67-176
L7 I-C.R.No. 24412005 Police StationUmargam DistriclValsad, underSections 307 I.P.C., & under Sections25(l)B)l 27(2) the Arms Act
t76-192\./
I-C.R.No. 2512002 Police StatiotrD.C.B. Ahmedabad , under Sections307,332,224,186 I.P.C., & under
192-221
f,o.rar^r "q$r
l"ht \aurort
Sc*".sr (\o\\
106-114
t2
,V
Sections 25(l)8,A, 27 the Arms Act
Annexure A 222-224l9
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BEFORE HON'BLE MR..I U STICE HARJIT SINGH BEDI (FORMERJUDGE SUPREME COURT OF INDIA).CHAIRMAN. MONITORING
AUTHORITY. GU.IARAT
Present: Mr. Parshant Bhushan Advocate withMr. A.J.Yagnik, Advocate,Mr. Somnath Vatsa, Advocate andMr. I.H.Syed, Advocare for the petitioners.
Mr. A.Y.Kogje and Mr. R.C.Kodekar, Advocates,Legal Advisors lbr the S.T.F.
FINA REPORTL
JUSTICE (RETD.) HAUIT SINGH BEDI
Writ Petition (Criminal ) No. 31 of 2001 (B.G.Verghese etc. Vs.
Union of India and orhers) and writ petition (Criminar) No. g3 of 2007 (Javed
Akhtar and orhers Vs' State of Gujarat and others) were filed in the Hon,bre
b>
Writ Petition (Criminal ) No. 31 of. 2001
(B.G.Verghese etc. Vs. Union of India and Others)
AND
Writ Petition (Criminal) No. 83 of 2007
Javed Akhtar and others Vs. State of Gujarat and others
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Supreme Court under Articte 32 of the constitution of lndia in public interest
alleging that a large number of persons had been killed by police personnel in
staged encounters including of some of those who were already in police custody'
Writ Petition (Criminal) No. 83 of 2007 filed by Javed Akhtar and Shabnam
Hashmi pertained specifically to the encounter killing of one Sameer Khan who
was already in police custody al the relevant time and that when the matter had
come to be exposed in the press an attempt had been made to scuttle all
proceedings. Notice was issued by the Supreme Court to the State of Gujarat in
both cases and (in addition in Sameer Khan's case) to Mr. Tirth Raj, Inspector
General Prison, Sabarmati Jail, Ahmedabad and Mr. l.K.Yadav, Dy.S.P.(Retd.) as
well. During the pendency of the proceedings in the Supreme Court the State of
Cujarat constituted a Special Task Force (STF) to furrher investigate the
encounters and a Monitoring Authority to oversee the investigation vide
notification dated 16'h September 2010 which was published in the Gujarat
Government Gazerte Exrra ordinary on 18'h September, 2010 and consequent
thereto an office order dared 2''d April, 2011 appointing police officers specified by
designation as members of the Special rask Force was issued and by a resolution
dated 7'h April,2011 Jusrice M.B.Shah, Former Judge of rhe Supreme Court of
India, was appointed as the chairman of the Monitoring Authority. rn view of this
development the Hon'ble Supreme court expressed it's satisfaction by observing
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that the matter was now under the supervision of a Former Judge of the Supreme
court with ample powers to have the matter investigated in a suitable manner. It
was further directed that any matter which was under investigation under the
orders of the Supreme Court or the Gujarat High Court, would not come within
the purview of inquiry by the Monitoring Authority. Certain other directions were
issued which would be dealt with as and when required' It transpired, however,
that Justice M.B.Shah by his lerter dared 1'' February, 2012 expressed his inability
to take up the office of Chairman of the Monitoring Authority on account of lack
of time on which the State of Gu.iarat (vide notification dated 23'd February 2012)
appointed Mr. Justice K.R.Vyas, a former Chief Justice of the Bombay High Court,
as the Chairman in Justice Shah's place. These facts were brought to the notice of
the Supreme Court on the 2nd March, 2012 on which date the Bench expressed its
unhappiness as to rhe manner in which this appointment had been made.
consequent thereto I was nominared as the chairman of rhe Monitoring Authority
for these 17 cases. The order of the Supreme Courr dated 2,,d March, 2012 was
received by me on the 20'h March, 2012 although the Addirionat Chief Secretary
Home. State of Gujarat, Mr. Viresh Kumar Sinha, had been in touch with me
earlier. I accordingly visited Gandhi Nagar on the 24'h March, 20r2 to have a quick
look as to what was ro be done. I also held a meeting with Mr. Sinha, , DGp
Gujarat, Mr. Chitranjan Singh, Mr. A.K.Sharma, lGp(Special Branch) and Mr.
4
Rahul Gupta, Deputy Secretary Law and Order(Home) and certain preliminary
decisions were taken. consequent to the aforesaid meeting I visited Gandhi Nagar
on the 1Srh April,2012 by which time a meeting of the Special Task Force (STF)
had been called. As already mentioned above the personnel of the S.T.F. by
designation had been constituted in accordance with the Notification dated 16'h
September 2010 published in the Gujarat Government Gazettee (extra ordinary) on
l8'h Septernber 2010 consequent whereupon an office order dated 2'd Aprit'2011
specilying the officers by name, was issued.
The first meeting of the S.T'F. and Monitoring Authority was held in
the Circuit House, Gandhi Nagar on the 181h April, 20 12. ln this meeting reference
was made by the Chairman, Mr. A.K.Sharma IPS, to 17 cases which were to be
turther investigated consequent upon the order of the Supreme Court and a small
resume was given of the investigation which had taken place with respect to the
various incidents. It was also pointed out by Mr. Sharma that as rhe investigation
papers as well as orders of the court passed from time to time consequent to the
encounleis were substantially in the Gujarati script, they would have to be
translated into English. lr was also decided that cases be further investigated by
three teams in lots of five or six cases each headed by a S.p.rank otficer. It was
also decided that wide and broad publicity be given to the proposed turther
investigation by the S.T.F. so that the next of the kin of the deceased who belonged
i)
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not only to the State of Gujarat but far tlung States as well, by way of Newspapers
not only in the English and Gujarati language but also in the vernacular of the
region which was the home of the deceased. Details of the publication of the
notices issued will be spelt out when individual cases are dealt with. However,
general norices were issued in Gujarat in Engtish on 18'r'July 2012inThe Times of
lndia, the Indian Express and in the vernacular in Daily Sandesh, Divya Bhaskar
an<i the Gujarat Samachar. By all theses notices it was brought to the notice of the
reading public that consequent to the orders of the Supreme Court of India the
State Government of Gujarat had constituted a S.T.F. vide Government
Notification dated 16'h September 2010 to investigate all cases of deaths which
according to the claim raised by any atTected party was a result of a fake
encounter and that vi<le its order dated 2nd March, 2012 had appointed me as the
Chairman of the Monitoring Authority inter-alia with the following terms of
retere nce: -
(a) to look into all the cases of alleged fake encounters in these two
writ petitions and to have them thoroughly investigated.
(b)to pass directions, if the Chairman of the Monitoring Authority
considers it just, reasonable and proper tbr grant of interim or tinal
monetary compensation to the kin of the victims of the alleged
fake encounters.
,\,**J/
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The translation of the investigation papers from Gujarati to English
which was to be undertaken consequent to the decision in the meeting held on the
18'h April, Z0l2 was also started and to ensure accurate translations a request was
made by the STF to the Gujarat High Court to provide its official translators for
this purpose. The rranslarion was accordingly made by the High Court translators.
The translation which pertained only to the initial investigation by the Gujarat
Police was itself a stupendous job and was completed by 6'h November, 2013. In
the meanwhile consequent to the further investigation by the STF fresh statements
of those who had knowledge of the incidents were recorded and videographed. In
addition to this notices were issued to the next kin or associates of the deceased to
appear before me personally to record their statements. These statements were also
recorded and video graphed in my presence. The details ol the witnesses who
appeared before me will be given when each individuat case is discussed.
As already menrioned above the investigarion by the Special Task
Force was entrusted to rhree investigating teams headed by S.p.rank olricers. They
were Shri Sandeep Singh, S.p.Vadodra(Rural), Shri Maninder partapsinh pawar,
S.P' Bhavnagar and Shri R.V.Asari, S.p.l(reda The derails of the cases with each
team are given herein below:-
S.P Shri Sandeep SinghSupervision ofhcer
No.
3
4
5
Vasad
Karelibaug, Vadodara
Borsad, Dist: Anand
Dist: Anand
B - Division Ra kot Cit
Jetpur City, Rajkot Rural
8 B - Division, Rajkot City
t- 7610s Rajeswar PandeY
S.P Shri Maninder Pratapsinh PawarACP Shri B.C.Solanki
I- 180 o4 Salim G a iMi
10 D.C.B, Ahmedabad City
I1 Shil, Dist: Junagarh
Supervision officer :- S.p Shri R.V.AsariInvestigation officer :- Dy.S.p. Shri A.M.patel
ana
l- 124 lO5 Rafiksha @ BapudiFakir
t- 22r l0s Dungariyo HimlaMachar
Kassim j affer
7
9
lp Valsad Town,Dist Valsad
Police Station and DistrictMahesh DiPakGadhwalt- 36 l04Umara, Surat City1
2 Pandesara, Surat City Anil Bipin Misra1- 34103
Mithu Umar Daferr-35/04Kashyap Dhakat- 227 lO4
Ranjit @ Jallat- 40/04Devi u ^t.
Vapi Town, Dist:Valsad
(l) Ganesh Khunter- 08/03
2 Mahendra Jadav
Bhima Madabhai Mert- 77 104
1- 11/06
13 Shahibaug, Ahmedabad 1- t46l06hussain
7
Investigation officer :- A.C.P Shri C.N.Rajput
C.R.No Deceased Name
t___
Supervision officer :-
Investigation officer : -
6
, JogindersinghlKhatansingh Sikh
I
')t
AX-r\-t-Y -./
I
8
l4 Umargam,Dist:Valsad
5 Umargam,Dist:Valsad
t7 DCB, Ahmedabad City
Co-extensive with the further investigation an effort was also made to
ensure that the members of the Monitoring Authority were all in place so that the
work could be started forthwith. There was some ditTiculty about appointments of
the two serving Sessions Judges to be members of the Monitoring Authority as the
Gujarat High court was of the opinion that their membership would not be in
order. The Additional Chief Secrerary (Home) accordingly in the meeting of the
Monitoring Authority held on the July 12, 2Ol3 gave the three names of retired
Judicial officers frorn whom two could be nominated by me. on inquiry made by
me from those who were aware of the Judicial service in Gujarat, I found one of
the three names ro be suitable for the membership of the Monitoring Authority and
requested the Chief Secrerary to give two other names ot retired Judicial officers
so that a second member courd also be nominated. 'r-he secontr member was also
nominated thereafter and ir was noted in the minutes of the meeting held on the
September 12,2013 that rhe Monitoring Authority as envisaged was comprete as
all rnsrn[s15 thereof had been inducted. It was also observed thar the next of kin
Vyara Dist, Surat Rural
Sanjay Rahul SardaPrasad
Haji Haji Ismailr- 244105
r- 336104
Sameerkhan Pathan
Subhash BhaskarNair1- 94/04
r- 25102
16
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or associates of the victims who were indigent anrl belonged to deprived sectrons
and were not in a position to ventilate or articulate their tears and grievances, were
given liberty to engage counsel. In all fairness permis5ion was also given to the
STF to appoint a legal counsel and Mr' A.Y.Kogje Advocate was appointed as
Special counsel of the STF and on his elevation as a Judge of the Gujarat High
Court, Mr. R.C.Kodekar was appointed in his place. Some of those who appeared
before the Monitoring Authority prayed for compensation tbr the families of the
deceased and this issue was taken up in the meeting of the Monitoring Authority
held on the September lZ, ZOl3. It was pointed out during the course of the
meeting that as per paragraph 9 of the Notification dated 16'h September 2010
which dealt with the functioning of the S.T.F. the grant of compensation by the
Monitoring Authority to the heirs of the deceased was visualized but only after the
completion of the invesrigaticrn. Admittedly on the date of the meeting the
investigation was far from complete and grant of compensation under the mandate
of the S.T.F. was, therefore, not permissible. It was, however, noted that the
Hon'ble Supreme Coun while laying down the parameters relating to the powers
of the chairman of the Monitoring Authority had directed in its order dated 25'h
January, 2012 that "lf the Chairman of the Monitoring Aurhority considers it just,
reasonable and proper, it wilt also be open to him to pass directions for g3n10;r
nsation to the k in of the victim of th
t/
r nte ri m r ne com
k74
lle ed take
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encounters." This direction was put to the members of the meeting of the
Monitoring Authority and it was agreed that the compensation may be determined
by the Chairman in rerms of this direction. I accordingly directed that on a
consideration of the material that had come on record more particularly the
statements of the relatives or next of the kin of the deceased a case for
compensation at the first instance would be considered with respect to the families
of the deceased Dungario Himla Machchar, Rafiqsha Bapudi and Kasim Jatfer.
The Investigating Officers involved in the investigation of these three cases were
in the meanwhile directed to get details of the family of the deceased, their
financial condition, family commitments etc. to be produced before the Monitoring
Authority on the 19'h October, 2013. The tietails of compensation and as to how it
has been computed by me will be dealt with in each case. I may reiterate that
amount of compensation to be paid was my decision alone as it was conferred on
me specifically by the Supreme Courr by order dated 25'h January 2012 and not by
the terms and conditions of the STF notification dated September 16, 2010 or
the terms and conditions of the Monitoring Authority vide Notification dated 9'h
March, 2012.
31 meetings of the Monitoring Authority were held between lg'h
April, 2012 and (last being) on 15'h october, 20r7, Ten srarus reporrs pertaining
to most of these meetings were submitted to the Hon'bre Suprerne court fr-om time
!L*r>
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to time. As would be evident from the status reports so submitted that some delay
was occasioned on account of election in the country as many members of the
investigating team were deputed to police duties during those days' In addition it
was tbund that many of the lnvestigating Officers in the initial investigation which
had culminated in the closure reports had retired and were not easily available and
some of the old record which was lying in courts was ditficult to trace. A great
deal of time was also spent in getting the translations of the trom Gujarati record to
English. The report is now being rendered after completion of all proceedings.
Before I go into a discussion of the evidence that has been recorded
the terms and conditions under which the S.T.F. and the Monitoring Authority had
been set up, must be spelt out. As already mentioned above, two writ petitions
under Article 32 of the Consritution of India, one by Mr. B.G.Verghese, a very
prominent journalist, and another by Mr. Javed Akhtar, a well known poet and
lyricist, and Ms Shabnam Hashmi, a social worker, were filed in the year ZO07 in
which a prayer was made that an independent investigation be made by a Special
lnvestigating Team in all the fake encounters in cujarat and to take consequential
action on the report that may be tendered. Notice was issued on these matters and
after the pleadings had been c'mpleted and during the pendency of the writ
petitions the State of Gujarat consrituted a Monitoring Authority and S.T.F. for
investigation of police encounters vide Notification dated 16'r' september, 2010
Mry
t2
published in the Gujarat Government Gazettee (Extraordinary) dated September
18, 2010. The notificarion atbresaid dealt with the constitution of the Monitoring
Authority and its powers and tunctions and also tunctions of the STF' The
aforesaid provisions are reproduced verbatim:-
1. Constitution of Special Task Force(STF)''the constitution of
Special Task Force tbr the purpose of conducting investigation as aforesaid
shall be as under:-
(1)The Special Task Force shall function under direct control and supervision
of the Director General & Inspector General of Police of the State of
Guj arat;
(2)lt shall be headed by an otTicer ofthe rank of Inspector General of Police;
(3)One officer of the rank oi Deputy Inspector General of Police
(4)Three officers of the rank of Superintendents of Police;
(5)Four officers of the rank of Deputy Superintendent of Police;
(6) Five officers of the rank of Police Inspecrors; and
(7)The Range Inspector Ceneral of Police of the nearest range to the range in
which such an encounter death takes place shall also be a member of the
Special Task Force.
(2) constitution of Monitoring Authority-There shail be constitured a
Monitoring Authority to oversee and monitor of Special Task Force and its
13
investigation and also to receive complaints/representations/suggestions from
relatives of victims of death in police encounter'
The composition of the Monitoring Authority shall be as under:-
(1)The Chairman of the Monitoring Authority shall be appointed by the State
Govemment who shall be a retired Hon'ble Judge of the Honourable
Supreme Court of India; or a retired Honourable Judge of the High Court of
Gujarat. The tenure of the Chairman shall be tbr the period of tive years and
can be extended fbr one more term only. Terms and conditions shall be
notified by the state government in this regard separately.
(2)A Member of Gujarat State Human Rights Comrnission to be selected by the
Chairman of the said Commission;
(3)The District Judge of the District in which rhe encounrer death is reported.
(4)The Additional Chief Secretary/Principal Secretary(Home), State of Gujarat
(5) Director General of Police.
(6)A member of any other Investigation agency or an IpS officer not below the
rank of additional DGP, tiom any other stare who may be co-opted by the
Chairman of this Authoriry as and when requir.ed.
(7) Director of Forensic Science Department, (FSL) Gujarat,
(8) IG(Law and Order)
lk".-V'
t4
The IG(Law & Order) shalt tunction as the member secretary of the Monitoring
Authority and shall coordinate the respective function of the said Authority and
the STF.
3. Powers & Functions of the Monitoring Authority:- The powers and
functions of the Monitoring Authority shall be as under:-
(1)The Monitoring Authority shall monitor the investigalion into the
encounter deaths and all other incidental and ancillary matters of the
Special Task Force;
(2)The Monitoring Authority shall have the power to guide and instruct the Special
Task Force with respect to any subject, aspect, question or issue in relation to
the mode, method and direction with regard to or connected with the
investigation of encounter death;
(3)The Monitoring Authority shall have rhe power and duty to receive complainrs
of any death alleged to be an encounter death from the relatives of the victim;
(4)The Monitoring Authority shall also have the power ro receive inputs and
suggestions from the relatives of such victims and also the complaints, if any, of
the officers of the police force facing investigation and if such
inputs/information/suggestion and/or complaint is related to, whether directlyor
indirectly, the encounrer death, the Moniroring Authority shall direct the
l\=lYy/
15
Special Task Force to take them into consideration during investigation and
report to the Monitoring Authority;
(5)lt shall be power and responsibility of the Monitoring Authority to review the
progress of the investigation on quarterly basis and it shall be the corresponding
duty of lhe Special Task Force to apprise, inform and brief the Monitoring
Authority in detail at the regular interval of three weeks regarding the progress
of the investigation in question;
(6)The non compliance with the deliberate disregard of the directions issued by the
Monitoring Authority to the Special Task Force and/or any member thereof
shall be construed as dereliction of duty and/or insubordination on the part of
the Special Task Force and/or any of its constituents."
In its order dated 25'h January, 2012 the Supremc Court issued the
tbllowing directions supplementing the directions pertaining to the Monitoring
Authority directing thar:
"The Chainnan of the Monitoring Authority rnay give hearing to the
petitioners in these cases or to any aggrieved person, including the kin or
associate of the victims of the encounter deaths.
For investigation the cases, the Chairman of the Monitoring
Authority may constitute difl'erent teams of otficers tiom within the
J*:t-'
15
Special Task Force or tiom outside' Needless to say that while
constituting investigating teams, the Chairman would bear in mind the
sensitivityofthematterandthepossibilityofinterestednessofsome
of the officers in the State police.
It will be open to the Chairman, for the purpose of inquiry to
call for the potice records/court records or the record from the
National Human Rights Commission(NHRC) relating to the cases
u nder inqu iry.
Any case which is under investigation by orders of this Court or
by the Gujarat High Court will not come within the inquiry by the
Chairman of the Monitoring Authority in terms of this order.
If the Chairman of the Monitoring Authority considers it just.
reasonable and proper. it will also be open to him to pass directions
for grant of interim or final monetary comoensation to the kin of the
victims of the alleged fake encounters.
The STF was also constituted by officers specifically nominated by
name vide resolurion dated 2nd April, 2011 as fbllows:-
*[Pg -
17
"After active consideration the State Government has decided to appoint
following police oilicers in the Special Task Force (STF) in pursuance of the
provisions of the said notification.
(l)Shri A.K.Sharma,l.P.S. LG.P.Gandhinagar Range, Gandhinagar
(2)Shri D.J.Patel, l.P.S.,Deputy Inspector General of Police, Armed Unit,
Vadodara.
(3)Shri Sandeep Singh, I.P.S.Superintendent of Police, Ahmedabad(Rural)
(4)Shri D.R.Patel, l.P.S. Superintendent of Police, Sabarkantha.
(5) Shri R.V.Asari, Superintendent of Police, Kheda
2. These appointments are subject to the Provisions of the Home Department's
notitication Dated: 161912010 quoted above and the following terms and
conditions and shall be valid till further orders in the regard from the
department.
(l)The Chief of the Special Task Force shatl be Shri A.K.Sharma, I.P.S., I.G.P.
Gandhinagar Range, Gandhinagar.
(2)The functions and responsibility ofrhe Special rask Force shall be as per the
provisions laid down in the para-4 of the notification No.cG/47lsB-
1 I KAV I 10 120 l0 I 1 199 6 dated 1 6,r,, September, 20 I 0.
(3)The Special rask Force shall have to perform work enrrusred to it from time
lo time as per the provisions of the said notification.
\t--,^>--l/ ---/
18
(a)The appointment of Deputy Superintendent of Police and Police Inspectors
in Special Task Force will be made hencelorth as per the requirement."
Under Paragraph (a) of the office orders appointments of D'S.P., lnspectors
deputed to the STF were left to be made as per requirement and need."
Functions of the STF
(1) Whenever any member/s of the police force claims to have faced an encounter,
it shall be immediately reported ro rhe Moniroring Authority, the Director General
and Inspector General of Police, State of Gujarat and the local police stalion.
(2) ln every case of Police oncounter when a complaint is made by the kin of the
victim against the police alleging commission of a crirninal act on their part,
which makes out a cognizable case of culpable homicide, an FIR to this effect must
be registered under appropriate sections of the IPC. Such case shall also be
transf'erred to and investigated by the STF
(3) Whenever the local Police sration is in receipr of any infbrmation and/or
complaint of police encounrer death, it shall register the same in a case diary. The
police officer of such police station, must make an entry in the general diary and if
the receiving authorily is a police officer of higher rank than the police lnspector,
the relevant entry must be made in a separate diary kept and provided for the
{p'
19
purpose and thon be transferred to STF for being proceeded with in accordance
with law.
(4) Upon such information received by the local Police station and/or complaint
having been received, the First Intbrmation Report in lerms of Section 154 of the
code shall be filed and such report shall be sent to the concerned competent court
without any further delay, while forwarding the same to the Director General and
lnspector General of Police and also to the STF for proceeding in accordance with
Iaw.
(5) The Director General and Inspector General of police must send such
rntrmatlon to the Monitoring Authority and also to the State Human Rights
Commission. The Director General and Inspector General of Police shall take
disciplinary proceedings against the officer in-charge of the police station if he/she
fails to send the report regarding the encounter death, as stated hereinabove.
(6) Where any of the Police Officers of the Potice Starion concerned was a part of
the encounter party or a team of encounter, he shalt not be included in any stage of
the investigation in any capacity whatsoever.
(7) The procedure to be followed by the STF shall be devised in derail by the
atbresaid Monitoring Authority which should be, as far as practicable, the
procedure contemplated in the Manual of central Bureau of lnvestigation and the
20
procedure contemplated in the Manual of Crime Investigation Department(ClD) of
rhe State of Gujarat. Till such time the Monitoring Authority decided the procedure
and methodology to be lbllowed, the STF shall tbtlow the same procedure and
conduct the investigation in accortlance with the Procedure Manual prepared by the
State CID(Crime).
(8) A Magisterial inquiry as per the provisions of the Code of Criminal Procedure
must invariably be held in all cases of death which occur in the course of police
encounter. lt shall be the duty of the STF to assist the learned Magistrate during
such inqu iry.
(9) The question of granting compensation to the dependents of the deceased died
in an encounter would be considered only after conclusion of the investigation by
the STF and the entitlcrnent and the amount shall be determined by the Monitoring
Authority. The amounr determined by the Monitoring Authority shall be binding
upon the State Governmenr.
(10) lf the injured criminal during the operation encounter are found alive, they
should not only be provided medical and immediately but also arrangements and
attempts shall be madc by the independent investigation team to record their
statements under section -l64 of the Criminal procedure Code, either by a
Magistrate, if possible and if nor, by the Medical officer concerned, duly attested
2t
by the hospital staff mentioning the time and factum that while recording such
statements the injured were in a state of position that they will be able to give
statements and the connected certificate by the doctors appended theleto'
(11) After the examination of tur her witnesses an com n letin p the iNVCSI lsatlond
inclusive of securin the accused or accused nersons the STF shall senlt d a finat
re rt to the Court of Com etent urisdiction as re uired under Section 173 f the
nmrn edure Code tbr lurther roceedin and it shall be th STF w o will
ass ist the Prrblic Prosecut r duri al further oroceedinss , if any.o ng rhe tri and
(12) The Police Officers whose role is being investigated by the STF shall be
placed under suspension after scrutiny by the Monitoring Authority, if the said
Authority so recommends.
( l3) No out-of-turn promotion, cash award or gallantry reward shall be bestowed
on the concerned officers pursuant to their role in an encounter as this may be an
incentive for officers to conduct fake encounters.
It will be seen from a perusal of the provisions quoted above with
regard to the constiturion and functions of the STF thar it was a body set up
c'mprising personnel of the Gujarat police only and was to function under the
direct control and supervision of the Director Generar and thc Inspector General ofP,lice of the State of Gujarat. virre resolurion dared 2,,d April, 20l r the officers by
,h"-
22
designation envisaged above were specifically named and the designation of Chief
of the STF was given to Mr. A.K.Sharma, lnspector General of Police. The
procedures under which the STF was to function were also laid down in
Government Notification dated l6'r' September, 2010 which provided inter alia that
it would be the Monitoring Authority which would devise the detailed procedure,
for investigation keeping in mind the Manual of the CBI for investigation and
procedure as also of the State of Gujarat. These provisions als<l visualized that
after the completion of the investigation the STF would send a tinal report to the
court of competent jurisdiction as required under section 173 of the Code of
Criminal Procedure lbr further proceeding and that the STF would assist the Public
Prosecutor during the trial and.further proceedings, if any. It will be seen tiom a
reading of the aforesaid provisions that the function of the Monitoring Authority as
laid down was only a supervisory function with some authority cont'erred to
specily a procedure for investigation keeping in mind the provisions in the
Investigation Manual. Likewise the Monitoring Authority was authorized to give
compensation only on completion of the investigation and not at any interim stage.
The Supreme Court in its order dated 25'r'January,20l2 conferred wide ranging
powers on the chairman of the Monitoring Authority viz (l) to give a hearing to
the aggrieved persons including kin or associates of the victim (2) to constitute
difterent teams of ofTicers from within the Special rask Force or from outside
,(L,-'.,L/ ' ,-""'
23
bearing in mind the sensitivity of the matter and the possibility of interestedness of
some otTicers in the State Police (3) and to submit status reports from time to time
and to pass directions tbr grant of interim or final monetary compensation to the
kin of rhe victim of the alleged fake encounter. I must ernphasise at this stage that
I did not find it necessary to induct any police officer from outside the Gujarat
police or to interfere in the choice of the State Government in nominating the
members of the STF. lt must be borne in mind (and the details will tbllow
hereinatier when I deal with individual cases) that public notices of the
establishment of the S.1'.F. and the Monitoring Authority were issued in the Times
Global(The Times of India), Gujrati and Hindi publications. Copies annexed
herein Annexure A (collectively).
Directions were also issued that the statements of those earlier recorded under
Section 161 of the Cr.P.C. bc recorded yer again by the STF and also video
graphe d and the ' Reconstruction' of the crime scene be drawn up again. Likewise
opportunity was given ro the interested persons to appear and some of them did
appear before me and their statements were recorded and video graphed. Notices of
cvcry meeting of the Monitoring Authority were sent to the writ petitioners and
their counsel and the counsel appcared in many cases. This will be spelt out during
further discussion. consequent to the public notices onry three representations
were received' Ms' Shabnam Hashmi petitioner, in her representation primarily
l'1"*
24
tbllowing grounds:-
"Most people know that Shri A.K.Sharma is very close to the
top echelons of the ruling political executive of the State. He is
particularly close to the Chief Minister, Shri Narendra Modi,
ever since the latter became Chief M inister in the later half of
2001. Even though Shri A.K.Sharma had served in Rajkot City
as Deputy Commission of Police(DCP) twice (First tenure from
14.12.1994 to 18.06.96 and the second renure trom 23.02.1997
to 04.01.2000) before, he was posred ro Rajkor City again
especially tbr supervising the electoral victory of Shri Narendra
Modi in his by-election from Rajkor-2 assembly constituency
in February,2002. Shri A.K.Sharma was posred as DCp Rajkot
City this third time ftom 28.12.2001 to 26.03.2002. Clearly, he
was posted just when the electoral process began and he was
posted out shortly after the electoral process ended. A relevant
press report is attached herewith as Annexure _A. The headline
says "Arun Sharma again as DCp Rajkot: Hat trick as DCp,,
and that "ln.rpression about posting because of the Chief
Minister corning to contest elections.,.
questioned the appointment of Mr. A.K.Sharma as Chief of the S.T.F. on the
l.
ix;,-{
--/'
ll.
lll.
25
Since then, Shri A.K.Sharma has done plum posting of his
choice. Some latest examples are his postings as IGP
Ahmerjabad Range, IGP Gandhinagar Range( He also held
additional charge of IGP CID (intelligence) which enabled him
to do partisan work for the ruling establishrnent. He also served
in the substantive charge of the post of tGP CID (intelligence)
when he needed leave frequently tbr going to kota, Rajasthan
for looking after his son/daughter's coaching classes there) and
his present additional charge of the post of Joint Commissioner
of Police (JCP), Crime Branch, Ahmedabad City.
As ICP CID (lntelligence), Shri A.K.Sharma was widely
believed to be monitoring the call details of political opponents
of the Chief Minister and the call details of such senior otTicers
as are considered suspect in "loyalty" by Shri Narendra Modi.
Moreover, there has been persistent talk among senior officers
that Shri A.K.Sharma was even illegally intercepting the phone
calls of some selecr officers and political opponenrs of Shri
Modi."
In this representation the primary grievance made was that Mr. A.K.Sharma was
very close to the politicar leadership in the State of Gujarat and was a convenient
otlicer who would do its biddings. Reference was also made to some inrer se
disputes between members or the police force and to sorne remarks that had been
made during court proceedings unconnected with the present writ petitions. Some
vague allegations were arso made with regard to the three S.ps who were heading
26
the three investigating teams of the STF. This representation was rejected by me
saying that it was nol open ro the Chairman to substitute one officer with another
and I accordingly leti it to Ms. Hashmi to pursue such other remedies that could be
avaitable to her. As per my intbrmation no further proceedings had taken place in
the matter. lt is true that under the Supreme Court order dated 2nd March, 2012the
Chairman of the Monitoring Authority could constitute ditlerent teams of officers
from within the Special Task Force of outside and that while doing so the
Chairman was called upon to bear in mind the sensitivity of the matter and the
possibility of interestedness of some ofticers of the State police. This direction of
the Supreme Court certainly empowered the Chairman of the Monitoring Authority
to constitute teams of investigating officers from either within the State ol Gujarat
or outside but it did not authorize the Chairman of the Monitoring Authority to
remove any officer who had been duly nominated by the State Government. In any
case, no cogent reasons had been spelt out by Ms. Hashmi and vague allegations
had been made with regard to the comperence and sense of tair play of the officers
involved. At this stage it needs to find mention that none of the members of the
investigating teams were in any manner connected with the encounters and in the
light of the fact thar widc spread publicity was given ro rhe proceedings of the
Monitoring Authority calling upon those having knowlcdge of the encounters to
appear befbre the Monitoring Authority to have their statements recorded, there
K-,I
27
was every opportuniry lbr those aggrieved to bring to notice their suspicions. ln
some cases the statements were made betbre me and duly recorded and video
graphed. Likewise, thc STF while recording the statements afresh during further
investigation not only recorded the statements in writing but also video graphed the
entire proceedings of those who appeared betbre it. At no stage was any allegation
of intimidation or the laulty recording of the statements made which leads me to
the inference that the statements had been accurately recorded. The decisions to
be taken on the basis these statements and other evidence is a matter which is of
my discretion and judgment and the investigating teams have no role to play
therein.
It is also significant that at the fag end of the proceedings, Mr.
A.K.Sharma had been taken on deputation as Joint Director, CBI vide order dated
28'h April,2015. An application dated 12'h February,20l6 was filed by Mr.
A.J.Yagnik, one of the advocares for the family of the victims, that in this
eventuality it was nor open ro him to continue as rhe chiet of the STF. vide order
dated l3'h February,20l6 rhis application was rejected by me observing that it was
not proper to go inro rhis issue at this stage, inter alia on the ground that
investigation was almost comprete and only four cases remained fbr appraisal of
evidence and that in any case in the notification dated ll'h August 2015 it had been
clarified that Mr' A.K.Sharma would render onry assistance to the Monitoring
,L!^u- --t ,t''
28
Authority and would nor exercise any police powers and that this Notification had
been issued pursuant to the concurrence of the State Government'
Two representations dated 30'h August, 2012 and 9'r' September 2013
were also filed by Mr. Shreekumar, Former D'G'P Gujarat Police' In the
repre sentation dated 9'r' Seprember, 2013 he has ret'erred to a letter of resignation
tendered by Mr. D.V.Vanzara lPS, raising several moral issues with respect to the
allegations of fake encounters against him and other police officers and other
political functionaries. Another communication dated 30'h August, 201 2 was also
sent by Mr. Shreekumar in which he dwelt on the oral instructions given to carry
out fake encounters with respect to Muslim extremists who were disturbing the
peace and that he as, A.D.G.P. tntelligence, had been present at many of those
meetings and had recorded his misgivings in a informal personal register. Mr.
Shreekumar also recorded his oral statement betbre me on the 12'h September,
2013 in which he reterred to his representations and reiterated the allegations
made therein with regard to the elimination of Muslim extrernists and that in the
background that he had refused ro follow the State covernment instructions he had
been superseded for promotion to the rank of Direcror General of police and that
he had ultimately gone ro court to get the benefit of promotion, which was granted
to him two years after his retirement. He has also reiterared his allegations with
regard to Mr. vanzara in particular. The representations and statements made by
LL,
29
Mr. Shreekumar to which reference has been made above do not specifically deal
with the allegations in these 17 cases and are general in nature and relate to
administrative decisions taken which he did not agree with and which had led to
his victimization at the hands of the government. l'he issues raised with regard to
selective elimination of Muslims extremisls are, however, not borne out from the
record. Altegations ot' Muslim extremism were made only in one case, thal of
Sameerkhan. Moreover, the circumstances belie the allegations as the victims
herein belonged to several parts of India, as far afield as Uttrakhand, Uttar
Pradesh, Madhya Pradesh, Bihar, Kerala and Maharashtra and as the names
suggest, several communities as well; and the only common feature amongst most
of them was the element ol criminality of varying degrees and levels. The issues
raised by Mr. Shreekumar are not, thus, relevant insofar as these l7 matters are
concerned.
Ravindran T.S. Advocate, had also given a written statement to the
earlier Monitoring Aurhority recorded his statement betbre me on 19'h February,
2013 and voiced a general suspicion about the Surat police and its tendency to
eliminate people in take encounters but he gave no detairs specifically with regard
to the present incidents.
Having thus given background of the entire proceedings and the
crrcumstances in which the STF and the Monitoring Authority had been
*f,
,,\,
30
csrablished the individual cases of the encounter deaths must now be dealt with' It
musr be emphasized ar the outset that the STF and the Monitoring Authority were
set up consequent to the proceedings that were pending in the Supreme Court since
2007. All the encounter deaths which have been entrusted to the STF and the
Monitoring Authority tbr investigation and reporr pertained to the years 2002 lo
2006. From the anatysis of the record and a look at the next kin of the deceased
most of them appeared to belong to poor families and were in some cases living at
great distances from Ahmedabad and were hardly in a position to defend
themselves adequately. It is for this reason that as per decision taken in the
meeting of the Monitoring Authority dated 19'h January, 2013 it was decided that
those who had made reprcsenlations in response to the public and personal notices
could appear before me in Ahmedabad on the l8'h and l9'r'February,2013 to
record their statements and that they would be reimbursed 2"d class rail fare or bus
tare. This procedure was indeed followed scrupulously.
As would be evident the Monitoring Authority consisted of several
pcrsons who had held or were holding very senior positions in the judiciary, in
scientific investigation as also in the police. The Monitoring Authority, rherefore,
had the expertise for a comprehensive assessment of the evidence which came
before it. Free and friendly discussion took prace in rny presence with regard to the
evidence that had been collected and to ensure that opportunity was given to the
X.lr^-U '---'-
31
representatives of the dcceased, they were permitted to engage counsel as well'
Several counsel appeared during the course of the hearings and details with regard
to the arguments raised will be dealt with in each individual case. It must be
reiterated that the Monitoring Authority as envisaged was not to submit a report-
this directive has been issued to rne as Chairman. I must, therefore, emphasise that
as the report has been rendered by me in my capacity as the Chairman of the
Monitoring Authority, the ultimate conclusions drawn and the responsibility for
this report vests exclusively with me and the other mcmbers of the Monitoring
Authority have no role to play. It must be emphasized yet again that in some cases
the incidents had happened more than a decade earlier and in all cases after police
investigation, closure reports had been filed which had been accepted by the courts
as well. In a few cases which will be referred to as they come along, proceedings
had gone upto the High Court and Supreme Court and led to specific orders. ln the
background of these facts, rhe broad principles that I have applied while evaluating
the evidence in these matters is that action against police officers should be
suggested by me only in such cases (1) where the police version seemed to be
deeply suspicious and diftlculr ro believe and (2) the eviclence was of a quality that
in case a trial was held there was a reasonabre chance of conviction and both
these requirements had to be cumulatively satisfied. The standard of appreciation
and quality of evidence that would require consideration in the present
,'
32
proceedings would not be as rigid as that in a court of law, as the purpose herein is
not to determine the innocence or guilt of the police officers as that would be a
matter for the courts after the recording of the evidence of witnesses and cross-
examination etc. The standard at this stage would be as to whether the
circumstances justify a trial or not. This is in consonance with Section 228 of the
Code of Criminal Procedure. In the light of the fact that much time has elapsed
since the incidents happened it will be completely unjust to rope in police officers
on mere suspicion and on sketchy evidence. The police parties also involved a
large number of personnel of lower ranks as well. It cannot be said with certainty,
that they too had been privy to all that happened. I have, therefore, taken a
conscrous declSlOn that initiall action will be sussested asainst onlv those oolice
officers whose participation was admitted or prima facie proved leaving it open fer
olhprs who are subsequentlv found to have been involvbd in conspiracy or in any
other manner in lar court I Th
ctions must be read into the three matters in which I have
I propose to discuss the cases in the chronological order that they
were taken up for final discussion before the Monitoring Authority. The case wise
discussion follows:-
evidence of custodial killings.
I"*
33
C.R.No. f -35 2004 Police Station Vasad under
Section 397 32 333 of I.P.C. and Section 135395of B.P.Act
The final discussion in this matter took place on 26'h August' 2015'
The facts of the case are as under:-
During the nighr inrervening 13'h and 14'h March, 2004 a police party
led by Sub lnspector J.B.Kadel of Police Station Vasad was on patrol duty near
Sudan Patia on the Vasad-Borsad road, when they noticed a large number of trucks
lined up on the Highway and on reaching the top of the line the police officer saw
that the trucks were being looted by several persons. On seeing the police party the
criminals ran away and on inquiry the police were told that a truck driver had been
robbed of Rs.22001. The police party immediately chased the dacoits into the
nearby fields and during the chase one of the criminals, Mithu Umar Dafer
(hereinatier called the deceased) was cornered and was caught by Constable
Manzoor Hussain. In order lo escape, Dafer attacked the Police Constable with a
knife causing an injury between the chest and the hip and he was about to attack
him again when Sub lnspector Kadel reached there and tired a shot at him who
then turned towards the Sub Inspector and attacked him causing an injury on his
finger. ln the meanwhile constable partap Singh also arrived at the spot and hit the
deceased with a lathi on the backside of his head and constable Manzoor Hussain
again tried to overpower him but he again struck the constabre with a knife hifiing
tlszyU/'
34
him on his neck. SI Kadel again fired towards the deceased injuring him and with
the help of other police officials he was ultimately subdued. The deceased was
taken to the hospital tbr treatment but was declared dea<i on arrival The injured
police men, Constable Manzoor Hussain and Sl Kadel as also the truck driver who
had been robbed were treated for their injuries in the Government Hospital, and
whereas S.l. J.B.Kadel was discharged after first aid constable Manzoor Hussain
was admitted for treatment. A complaint was filed by S.l. Kadel and C.R. 1-
35l2OO4 P.S.Varsad under Sections 39'l ,395,332,333 l.P.C. and 135 of B.P.Act
was registered against the deceased who was identified as Mithu Umar Dafer. The
S.l. also informed his senior otficers about the crime and carried out investigation
relevant to it. The blood stained clothes of the deceased as also cash and other
items were taken into possession by the police officer. He also took into possession
the.38 bore service revolver that had been used in the shooting. The site was also
inspected by an officer liom the Forensic Science Laboratory, one Shri M. Patil,
and certain other items were taken into possession. The Investigating Officer also
recorded the statements ot the members of the police party and also the statements
of the injured truck driver and his cleaner who had been robbed as also certain
persons who were residents of the area around the site. The Investigating olTicer
also made an application to the Executive Magistrare, Anand for conducting the
inquest proceedings with respect to the death or the deccased. The Executive
Lh-^-ll "''
35
Magistrate, Anand (Rural) came to the Post Mortem Room to carry out the
proceedings and this procedure was carried out flom 11.15 hours to 12.05 hours on
14.3.2004. On completion of the inquest proceedings the body was subjected to the
Post Mortem examination by a panel of two doctors who opined that the cause of
death was "haemorrhage shock due to injury to right lung and liver as a result of
fire arm injury." As the identiry of the deceased could not be ascertained at the
initial stage information with regard to his death and a photograph of the dead
body were published in the newspapers and three persons ullimately came forward
who identified the deceased as Mithu Umar Dafer resident of Padana, District
Ahmedabad. The persons who identified his dead body were the younger sister of
the deceased Faluben Umarbhai Dafer, Liliben Sumirbhai Dafer, his first cousin
and Karimaben widow of one Ganibhai who too was a relative. The dead body was
handed over to them atier post mortem for pertbrming the last rites. After
completion of the investigation which included the recording of the statements of
relevant witnesses under Section 161 cr.p.c., taking into account posr mortem
report and report of the Forensic Science Laboratory, the Investigating Officer
filed an abatemenr applicarion on rhe 11rh April,2005 which was allowed by the
Judicial Magistrate lst Class, Anand on the 6,h February,2Ol2.
On entrusrrnent of this mafter, for further investigation by the STF
under the Supervision of the Monitoring Aurhority, public norices were issued in
o,-,
36
the Times of India, Ahmedabad (English) and three papers published in Gujarati
Gujarat Samachar, Divyabhaskar and Sandesh Bhavan. These notices were issued
on rhe l8'h luly,2Ol2. Copy of the Notices published are appended herewith as
Annexure A. Notice on Faluben Umarbhai Dater was served by registered Post on
the 18'h July, 2012 and on Bhanbai Umarbhai Dafer on the 7'h March,2Ol3.
Bhanbai Umarbhai Dat-er, a sister of the deceased, appeared before me on 2''d
April, 2013 and her statement was recorded and videographed before me. ln this
statcment she stated inter alia that her brother had been taken away by the police
and had been subsequently killed. She further stated that her deceased brother had
one daughter and two sons from his first wife Hoorbhai and one son from his
second wit'e Bibibhai. She also went on to say that she had given a statement with
regard to the custodial killing of her brother in order to get compensation from the
Tribunal. The statement of Hoorbhai Dafer wife of the deceased was recorded by
the STF on 23'd October, 2013 and she stated that she had come to know about the
incident much later and that she had got remarried to another person. She further
submitted that her children tiom the deceased were living with her sister-in-law
Bhanbai who was looking after them and her mother-in-law Fatima Bhai as well.
The statement of Fatima Bai was also recorded. She stated that she had come to
know about the incidenr after some time , She also adrnitted thar she did not know
,'Pz
t7
the whereabouts of her daughters Bibiben and Faluben who had been handed over
the dead body of the deceased on the day of the Post Mortem.
As would be clear the aforesaid witnesses who are tamily members of
the deceased were unaware oi the circumstances that led to his death. In this
background the statements of the other witnesses who were present at the time of
the incident and who were largely police officers becorne significant in order to
dctermine prima facie as to what had happened. The material witnesses of the
incident were the complainant Sub lnspector J.B.Kadel and other members of the
police party accompanying him. Of them Head Constable Babubhai Ratilal and
Constable Manzoor Hussain had suffered injuries as well caused by deceased. The
other members of the police party were Head Constable Partap Singh who had a
hand in apprehending the deceased, Constable Manzoor Hussain already referred
to above, ASI Qumar Ali, Police Constable Jayantibhai Maganbhai driver of the
police vehicle, and Natubhai Babubhai Parmar and certain other witnesses had
completed the formalities leading to the investigarion. ln addition the S.T.F.
recorded the statement of Kadar Badshah the driver of the truck which had been
looted by the deceased and his companions on the day of the incident and had been
caused injury by him. His sraremenr was recorded on rhe 23'r November,20l3 and
he supported the incident in its entirety. Inspite of its efforrs, the S.T.F. could not
get a clue to the whereabouts of the cleaner of the truck, Obaiyappa. In the
,b2
38
meeting held on the 12'r'July,2013 a direction was issued to arrange tbr
reconstruction of the scene of the crime and this indeetl was done on the 4'h
September, 2013. The statements of the some of the pcrsons who lived near the
place of the incident and had witnessed a part thereof were also recorded. Out of
these persons, Mukeshbhai Patel, Ashokbhai Parmar and Zebanben all stated that
on hearing the shouting and sound of firing they saw a line of trucks parked on the
road side alongwith a police jeep and they did not move to the place of incident out
of fear but later on came to know the details of the incident.
In the background of the fact that all the material witnesses to the
incident happened to be police officers a careful analysis must be done to see if
the story they had projecred lits in with the medical and fbrensic evidence. As per
the police version two shots had been fired by S.l. Kadel in self del'ence when the
deceased had attacked rhe police personnel who were at the spot with a knife
causing injuries to three of them. As per the facts recorded in the Post Mortem
Report the incident happened at 2 am on 14'h March, 2004 and dead body was
brought to the hospital at about 4 am. The two doctors who performed the Post
Mortem found the tbllowing injuries:-
Description of injuries wirh their duration :
iot.>--
(l)Lacerated wound on the scalp, over Right parietal prominence with crushed
hair bulbs in it, of size 2.8 cms. X 0.6 cms. total scalp thickness deep, area
surrounding the wound has been shaved otT of all scalp hair. The
surrounding are shows contusion.
(2) Lacerated wound ( graze injury) on the dorsum of the right hand,
corresponding to the middle of 1" metal tarsal obliquely placed, shaped with
the pointed and outwards, of size 2.5 cms. X 0.8 cms. X muscle deep with
surround area ol contusion.
Bullet Iniurv
(3) Ent und : Situated in the right mid axillary line, 8'h right inter costal
space, 0.6 cms. diameter, oblique, with lower portion showing contusion,
abrasion color, blackening present 128 cms. from the heel.
Track : Fracture of 8'r' right rib at corresponding site, puncture of
diaphragm, penctrating the liver on the upper surface and coming out
through the lower surface in the gall bladder, piercing the muscles in the
midline and finally lodging in the left flank, in the muscle plate, 6 cms.
above the left thai out.
(4) Entry Wound : obliquety placed, directed upward and outward situated 78
cms above the head, in the inner upper left thigh with abrasion colour,
blackening present, ol size 0.7 cms. with surrounding area of contusion.
39
,luy
40
Track : upwards and outwards through the muscle plane over the hip joint
with surround contusion and coming out on the outer side
Fxit Wound : Small puncture wounds of size 0.6 cms diameter, situated 92
cms. from the heel, on the little side of left thigh, 4 cms. below the iliac
crest, some dried track of blood dot seen on the wound
All the injuries are ante mortem and more than 24 hours old.
A reading of the description of the injuries would reveal that both the
shots had been fired lrom a very close range i.e. within 2feet or so as they had
blackcning around them. Likewise the track of the bullet in injury No.4 shows that
it had travelled through the body from bottom upwards. It is the police version that
the firing was preceded by a fairly long scutfle between the deceased and members
of the police party and this finds support from the tact rhat the track of the bullet
was rather unusual and not a straight forward execution style killing. The wound
of injury and exit and rhe track of the bullet as ir went rhrough the body supports
the view that the incidenr happened during the course of a scuffle. The story of a
scufflc finds further support from injury Nos.1 and 2 on the dead body which were
two lacerated wounds, one on the scalp and the other on the hand of the deceased.
ln addition to the medical and tbrensic evidence concerning the deceased we have
the injury certilicate of S.l. Kadel, the rruck driver Badshah and constable
JJ.Z-
4t
Manzoor Hussain. The injury certificate of the S.l. reveals that two injuries both
fresh and bleeding had been tbund at 5 am on l4'h March, 2004. Likewise Manzoor
Hussain was also found to have two simple injuries on his person, one on the neck
and the other on the chest whereas Badshah had one simple injury on the forearm.
I have also gone through the report of the Forensic Science Laboratory dated l3th
July, 2004. The Forensic Science Laboratory also tbund that the two spent
canridge cases that wcre sent to the laboratory had been fired from a .38 caliber
revolver. Likewise the bullet recovered from the dead body was found to have
been fired from a.38 revolver. Admittedly the weapon used was not sent alongwith
cartridges but it has been pointed out that as it was the admitted police case that
the weapon had indeed been tired by S.l. Kadel so it was thought that it was not
necessary to do so. This self asscssment of the matter may not be entirely correct
but in the light of the fact that there is no absolutely no evidence to suggest
anything amiss against rhe police, this tactor itself is of no signiticance. No case of
a custodial death is thus made out. No further action is called for.
I-C.R.No.34I2003 Police Station Pandesara SuratCi U s307 IPC and 25 1 of the Arms Act.
The final discussion in this matter took place on 26,h August,2015.
The tacts of the case are as under:-
j*.,>
42
Anil Bipin Misra aged 22 years (the deceased) and originally a native
of Village Harpur, Raghunathpur, District Shivan, Bihar was residing in
Kantibhai's house in Punitnagar, Pandesara (Surat) Gujarat. On the I l'h March,
2003 at about 6.30 p.m. the deceased and his companions entered the business
premises of complainant Manilal Prabhudas Patel in Meghna Complex,Surat' They
were armed with pistols and knives. Their entry was resisted by Prabhudas Patel
and his son Tejas whereupon the deceased fired a shot at 1'ejas tiom his revolver
killing him instantaneously. One of the other robbers also fired a shot whereas
another, Sanjay Paswan, attacked Manilal Prabhudas Patel with a knife injuring
him seriously. As they tried to escape from the scene of the crime Assistant Sub
Inspector Madhukar Raja of Urnra Police Station reached the spot and tried to
catch hold of the deceased on which he fired several shots at him killing him. The
crowd that had collectcd, however, managed to apprehend the deceased and he
was taken to Umra Police Starion and a First Intbrmation Report No. 118/2003
Police Station, Umra was registered against him at 3.15 p.m. on l1'h March,2003
under various Sections of the Indian Penal Code and also under the Arms Act.
During interrogation the deceased volunteered to show the place where several
weapons had been hidden by him on which Inspecror D.D.Damor, Head Constable
Pitamber, Constable Amrut Melabhai, Constable Vijaysinh Bahadursing,
Constable Kirti vinayak and two panch witnesses Kanaiyalal pravinchandra
ry
43
Sorathia and Sagrampura Kshetrapal were deputed to accompany him for the
recovery. At the first instance the residence of the deceased was searched but
nothing incriminating was tbund. Thereafter the police officers, now accompanied
by Inspector B.V.Ramani as well, were led by the deceased to a place at Shree
Someshwar Row House and on reaching there asked thenr to stop at that place' The
deceased then walked ahead foltowed by Inspector Ramani, the two witnesses and
the other members oI the potice force following closely. As they reached near the
wall abutting an unmettaled road, the deceased sat down and started to dig into a
mound of earth under the watchful eye of Inspector Ramani and the others. The
deceased, however, created an impression that no incrirninating article was hidden
in the mound but as the potice party prepared to leave the ptace he suddenly took
oul a revolver from the mound and fired a shot at lnspector Ramani. The shot,
however, missed its intended rarget and the police party also took evasive action.
The accused thereupon fired a second shot which again did not hit anybody and
belbre a third shot could be fired, Inspector Ramani look out his service revolver
and fired a shot at the deceased which missed its rarget bur before the deceased
could fire again, a second shot, fired by Inspector Rarnani hit the deceased and he
f'ell down on the ground. The deceased who appeared to be seriously injured was
rushed to the New Civil Hospital, Surat but was declared dead on arrival. 1-
C.R.No.34l2003 under Secrion 307 of the Indian penal Code and 25(l) of the
,ls4>
44
Arms Act was registered against the deceased arising out of the incident in Police
Station Pandesara.
The details of the incident were conveyed to Senior Police Officers
by Inspector B.S.Rana of the Pandesara Police Station. lnspector Ramani also
tendered his .38 bore scrvice revolver and fired cartridges which were duly seized
in the presence of witnesses. The site of the incident was also inspected by A C'P'
H.L.Rathod in the presence of witnesses as well as Shri M'J. Rathod from the
Forcnsic Science Laboratory. The Post Mortem examination on the dead body was
conducted by a Board of Dr. B.V.Subrahmanyam, Dr. S.S.Aggarwal, Dr. Arpita
Ahuja and Dr. Latika Shah whereas the post mortem proceedings were
videographed by Shri Kaushal K. Shah. The Post Mortem Board tbund one fire
arm injury on the front ol the chest with an abraded collar around it but no
blackening or tattooing of the skin, and three contusions on the other parts of the
body. The injuries were found to be ante mortem in nalure. The bullet which had
caused the injury was also recovered from the dead body embedded in the muscles
on the backside of the chest. It was sealed and kept tbr Ballisric examination. A
revolver, a spent cartridge case, one misfired cartridge and one live cartridge were
also recovered from the spot whereas the hand wash of the deceased was also
taken. The lnvestigating officer also recordeti the statements of the witnesses as
also the members of the Police party under Section 161 of the Cr.p.C. In the
,\y/r2yr'
45
invcstigation it was tbund that Inspector Ramani had fired in self defence. As the
accused in this case was the deceased himself the police moved an application for
abatement of proceedings. The application was accepted by the Court and the
matter was closed as having abated. Consequent to the order of Hon'ble Supreme
Court this matter was reterred for investigation to the S.T.F. under the supervision
of the Monitoring Authority. An application under Section 173(8) was accordingly
moved by the S.T.F. for further investigation which was duly allowed on 5'h
February, 2013. At the ve ry initial stage an inquiry was made by the Investigating
Officer as to the fate of the trial of the co-accused of the deceased, Bhim Kumar
and Canesh Kumar, who had been apprehended at the time of murder of Tejas
Patil and Inspector Madhukar Rajaram on which F.l.R. No. 118 of 2003 had been
registcred. lt was revcaled that they had been acquitted after trial by the
Additional Sessions Judge, Fast Track Court on 29'r'December, 2004.
As a preliminary measure directions were issued by the Monitoring
Authority for public norices ro be issued with regard ro rhis and orher referred
incidents. These were published in the Times of Intlia dated lg'h July, 2012 and
several newspapers in Gujarati collectively appended as Annexure A. A personal
notice was also senr by the S.T.F. to Bipin Kumar Bihari, rhe father of the
deceased, who was living in viilage Harpur, police Starion Raghunathpur, District
Shivam, Bihar but as he was nor availabre ar that time the notice was delivered ro
,,(,nP-,l -'
,tLo'-il /-''
46
the brother of the deceased on the 16'h February, 2013, As no one turned up to
have his staremenr recorded, Inspector N.S.Malik was tleputed to the village of the
deceased to record the statements of his relatives. lnspector Malik and his team
then went to village Harpur and recorded the statement of Bipin Kumar Bihari
atbresaid. He deposed that the deceased was his eldest son aged about 30 years and
hatl done his Matriculation in 2004 and had migrated to the State of Gujarat in
search of a job. He further stated that he was unaware of the associations that the
deceased had developed while staying in Gujarat. He further stated that after a gap
of three/four months he received information from the Raghunathpur Police
Station that his son had been shot in an encounter near Surat City but he could not
visit Surat to perform the last rites because of lack of funds and that he was not
interested in any compensation on account of the incident and he had no complaint
to make against anyone. The entire statement of Bipin Kumar Bihari as also the
statements of the other witnesses who appeared betbre the S.T.F. were duly
videographed. The S.T.F. also found that in the absence of any relative of the
deceased, Mohammad Mushtaq Shaikh a member of Ekta Trust, Chowk Bazar,
Surat had performed rhe lasr riles of the deceased. Mohammad Mushtaq Shaikh
was given a notice by rhe S.T.F. calling upon him to give any represenrarion if
desired with regard to the death of the deceased. This notice was duly served and
also published in several newspapers but Mohammad M ushtaq Shaikh nor any
47
member of the trust replied thereto. A Police Party accordingly visited the
residence of Mohammad Mushtaq Shaikh on the 19'h June,2014 and his statemenl
was recorded wherein he confirmed that he, with the help of the Narayan Trust'
had performed the last rites of the deceased. In answer to the notice in the News
Papcrs Shri Ravindra l-.S., an Advocate from Surat, filed a representation on the
l3'hAugust ,2012onwhich he was given written notice dated 16'h February' 2013
to appear before the Chairman ol the Monitoring Authority and the S'T.F. on 19'h
February, 2013. His statement was duly recorded and videographed in my
presence. ln his representation and the statement which he recorded on the t9'h
February, 2013 Shri Ravindran pointed out that he was not representing any
particular party or client but was appearing pro-bono public on the question of fake
encounters in Surat. He pointed out that he had submitted a representation way
back on 27'h July,20ll ro the earlier Chairman of the Monitoring Authority
formed by the Government of Gujarat in 2011 bur no action had been taken
thereon despite important information having been provided. ln the representation
datcd l3'h August, 2012 Mr. Ravindran also stared that there had been systematic
violation of the rule of law as the police ofTicers were indulging in cold blooded
murder and deserved lo severely punished. He also suggested that in addition to the
police officers action should also be taken against the prosecuting agency and even
Judicial officers who were privy to what was going on and rended to overlook the
k-.,{ '----.
48
illegalities committed by the police. Alongwith the representalion Shri Ravindran
also tendered several news items published contemporaneously'
During the course of the initial investigation made by the Gujarat Police
statements of the following eye witnesses were recorded:-
L Inspector B.V.Ramani,
2. Inspector D.D.Damor,
3. Head Constable Pitamber,
4. Constable Amrut Melabhai
5. Constable Vijaysinh Bahadursing,
6. Constable Kirti Vinayak
7. Kanaiyalal Pravinchandra Sorathia Panch witness
8. Sagrampura Kshetrapal Panch witness
The S.T.F. recorded the statements of the above witnesses in addition to the
tbllowing:-
l. Inquest Panch No.l Shri Gandalal Chaturdas Patel
2. Shri Bipin Bihari Sardanand Mishra (deceased father)
3. S.D.M. Shri H.K.Koya, Choryasi prant, Surat
4. Dr. Latika Shah, Micro Biology Deparrmenr, New Civit Hospital, Surat
5. Dr. Arpita Asst. prot. pathology, New Civil Hospiral, Surat
\A-<-:-_l'
49
6. Dr. S.S.Agrawal, Pramukh Swami Medical College, Karamsad, Anand
7. Shri H.L.Rathod, ACP, F. DIV. Surat(Retd.)
In the meeting of the Monitoring Authority dated 12'h July, 2013 it
had been decided that in all such cases a proper reconstruction of the site of
incident should be carried out by the Forensic Science Laboratory, Gandhi Nagar.
Accordingly on 25'h August, 2013 a team from the Forensic Science Laboratory
was deputed to the site and in the presence of two independent witnesses, the site
was inspected. The whole process was videographed and photographed. Statements
of members of the leam were also recorded. The Forensic Science Laboratory inter
alia opined that the buller recovered from the dead body had been fired from the
service revolver of Inspector Ramani whereas the two mistired cartridges and one
spent cartridge matched the .32 bore country made revolver which had been
recovered from the sire of the incident and which had been fired by the deceased.
However, the hand wash of the deceased taken by the police did not show the
presence of any powder traces so as to reveal as to whether a fire arm had indeed
been fired by him. The Post Morrem Board found the following injuries on the
person of the deceased:-
"External Injuries
l*"2-
50
1. Firearm entry wound present over front of left side of chest' 5 c'm's
above left nipple, I I c.m.s left of midline, I X 0'7 c'm's X chest cavity
deep, with abrasion collar all around, mole on left upper side' no
blackening, singeing of hairs or burning of skin, tattooing seen'
2. Contusion present over left side of face, 2 c.m s'front of left ear' 6X5
c.m.s.size bluish-red in colour.
3. Contusion present over outer aspect of leti upper arm ' in lower 1/3'd
area, 10 cm above leti elbow,9x3 cms sixe oblique, bluish-red in colour'
4. Contusion present over front & outer aspect of middle 1/3'd of right upper
area, oblique, 8 X 0.7 c.m.s size, bluish - red in colour.
No palpable fracture.
Above injuries are ante-monem in nature."
In the inquest proceedings the officer did not refer to the three
contused wounds but after an explanation was sought from him he explained that
this could have happened as the dead body was covered with mud and blood and as
such he had probably missed noticing them. To my mind the absence to notice
some minor injuries would not make the police version suspect in as much as that
the incident showed that there had been some kind of scuffle or some physical
activity both on the part of the police party as well as the deceased which could
51
havc led to injuries such as the contusions. It was in lact a providential escape for
the police parly as therc were many police officials and panchayat members
bunched together who could have been injured.
As already mentioned above the family of the deceased which was
resident in Bihar had nothing to say in the matter and they did not even pray tbr
any compensation or voice their suspicion that anything untoward had happened'
t-ikewise Mohammad Mushtaq Shaikh member ol the NGO who with the
assistance of the Narayan Trust, had cremated the dead body had nothing to
comment insofar as the incident was concerned. A cumulative assessment of all
that which has been discussed above and in the absencc of any material to the
contrary it must be found that the allegations of so a callcd t'ake encounter in this
matter are without subsrance. No further action is called lbr.
I-C.R.No 36 2004 Police Station Umara Surat Citvunder Sections 307 224 353 I.P.C. and 25 1-B) A. 27(
and 28 of the Arms Act.
On the l9'r' January, 2004 Mahesh @ Deepak Gadhvali (hereinafter
called the deceased) residenr of pauri Garwhal, police Sration Tehri Garhwar,
Utraranchal, who was at the relevant titne residing in Ro.m No.7, Mokashi Chawl,
1li/\+I
^"7
52
Adarsh Nagar, Santacruz, Mumbai alongwith four other persons entered bunglow
No. 2l-B in Amarkuni Society, Surat posing as employees of a gas company and
during the course of a robbery killed the owner Dilipbhai Desai and his son
Gunjan Desai by stabbing thern with knives and also caused injuries to Dilipbhai's
wite Shobhanaben and a second son Swapnil Desai and also robbed them of a gold
chain and a wrist watch.C.R. No. 33 of 2004 Police Station, Umara under Sections
3021394 etc. of the Indian Penal Code was registered against the deceased and
several others. The deccased was arrested by lnspector Shri N.N.Patel on the 20'h
January, 2O04 at about 8.30 P.M. whereas Prahlad Bhoire accused was arrested on
the same day at 10.45 P.M. and Mahesh Bhosle a few hours later. The three
accuscd were produced bcfore a Magistrate who remanderl them to police custody
till 28'h January, 2004. The remaining accused jayesh Patel and Vikram Patel
absconded. The police received information that both these persons would come to
the residence of Jayesh Patel on which a police parry comprising of Inspector
N.N.Patel, PSI A.V. Gakhar, PSI K.K.Patel, ASI Shanraram Baburao, Head
Constable Madhav Pirambar, HC Bhaskar Ramchandra, HC Vijaysinh
Bahadursinh and consrable Satpalsinh accompanied by the deceased went to the
residence of Jayesh Patel and mounted a survei ance on the premises. The
deceased had been taken along to identify his companions Jayesh patel and vikram
Patel' Taking advantagc of a rax moment the deceased snatched the .32 bore
53
rcvolvcr of Head Constable Madhav Pitambar antl fired into the air, and
attempted to run away.'fhe Police party chased him and warned him to stoP but he
l ireti at the police on which lnspector N.N.Patel fired one shot from his service
revolver towards the {eceased whereas two shots were l'ired by PSI Gakhar and
one round by Inspector K.K.Patel. Seriously injured the deceased fell down'
lnspector Patel and Constable Vijaysinh Bahadursinh rushed the injured to the
New Civil Hospital, Surat but he was declared dead on arrival. On the statement of
lnspector N.N.Patel o[ Urnara Police Station C.R. No.36 ot 2004 was registered at
Policc Station Umara under Sections 307 I.P.C. and Section 25(1)A of the fums
Act against the deceased on the 22nd January, 2004 at about 3.00 A.M. The
investigation of the case was entrusted to ACP H.L.Rathod and on his request
inquest proceedings pertaining to the death of the deceased were conducted at
abrrut ll.l5 A.M. on rhe 22''d January, 2004. A Board of l'ive Doctors comprising
ol Dr. M.H.Kureshi, Dr. Lavlesh Kin, Dr.D.J.patel, Dr. Nipin Bagla and Dr. Kiran
Patel was constituted ancl the entire proceeding was vidcographed by Kishore
Borse' the police videographer. The post Mortem Board arrributed the death of the
deceased due to "bullet injuries on heart, rungs and liver." The tnvestigating
oflice r and officers oI rhe Forensic Science Laborarory, Gandhi Nagar also went to
the hospital and inspecred rhe dead body and also conducted a Nitrogen test on the
hands ,l lhe deceased ro lind our if any fire arm had bcen discharged by him. The
2
54
lnvestigating Officer also took into possession three gttvcrnment owned weapons
rhat had been used by thc atbrementioned police otficcrs in their attempt to stop
rhe deceased from cscaping. The police also made an ellbrt to trace the relatives of
the deceased so that rhe rlead body could be handed over to them for pcrformance
of thc Iast rites. It transpired rhat the deceased at the time of his arrest had given a
wrong address to the police but the investigation reveilled the correct details and
address of the deceased and his sister Pushpaben who was living in Room No'7,
Mokashi Chawl, Adarsh Nagar Santacruz, Mumbai. The dead body was handed
over to her on the 26'h November, 2004 and she perforrned the last rites in Surat.
The statements of Pushpaben aforesaid and Sabalsinh Rana of Joshi Chawl,
Santacruz Mumbai who had accompanied her to Surat were also recorded. As the
accused in this case had died an application for abatement of proceedings was filed
and the same was accepred on the 6th october, 2008. on thc constitution of the
S.T.F. and the Monitoring Authority, the officers empowcred to do so moved an
application under Secrion 173(8) of the cr.p.c. for furlher investigation and this
application was alloweri and further investigation has bee, conducted by the STF
under the supervision of rhe Monitoring Authority.
It is to be noticed that accused parhrad Gynaneshever Bhoire and
Mahesh Babu Rao Bhosle hati been arrested at the spot soon after the murder and
Jayesh Ambalal Pater had been arrested rater on. The Trial court awardcd a death
t|*fr^'t
55
sentence to Parhlad Cynaneshever Bhoire and life imprisonment to Mahesh Babu
Rao Bhosle. Jayesh Patel was apparently acquitted.
In accordance with the decision taken by the Monitoring Authority
(and as the deceased belonged to Uttranchal) in addition to the public notice issued
in the Times of India Ahmedabad (English) and three papers in Gujarati' Gujarat
Samachar, Divaybhaskar and Sandesh Bhavan dated ltl'r' July,2012 collectively
appended as Annexure A to this report, specific public ntrtices were issued in Amar
Uiala a Hindi Newspapcr published from Nainital in its issue dated 4'h August,
2012 and Hindi Lokmat Mcdia dated 5'h August, 20 l2 published frorn Nagpur,
Akola, Jalgaon, Nasik, Aurangabad, Ahemadnagar, Solapur, Mumbai, Kohlapur
and Pune because the deceased and his sister of the deceased were presently
rssidents of Mumbai. In addition ,personal notice was servcd by the Investigating
Officcr on Pushpaben on the [2rh January, 2013. lt is significant that on the 28'h
January, 2004 the Sub Divisional Magistrate, surat who had conducted inquest
proceedings, after recording the statements of all those involved in the incidenr,
had given a press note in two prominent newspapers requesting the public to
provide informarion, il any, about the incident. As per the rcporr submirred by the
Sub Divisional Magistrate, no one had come forward to make any statement. A
rep,rt ol the encountcr had, however, been sent to thc Narionat Human Rights
Commission, New Delhi on l7,h May,2005. On the basis of this report the
l-r-/
56
National Human Righrs commission in April 2007 directed the District Magistrate'
Surat to conduct a turther inquiry with regard to the l7 non-tirearm injuries tbund
on the dead body. The Sub Divisional Magistrate' Choryasi conducted a further
inquiry and submitred a reporl dated 3'd July, 2008 to the effect that these 17
injuries had been causcd to the deceased when he had been beaten by lhe public at
rhe time of his apprehcnsion as per the statement of the deceased to the doctor and
he had been rreatcd as case No. 14788 dated 20.1.2004 for his iniuries' A
stalement to this eft'ect was also given by the Doctor. A lull report was submitted
to the National Human Rights Commission pointing out the manner in which
incidcnt had happened and that the potice had resorted to firing at the deceased in
self detbnce
In the Iirst set of investigation held by the Gujarat police the
statements of the tbllowing witnesses had been recorded:-
LIST OF EARLIER STATEMENTS RICORDED
E WITNESSShri A.V.Gakkjar, Dy.S.P. Valsad
Shri K.K.Patel, Police lnspecror, Ahmedabad
Shri Shantaram Baburav, A.S.l. Surat City
Shri Madhav Pitambar ,HC Surat City
Shri Bhaskar Ramchandra H.C.Surat City
rsinh H.C.Surat CiryS hri Vijaysinh Bahadu
,tt-r1-lt
I
57
Shri Satypalsinh Mohbatsinh Surat City
Shri Tarik Mohmad Saiyad Constable Surat Cityf-
Policc Jeep)
OTHER WITNESSESShri Ganesh Prasad ram Abhilash Dube, ASI, Surat City ( Dr iver of the
:Sh;i Arvind Val jibhai Surat city ( Wireless operator ol'the Po lice Jeep )
Shri Narendrasinh Jasvantsinh Surat City ( Driver of thc DCB Po lice Jeep )
INDEPENDENT WITNESSES
Shri Avadh Bihari Yadav
Shri Anilkumar Shriprasad ram
r Shatishbhai Charandas Khatrif ____Shri Kamalsingh Panesingh Rajput
Shri Gurudalal Singh Anandi Prasad Singh,
' Shri Jagadish bhai Rarneshbhai Bajaj
I Shri t-alaji Badri Varma,
Shri M ansing Tulsiram kushvah,
Shri Sabalsingh Fatehsingh Rana,
Smt.Puspaben
The statements of these wirnesses were re-recorded by the S.T.F. In addition the
STF also recorded the statements of parhlad Gynaneshcvcr Bhoir, the co-accused
ot thc deceased who had been rodged in jair pursuant to his conviction for murder.
It would be clear from a reading of the evidence that has been
produced before the S.T'.F. thar in addition to the potice ofricers there are several
!ll^'tl .-----
58
independent witnesses as well who were witness to a part it not the entire incident'
The statements of D.S.P. Gakhar, lnspector K.K'Patel' ASI Shantaram Baburao'
Head Constable Madhav Pitambar, Head Constable Bhaskar Ramchandra' Head
Constable Vijaysinh llahadursinh and Constable Satpalsinh reveal the detail of the
incirlent and the manne r in which the firing had taken place which had led to the
death of the deceased. In adrlition, the statement of Suh Divisional Magistrate,
M.S.Gohil, as well as t{itesh Kishorebhai Kohya, S.D.M. who had conducted the
inquest proceedings and of the two independent witnesses, Mukesh Bababhai
Desai and Kamlesh Thaorbhai Patel,- were also recorded. These were the witnesses
to the recovery of the revolver that had been used by the deceased while firing at
the police party. Notice was issued to Pushpaben for coming to Gandhi Nagar to
record her statement but she made a note in Hindi to the effect that " I have
received the notice, I do not want to say anything to you'' and signed the same.
The police party accordingly visited her house in Sanracruz, Mumbai on the l7'h
Fcbruary,2013 to record her sratement in which she contirmed that she had on the
asking of the Gujarar police accompanied by Sabalsinh Farehsinh Rana visited
Surat and had performed the last rites of her brother and thar she hacl no complaint
against the police and that her brother deserved the punishment which he had
receivcd. This statemenr was signed by her and videographcd in the presence of
her sister Lakshmiben. Shri Ravindran T.S.Advocate of Surat also filed a written
LtT-J --
59
representation and recorded his Statement as already merttioned above. He madc
no specific allegations wirh regard to this matter but submitted that Surat police
were unlawfully eliminating persons.
The policr: version is supported by three independent witnesses who
resided or worked near rhc place of the occurrence. Avadh Bihari Jagarnath Yadav,
a warchman stated that he hacl come to know about the incident when he had
comc tbr dury at about tJ.00 a.m. the next morning whercas Satisbhai Charandas
Khatri stated he heard the sound of gun tire in the night but had come to know
about the incident the next morning. Jagdishbhai Rameshbhai Bajaj also stated lhat
he was awake in his Uat close by when he had heard the shouts of "catch, catch"
and had heard the sound ot'gun tire though he was not an eye witness thereof. The
evidence of Satishbhai and Jagdishbhai clearly fixes rhe rime of the incident and
supports the police version.
ln cases ol allegations of custodial killing by, r.vay of a fake encounter
there would be invariably lack of independent eye witnesses ol the actual incident.
-ro ascertain the truth, scientific evidence which has comc on record is of the
utmost importance. Thc Board of five Doctors who conducred the post mortem
examination on 22nd January, 2004 at 4. 15 p.m. found rhc foil,wing injuries on the
dead body:-
tl
60
"On front
(l)Circular hole present on right side of the T-shirt of size 0'4x0'4 cm size
situated 50 cm above the lower border, 25.5 crn rnedial to stitch line on
right side.
(2)Circular hole present on front of right side ol'T-shirt of size 0'4x0'4 cm
size situated 28.5 cm above long border and 2l cm medial to stitch line
on right side.
(3)Circular hole present on frontal aspect of size 0.-1x0.4 cm situated 24 cm
above the lower border and 5cm medial to right side stitch line.
(4)Circular hole present on front of T-shirt of size 0.4x0.4cm, at 18.5 cm
above the lower border and 26.5 cm medial to right stitch line.
On back
( I ) Rail road panern bruise presenr on back of chcsr oblique, on either side
of midline, ol size 19x3 cm with lcm area inrcrvening normal, situated
l0 cm below.
(2)Rail road parrcrn bruise present over back ol chest, obrique, on eitherside of midline of size l0X3 cm, with Icm area intervening normalsituated 4cm below injury No.l
t\-
(t)Hole present on back of T-shirt on leti side ol size 0. 1x0.5 cm, situated
44.5 cm abovc the lower border and 29 cm medial to leli stitch line.
(2)Hole present on back of T-shirt on right side ol neck 0.5x0.5 cm, situated
225 cm tiom long border and 16 cm medial to righr tine.
External Injuries
61
(3)Rail road btuisc present over lower, lett hit of size' 5x3cm, oblique, with
lcm area intcrvening ntlrmal, situated 72 cm abovc leti heel'
(4)Rail road partern bruise present over outer aspect of left arm of size
7x3cm with I cm area in-between normal, situated 7 cm above elbow'
(5)Contusion present in back of chest in a area ot 10x5 cm, situated 12 cm
below lower angle ol left scapular and 4cm leli to midline.
(6)Rail road pattern contusion present over back of chest of size 4x3cm with
1cm area in between healthy oblique, situated 22cm below axilla in
posterior axillary line.
(7) Multiple contusion present on back of left shoulde r in an area of 7x4cm
situated 3 cm bclow top of shoulder ol size varying from 1x05 cm to
0.5x0.4 cm.
(8) Multiple abrasions present over back of abdomen in midline in an area of
7x5 cm, situated 35 cm below root of neck, of size varying from 1.5x1cm
to 0.5x0.3 cm.
(9) Multiple abrasions prcsent on back of lefr e lbow o[ size varying from
2x l cm to 1 .05 cm in an area of 6x2cm.
( l0) Multiple abrasions prese nt over back of leli wrisr of size varying from
I x I cm to 0.5x0.3 cm in an area of 3xl cm.
( I 1) Abrasion presenr over back of right thumb ot size 3x0.5 cm.
(12) Contusion presenr over back of right shoulder and back and outer
aspect of righr arm in a area of 35x16 cm.
Note: Above mentioned all contusions and abrasions are red in colour.
(13) contusion present over left forehead in an area of 6x5 cm, situated3cm above leti eyebrow red in colour.
( t 4) Abrasion prese nr over root of nose of size 0.-5x0.2 cm, red in colour.
L)8,,-| .-'
62
(15) Abrasion present over left shin(front) ol tibia of size 3x0'5 cm'
situated 20 cm b0low left knee joint, red in colour.
( l6) Multiple abrasions present over left ankle ol size varying from 0'2x0'1
cm to 0.3x0. I cm, red in colour.
(17) Abrasion present over dorsum of right tbot of size 0.5x0.5 cm size
situated l0 cm ahove 3'd toe red in colour.
(18) Firearm bullut entry wound present on right side tiont of chest size
0.5x0.5cm with surrounding abrasion, more ovcr upper border of size
0.3x0.2 cm, situated 127 cm above right heel, 4 cm right to midline,
circular in shapc, margins inverted x chest cavity deep.
(19) Firearm bullct entry wound present 0n left lront of chest of sizc
0.5x0.5 cm with surrounding abrasion of size 0.2x0.2 cm, situated 124
cm above left heel,9 cm left to midline, circular, margins inverted x
chest cavily deep.
(20) Firearm bullet entry wound present on right side tiont of chest size
0.5x0.5 cm with surrounding abrasion in an area of 0.2cmx0. lcm,
situated 122 cm above right heel and 3cm righr to rnidline, circular shape
margins inverted x chesr cavity deep.
(21) Firearm buller entry wound present on right side abdomen of size
0.5x0.5 cm wirh surrounding abrasion in an area of 0.lcmxO.lcm,
situated 111 cm, above right heel and lcm righr ro rnirjline.
Note: In injury No. l8,l9,ZO,2l, singeing, blackening and tattooing not
present, abrasions reddish brown colour.
Above mentioned ali injuries are ante tnonent in nature.,.
,l
$+
63
As per thc police version atier the deceased had been apprehended
after having committed the murders, he had been givcn a severe beating by the
public on which he had been taken to the hospital tbr treatment and had been
treatcd as case No. 14766 dated 20'h January, 2004 in the Civil Hospital. This had
been revealed during the inquest proceedings subsequently and this information
had been conveyed on an inquiry made to the Nationat Human Rights
Commission, New Delhi as well. The first set of injuries on the person of the
deceased were the non-firc arm injuries 17 in nurnber which clearly reveal that the
deceased had been soundly thrashed by the public before his apprehension by the
police . Of these 17 injuries l2 are bruises and 6 are conrusions and the fact that
they are all over the body clearly shows that the deceased had been beaten by a
large number of persons. [n the second incident involving the shooting the story
projected by the poticc shows that as the deceased was being taken along by the
police party headed by Inspecror N.N.patel, he had snatchetl rhe .32 bore revolver
from the waist of Head Consrable Madhav pitambar and had attempted to run away
aftcr tiring one shot in the air and two at the police party on which Inspector patel,
S'l' Gakhar and S.l. K.K.parir had between themserves |iretl rbur shots which had
hit the deceased. h has come from in statements of the D.crors that the in juries had
been caused to the deceased tiom a distance of betwecn 2 t'cet to 20 feet. The
varicd distances from which rhe shots had been fire<i crearly supports the police
y
,i,,\l\-7'r.1..-
64
version that the deceascd was alrempting to run away and had in fact lired three
shots at the police, belbre he had been neutralized
The medical evidence finds supports fiorn the report dated 5'h August'
2004 submitted by the Forensic Science Laboratory. The Forensic Science
Laboratory found that Nitrate test on the hands o[ thc deceased was positive
meaning thereby that a weapon had indeed been discharged by him. Likewise the
l.aboratory found that lhe three fired arms allegedly usetl in the incident matched
with the empty cartritlge cases that had been supplied by the police to the
l-aboratory and a .38 catiber butlct recovered from the dead body at the time of the
post mortem had matched the revolver that was bc ing carried by Inspector
A.V.Gakhar.
ln order to have further confirmation about the police version the
reconstruction of the incidcnt was again done by the Forensic Science Laboratory
and a examination was made of the site on the 5th September, 2013 and a further
report was submitted. lt confirmed that the bullet recovered from the dead body
had bcen tired from rhe revolver of Inspector cakhar and that the three spent
cartridge cases of .32 hore revolver matched the revolvcr snatched tiom Head
constable Madhav Pirarnbar. Likewise the report lbund rhat the three .3g bore
rev,lvcrs that had been uscd by other police officers and tbur spent cartridge cases
had been seized, one cartrirrge each being fired rrorn two revolvers and tw<.1
,u\_)-d--
65
carlridge from the thirtl. Furthcrmore, the Forensic Science Laboratory noted that
as per the post mortem note thcre were no marks of blackcning or tattooing of the
injuries on the body or clothes of the deceased which showetl that the injuries had
been caused from a tlisrance of more than 2 l'eet. The Forcnsic Science Report
accordingly concluded that the police version was clearll supported by the facts
that had been found in the post mortem examination as well in the analysis made
by the Forensic Science Laboratory.
The conclusion is irresistible that no evidencc of custodial killing or
fake encounter is made out in this case. No further action is called for.
I-C.R.No. 76l2005 Police Station Borsad DistrictAnand under Sections 307 224 332 I.P.C. and 27 Q)
The final hearing in this matter also took place on 26.8.2015. The
tacts arc as under:-
At about 10. l5 am on the 10'h March,200.5 lbur persons entered a
iewellcry shop named Sainath Jewellers situated in Kishrr plaza, Station Road,
Anand' one of the persons was carrying a pistor and using it to intimidate the
attendants in the shop, they looted alr the ornaments and arso thc jewe ery worn by
the Arms Act.
[-r-
65
Nayankumar Rameshbhai Soni and two other persons working in the shop, in all of
thc value of Rs.11,78,000/-. The robbers then got on to a Splendor motorcycle kept
outside the jewellery shop and drove towards Ganrdi Vad. Nayanbhai and some
persons from the surrounding shops chased the robbers and on the way they came
across a jeep of the Muncipal Corporation and the jeep too ioined in the chase. On
rcaching Samarkha Chokdi, they came across a jeep of the traffic police. They
inlbrmed the police ot what hacl happened and then returncd to their shops. The
police however, continued to chase the culprits and on inquiry from some person
they werc told that three persons had come on a motorcycle and after threatening
him with a fire arm had takcn away his Maruti Van. Sub Inspector J.B.Kadel of the
District Police took the owner of the Maruti Van with him and after a shorl
distance found both thc motorcycle and van lying abantloned. They also received
information that the thrcc persons who had come in a Mlruti Van had looted the
Armoured car of the Urhan Bank by showing a revolver and had run away and
but altcr a short distance had lett the Armoured car and shiftecl to a Tata Sumo and
Sone on towards Surat liom Vadodara. on the complaint of Nayanbhai an oft-ence
under Section 397 of the rndian penal Code and 25( l) of the Arms Acr was
registcred as c'R.No. 63 oi 2005 in police Station, Anand. Kaushikbhai
Ishwarbhai Patel owner of the Armoured car also rodgecr a complaint at Anand
Town Police Station which was numbered as c.R.64,r 2005 under Sections 397
t^""l/'
67
I.P.C. and Section 27( l) of (hc Arms Act. On receipt of information about the twtl
incidents, wireless messages were flashed by the Control Room of Anand Police
Station and cautioned by the wireless message a police parly of Bharuch Police
Station spotted the robbcrs driving towards them but on seeing the Police Party
they lost control of the vehicle which overturned. The thrce persons in the vehicle
(L) Raj Kumar son oi Prem Kumar Pandey, resident ol'P.C.Colony, Patna (Bihar)
(2) Ashishkumar Ramakant Prasad Yadav and (3) Hiteshsingh Rampukarsingh
Rajput both residents of Bans Ghat, Patna, (Bihar) werc arrested and C.R. No. 1l
of 2005 under Sections 2791337 of the Indian Penal Code , 1771184 of the Motor
Vehicles Act and 25(1-B) Arms Act was registered in Bharuch Police Station at
4.10 p.m. on the l0'r'March,2005. The accused were produced before the
Magistrate on the nexl day and remand was obtained till the t4'r'March, 2005 in
C.R. No. 63 of 2005 Police Station, Anand, and transfcr warrants of the accused
were obtained by lnspcctor R.B.Patel of Anand police Station. The custody of the
accused was also taken by the aforesaid officer and they were arrested in c.R.
No.63 and remanded to police custody upto 28'h March, 200-5. During interrogarion
Raj Kumar accused whosc real name was revealcd to tre Ra.ieshwar (hereinafter
called the deceased) residenr of Budha Colony admittecl rh,r on 9rh March, 2005 he
and his accomplice hari lootecl a gold chain and a Hero l-ronda Motorcycle from
Hiteshkumar Ambarar parel ar Anand and c.R.No. -54 or 200-5 tbr oftences under
$-"rz/
58
thc Indian penal Corie and the Arms Act had been registered at his instance in
Borsad Police Station. On completion of the police rentand, the deceased was
produced before the Magistrate on the 28'h March, 2005 and on the basis of a
transltr walrant by that court his custody was handed over to S.l. Vaniya of Police
Starion Borsad as an accused in C.R. No.54 of 2005, and he was arrested in that
case and produced belbre a Magistrate who remanded hirn to Police custody till the
4't' August 2005. The investigation was then taken over by lnsPector D'S'Patel oi
Borsacl Police Station who again produced the deceased betbre the Magistrate on
thc 4'r'April,2005 and obtained a further remand upto l6'h April,2005. On 5'h
April,2005 Inspector D.S.Patel was in the Nadiad Court in connection with a
Borsad Police Station n'ratter, when he received a message frorn the Local Crime
Branch Office, Anand, that a Bihar police party had corne to interrogate the
dcceased. Thereatter the deceascd, in the custody ol a Police Party headed by
lnspector D.S.Patel, S.t. G.N.Parmar, H.C. Yashwantsinh Bhimsinh, P.C.
Manibhai Jivabhai and P.C. Jaydipsinh Nathusinh was brought to the Local Crime
Branch otTice where Shri K.D.Singh of the Bihar police and his sraff and lnspector
B.C.Bhandari of the Local Crime Branch were present. The Bihar police personnel
were allowed to interrogate the deceased whereas lnspectur patel atongwith his
stall returned to the Nadia<i court and on completion of thcir work returned to the
Local crime Branch olfice and found that the deceased's interrogation was still
lb">I
69
continuing and it had been revealed during tlre internlgation that he was a
no(lrious criminal and hacl committed many serious crimes in the State of Bihar as
well. Inspector Patel and the Bihar policemen jointly interrogated the deceased
who revealed that the weapon uscd by him while comrnitting the offence registered
as C.R. No. 54 of 200-5 had been thrown by hirn while running away and that he
could show the place where he had done so. Accordingly at about 0.45 hours
lnspector Patel and his statT took him in a Government Jeep whereas a second
vehicle followed with me nrbers of the Local Crime Branch and Inspector Bhandari
and S.l. H.A.Rathod. As the two vehicles reached near Dedarda village the
dcceased lay down on the back seat of the jeep tiothing l'rom the mouth and
writhing in apparent pain. lnspector Patel immediately ordered the vehicle to be
parkcd on the road side and asked the police personnel to remove the handcuffs ol
the deceased and he was lifted and brought down from the vehicle and laid flat on
the road. They also sprinkled water on his face to revive him. The deceased,
however, suddenly jumpcd up and seeing that Inspector Patel had bent down he
lunged at the Police olliccr and hit him on his tace. He also tried to snatch away
the revolver of the Police olficer from the holster but as the revolver was attached
to a lanyard he could not take cornplete possession of rhe weapon. In the scuffle
and hand to hand tighr rhar ensueri the revolver remained lirmly in the hand of the
deceascd and aimed rowards the police ofhcer and despite the police officers'
70
elfrlrts managed to firc one shot from the revolver and the bullet passed near the
shoulder of Inspector Patel piercing his uniform shirt. At the sarne time the other
persons in the police party who were with lnspector Patel caught hold of the
deceased from all sides and attcmpted to snatch revolver from his hand during
which two shots were fired both hitting the deceased, onc on the chest and the
othcr in his mouth causing serious injuries. Inspector Patcl and the Police Party
put the deceased in a jr:ep and took him to the Nagar Palila Hospital, Borsad and
consequent to the lacts above C.R.No.76 of 2005 under Section 307 t.P'C. and
27(2) of the Arms Act was registered against the deceascd and the investigation
was cntrusted to lnspector B.J.Pathan of the Econornic Cell, Anand under the
supervision of the Superinrendent of Police.
Inspector Pathan informed the senior officers through a wireless
message giving details ol the incident and also requested the Sub Divisional
Magistrate, Shri Petlad to hold the inquest proceedings and rhese were completed
between 7.30 to 9.00 hours on the 6'h April, 2005. The site was also inspected in
the presence of panches and ollicers from the F.S.L. who photographed and video
graphcd the scene on rhe 6'r' April, 2005. The .38 bore revolver which had been
snatched tiom Inspector Patel by the deceased alongwith rhree spenr cases of .38
bore, a leather holster, a lanyard and the shirt with a bullet hole worn by
Inspector Patel were als. seized on the 6rh April, 200-5 in rhr presence of witnesses.
,U-+{I
7l
The dead body was sent tbr the Post Mortem examinalion and a board of two
doctors, A.D.Mehta and B.M.Mehida, opined that death irad been caused "due to
cardio respiratory tailure due to shock due to bleeding, due to grievous fatal head
injuries and lung injuries due to the bullet firing injuries". I-he clothes wom by the
deceased and the bullet lilund embedded in the body and taken out by the Doctors
cluring post mortem, were also seized. As the police had identified the deceased
his address as a resident of Bihar, arrangements were made to inform his parents
and tamily in Bihar and his father Laxman Hiranand Pandey, was intimated
through the Bihar policc that his son was dead. He scnt his relatives Arvind
Kumar and Shashikant to Gu.jarat. They were taken to the S.S.G. Hospital,
Vadodara where the dcad body had been kept in the mortuary and.they identified
the dcad body as of Rajeshwar @ Mintu. Their statenrents were duly recorded.
'Ihe dead body was accordingly handed over ro them for the last rites. On
completion of the invcstigarion lnspector B.J.Pathan of rhe Economic cell, Anand
found that the police had killed rhe deceased in self defence accepting the police
version, filed an abarcmcnt application on the l '' Ocrober, 2005 before the
Magistrate. This applicati.n was allowed and the proceetli'gs were disposed off as
having abated on rhe 29rh September,2006.
On reference ol the matter to the S.T.F. antj the Monitoring Authority
and as the deceased was a rcsidcnt of Bihar and his famirv mernbers also resided in
,L,&"-"
73
stated that she had one son(the deceased) and four daughters and that as per
intbrmarion received by her, rhe deceased had died in police custody in Gujarat
and it was on her rlirecrit)n that her relatives Shashikant Dubey and Dharamraj
Mishra had gone to Borsad t<.r perform his last rites. She also stated that she could
not visit Gandhinagar duc to old age but suspected that her son had been killed by
the police although she had no evidence to that eft'ect. She also stated that she had
rcceived Rs.5 lakhs as compensation from the Gujarat Go,'ernment. The statement
of Shanti Devi was also video graphed by the police party.
In the initial investigation the statements of rhe following witnesses
wcre recorded:-
(A)EYE WITNEESES
l. Shri D.S.Patel, Police lnspector, Borsad police Srarion
2. Shri G.N.Parmar, pSl, Borsad police Station
3. Shri Yashwanrsinh Bhimsinh, H.C.B. No. 1171, Borsad police Station
4. Shri Manilal Jivabhai, p.C. B.No. 13, Borsad police Starion
5. Shri Jaydipsinh Nathusinh, p.C.B.No.50, Borsad policc Starion
6. Shri Mohasinmiya Rasulmiya DRA, p.C.B.No. 316. Borsad p.S.
OTHER 1VITNESSES
l. Shri B.C.Bhandari, police lnspecror, L.C.B. Anand
I
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2. Shri H.A.Rathod, PSl, L.C'B' A-nand
-1. Shri Badjibhai, Kamjibhai, H.C.B.No' 1079, L'C'ts'Anand
4. Shri Liyakat AIi Khan Kamu Khan, H.C.B' No' 1202, L'C'B' Anand
5. Shri llyas Miya Yusuf Miya, H.C'B.No. 1075, L'C'B' Anand
6. Smt. Lilaben Harmanbhai Solanki, resident of near Rumala Talavadi'
Dedarada, Taluka Borsad
7. Shri Manubhai Babubhai Solanki, resident of near Rumala' Talavadi'
Dedarada, Taluka Borsad
8. Smt. Gitaben Vinubhai Solanki, resident of ncar Rumala, Talavadi,
Dedarada, Taluka Borsad.
9. Arvind Kumar (! Dharamraj, resident of Bandha Kol, District Bhojpur
(Bihar)
10. Shashikant Shrishivii, resident of Salempur, District Aara (Bihar)
(Witness No. 9 and l0 are from Bihar who identified the dead body)
As would be clear all the eye witnesses are police officers and no
independent witness has been involved. This is undersranciablc that in the light of
the lact that the incident happened after mid night when persons are expected to be
at home and nor moving about outside. The S.T.F. recorded the statements of
these witnesses and a rtw additional witnesses including the mother of the
deceased.
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As already mentioncd above and in the absence of any independent
witness when the allegations are of a fake encounter, the scientific evidence would
require careful scruliny.'Ihe incident is said to have happened at about 45 minutes
alier mid night on the nighr inrervening 4/5'h April, 2005. As per the Post Mortem
Report the dead body harl been received in the hospital at 9.00 a.m.on 6'h April,
2005. On the face of it, there seems to be some delay between the time of the
incident and the receipt of the dead body in the hospiral considering that the
distance was only 5 krn. I have, however, read the statement of Inspector Patel
wherein he has pointed out that after the incident the dcccased had been taken to
the Nagar Palika hospiral, Borsad for treatment but the Doctor on duty was not
prcsent but he had nevertholess given a report in the hospital and also sent a letter
to the Executive Magistrare, Borsad to record the dying declaration of the deceased
on which the Magistrate had come to the hospital and recorded a note at 1.40 a.m.
that thc deceased was lying on a stretcher in the Dressing Room at the Government
Hospital, Borsad and on looking at him he believed thar he was dead and his dying
declaralion thus could nor be recorded. I am, therefore, of rhe opinion that there is
absolutely no delay belween the incident which happened shorrly before l'oclock
and the arrival of the iniure<1 in the hospital. Significantly a special note had also
been recorded in the Post Mortem Report that the deceascd had been brought ro the
hospital in an injured c,ndition with bullet injuries at abour 1.00 a.m. and was in
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severe shock and an eflbrt made to resusticate him in order to send him to some
other hospital but he had dicd before he could be removed The report of the
Executive Magistrate and the special note in the Post Mortetn Report clearly fixes
the time of the incident which is in accordance with the police version'
The Post Mortem examination revealed the prcsence ol two gunshot
wountls. The first was a laceratecl wound in the middle of the skull in the centre a
Iittle towards the right side penetrating the brain. Thcrc was a fracture in the
parietal bone and the brain injured area was blackened and distorted. The X-ray
of the skull did not show any evidence of any bullet in the skull or in the brain. The
second gunshot wound was a circular one on the left side ol the chest of size lcm
x lcm about l0 cm away from the root of the neck on thc luli side in the line of the
nipple and below the wound the injured area was blackened and distorted. A spent
bullet was recovered tiom thc leti shoulder of the dead body. In his supplementary
statement the Doctor opined that keeping in view the hlackened edges of the
wounds the firing had taken place between 1 to 10 ti. This tlrs in with the police
vcrsion that three shots had bcen fired during the scufflc between Inspector patel
and the deceased while the lnspector was trying to snatch lhc revolver away from
the deceased and thar the firsr shot had missed the poiice officer but had gonc
through a loose part ol his police uniform shirt whereas rhe other two had hit rhe
deceased killing him. As pcr the report dated 24'h June,20l2 the Forensic Science
"'"*1,'r.-,t
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77
Laboratory found a hole 0.7 cm in size surrounded by black coloured spots and
when the said hote was examined under Microscopic equipment the presence of
nitratc and lead residucs indicated lhat the hole had been caused by a bullet which
could be a part of the recoveretl empties of the .38 bore revolver. Likewise the
hand-wash of the hands of the deceased indicated the presence of the residue of
firc explosive (Nitrate) as per the FSL supplementary report dated 20'r' February
2014. The police version is that the deceased had snatchr:d the revolver from the
holster of Inspector Patel alter clelivering a fist blow on his tace which had caught
the police officer unawarcs and he had momentarily fallen backwards but as the
revolver was attached ro a lanyard the deceased had not been able to take it away.
which had led to a scuflle tbr the possession of rhe rcvolvcr. The F.S.L. in its
report dated 24'h June, 2012 tbund that the stitches on rhe belt portion of the
holster had been broken by srretching/scuffle. This too fits in with the police
ve rsion. Significantly also lnspector Patel was examined in the hospital at g.00
p.m. on 6'h April, 2005 and a certificate issued by the Docror showed an injury on
the upper portion of the lelt hand and it was recorderi rhat the officer was
complaining of severe pain in the left hand (though no mark of any injury could be
seen) and a congestion .f the left eye which could be duc r. a brow by an object.
78
I am, therclbre, of the opinion that the allegations of a stage managed
encounter are not marle out on the facts that have colno on record. No further
action is called tbr.
I-C.R.No. 227 2004 Police Station Karelibash DistrictVadodara under Sections 307 I.P.C. and 25 (1) the
Arms Act.
This matter was finalty discussed on the 26'n August, 2015. The briet
facts are as under:-
At about 10.45 a.m. on the 22nd February, 2004 two persons were
loitering around the Branch of the H.D.F.C.Bank in rhc Alkapuri society area
wilhin the jurisdiction ol Karelibagh Police Station, Disrrict Vadodara. The
security guard of the bank however, got suspicious on seeing their behavior and he
immediately inlbrmed rhe police. A police party reached rhc place and attempted to
apprehend the two. One of rhe two, subsequently idenrifieri as Rakesh @ Viki
Jagdishbhai Gavli, was caught while the other Kashyap Harpalsingh Dhaka
(hereinafter called the 'deceased') took out a country made weapon and threatened
the police party in order to rescuc his accomplice. He also tircd a shot at a passers
by, Tejas Bipinchandra Jain, hitring him on his shoulder and afrer snatching his
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Hero Honda Activa scooter, rode ran away from the spot' Case C'R' No' 1-181 of
2004 under Sections 307, 394, 506(2) and 114 of thc lndian Penal Code and
25(AX I ), 27 of the Arms Act was accordingly registered again him and his co-
accuscrl at Police Station Karelibagh. On 26'h July,2004 inlormation was received
by the Gujarat police that the tleceased had been detained by the Sardarpura Police
Starion in District Jodhpur in the State of Rajasthan and a fire arrn which appeared
to have been used in the Karelibagh incident had been seized from him' Sub
Inspector D.D.Damor o[ the Crime Branch obtained a transler warrant from the
concerned court under which the deceased was brought to Vadodara and the
Investigating Officer Inspector G.V.Desai obtained his police custody till the l6'h
August,2004, During inrerrogation the deceased revealed that he was a native of
Dhinkoli, Tehsil Khekda, District Baghpat, Uttar Pradesh and was presently
residing at 50/A, Middle Class Society, Fatehganj, Districr Vadodra. He also
revealed that in the year 2001 he had been arrested in a case of murder by the
Nandnagari police and had been lodged in the Tihar jail, Delhi bur had escaped
liom police custody in rhe year 2003 and had moved to Jodhpur where he had met
up with Ashish Pandey and Kanaram Prajapati and commitcrl robberies in Jodhpur.
He lurther revealed that in February,2004 he had come ro Fatehgunj, vadodara
and his accomplice Ritesh @ viki Jagdishbhai Gavri antr Jitendra @ Jittu
Satishchandra Jain and Vishal @) Nanu Surendrabhai Gupra had made plans to
l.'{2"'
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commit robberies and dacoties in Vadodara and in pursuance of that plan he had
stolen a motorcycle from Ahmedabad for which a case of theti had been registered
againsr him in the Karanj Police Station. He further stated that he had thereafter
rerurned to his native place and then again returned to Gujilrat with a country made
wcapon and cartridges anrj committed several serious oftences with the help of his
associates and after thc incidcnt ol the 22^d February, 2004 he had run away to
Jtltlhpur and had re-joincd his associates, Ashish Pandey and Kanaram Prajapati,
antl had resumed his criminal activities and it was during this period that he had
been arrested by the policc of Sardarpur Police Station, Jotlhpur on 26'h July, 2004
and intbrmation sent to the Vadodara police.
On 14'h August, 2004 Inspector G.V.Desai and Sub Inspector
D.D.Damor interrogated the deceased at Lal Baug chowki and he showed his
willingness to reveal where some weapons had been hidden by him. Two panches
were called and were briefed about the facts of the case as revealed by the
deceased and thereafrer rhe two police officers, the panches and a police party
which included (1) Head Consrable Manoj Kumar Chimanlal (2) Head Constable
Tulsiram Ramlakhan (-i) tJead Constable Imambax Umarkhan, (4) Constable
Mukeshkumar Bhailalbhai and (5) constable Rame shchandra Chimanlal
accornpanied by the dcceased leti the chowki on a roure shown by him. when the
police party reached near rhe canal on the Bhotnarh-M ah.dev road the deceased
81
asked the police otTiccrs to stop and 0n coming down lrom the vehicle started
walking on the leli side of the canal going towards Chhani' Afler covering a
distance of about 150 metres he started searching tbr a $'eapon near a babul tree
while being closely tirllowed by Inspector Desai, HC -I'urliram and HC Manoj
Kumar while the rest ol the police party made a cortlon at some distance' The
tleceased then bent down and took out a plastic bag containing a revolver and tired
at the two Head Consrables but they managed to save thcmselves. Inspector Desai,
and S.l. Damor immediatcly returned the fire in self dctence. The lnspector fired
three rounds from his service revolver and the S.t. two. J'he deceased was hit by
the bullets and he fell down. Thc police officers then lifted him and pul him in a
jeep and he was taken to the Government Hospital whereas intbrmation was
conveycd to the Police Control Room as well The weapon used by the deceased
which happened to be a country made revolver was also rccovered from the site. In
the meanwhile the Inspcctor Desai came to know that thc deceased had died in the
hospital. C.R. No. 227 ot 2004 under Sections 30'llzz4 ol rhe Indian penal code
and Scctions 25(1)8, A and 27(1) of the Arms Acr was registered at Karelibagh
Police Station against rhe <leceased on the complainr filed by hirn. Investigation of
the matter was, howevcr, handerr over to Inspector D.M.Vaghela, of the Disrrict
Crime Branch, Vadodara. The place of incident was exanrined during night time
on the l4'h August,2004 in rhe presence of two witnesses Harishbhai and Arunbhai
.0
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and a team tiom the F.S.L. comprising Shri D.M'Patel and Shri A'R'Vaghela' One
country made revolver, with twt.l empty and four live cartridges, and a country
made re volver of 7.65(.32borc) were recovered frorn the spot. Three and two fired
cartri<jge cases of the two weapons respectively were also handed over to lnspector
Desai and Sub Inspector Damor. An inquest was held by thc Executive Magistrate
on the l5rh August, 2004 berween 10.15 and 11.00 am and a poslmortem was also
held starting at mid day on the 15th August, 2004 and three bullets were recovered
from thc dead body. Thc death was attributed to ante mortem fire arm injuries' The
empty cartridges were sent to the F.S.L. for comparison with the weapons used and
it was lbund that threc bullers had been fired from the sarne .38 calibre revolver.
The F. S. L. also found that two fired cartridge cases recovered alongwith the
country made .32 boro revolver had been fired from rhat weapon. As the
interrogation of the deceased had revealed his correct address and antecedents,
information was conve yetJ ro his family in Uttar pradesh on which his parents
Harpal Singh Dhaka and Rajbala and other relarives camc lo Vadodara. The father
recorded his statement betirre the police and stated that his son was short tempered
by nature and had comrnined many offences in Gujarat and Ra.iasthan and that he
had bccn informed by the porice on the t4'r' August. 2004 about the present
incident and had come to vadodara on that account. Thcy also unanimously srared
that they had no complaint or suspicion with regard to the death of the deceased.
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The dead body was handed over to Harpal Singh and it was cremated by him' As
the accused in C.R. No. 227 oi2004 was the dead the proceedings were deemed to
have abated and an orcler to that effect was passed by the Court on the 2lstJanuary
2005. The proceedings wcre reopened pursuant to the sctting up of the Monitoring
Authority and further investigation was done on sanction by the competent court'
A public notice Annexure A was issued in Tinres of India dated 18'h
July,2012. Notices wcre also issued in the Hindustan Media Venture Limited a
Hindi publication issucd liom many places in Uttar Pradush and personal notices
were also served on the mother of deceased Raj Bala, his tather having died in the
meanwhile. Raja Bala recorded her statement yel again that she had nothing to say
in the matter. In furthsr investigation the statements ol'thc witnesses which had
beun rccorded at the time of the initial investigation were re-recorded and also
videographed. Nothing new has come forth in these staterne nts.
The incident herein took place during the night hours some distance
away from an urban arca. lt has come on record that the deceased was a notorious
criminal involved in rnany serious otrences in Uttar Pradesh, Rajasthan and
Gujarat and his parents had also come fbrward to say thal he was a man of short
tcmper and aggressive in narure.'[he circumstances which have been ser out above
clearly indicate the aggressive and desperate nature o[ the deceased.
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Theentirecaseherehingesonthestatemcntsofofficialwitnesses'
They have unanimously dcposed to the facts which have bcen set out above and do
not require repetition. '['he recovcry of .32 bore country mrde revolver with which
the dcceased had lired at the police party and the presence of the two tired
cartridges and four live carrridges in the chamber clearly indicate that the weapon
had indeed been fired. -Ihe hand wash of the deceased could not be taken because
of heavy rain which had fallen on that day. As per the police version three shots
had been fired by Inspector Desai and two by S.l. Damor from '38 bore revolvers'
l'hree bullets recoveretj from the dead body matched with one of the revolvers that
had bcen used by the Police OtTicers.
a
I am, there tbre, of the opinion that nothing amiss can be found in the
investigation in the prescnt matter. No further action is callcd lbr.
I-C.R.No.180l2004 Police Station B Division,Raikot citv U s 307 332 186 and 506 IPC andIf35(1) of the B.P.Act
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This matter was taken up on the l2'h October, 2015' Detailed
relercnce to the facts and discussion on the evidence is not necessary in the light of
what lollows here inafe r: -
SatimGagiiMiyanahereinaftercalledthe.deceased.wasadmittedly
shot and killed by Hcad Constable Yantidevsinh Lalubha Jhala of Police Station
Rajkot City on the 4rh May, 2004 at about 12.30 p.m. A ptrlice party including the
Hcad Constable had gone to the residence of the deceased situated in Mafatiyapara
ncar the Gujarat Housing Board on that day in order l() arrest him as he was an
active bootlegger. The deceased was present in his housc when the police party
reachcd there. He camc out running armed with a knife antl shouted at the police
party lo leave his residence. He also attacked Head Constable Yantidevsinh and in
the scuffle that followed the Head Constable received an in.iury on his hand. As the
police party apprehended serious injury at the hands of the deceased, Head
Constable Yantidevsinh l'ired one shot at the deceased killing him. On the facts set
oul a case under Section 301133211861304/188 of the Indian Penal Code was
registcred against the deceased. After investigation the police filed an abatement
application belbre the competent court as the accused was dead. This application
was accepted and the proceedings were disposed ofT as having abated by the
competent Magistrate. l'he mother of the deceased namely Rahematben, however,
filed a complainr under Secrion 2o2 of the criminar proccdure code 1973 alreging
Li*^t,*
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that her son had becn killed in cold blood and the police officers were liable to be
prosecuted for olI'ences under Section 302 etc. of thc lndian Penal Code' An
inquiry was thereafter conducted by the Magistrate and on its conclusion an order
waspassedthatthepoliceotficersbetriedunderSection 302'34,120-B.,447,448
and 506(2) of the Indian Penal Code and as the otl'ences rvcre triable by the court
of Sessions, the procecdings were tbrwarded to the Sessions Court, Rajkot. The
A<jditional Sessions Judge in his judgment dated 11'h Mitrch, 2010 held that the
deceased had undoubtedly been shot dead by the policc party as alleged but the
killing was justified as bcing in the right of private defence of the police officials
as the deceased had attacked Head Constable Yantidevsinh with a knife causing an
injury on his hand and had also tried to snatch away his revolver on which the
Head Constable had fir'id one shor. The Additional Sessions Judge also relied on
the medical evidence as also the statements of the eye witnesses who were very
close relatives of lhe deceased. The court found that the allegations made against
the Police officers wirh rcgard to the killing of the deccased were nor sustainable
on evidence. The courr accordingly acquitted the potice oflicers. concededly no
appeal against the judgment atbresaid has been raken rhereafrer.
In this casc, as in all other cases, public notices were published in
Time Global ( English) and orher Newspapers Divyabhaskar. Sandesh Bhavan and
Lokprashan ( Gujarati) . on rhe lgth July, 2012 Annexure .A,. A notice was also
N>"-
87
issued to the brother ot thc deceased, Kadarbhai Gagiibhai, and was served on him
personally on the 6rr' October, 2012. Kadarbhai appeared before me on the 18'h
February, 2013. He stated that Rahematben the complainant in the case against the
police otficers had dierj ol cancer two years earlier and he lurther went to say that
when he had arrived in the 'Irial Court an advocate had asked him to put his
signatures on some document though he did not know the contents thereof. He
further stated that the said arlvocate had been engaged b1, his mother. On being
asked by rne whethcr hc wanted to say anything, Kadarbhai had answered in the
negative.
It will be scen, therefbre, that a judicial appraisal has already
happened with regard ro rhe allcgations made against the police officers and a
positive finding has been recorded by the Additional Scssions Judge that the
version of the police that the deceased had been shot in rhe right of private det'ence
when he had attacked the police party, was the correct one. As already indicated
above, the judgmenr ol the Additional Sessions Judge has nor been challenged by
anybody and in responsc ro rhe public and pcrsonal norices issued by the
Monitoring Authority nothing has come forth to indicatc that a contrary view was
possible. In this view ol rhe marter, no further action is called tbr in this case.
L,\=4.
88
I-C.R.No. 40 2004 B Division Police Station ikotCity. under Sections 30713321188 I.P.C.
This malte r ariscs out of an investigation u hich was initiated against
Jala Popat Devipujak. hereinafier called 'the deceased'. inirially in C.R. No. l5 of
2004 Rajkot City, B Division Police Station for offences punishable under Sections
457 and 380 of the lndian Penal Code. The Investigating Officer in that case Sub
Inspector D.V.Dave, gave a direction to Sub Inspector V.Nt.Gohil to apprehend the
deccased in that matrer. Sub lnspector Gohil further instructed Head Constable
Yantidevsinh and Consrable Yogendrabhai of 'B' Divisirrn Police Station to make
lurther inquiries and consequenr ro this direction they wurc on the look out tbr the
dcccased near the ueld ol Karsan Harji close to the parsi graveyard. At about 5.30
p m. ()n the 17th January. 2004 the aforesaid potice .llicials saw the deceased
sitting near a small re mpre in the field of Karsan Ilar ii on which constable
Yogendrabhai entered the remple premises. on seeing the police oflicials the
dcccased attempted ro run away but constable yogcnrlrabhai ran after him and
caught him with thc assistance of Head constable y.nridcvsinh and a scuffle
litll.wed between the rhree. -fhc deceased arso threw sroncs ar the police officials
anri constable Yogendrabhai susrained an injury on his ha,tr. l'he scuffle between
them ct-lntinued for s.mcrime during which the deceascd rook a knife from his
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pocker and attacked Constable Yogendrabhai. Head Constilble Yantidevsinh then
took out his service rcvolver and warned the deceased to throw down the knife but
instead ol lbllowing rhu direcrion, the deceased inflicted u knite blow on the tace
of (lonstable Yogendrabhai causing an injury on the upper part of the left eye' On
rcceiving the injury thc Constable fell down and as the deceased raised his hand to
give him a secontl blow Head Constable Yantidevsinh fired one shot at the
dcccascd hitting him on thc Ie tt rhigh. The police olTicials inrmediately summoned
a vehicle by calling on the mobile phone and the deccased was removed to the
Govcrnment Hospital, Rajkor where the Doctor decllred him as having been
brought dead on arrival. Case C.R.No. 40 of 2004 tbr oflences punishable under
Soctions 30713321188 ol rhe Indian Penal Code was accordingly registered against
the deceased. The inqucst proceedings were carried out by the Executive
Magistrate at about 8.4.5 p.rn. rtn the 17'h January, 2004 and death was attributed to
shock and haemorrhage due to gunshot injury. The place ol incident was examined
by the Investigaring Otficcr, Sub Inspector D.V.Dave in thr: presence of panches
on lhe [8tr'January,2004 at about 7.25 a.m. and blood stained earth, a knit'e and
scveral other items were picker-l up from the spot. Hcad C.nstable yantidevsinh
also handed ovcr an empry carrridge to the Invesrigating otTicer. The dead body
was subjected to a post morrem cxamination on the morning of 1g'h January, 2004,
wherealter rhe dead b.d1 was handed over ro Nirurrerr vikrambhai wite of
90
Parshotambhai Solanki. the sisrer-in-law of the deceasotl, antl he was cremated by
her. 'l'he spent buller was also suized from the dead body during the course of the
post mortem. On complerion of the investigation the police nroved an application
tbr abatement of proccedings in C.R. No. 40 ol 2004 as the accused in the
meanwhile was dearl. The application was allowed and the proceedings were
r.lisposed off as having abated by orders of the Judicial Magistrate dated 25'r'
October, 2004.
On referencs ol this matter to the Monitoring Authority under the
orders of the Hon'ble Suprerne Court lurther investigatiorr was allowed by the
Judicial Magistrate Ist Class, Rajkot city on l8'r' January, 2013 under the
provisions of Section 173(lt) of the Cr.P.C. Notice of thc lurther investigati<ln was
issued in the Newspapcrs Times Global etc. Annerure A and also the
Divyabhaskar, Sandesh llhavan and Gujarat Samachar datetl 18'r'July,2012 all
puhlished from Ahmedahad. Personal notice was also servr:tl on Nituben aforesaid
and Popatbhai personally by a police team on the 26,h Seprember, 2012. The
S.T.F. in further investigation re-recorded the statemenrs ,l those witnesses who
had d,ne so in the rnirial invcstigation before the police and some additional
witncsscs as well and ultimately concluded that the police version was the correct
one and there was no substance in the allegations ol a custotlial death.
rt[*:
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In this clrsc Shri Somnath Vatsa Advocate appeared before the
Monitoring Authority on the l2'h October,2015. Copics of the record had been
handcd over to him earlicr. Mr. Vatsa has argued that in the light of the fact that
only police officers had been privy to what had happcned on the 17'r' January'
2004 it was incumbent on rhc Investigating Officer to gct ihe details of the mobile
phone and call records trl cach police official as also thc ntovcment register of the
scnior police officials who had been involved in the incident. He has pointed out
that the Investigating Otticer had himself expresscd his trustration with the facl
that hc had not been able to get the details aforementioned as the record was not
available.
It is true that this record if available would have been able to show the
presencc of the two policc ollicials at the place of incident but rhe lact remains that
the incident is of thc ycar 2004 and further investigation had been ordered almost
eight years later. Signilicanrly also no objection hari becn rrised to lhe abatement
procecdings which had bccomc final.
Mr. Vatsa's argurnent that there was no independent witness of the
incident also appears r, be incorrect. The statements ol two witnesses namely
Savitaben ancl Arvindbh,i had bcen recorded at rhe inirial sragc of rhe investigation
and also by the S.T.F. Savitabcn stated before the S.T,F. that as she had bcen
working as a agriculturirr labourer in a field adjoining the parsi graveyard, when
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92
she had heard the sound ot gun tire and on going to thal place she had seen the
rleccased lying on lhe ground and two police men standing close by and she had
hcard from the peruorts asse mbled there that the deceased had attacked the
police men with a knile when they had come to arrest him. Arvindbhai, a Retired
Commando, stated that he had his ancestral land close to thc place of incident and
had actually seen the incitlent as it unfolded. He gave lull details supporting the
policc version. The policc as also the S.T.F. had recorded the statement of Nituben'
Shu roo supported the policc version and stated that though the deceased was a
close relative, he was n()t staying at home and was hiding near the Parsi graveyard'
Shu further stated that on the day of the incident the policc party had come to arrest
him at thc Parsi graveyard and he had attacked the policc party and that the police
had lired in self def'ence and that he had been carried in a jcep to the hospital but
had diod on the way duc to cxcessive bleeding.
The statements of the police witnesses reld with the medical and
scientitic evidence in thc present case appears to be conclusivc. As per the version
ol thc police the actual shor had been preceded by a lengthy scuffle involving the
police officers and the dcceaserl. It is clear frorn the sraterncnts that constable
Y.gcndrabhai was the lirsr one who had attempted to apprehcnd the deceased on
which thc deceased hatl tirught back and caused an in.jury with a knit'e on his
person constable Yogendrabhai was examined bv thc Medical officer in
ILPt
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Government Hospital, Ralkot at about 7'40 p.m. on l /'r January, 2004 and the
doctor tbund one injury which could have been caused try ir sharp cutting weapon
on thu lbrehead of thc iniured. In addition the post mortem e xamination revealed
one punctured wound ol a lire arm on the left thigh with contused and abraded
margins and that in thc course of its travel through the body the bullet had
lacerated the femoral vein. The bullet had also been recovered from the wound'
Likew ise there was anothe r punctured wound close to the gun shot wound and in
addition to very large nurnber of linear abrasions and nrultiple scattered linear
abrasions virtually on all parts of the body. The post mortern rcport is conclusive of
what happened. It is the case set up that the deceased had died on account of
excessive bleeding as the gun shot was not apparently on ;r vital part of the body.
l-hc fact of excessive blceding is borne out as the temoral vein had been severely
damaged and ecchymosis was present in the adjoining tissues. The doctors'
opinion was death due to haemorrhage. The presence of a very large numbcr of
ahrasions all over the body also reveals and proves thar a long scutfle had taken
placc between the police officials and the deceased as a prelude to the actual shot
bcing fired. It is also signil'icanr rhat if it was a case or, cust.dial killing the shot
or shots would invarialrly havc been fired on a vilal par.t ol the body, as had the
bullct travelled an inch or two eirher way it would not ha\ e damaged the femorar
vein and the deceaserl would not have died on account oI haenrorrhage.
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The police vcrsion is further borne out by lhc Forensic evidence' As
already mentionetl abovc one shot had been fired at lhe deceased and the spent
bullet had been rccovcrctl trom the dead body. The bullct matched with the '38
calibrc wcapon used by tlead Constable Yantdevsinh. This would be clear from the
report of the Forensic Scicncc Laboratory dated l7'r'Janulry, 2OO4 and 23'd June,
2014. ln this view of the marter, no further action is requircd to be taken.
I.C.R.No. 124 2005 ur cit Police StationetDistrict Rai kot under Sections 307 397. 333.353. 188,
186 I.P.C. and25 ( I A 27 1 the Arms) ( ) Act and 3.7 ofDamase to the Public Propertv Act. 1984
This matter was finally discussed in the nrecting of the Monitoring
Authority held on l2'r'Octobcr, 2015. The facts are as untler:-
Rafiksha (f Bapudi Mamdsha Fakir, hereinafier called rhe 'deceased'
had heen arrested for an ottence under Section 302 of the Intlian pcnal Code by the
Vankaner Police, in c.R. No. r of 2005 and had been scnr ro judicial cusrody. He
was also wanted in C.R.No. lg9 of 2004 of Jetpur police Station for offences
punishable under Secti.ns 3gg,4oz,12ots of the Indian penirr code and 25(1) BA
and 27 of the Arms Acr. As Inspector B.G.Limbasia .f rhe Jetpur city potice
Slatitr. was the lnvestigating olficer in c.R. No. rg9 or 2004, he arrested the
95
deceasecl and on the basis ol a transfer warrant the decelrsr:tl was brought to Jetpur
Policc Station. The dcceased was thereafter intenogated whcreupon he disclosed
that hc had concealed a revulver which he had used in cornmitting the murder and
could gct the same recovcrecl. A police party headed by Sub Inspector V.K.Gadhvi
and comprising of Huad Constable Sukhdevsinh Gohil, Constable Shaktisinh
Jadeja, Constable Ranveersinh Jhala, Constable Mano.jbhai and the driver of the
Bovernment jeep No. GJ-3G-449 Constable Maheshbhai and two panches,
Surcshbhai and Samatbhai, were deputed to make the rccove ry. The police party
then accompanied the deceased to a place pointed out by him near the wall of the
Marketing Yard on thc lsfr side of the road passing through Jetpur city Police
Station and Teenbatti chowk Junagarh and thereafter alighted from the vehicle.
'Ihe deceased moved ftrrward tbllowed by the panch Sursshbhai and Sub Inspector
Cadhvi but quickly turned towards Inspector Lambasia and snatched the revolver
from his belt and fired a shor at him, though the bullet missed the rarget. Constable
Maheshbhai moved lbrwanJ ro apprehend the deceasecl who fired a second shot
hitting the police consrable and he continued to rhrealen the police party. Sub
Inspector Gadhvi firctl two rounds from his service r.'v.lvcr and being hit the
deccased t'ell down. whire doing so, the deceased tired anorher shot at Sub
Inspcct,r Gadhvi on which thc police officer fired ir rhircl shot ar him. The
doccased, seriously in.jured, was removed to Jetpur, Gtrvcrnment Hospitar in the
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96
policc jeep and was dcclared brought dead on arrival whereas Constable
Mahcshbhai was arlmittcri ro the hospital. As a consequerrce of this incident c.R.
No. 124 of 2005 lbr ollences under Sections 307, 397.333,345,188,186 of the
fndian Penal Code antl 25(l) A and27(2) ofthe Arms Act and 3 and 7 ofthe
Damage to the Public Propcrry Act, 1984 was registered at Police Station Jetpur
Ciry. A criminal complainr alleging murder was, in addition, filed by the mother
of thc tlcceased against Sub Inspector Gadhvi, Inspector Lrrmbasia and Constable
Maheshbhai on the l8'r' August,2005 and an investigation under Section 156(3) ol'
the (lr.P.C. was ordcred by the Judicial Magistrate Ist Class, Jetpur. As a
conscquence of the investigation in both matters, one in C.R. No. 124 of 2005 and
the trther in the complaint tiled by Jetunben a report was submitted by D.S.P.
R.H.Rathod on 2nd Mar,2006 in which he opined that no evidence supportingthe
allegations made in thc complaint had come on record and he accordingly
recommended that prccecdings in C.R. No. 124 of 2005 be disposed off as having
abatcd and a prosecution bc urdered against Jetunben lbr making a false complaint.
Noticc of the applicarion t'iled by the D.S.p. was sent t, thc c.mplainant, Jetunben
tirr thc l7'h July, 2006. Shc tiletl a protest application ag,inst the report before the
Magistrate's court on rhe 6'r' November, 2006. After huaring argurnents of b,th
sides lhr<lugh counsel rhc Magistrate, on 2g,h May, 2(X)7, pronounced his order
accepting the applicarion iircri by D.S.p. Rathod meaning rhereby rhat rhe
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procecdings againsr the cleccasr:d were deemed to huvc abated on his death.
Jetunben's complaint was disrnissed. The order datetl 28'h May, 2007 was
challenged in appeal by Je tunhen and was taken up on the l7't' October, 2007' The
appeal was dismissed as it appeared that despite a very large number of dates fbr
hearing tlxed in the appeal. neither the appellant's counsel nor the appellant herself
had pursued the appeal.
ln this casc. as in all other cases, public notices were published in
'timc Gkrbal ( English) and other Newspapers Divyabhaskar, Sandesh Bhavan and
Lokprashan ( Gujarati) . on lhe lSth July, 2012 Annexure 'A'. Notices were served
personally on Jetunben, atbrementioned , Shora Rahirnbhai and Shakkariya
Shariltrhai on 23'd Octobcr, 2012. Jetunben appeared betbre me on l8'h February,
2013. She stated that she had rnoved an application asking lor financial assistance
as she was a beggar wonran looking after the two younr children of the deceased
namely Ramiz(son) now agcd 15 years and Rehana(daugh tcr) aged l6 years after
their mother (the wil'e ot rhe deceased) had abandoned thenr soon after he had been
killed. She also poinrcti our rhar her husband had dietl l7 years earlier. when
questioned she statcd rhat she had nothing more to sav and only prayed for
monctary assistance. Vide order dated 21't November, 20 t.1 a sum of Rs.6 lakhs to
be apportioned between rhe two siblings was ordered bv mc and has since been
paid t. them. Rahimbhai anci Sharifbhai also appearerl bctirre rne on the l2rh Jury,
Fu.
98
2013.'Ihey claimeti t0 be rcpresentatives and leaders o[ the minority communlty
and thcy stated that onc or two rjays before the incident Jerunben, accompanied by
rhe larher-in-law of thc tleceased, Akbarsha Bapu, had c()rne to the office of the
Jumma Trust and had met them and told them that S.l.Gadhvi had threatened
during proceeding in the Vankaner court that the deceased would be killed as he
was a criminal. They slated thal the complaint case could not be pursued by
Jetunbcn as had been thrcatencd by the police with dire consequences in case she
continued to do so. 1'hcy expressed their clear suspicion that the incident as
depicted by the police could not have happened and was tirrtetched and this was a
case ol. a custodial killing.
Notice of thc hearing of the matters by thc Monitoring Authority in
(this case as also in all cascs) had been issued to the wrir peririoners in the Supreme
Court as also their counscl. [n response to the notice to Ms. Nitya Ramakrishnan
Advocate, Mr. Somnarh Vatsa Advocate appeared betbre the Monitoring
Authority on the l2rh ocr.ber, 2015. Learned counsel has poinred oul that there
had bcen no judicial appraisal in this matter inasmuch as nr; decision on merits had
becn taken by any courr and rhat by order of the Suprerne court dated 25'h January,
2012, the Monitoring Authority had been precluded to sray its hand onry with
rcspect lo those ma crs in which the investigation hacr bcen ordered by the
,r,[-.s1
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99
Supreme Court or by the Gujarat High Court and as this situation did not arlse ln
the prcsent matter, furfhcr investigation ought to havc becn carried out in this case.
It is true thar no comprehensive trial has been hgltl in this case but it is
clear tirlm the record that the investigation in C.R. No. 124 of 2005 and the
complaint filed by Jetunben, an investigation had indeed becn made. In the report
submitted by D.S.P. Rathotl on the 2nd May, 2006 he had prrinted out that there was
no evidence with regard to the allegations made by Jetunben and he had
accordingly recommended abatoment of proceedings in C.R. No. 124 of 2005. The
rccommendation of the D.S.P. was accepted by the Magisrrate on 28'h May,20O7
after hcaring both sides with a positive finding that the allegations made by
Jctunbcn implicating the police otficers, were wirhour basis. The order dated 28'h
May, 2007 was challcngcd by Jetunben betbre rhe Sessions Court and was
rejected. To argue, theretirrc, thar there had been no judicial appraisal of the matter
is not correct as judicial scruriny has indeed been made under order dated 28'h
May,2007.
I have, even orherwise, gone through the rcientific evidence in the
malter in the light of rhe lact that both parties have sultcred injuries.As per the
policc case, it was the duceased who had snatched rhe rcvolr, er frorn S.r. Limbasia
and tired several shots ar some nrembers of the police parry and that the police had
fired three shots in sell detence. The post mortem reporr dated 19,h July, 2005
100
supports this statemenr. The absence of any blackening or tattooing around the
wounds of entry and the presence of a abrasion collar itround all thrce wounds
intlicare that the rhree shors had been fired from more than two feet. This fits in
with the police version that the deceased had snatched the rcvolver from the policc
ofticer and fired several shots leading to retaliatory fire in which the deceased had
been killed. Even morc signilicant perhaps in the prescnt case are the gun shots
injuries suffered by Mashribhai Head Constable. He had rcached the hospital at
9.30 p.m. on 18'h July, 2005 i.e. soon after rhe incidenr and had been examined.
lnjury No.1 is a wound ol entry in the middle of the lowur arm with inverted edges
with blackish discolorarion. This means that the shot hati indced been fired tiom a
close range. The secontl wound is a wound of exit though rhere is no bony injury.
As per the injury certif iurte dated 2l" July, 2005 Mashribhai had been admitted to
h.spital tbr his injuries. The shirt worn by constable Mashribhai was tbund ro
have holes in it as wcrr. The F.S.L. tbund lhat rhc hores had been caused by
bullets as residual traces were present thereon. lt is, thurcltlre, evident that the
membcrs of the Police Parry had a providential escape rh()ugh rhree shots had been
fired at them. The desperare narure of the deceased is ars. evident tiom the tact
that about 40 cases, some for very serious offences, hati been registered against
him from the year 1999 ro 200-5.
/-t-l".
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I am, therefore, of the opinion that no furlhcr action is called for in
this matter.
I-C.R.No. 221 2005 Police Station VaD DistrictI
Valsad. under Sections 307 I.P.C. and 135(1) of the
B.P. Act.
A case under Sections 3961397 etc. of the indian Penal Code was
registcrcd vide C.R. No. 14.5 of 2005 at Police Station Paradi District Valsad on
24'r' August, 2005. ln this incident A.S.l. Rarneshbhai tshararbhai who was chasing
the accused on a Motorcycle had been killed and in addition iniuries had been
caused to other police otl'icers. On the next day lnspector J.M.Patel with a potice
party was on nakabandi in connection with the search firr the accused in the
albresaid matter when rhe lnspector received information that the accused were
hiding in the forest behintl rhe wetspun Mill. The lnspecrrrr and his associares went
in that direction and on seeing the police party the accuscd artcrnpted ro run away.
ono ol the accused ran towards the Morai crossing where.rs thc second ran towards
the hushes behind the mill crn which constable Raghunirrh Baburav apprehendetl
him' Thc accused pullcrr out a knit'e from his pocket anti caused an injury on the
hand tl' the police consrabre. Inspector patel told the accused to surrender but he
attackcd Constable Raghunath yet again on which the rnspector [ired one shot from
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102
his service revolver. Anttther police officer Narendra l.aliibhai also came to the
rescuc of Constable Raghunath but the accused attackcd him as well and caused
an injury on his hanrj. lnspector Patel seeing that ths aecused was in a very
aggrcssive mood fired two more shots at him but the accused became even more
aggressive and rushed towards the police officer who fired one more shot felling
him. I'he accused scriously injurcd, and the two police constables, were sent to the
l{ariya Hospital wherc he was declared dead on arrival whereas the policemen
were atlmitted as indoor patients. C.R.No. 221 of 2005 wrrs registered against the
accuscd at Vapi Town Police Station under Sections j07 etc. I.P.C. on the
complaint of Inspector Patcl. In the meanwhile the second person who had
attempted to run away had also been apprehended and hu disclosed his name as
Pansinh Babu resident ot (ihaatiya village (Madhya Pradesh). He was taken to the
sitc ol the incident by thc police officers and on seeing lhe person injured he
identiticd him as Dungariyo Himla Machhaar, residenr ol Naagankhedi, Disrrict
Jharnbua, Madhya Pradush. Inquest proceedings were held orr rhe dead body by the
Executive Magistrate lare in the evening of the 25'r' Augusr, 2005 and the place of
incidcnt was also inspectcd ar about the same time. one Rampuri knife and some
blood stained earth was raken into possession in the prescnce ol panches. The dead
b'dy was also subjected to a post mortem and four gun shors wounds of entry were
f.und rn the dead body, onc ot rhe bulrets appears ro havc gone through the body
t U-,
103
ot the deceased ancl three were tbund lodged therein. .Ihey
were extracted and
hanr.led over to the Police Officer. Information about the dcath was sent to the
rclatives of the deceascd 9n which several persons (a) Shamjibhai Machhar (2)
Ilumabhai Machhar (3) Dharme ndrasinh Machhar and ('l) Chandansinh Machhar
all resitienrs of Naagankhctii District Jambua (Madhya Pradesh) appeared and their
stalements were recrlrded by the lnvestigating OtTicer on the 27'r' August, 2005' In
their statements they exprcssed no suspicion regarding the tleath of the deceased'
On completion of the investigation an application for abaternent of the proceedings
was l'ile<i and the same was accepted by the Judicial Magistrate lst Class, Pardi on
27'r' August, 2006. Conscquent to the setting up of the S.1 .F. and the Monitoring
Authority permission was ohtained by the Investigating Oflicer for further
investigation as envisaged under Section 173(8) of the Codc ol Criminal Procedure
lrom the Magistrate's court on 20'h July,2012. Thc notices of the further
investigation was served on three relatives of the deceascd Dungariya Machhar,
Humahhai Machhar antl Chantlansinh Machhar on l7'h Seprember,,Z0l2 and l8'h
October,2012. Shamjihhai Machhar had in the meanwhjic died. None of them
cxpressed any apprehension with regard to the death ol rhc deceased. On the
contrary the co-accusud ol the deceased namely pansinh Babu who had been
apprchcnded by the poticc on the 25'h August, 2005 at rhe rinrc when the deceasetj
had met his death, recordcd his statement supporting thc p.lice version. He stated
,,,\,L-r}
104
that hc had been acquitted on thc 27'h May, 2013 after rrill in case registered vide
C.R. No. 145 of 2005 ot Police Station Pardi for offenccs punishable under Section
.396 antl 397 of thu Indran Penirl Code. The Forensic Sciencc Laboratory in its
report opined thal the three bullets taken out of the dead body rnatched with the '38
hore scrvice revolver used by Inspector Patel' The Biology Department of the
F.S.L. Surat also opinccl rhat blood stains found on rhc shirls of police constables
Raghunath and Narendra rnatched their blood groups.
This matrcr camc tbr final discussittn on l9'r Dccembe r, 2015 when
Mr. Somnarh Vatsa, learncd counsel, appeared on behall of the petitioners. He has
argued that lnspector Patel had in his complaint mentioned that he had received
secret intbrmation that lhc accuscd in C.R. No. 145 ol 200.5 were hiding near the
Wellspun Mill but in his statement recorded in other proceedings he had stated
that hc had received a relcphonic message to that ellecr lrom the Police Control
Room and in the light ol rhis conflicting fact, his staterncnr could not be believed.
He has also pointed our thar reliance of the lnvestigating Agency on the statement
ol' Pansinh aforementioned was not called for as his statcnrent had been recordetl
atier his acquittal in rhe dacoity case although he had bccn,vailable to the police
much earlier. He has r'urther submitted that the statemcnr of pansinh read as a
whole clearly indicared rhar rhe story that the deceasecr h.d continued to attack the
policc'fficers despite having been warned to desist, was an atter thought. He has
LI
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105
Iinally submittetl thar thc tbur bullet wounds of entry wete all round in shape hut
consirJering that the shot had been fired during the course of scutl]e the shots
would not have been unilbrm in nature.
The points argued by Mr' Vatsa have been controverted by Mr' A'Y'
Kogje tearned counsel lbr the S.1'.F. I am of the opinion that in the light of the fact
that family of the deccasetl had expressed no suspicion rvith regard to the death
virtually distodges the allegations of a fake encounler. lt is significant that the
allcgations with regard to the dacoity were common insofar as the deceased and
Pansinh were concerned. Had there been any malice on thc part of the policc,
Pansinh who was prcsenr ar the time, could also havc becn eliminated. On the
conlrary he appeared belilre the S.T.F. and recorded his statement supporting the
police version and mcre ly because he did so after his acquirtal in the dacoity case
would not detract lrom the value of his statement. lt is alst_l significant that fake
cncountcrs are indulged in gcnerally when a person is a hard core crirninal and
involvcd in many nasty incidents. In the present case it is on rccord that but for the
dacoity case mentioned above, the deceased had no crinrinal record. The three
arguments addressed by Mr. vatsa's to my mi.d are irrsignificant and such
discrepancies are bountr to appear after the passage of so nrany years. Mr. Vatsa's
plea that the case fell wirhin thc third exception to Section 300 of rhe I.p.c. and the
p.licc otf icers were arleast liable to be prosecuted tor culpable homicide not
l^
X.Li rI
106
amounting to murder is also unsustainable in the light of thc tacts pointed out' The
dcccased continued to attack the police officers and caussd injuries to them with a
knife dcspite having bcen cautioned.
During thc coursc of hearing it was pointed out that the deceased had
leti behind a young daughter Sharnila who had in the mcanrvhile been abandoned
by her morher. A sum ol Rs.4 lakhs was granted by mc ro her as compensation to
be put in Fixed Deposir till she artained the age of t8 years untler the guardianship
ol hcr grandfather i.c. tathcr ol the deceased. Directions rvcrc also isSued to ensure
thar thc child received thc maximum interest possibte and a statement of account
was lurnished every ycar to the Inspector General oi Police, Crime Branch'
Ahmedabad.
No further action is called for in this case.
I-C.R.No 77 2004 Police Station Sheel District.Iunapadh under Sections 307 506 ) )I.P.C. and(
Sections25 I )( B )( A). 27 1 the Arms Act( ( )
This matter was tinally taken up on l3'r'February, 2016 in the meeting
ol the Monitoring Authority held on that day. The thcts are as under:-
!N,-I
Ih^,.
107
on 24,h D0cernber, 2004 Bheema Maanda Me r (hereinafter called the
dcceasetl) was arrested in C.R. No. 1-25 of 2004 registercd ar Batwa Police Station
under Section 302 etc. ol the lndian Penal Code and a police remand had been
obtained from 25'h Deccmbcr, 2004 to 1'' January, 200-5. During interrogation he
discloscd that he had hitlden a weapon which he could get recovered. Two panches
namely, Bahadursinh Kirtisinh and Girirajsinh, were thercatier called by the
lnvestigating Officer, S.l. N.B.Chudasma and they alongwith police otficers ASI
Valimohamad, Head (lonstable Aalm Khan, Head Constable Pethabhai, Head
Constable Kalabhai Dhanabhai Sagaarka, Constable Punjabbhai, Constable
Gaje nclersinh and D.S.P. T.V.Pargi were led by the deceustd to the place where he
had hidden the weapon. Thc Sub Inspector instructed Constable Gaiendersinh to
dig thc carth and to recuver the weapon from the place inclicated by the deceased.
The constable did as instructed and soon recovered a plastic bag containing a
weapon and at the same time the deceased who was standing close by turned to the
lclt and took out anothcr weapon from the grass nearbr and fired at Constable
(iajendersinh and turthcr rhrearened that if anybody tried ro carch him he would be
killed. Sub Inspector Chudasma, thereafter, fired onc rtrund al the deceased but
this turther infuriated him on which he fired two rouncls ar the police otficers but
bctirre he could repcar thc firing rhe Sub lnspecror fired rhree shots ar him and the
D'S'P' lired one whercas Hcad constable Aalmsinh hit hirn with a stick on the
I
108
right hand on which thc pistol as well as the deceased lr:ll down. The deceased as
also Police Constable (iajcnilersinh were brought to the hospital where the tbrmer
was rjeclared dead and the latter was admitted tbr treatlnrnt. lnquest proceedings
were recorded by the Exccutive Magistrate, Junagadh on 2t)'r' December, 2004 and
the sitc was also inspccted by the Sub Inspector in the presence of panches
be tween 4.50 p.m. anti 6.20 p.m. on 29'h December, 200.1 arrd three spent cartridge
cases, blood stained leavcs ol'grass, blood stained earth, picces of a crushed empty
cartridge and a part ol l buller wcre picked up. The servicc rcvolvers used by S.l.
Chudasma and D.S.P. -t'.V.Pargi
alongwith the spent carrrrdgc cases were handed
over k) the Investigating Otficer lnspector B.H.Gameti. A case under Section 307
etc. I.P.C. was registercd againsr the deceased vide C.R. No. 77 of 2004, Sheel
Police Station, District Junagadh. on investigation ir u,a: tbund that the p<llice
otTicials had fired in sell detcnce. Accordingly an application tbr abatement o[
proceedings was filcd.n 27'r'May,2005 and allowed,n ll,,,January 2007. On
ret'erence of the matter ro rhe S.T.F. and the Monitoring Aurhurity, an application
under Section 173(8) was moved which was duly allowecr :rnd the matter has been
further investigated by ACp Shri B.c. Soranki. public n.tices were issued in the
Times ol' lndia and in Divyabhaskar, Sandesh Bhavan and cu.iarar Samachar all
puhlished tiom Ahmedabad on rhe rg'h Jury,20r2. pers.nal notice was arso
scrved by post on Jetabhai Mandabhai the brother of the treccasetl on the I2,h Jury,
,L0.^' '(
109
2012 and personally rc-scrved on the 6th February,20l-1' He appeared before me
on the l8'h February, 2013 and recorded his statement wherein he expressed his
suspicion that his brorher had been killed by the police lrt the instance of his
enemies. He also stated that hc would submit proof but he ctitj not have any proof
with him al that moment but thc same would be availablc lrom Ihe mobile number
that he had given and its call details. He further stated (hat the story projected by
the police as to the manner in which the incident happencd was improbable and
difficult to believe as the deceased who had been handcutled could not have been
able to tire at the police party. He further stated that the place ol the incident was
about 3 kms away from his village and that the police had not taken the statements
of the landowners whose land was around the site of the incident and that on
account of fear he and his family members had not made any attempt to contact
thosc neighbours. He concluded that if the investigation wus made fairly the truth
would come out. No other statement or evidence has been given by any other
person. Curiously the sraremcnr of Jetabhai had also hecn recorded on the l''
January, 2005 i.e. soon alrcr the incident wherein he had given a clean chit to the
ptllice and had stated rhar he had no complaint about thc clearh .f his brother and
that the body had becn handed over to him and rhat he h,d perrbrmed the last rites
and he had also stated rhat he too was an accused in some case and that his son
Meru was in jail in connccri.n with the murder of Ran. parhat. It is, therelbre,
L,u,E-i
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110
clear rhat the antecedcnrs rlf the family were not encouraging. ln the first series of
invesrigation the stateme nrs of thc members of the police partl' as also the panches
namely Bahadursinh and Girirajsinh had been recorded. fhey all supported the
police version and also tleposcd to the fact that two pistols one of .9 mm bore and
the other of .32 bore including live cartridges had been recovered from the place of
incident. On further invcsrigarion the statement of Ve.iibon, the widow of the
deceascd has been rccorded and she admitted that her husband and other relatives
including her brother and nephew had been involved in scrious crimes including
murder and that she had no complaint whatsoever wirh regard to the death of her
husband. She further litated that she had seen the police \ ehicles standing in the
licld of Bheema Maanda on 29'r' December, 2004 but had not heard the sound of
any gunfire. Malde Karabhai, who had his field near rhe lield of the deceased, also
gave a statement similar to the one given by the widou ol' the deceased. The
statemcnls of other relatives and neighbours were also recorded and they expressed
the opinion that therc was nothing untoward in the death oI Bhcema Maanda.
In this case. as in all cases, where allegations ot a take encounter have
been Icveled against the police, the police version rearJ alongwith the post mortem
rcp.rt ol the deceased irncl the scientific evidence can olien give an indication of
what had transpircd. As per the police version the ticceased had extracted a
revttlvcr from where it lay hiriden underground and had lirud at the porice party at
111
rhe initial stage befbre he had been shot down by the police officers' The post
morlem examination re,,ealed the following three gunshots wounds on his body:-
(A)Gun shot wound No.1- 5 mmx -5 mm sizc surrounded by abrasion
collar circurnltrentiatly with blood comirtg lrom wound located in
epigastria 4 cm from medium size to light. Abrasion colour wound
No.1. x-ray krcation of bullet No.1-Right paravertebral golter over
above rcnal vessels 3.5 cm lateral to margins of vertebral bodies at
level ol L.l.vcrtebrae. Tracing invivo routc of bullet No.1 - After
penetrating epigastrium near right coastal rnargin 4 cm right to
mediunr in bullct have not downward movenrent damaging
following viscera inderiof Hepatic Margin-Lesser SAC with
contents- Pancreas- Part of small intestine- paravertebral vessels
and ncrves-righr renal vessels poslerior walI of le ti paravertebral
Cutter.
(B)Gun shot wound No2. 4mm x 5 mm sizc surrountled bet. Antero
superior abrasion collar located on lelt ltunk bone dorsal to left
interior auxiliary line. X-ray location ol the buller -located at the
vertebral srrucrure at level of L2 vertcbral body with point of
bullet upwards. Tracing invivo route ol bullet No.2 After
t\\r\..2.
I
NA*'
ttz
penetrative over left Flank at above speui!ied part bullet have Net
upward movement.
(C) Gun shot wound No.3 6mm x 2'8' ntrtr located 1 %" below left
shoulder joint 2cm tiorsal to left interior auxiliirrv line without abrasion
color. X ray shows no bullet in chest cage. No exit wound noted over body'
No subcutaneous pales noted. Gun shot wound No.3 is highly suggestive of
a ricochet bullet iniury. Natural depth of wound 3cnr traced depth of wound
As per the reconslruction report dated 23"r Deccmber,2013 the two
policc officers, S.l. N.ll.Chudasma and D.S.P. Pargi wcre standing about 10 t'eet
away Irom the deceased when the tiring had taken place. Thc nature of the injuries
tbund on the dead body suggesrs that to be so. Mr. Prashanr Bhushan, the learned
counscl, has argued that gunshot wound No.B which was located on the left tlank
bone dorsal to the lefl anlcrial auxiliary line and the bullcr lodged in the body itself
with the track of the bullct being from downward to upwartls clearly showed that
the deccased had nor been sitting on the ground as alleged h1 the police ar the time
when hc had been hir hccause it'he had indeed been sitting the track would have
been frtlm upward to downward. This would be the casc in nurmal circumstances
but it is clear from thc tacts narrated above that the p.rice party was caught
completely unawares when the deceased had taken out rhe weapon hidden there
untraced,
113
and brandished it and also fired three shots. It is, theretorc. trbvious that the police
party would have taken evasive action in any manncr rlossible to them more
particularly as they were several olficers bunched closc r()gl:lhur' lt has come in the
statemenls of the police otlicers that when the deceased had taken out the revolver
antj thrcatened them they had scartered here and there. ln this situation it cannot be
conclusively expected thar rhe two parties, the deceased antl the police, were facing
each other when the firing had taken place.
It is also significant that the weapon that the dcceased had used was
incorrectly marked as bcing madc in the U.S.A. but it wirs in tacl a 7.65 mm bore
country made one as broken pieces of a cartridge shell had been picked up lrom
the spot when the anrmunition had burst as is often rhc case in sub-standard
counlry made weapons. It was noted in the reports of the F.S.L. datcd l3'h April,
2005 ancl 25'h April, 2(X)5 that three empty spent cartridges cases had been
recovcrcd along with the pistol aforesaid had black gun powder stains and did not
bear percussion caps which indicated that the bullets had hursl when the deceased
had fircd the shots. lt is significant that in rhe reporr dated 25'h April, 2005
rcndercd by F.S.L. rherc is an indication that the percussirrn caps of the cartridge
tired in the laborattlry lilr resting purpose had also bursr. Dr. B.R.Sharma in
Forensic Science in Criminal Investigtion and Trials (-1,,, Edition) page 475
observcd that on account ,f sub stantiard quality country r.irde weapons otten burst
.iiLX-^.
tl4
on bcing fired and metallic pieces may fly over and this can also happen when the
percussion cap is punctured. When the F'S.L. report is rcad with the recoveries
madc Irom the spot ir can bc reasonably concluded that thc police version was the
corrcct one as the stor) could not have been created in the light of what has been
given out as a result ol lhe tests in the laboratory.
Some argurnents have been made with rcgarcl to the nature of the
injuries on rhe person ot Constable Gajendersinh who is saitl to have been injured
by the lirst shot fired by the deceased. The hand wash ttf thr: deceased was taken
soon aftcr the incident and as per the report of the Laboratory residue of fire arm
discharge had been tbund on the hand. The gunshot injury on the person of
Constable Gajendersinh is another significant factor in going to the truthtulness to
the police version. The report of the F.S.L. dated t3'h Aprrl. 2005 reveals that the
holes lbund on the trouscr of the police constable had been caused by a bullet and
that the firing had bccn made from a distance of 2 li as determined in a
microscopic examination.'fhcse factors conclusively pr()vo that the deceased had
{irst fired at the police party with a country made weirpon and even caused an
iniury on the person ol GajenrJersinh and despite being warned Io throw down the
weapon he had continued ro lire at the police ofllcials which had led to retaliat<lry
llre' ln this view of rhe matter, no further proceedings arc c;r ed tbr in this case.
LK /t,I
115
I-C.R.No. 146 Police Station Shahibaush2006
Ahmedabad under Sections 279-304 A I.P.C .and( )
under Sections 177 184 134(B of the Motor Vehicles)
Act.
This matter was finally taken up on l3'h Februrr ry,2016 in the meeting
ol the Monitoring Authority held on that day. The facts arc as under:-
On l3'h April, 2006 informalion was receivcd by Sub Inspector J.M.
Bharwad and other poliee olt)cials that some persons who were members of the
lrani Gang, were roarning about in Ahmedabad intentjing to commit fraud on
banks and cheat peoplc and were putring up in the Royal Hotel, Sarkhej and
alnongst them there were some persons who were to be scrved warrants from Surat
and others who were r. bc arrested for offences registered at the Karanj police
Station. on receiving this intelligence Sub Inspecror J.M. Bharwad and a police
tbrce consisting of Head Consrable Abheysinh, constabrc Ghanshambhai and tw<r
SRP persons, Head Constable prabhudas and police c.nsrable Sandipsinh, and
driver Prakash omkar anil Gangman Manubhai Shankcrbhi got into an official
vehicle (Tata-407) and rcti for the Royal Hotel. The porice parry reached the hoter
at ab.ul ll'00 p.m. anti filund in ail 1g persons presenr in the hotel. The policc
thereupun brought the l8 persons to the Sector 2, poricc Srarion in their private
vehicles and told them r. sir in their vehicles which were directed to be parked in
,u\_-:.
tt6
thr: compound. At ahour rnid night Police Constable (ihrrnshyambhai was taking
Kasam Jalar a (hereinalter called the deceased) resitlctrt of Ambevali Kalyan'
In<lira Nagar Railwal, Sttrrion Mumbai to the office ot Suir [nspector Bharwad for
inlerrtlgation when the ricceaserl told him that he was thirsly and wanted to drink
watcr. l-he Constable took him to the water tap and leti hinr alone while he went to
the urinal to attend to natures call. On returning thc Constable tbund that the
deccascd had disappearctl. A search was made fbr him but 10 no effect. Information
ol his disappearance was conveyed to Sub Inspector Uharwad and to the other
mcmbers of the police party where after a search was Initde tbr hirn outside the
Police Commissioner's ollice compound near the ternple ol Hanuman Ji and Jogni
Mata but he could not b0 rraced. The 17 other persons who had been brought to the
Police Station werc inlurrogatcd separately by Sub Inspcclor Bharwad on thc 14'h
April, 2t)06 and after thcir statcmcnts had been videographcd they were allowed to
8o the ncxt day at about 5.30 p.m. and their vehicles r.vere also released. In the
mcanwhile Sub lnspeclor N.M.Modiya of Shahibaugh Police Sration who was on
duty and on night palrol in rhe Police Station limits, rcce ir r,d a message from the
c()ntrol room at about 1.00 a.m. on the 14'h April,2006 ihrrr intbrmation had been
received from one Rajintlurbhai Mistri that a person wrs il irrg unconscious near
thr: Panchal Milan Mandir. Sub lnspector Modiya thcn rt.ached the underbridge
near Municipal Central Zone, Shahibaugh and found ir rlcarj body lying there
ir k1^"'r
tt7
bleeding tiom the moulh. Hc also called the first intbrnrartt Rajinderbhai Mistri to
the sitc who told him that hc had been walking from Shahibaugh police outpost to
Shahibaugh underbridgc when he had seen a person lying on the road where after
hu hatl called rhe poticc and it appeared to him that the deccascd had been killed by
an unknown vehicle. The Sub Inspector examined the tle ad trcdy and on seeing the
injurics hc concludeti rhar the cleceased hact died in a ntolor vehicle accidenl and
had bcen run over by a speeding vehicle driven negligcntly. C.R.No' 146 of 2OO6
un<le r Sections 27gl3O4-A l.P.C and under various seclion\ ot lhe Motor Vehicles
Act u'as accordingly regisrered by Sub Inspector Motliy'a at Police Station,
Shahihaugh at 4.00 a.m. on l,l'r'April,2006. The investigation was thereatler
started by S.l. Modiya anct the spot was inspected in the prcsence of witness Yusuf
Khan. At the initial stagc thc identity of the deceased could not be ascertained but
during investigation it w'irs found that he was Kasim Jatcr ol Mumbai. His family
mcmbcrs who were in Murnbai were located and they rcirched Ahrnedabad on l8'r'
April. 2006 and his wilc Mariam Jafer and her morher t:aiima Bibi identified the
dcad hody. ln rhc meanwhilc lnspector H.B.Rajpur ol rhc Shahibaugh police
Station also recordetl thc sratcnrents of the aforesaid wonren.'l'he post Mortem on
thc dcad body was perlirrmcrJ on 14'h April, 2006 in Civir Hrspital, Ahmedabad
and on getting a clariticarion trom the Medical otricers it was intimated that thc
death had been causcd due t, internal and external irrjuries which were ante
"/t
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replied in the negative, sornc people had come to her resrdence on the next day and
narratcd the facts relatins to the incident. As the bill of the Royal Hotel was
available with Musa hc handed over the same to her anti she had called the Hotel
by giving her identity as the wile of Kasim Jafer but the h()tcl people informed her
that they, were unaware 0l rhc iduntity of the police pcrsortttel but after insistence
shc was told that thc Policc OlTicer was J.M.Bharwatl who had been accompanied
hy 20-24 police pcrsonnul. She had then got the tclcphone number of Sub
lnspector J.M.Bharwad frorn thc persons in the hotel and contacted him who told
hcr that her husband had run away. She, her mothcr ancl aunt thereafter met
Munirsha Advocate anrj told him the facts of the casc and also requested that thc
dead hody be handed over lo her. Thereafter they had g()ne to the office of the
(lommissioner of Police and mer Sub Inspector Bharwatl who again said that her
husband had run away. Shc, rhcrcafter, handed over an applicarion to Sub Inspector
Bharwad who hacl senr lhe same to Mr. Ashish Bharia rvho told her that fax
messages would be senr rhroughout the state to get inlbrrnation retating to her
missing husband. All this happened on the morning ol 17,r, bur on thc lg'h thc
intbrmation came that an rrcci<icnt had taken place on thc nr.'qht of l3,h and l4,l,and
they were advised ro r,isir Karupur chowki to see rh.e irody. She alongwith her
relatives then went to the chowki and they were aske.r ro itrentiry some clothes,
lingcr ring etc and the same wcre identified by her anri hcr mother. They were
J
rl/\,\I- t, ''
tzL
shown a photograph (rf the post mortem which intlicrrtect signs of beating and
thcrcalter they werc taksn to rhe Civil Hospital wherr: they idcntified the dead
body. The dead body showetl signs of beating and torture' The dead body was
handed over to lhcm rrn l9'r'April,2006 in the presence ol tamily members where
atter she went to thc Iligh Court to file an application. At a later stage the
(iove rnment indicatetl that thc case had been handed over lo the C'B'l' but after
nothing had been douc she hatl ultimately met Teestii Madam who filed an
application in the Suprcrnc Court to become a party in the writ petition filed by
Javcri Akhtar.
The lurthr'r investigation was carried out h) lhc S.T.F. through its
lnvcstigating Officer D.S.P. A.M.Patel. He recorded thc ..,tiitcment of Mariam Jafer
aloresaid and also went to Anrbewali, Maharashtra and recorded the statements ol'
thrce other persons who had been present alongwith rhc deceased. They were
Hajamali, Pyareali Syed and Kashmiri wife of Hajamali. 'fhe stalements of the
others who were present with the deceased could not be recorried on account of a
law and order problcm. D.s.P. Pirtel also recorded the srirtcrncnt of Sub Inspector
N.M.Modya who rcpcirred rhe story given above. D.S.p. I)atel again went to
Arnbc'ali on 2l'' Mar. 2013 and recorded the starcrnc.ts or Faizalhassan,
Kajimhussan, Mehmr.rd Nadarali Sheikh, Gurab Chandra yadav and Hajamali
Jalarali Statements ,r' the owner of the Royar H.tel lqbarhussain and thr:
it
,( .{'-. ,i1-
L22
managcrs Yasinmiya and Mohmad Abass and waiter in the htlte I Sureshbhai were
rocorde d on 21'' Junc. 2013 and statement of Fatima IJibi rn0ther of Mariam was
rccortled <tn 27'\ Junc. 2011. The D.S.P. also recordcd tho statement of the Dr'
Gautam Vrajlal who had pertbrmed the Post Mortem anti rtlso of one Dr. Yogita
Mandar of Padmini Hospital, Kalyan on 5'h August, 20 l-l who stated that the
deccascd had been blrught to her in the year 2004 for treatment as he was
sullering from some psychological problem. The l).S.P. also recorded the
statentents of the Police Ol'ficcrs who were presont when the deccased and his
companions had becn brought to the police office anrj they includcd Abheysinh
Prithisinh Joinl Commissioncr of Police, ASI Dhanrajsinh, ltC Ghanshambhai and
[lC Samantbhai. A lertcr datcd l-i'h September,20l3 was.rlstr written to the Head
of Forensic Science ol (-ivil Hospital, Shahibaugh who opinud vide report dated 7'h
Novembcr,20l3 that injury No.3 could have been causcri by using a hard blunt
substance or pushing against such substance or due to lail rln hard blunt substance
and in.iury No.2 could be caused due to internal and exlcrnirl injury caused to the
deceased. lt was opincd rhat such injuries were possiblc on colliding with a hard
substartce such as in a nlrlor accident and the rJragging irnti ahrasion marks could
be causcd due to dragging by the motor vehiclr. The slatement of S.l.
J.M.Bharwad who had bccn incharge of the raiding prrrry was recorded on Ist
April' 2t)14 who repcareti rhc srory already mentioncd iit the initiar stage. He
).P'I
123
claritiud that 18 persons had been found in the Rr-ryal llotcl and had been brought
to thc Police Station lor inlcrrogation on suspicion thilt they were using stolen
vchiclcs. A Quallis car lrelonging to the l8 detenus and othcr private vehicles were
also brought to the Shahbaugh Police Station cornpouncl. IIc lurther stated that as
he had to take dinner he lold thc police staff that he wouid inte rrogatc 18 detained
pelsons separately latcr. [{e con[irmed that Consrable Chanshumbhai had told him
about the circumstances undcr which the deceased had run away. He further stated
that altcr the deceased hird run away an effort had bcen ntade to trace him out
though without success and rhat he had the next mornirrg i.e. 14'h April,2016
interrogated the l? persons who confirmed that they had hecn comrnitting crirnes
at diftcrcnt places though thcy could not identify any ol rhcrn and thcir statements
had bcen duly videographcd. He stated that all 17 were alllvud to go at 5.30 p.m.
and thcir vehicles were also rcteased. He categorically stirted that there had been no
altercation with any ol rhc persons who had been detainetl and nobody had been
beatcn by him. D.S.P. Parel concluded that the deceascd had died an accidental
dcath due to hitting or crllitling with a hard surtace such ris rn a motor accident.
This matrer w',s r'inaIy considered by the r\,lrrrriroring Authority in its
meeting held on the l-'j'r' February, 2016 and severar signir'icant argurnents have
been raised by the lcarncd c.unsel. It has been first and t.rcmost bcen argued by
Mr' Prashant Bhushan thar the porice version was on the tirce unacceptable and to
1P't(
124
be lieve that a membcr ot rhc dreaded lrani gang which hirci il reputation of being
cheats and thugs hatl bccn able to so easily abscond tiom the Police
Comrnissioner's otljce which was guarded like a forrrt'ss pafiicularly as Gujarat
had otten been the victirn ()[ cxtreme violence. ll has alstr hecn pointed out that the
medical evidence and the uxamination of the site where thc so called accident had
taken place clearly revcllutl that the death had not occurrco irt that place but in fact
the dcccased had been donc to dcath elsewhere and lhcn his dead body thrown at
the undcr bridge. He has also submitted that it wasthe adrnrttcd case that of the 18
pcrsons had been to thc Polics Station the deceased u'as lhe first one to be
interrogated and aficr hc harl been removed from the vchrcles in which they had
been dctained, had hccn tuken for interrogation and not been seen by his
ctlmpanions and though thc rcmaining 17 had been in dctcntron till 5 p.m. the next
day police officers did n()t rcveal much to them but hari told them to quickly get
out ol Cujarat failing which they would face dire conscquences. It has also been
pointcd out that in thc inirial investigation the police cliri nor record rhe statement
ol any .l the 17 mcmher\ rhough directions that this sh.uld be done had been
made vide letter of rhc C.rnnrissioner of the police crare d l()r" octobcr, 2006 and
the statcments of six ol thsrn had been recorded by the S. i-.F and their explanation
c.mpletcly belied the rrrry given by the police as thu) stated that when thc
deceased had madc an inquiry tiorn the porice officers rhcl had got inluriated and
I
125
hc hatl bcen manhandleti antl taken to Sub Inspector Bharvrad lbr interrogation and
soon a rod, ropes antl picces of a sarees had been takcn tiorn the police vehicle
inside the Police Hearj Quartcrs. It has been submittctl ihat the story that the
deceased was suflering tiorn a psychological problern which had made him to run
away in f'ear from policc custody was unbelievable and an atier thought' Mr.
Kogfe. the learned counscl tbr thc S.T.F. has pointerl out thirt statements of the 17
detcnus had been recorderi by Sub Inspector Bharwad beftrre they left the Police
Head Quarter, Shahibtrug at 5.00 p.m. and none ol lhcm had exprcssed any
apprehcnsion with rcgard to the whereabouts of their nrissing companion. He has
furlher slated that therc was no ovidence to indicate thitt the deceased had been
beaten, and that the Posr Mortem examination was in consr)nance wilh the version
given try the policc as lhc nature of injuries and the blotrtl iying around the dead
body indicated that thc deccased had been run over by a specding vehicle.
I have considured the arguments addressed hr the learned counsel.
It will be secn that as per the police versiori the deceased and his
companions had been bnrught to the Police Head Quarrcrs alter t I p.m. on 13tr'
Aptil, 2{)06. Sub Inspeerur llhanvad who was incharge ol the police Party was
accompanied by a largc nunrbcr of police personnel anrl lhc) wcre told to sit in
thcir vchicles. The deccirsed who had been first called tirr inrerrogation followed
by Jalter Ali, As pur the sratcmcnt of constable Gancshbh^i the deceased had
,l..&'(\I
L26
asked lilr drinking waror on which he took him to the tap rvhilc he himself went to
the washroom and on his rcturn found that the deceaseci had disappeared' This
story is impossiblc to acccPt as it is comPletely unn turill and against normal
hr:haviour of a policerncn who w.as left to guard a metrtbe r ol'the notorious lrani
gang. 'fhe negligence of (lonstable Ganshambhai does trot irppear to have harmed
him in any manner as it is thc admitted position that no acli()n was taken against
him lirr allowing a person under investigation to esctrpe, During the course of
argumcnts it has been pointed out that the Police Head Quartcrs is surrounded by a
high security wall and it would have been impossible to scale over it. An attempt
was made to arguc th l thcrc was a small opening in thc wull at a place where a
tea-vertdor used to sit and supply tea to the police personncl and that would have
made it possible lbr rhe dcceased to escape through rhrrt trpening. This is a far
tetched story as it assurne s that the deceased was awarc ol thc place where a parl
of'the wall had been broken so as to facilitate his escape. [his is no body's case. lt
is oI yct greater signilicance that the deceased is said to have disappeared shortly
bcfore mid night ol l.l'r'April,2006 and the dead bodr had been located by
Inspector Modiya a couplc ol hours later. C.R.No. I4{r tll 2006 for oft'ences
punishable under Sccri.ns 279, 304-4 of the Indian pr.,nal Code and several
pr.visiuns of the Motor Ve hiclcs Act had been lodgcd at Police Station, Shahibaug
at about I a.m. on the l{"'April, 2006 by Inspector N.M.Modiya. At the time of
t27
the kxiging of the I:.I.R. l7 companions of the deccitseri were in the Police
Headquarters 2 kms in Shahibaug itself away but thcl \\'ere not intbrmed about
rhe death even till -5 p.rn. on 14"'April,2006 when thel wcre told to leave along
with their vehicles and rhrcatened not to come to Gu.ilrirt otherwise they would
lace dire consequenccs. ln norntal circumstances il the policc had nothing to hide
in thcy would have gi,u en the inlbrmation about his clcath to his companions but
so even more surprisingly-, the dcad body was identified try lnspector Modiya at the
timc ol'the Post Morlern at 9 a.m. on 14'h April, 2006. l'he very conduct of the
Policc Otficers is so unnatural that it raises very great suspicions about what had
transpircd in the mattcr.
The dead botll was subjected to a Post Mortcnt on the morning of 14'l'
April. 2t)06 and the tblhrwing injuries were found thercorr:-
2. Abrasion with contusion seen 10cm x 5 cm in size on left arm laterally
irregular shapcd red in coklur.
l. Abrasion with contusion scen 10cm x 4 cm in size iclt medial fold axilla
vcrtical reddish in colour.
4. Cttntusion seen sizc -lcm x 3cm right elbow joint larerally red coloured.
5. CLW seen 3cm x fcm in size on left elbow joinr poslcriorly.
l. CLW seen4cm x 1.5 cm in size on left side of the che ek oblique.
128
6. Abrasion with contusirln seen 5cm x 4cm in srze right ---------region
irregular shape rcad in colour.
7. Abrasion secn tlcm r 3crn in size on left tbre arm llterally red in colour'
'l'he internal examinatitrn rcvealed the following iniurics:-
1. tlemorraghic contusion scon on right temple, parietal region size 10cm x-5
2 Meninges: linear Iracture seen on right temporal pirriutal region 8cm in size.
Sub-dural haemmorrhage scen on right tempero parie trrl regions.
(.AH CRC secn on hoth hernisphere in the brain. Brain is congcsted.
-I'he doctors opined that the cause of death was shock irnrl hiremmorrhage due to
iniuries sustained on the dcad hody which were ante ntortem in nature. It has been
suhmitted by Mr. Prashrnt Bhushan that the injuries clclrly revcaled that the
deceased had been bearun in thc police Head euarters rrirh srick or rods that had
been taken from rhc ptrlicc vehicle. Mr. Kogje has, htxvc,,or, submitted that the
injurics were in facr rhe rcsult ol a motor vehicle accident and were consistent
the rew ith. I am, h.wcvcr. trt rhe ,pinion that in the background of the facts given
ab.vc and the reluctancc,f thc police to inform the rerarivcs and farnily members
ol the deceased thar hc had mct an accidental death, clcarrr berrays a guirty mind.
Subsequent events con|irnr this view as the police was dcsperate to get a categoric
3
4
c lTl.
)
129
opinion liom the docrors rhat il was an accident alonc thal had led to the death ol'
rhe dcccased but rJespire rcpeirted etlbrts in this regard lhc dtlctors did not give a
categoric opinion favouring thc police. As already merrtioned above the doctors
had in the post mortcnl report given the cause of death as haemmorrhage due to
injurics over the body and no rletail as to how they coultl have been caused was
providcd. When a spucific que ry was made tiom the two l)osl mortem doctors the
tolktwing reply was givcn by them vide letter dated 7'r November, 2013' The
rclsvant portion is quotcd hcrein below:-
"Reply No. l : 1'hc injuries shown in the column No. r7 in the PM note of thc
dcceased, injury on the under arm is caused using hrrrd and blunt substance.
'l'his injury can be cluscd using hard and blunt sutrstunce, or colliding with
case of accident such in.jury can be caused.
Reply No.2: As pcr rhe injuries shown in the PM notu ol the deceased due to
the injuries causcd on thc body and internal injurics rhrough which there can
bc profuse bleeding. 'fhc injuries caused to the trcccasucl are caused due lo
hard and blunt substance.
Rcply No.3: on the pant ol' the deceased on the bat k side there is rcar mark,
and on the stomach on the lront (right illiac regiorr) rnjury caused (pM note
to
it, falling on it ur dcaling hard and blunt substancc ir can be caused. ln the
130
column No.l7 iniurl Nrl.6) does not appear to bc consistent' On the back ol'
the pant of the tlec,:ascd lear is tear mark' lt is consistent with the injuries
show in the inquest panchnama in the left waist ;rnd left thigh due to
dragging apparcntl).
Reply No.4: 'l'he iniuries caused to the deceased are caused due to hard and
blunt substancc. 'l-hese injuries can be causcd tiuo to hard and blunt
substance. Thesc in.iuries can be caused due ttl hitring on hard and blunt
substance. Colliding with it. Falling on it or duc to dcaling any hard and
hlunt substance. In thc case of motor vehicle accidunt \uch nature of iniuries
are possible. lf thc in.juries are caused due to vehiclc accident then the motor
accident is causcti on the lett side of the body, such are possibilities.
Ruply No.5: The injuries caused to the deceased are caused due to heavy or
light vehicle, such opinion cannot be given.
Reply No.6: The cxtsrnal injuries caused on the bodt ol the deceased which
arc shown in thc PM Note Column No.17 these arc drlgging contusions and
tlragging nature ol injuries. These injuries can bc cirused due to hitting on
hard and blunt subsrancc. Colliding with it. Falling on rt or due to dealing
itny hard and blunr suhslance. In the case of motor accident due to dragging
on the road such inj uries are possible.',
["lLt - \-
131
Dissatisliecl with the report dated 7'r' Nove mtrer, 2013, D'S'P' Patel
again made a query liorrr the Forensic Medicine Depa:ttnent of B'J' Medical
Oollege , Ahmetlabad and a reply dated 6'h August, 20l-l rvas received therefrom'
Paragraph 2 and 3 reads as under:-
..(2) With regar.d fu rhc claritication on rhe issue No.l in your Ietter this is to
state that thc injuries causecl to the deceased are causetl due to hard and blunt
suhstance. Such nature of injuries can be caused using one or more hard and
l)lunt substance. l-hc dcath of the deceased was citusr:d due to the ex ternal
and internal iniurics shock and hemorrhaqe. Thesc rrt urie wc u ln
In s resiird ulcar medica o lnlmo tor accident or due to assaul tlns rh
c nn0t iven. In this re ard the circumstantiiri rvidence be t ken into
conside ation and tirkc dccision.
(.1) With regard to thc issue No.(3)mentioned in your lcncr tbr claritication it
is stated that he cxtcrnll and internal injuries cuuscd on the body ol the
deceased arc causcd b1 the hard and blunt substance. 'lhcse
arc ante morte,
this is evident fi'orn the Post Morlem repolt.''
ln othcr words, dcspite grcat pcrsistence, the police was u,iible to get an opinion to
suit thcir needs and thc ellbrt appears to have been to rlranitge a cover up rather
than to ger at the truth.
,L)--,I
ll2
ln order t() supporl the version that the deccased had in tact run away
as he had a psychological proble m, the S.T.F. recordetl the statement of Dr' Yogita
Mantlar Hardas on tfur 5"'August 2073, a psychiatrist uorling in the Padmani
llospital, Mumbai. Thc l)octor was shown a statemenl rvhich she is alleged to
have made on the 27rh April, 2006 alongwith a certificals in which she stated that
the deccased had comc ro her lor treatment in the ycirr 2004 and that he was
sutfcring from mental rtilrnents and hallucinations and \^as continuously scared
and that such a person was alway s under an apprehensiorr lhat he would be kilted.
It appears to me however, that there is clear doubt as 1rl the authenticity of this
ccrtil'icate and it has bcen produced for the first time on 5'r'August,2013 at the
tirne whcn the statcmenr ot Dr. Yogita Mandar hadbeen rrcorded by D.S.P. Patel.
l'heru is no evidence thar lhr: deceased had visited thc riocror time and again so
that shc could identify hirn bur on the contrary she had cluirrly stated that he had
not taken regular trealrncnt tiom her. To remember onc solilary patient afier one
visit alter seven yoars srrcrches credibility beyond mcasuie it is not clear from the
rccord as to whether rhc ccrtificate aforementioned had cr en been produced earlier
to 5'h Augusr 2013.
Anothcr st.rtling aspuct of this matter is that tire statements of the 17
mcmbcrs who had becn;rpprehended alongwith the dcce,setl on the r3rh Aprir,
2(x)6 wcrc never rcc.rdccr try rhe Gujarat police at rhe rime when the iniriar
,l
)-'<r-,
133
invesrigation had heen marle by lnspector Modiya. The statentents of six of them
were rccorded by the S.T.F'. tirr the first time after the maltor had been referred to
thc Monitoring Authority. These six were Yavar Abbas llussain, Khadim Hussain,
Gulab Chandra, Javeti Ali, Hazarn Ali and Majmood Shaikh who all stated to the
narrativc given in the beginning and reiterated fully as to what had transpired on
the l3'r' April, 2006. 'l'hcy unanimously said that they had come on pilgrimage
liom Mumbai to Husseini 'l'ekari and after pertbrming thc pilgrimage they had
comc to the Royal Hotel, Sarkhej when a large number ol policemen in plain
clothes had descendccl on the hotel and taken all ltl persons to the Police
Comnrissioner's oft'ice in Shahibaug, Ahmedabad and thal the deceased had a bit
ol an unpleasant exchangc with the police officials wherr the deceased questioned
them as to why they wr:re bcing detained and that a short'rvhile later the deceased
was told that he was wanrcd by the police officers for qucslitxring and he had been
caught by his hair and taken away where after some policcmen had come to a
policc vehicle and taken r rope, a rod , pieces of a sarec and sevcral other articles
with thcm. They lurthcr srared that after about 15 minutes police arrived in their
vehicles and asked thcm as to whether the deceased hatl returned and when they
replicd in the negative rhcy were told that he had been invorved in stearing and
had run away. They srated that when further questioncd the policemen became
angry and kept them in lhs police Station till 6 p.m. on rhe l4'h April,2006
l*^'
134
whercatier they were rttld to leave Gujarat and to returrt home immediately, after
thcir linger prints had bccn taken and statements viedographed' They also stated
rhat allcr their relcasc rhcl had informed the wife of thc tleccased, Mariam, that her
husband had disappcarctl whercupon she had come to Ahmedabad and made
lurthcr inquiries.
Mr. Kogjc has, however, stated that as the state ments of the 17
companittns of the deccased had been taken by Ilrspector Bharwad and
videographcd on the l,l'r' Aprit,2006 and none of thcnr h:rd voiced any suspicion
with rcgard to the disappearance of the deceased, the storr had now been c<loked
up and was false and unhclicvable.
To my mind this argument cannot be acceptcti. It has been repeatedly
pointcd out by the six thc persons whose statements hl,,e been recorded by the
S.T.F.. that they had hecn tokl to return to Mumbai tbrthwith and not to stay
around in the State ol [iujarar lailing which they would bc in trouble. Moreover,
the tact that the story pr'()jcctcd now was not a new one is clearly evident trom the
statement of Mariam and rhe applications she had filed rhrough her lawyers and
l'cesta Madam immediurely alter the incident doubting lhc srory put forth by the
policc and giving thc counrer vcrsion. Significantly als.. tht, lnvcstigating otricer
in C'R. No. 146 ot 2(x)6 under Secrions z7g,3o4(A) r.p.c. which reters ro the
acciderttal dr:ath ol thc de ccased was S.r. N,M.Modil lr :rnd not S.r. Bharwad.
,1 \---i
135
Admittodly the formcr tiid not rccord any statement ol rhe l7 companions of tht:
deccascd. No credibilrty. rherctirre, can be altached ttr thc so called statements
rucortlcd by Inspector llharwad as in fact the allegations oi tnisconducl had been
le vclcd against him.
Itwillalstlhcseenrhatthes'T.F.hadrecortlcdthestatementSofonly
six out of the seventr:en who had been part of the grouP that had gone on
pilgrimage. D.S.P. Pate I made scveral inquiries regarrling the whereabouts of the
orhers from (amongst rrthcrs) the widow of the deceascd. tt transpired that their
prescnt whereabouts wtrc unkrtown and some werc deltd. This explains the
inability of the S.T.F. to recortl all the statements but thc statcments of the six
which harJ been recordcri clearly indicate that police versirtn that the deceased had
run away tiom thc police Hcad Quarters, is not believahle. lt is significant that in
his statcment S.l. J.M.Bharwati recorded by the S.T.F. on l'' April,2014 produced
the C.D. which he had made while interrogating the sc\cnroen persons on l4'h
April, 2006. These strtemenrs had been recorded whrn rhese persons were not
awarc ol the death of the deceased. The statements ol thc various policemen who
wore parl of the raiding parry were recorded and they are :rll ro the same effect. The
etfbrt of'the policc olficers ro dub the deceased and his c()rnpanions as criminals
has als. not been successtul as n. evidence whatsoever hirs becn produced to show
that thcy had been inv.rvctr in any crime. Their very clure,ri.n ,n the 13rh April,
ii,u^"
136
2()()6 trom Royal Hote I wils thus not justified' I am' the reitrru' oI the opinion that
S.I.J.M.t]harwadand(.onstahleGaneshbhaiareprirnal.ircicinvolvedinthekilling
ol the dcceased. These two police officials need to bc prosecuterl ftlr murdcr' Il
during thc course tlf the rrial the evidence reveals th:rt s()lne others were also
involvcd in any manner whalsoever, they too would be indicted and tried as per
By order dirtc<i 2l'r November,20l3, I had arvarded a sum o[ Rs'14
lakhs as compensarion io rhe widow and children of the dcr:eased. What impelled
me to dircct this paynrcnt was that the deceased hacl lett bchind a widow and five
childre n, a daughte r Zcenat, I 7 years, son Kasim, l4 r e:tr s. daughter Batul, 12
ycars irnd a set of twin girls Rabab and Shakina, 8 years. .though
somc guess work
would inevitably be present, the broad parameter applied was thal the
ctltnpe nsation should bc reasonable enough to give the l'rmily hope and a chance
in lite with some basic education so as to prepare thern tirr the future and as the
cost ol living in Mumbai was truly astronomical, somc irllorvance had to be made
tirr that reason as wcll. Mariam Jaffer had subsequcntly filud two applications
calling lirr more compcr)sltion. These had been rejected hv rnc.
t
law.
137
I-C.R.No. 1l 2006 Police Station Valsad DistrictValsad under Sections 307 I.P.C. and Sections
B.P.Act25 I B 27 I the Arms Act and Section 135 of
This matte r ivas Iinally taken up on l3'h Fcbr-u;rry,2Ol6 in the mceting
of thc Monitoring Aurhorirv he ld on that day. The facts irc a:! under:-
Jogindrasinh Kharansing, a Labana Sikh. hereinafter called .the
deceased' residenr of'Birin*rra Dcvsar Sikh camp, Sartrirr rnarket, Tehsil Gandevi,
I)istrict Navsari was w lnte d hy the porice in several scri.us criminal cases. on
l7'h January,2006 rnspccr.r K.G.Erda of the Crimc rlranch, valsad, received
inlbrnration that thc deceased was to visit his associirre Kishore chhiba at his
rusidence in Nanakvad.,-r'uhsil and District valsad. on recciving this information
thc Inspector accompirnicd by A.S.l. Manoharrao !Jalruriro, Head Constable
tJhaskarrao, Head Consrabrc Kanrilal Maganlal, consrahie Mirheshbhai, constablc
Satishhhai' consrable J.lcndra Sudambhai, consrirrrrc Rupsinh, constabre
Dipakbhai, Constabre Rupirbhai. Driver police consrable Anir tsaburao and DriverP,licc constable Nimb:r Kashinarh held a nakabandi nc.r rhc Nanak vada Schoorcomp'und by dividing rhernselves into three tearns. Ar arrout g.45 p.m. thedcccascd was observcd e.nrirrg towards them on a nl.iorcycre and atier he had
i Kr\i
138
been identitied by ASI Manoharbhai, the police otliccr gave a signal to thc
nrcmhcrs of the policc partl with a torch' The deceasetl' htlwever' on seeing thc
policc leep tried to turn his mororcycle but it skidded anti hc fell on the road' He
imrncdiately got up anti again attempted to escape but the mumbers of the raiding
party surrounded him on which he pulled out a Rambo knitc and caused injuries to
ASI Manoharbhai, Hcild consrable Bhaskarrao, t]catl (lonstable Kantibhai,
Consrable Maheshbhai, constable Satishbhai antl Corrstable Jitendra. ASI
Manoharbhai hit thc dece ascd on his hand with the t<-rrch held by him on which the
knilc tcll from his hand. 'Ihe deceased thereupon pullcd out a revolver from his
person and made an attcmpt ro fire at the police parry ;rnd as he had a history ol'
indulging in firing on thc polics in the past, Inspector t:rdir lired one round, ASI
Manohrbhai fired livc lounds, Head Constable Kanlibhai three rounds, and
(lonstablc Bhaskarrao 5 rounds lrom their service revolvcrs. A total of 14 rounds
were thus fired ot which nine shots hit the deceased on vrrrious parts of his body.
He wirs immediately rclerrcd ro the Civil Hospital Vatsatl bur he expired during the
ctturse of treatment. On the above facts C.R. No. 1l ol 2006 tbr oft'ences
punishable under secrions 307 utc. I.P.C. and various Suctions 25 of the Arms Act
was registered againsr the deceased and the invesrigi,tion was entrusted t<l
lnspcct.r J'G.Mehta of rhu Valsad police Station. Inspccr.r Mchta visited the place
ol occurrence late in th,ight and inspected the site i, thc presence of panches
,LzVa..l
139
Mustaq Hussain and Bankibhai. Motor cycle bearing No. ('J-.I5-635 with a broken
light was tbund lying at thc spot. Further exatnination rcvcaled the presence of
skid marks which appcarcd to have been made when thc nrotorcycle had slipped
and lallcn on the road. In addition a country made.32 rer olver bore loaded with
lwo cirrtridges, a wrist watch and three mobile phoncs w itlr idcntitjable particulars
and a Rambo knit'e wcre pickcd up. ln the meanwhile the ptltice personnel who
had uscd their servicc rveapons in the incident handr:d over the same lo the
Investigating Officor irlong with the empty shelts, l-l irr number. The Sub
I)ivisional Magistrate, Vtrlsad prepared an inquest repor r rnd the dead body was
thereattcr referred firr rhc posr mortem examination. -t'he P<.rst Mortem Board of
Dr. Mittal B. Tandcl and Dr. l-.M.Labhani found rhc tollowing injuries on the
person ol' the deceascd:-
l. [:ntrance wound circular in shape, 0.5 cms. irr sizc, diameter margin,
inverted greasv irnd smoke, smaller than diamerr.r ol bullet on Rt.(Right)
hypochondria regions 6 cm to midline.
2' [']ntrance wountl scen circular in shape, 0.5 crrs in diameter, inverted
margin, grcasy rrnd smoke, smaller than diarncler ol. bullet on Lt.(left)
hypochondria rcqion. -l cms. to midline.
3' Entrance wound sccn circular in shape, 0.5 cnrs. in diameter, inverted
ntargin grcasy and smoke, on epigastrine region, 6 crns. ro umbilicus.
Vry
140
il. Entrance wttuntl seen circular in shape, 0.5 cm'.t. in diameter, inverted
margin greasy urtd smoke. on Rt.(right) side medirt aspect of thigh, particles
scen lateral si<Jc ol Rt.(Right) leg above 3 cms. to Rl.(right) knee joint'
-5. Entrance wound sccn circular in shape, 0.5 crns. in diameter, inverted
margin greasy and snlrkc. on Lt.(leti) side, 12 cnrs. helow the Lt.(left) knec
joint.
6. Entrance wound sccn circular in shape, 0.5 crns. in diameter, inverted
rnargin greasy and snroke, smaller than bullet on Rt. (right) side of chest, 4
cms. below nipple and exit wound seen, bigger in srzc than bullet. External
cdge and on Rr.(righr) side back side, 6 cms. to rnrdline.
7. [intrance wound scen circular in shape, 0.5 crns. in diameter, inverted
margin greasy antl smoke, smaller diameter on l t.ilclr) side chest, 2 cms.
above nipple and exir wound seen, bigger in size rhan builet. Averted edge
and on Lt.(left) side ot chest, 4 cms. to midline.
8 I:ntrance wountl seen circular in shape, 0.5 cnrs. irr diameter, inverted
margin, greasy and sm'ke , smaller than diamercr .l irullet on Rt.(right) side,
mid auxiliary linc. (r crns. to Umbrines anri exir * cund bigger in size than
hullet, averred in r:clgc, bleeding present on Rt.(right) side back, g cms. to
mid line.
i\,\"{2.
t4L
9. [:ntrance woutttl sccn circular in shape, 0.5 crns. in diameter' inverted
margin greasy antl smoke. smaller than diametel ol hullet, on Lt'(left) side'
Rr. (right) iliwe rossa,4 cms. to Umbhicams ancl cxit w<lund bigger than in
size than bullet, avcrted in edge, bleeding present on Lr'(left) side, back side
.5 cms. to midlinc
From thc irbtrvc de tails it is clear that there rvt ru nine wounds of entry
almost ol the same dimcnsions with greasy and smoky Inargins and four of exit
meaning thereby that nine o[ the fourteen shots fired b1 thc police had struck the
dr:ccascd. ln addition to thc above the Post Mortem exlnrinirtion also revealed a
lracture of the left tibia and l'ihula. The medical certificares ol the police personnel
who had allegedly reccivcd injuries at the hands of the tieceased with a knifc were
also obtained from thc (iovernment Hospital, Valsatl. T hc investigation found
thal thc deceased had heen shot in setf defence by the police on which an
application for abaremcnt ,f pr.ceedings was filed in the competent court. An
order was passed by thc Magistrate concerned on the r4r" Murch, 2006 ca[ing for a
detailed report. The marrcr is srill pending as of now.
on re|ercnec o| rhe matter to the S.T.F. and the Monitoring Authority
gcncral notice was pubrished in the Times Global (Tirncs.r India) dated rg,h
July,2t) 12. In addirion noricc was published in the Gu.iai at Samachar and Sandesh
[lhavan on 18'h Jury, 2012 anrl personar notices were srrvetr .n Balvant Singh
)
t42
Kharan Singh Sikh.n rhc l2'h July,2012, the brother ol thc deceased. Nobody has
comc tirrward in rcsponse to any of the notices on behall trl lhc deceased'
The initial slittement of Balvantsinh had bccn recorded by the police
on the l8th January, 2006. ln this statemenl he had cicposed that the deceased
Jogindrasinh was his stcp brother, their mother being common, and that about
l2l13 years earlier hc had abandoned his family and cntered the world of crime
which included thc nrurdcr of his father and that he had thereatter broken all
relations with him. He turther stated that the deceasecl had not been home since
Iong and the police wrs looking out for him on accounl rrl the many criminal
cases that had been registcrecl against him and thar he hati c.me to know that hc
had bce n shot and kitrerr by thc police in serf defence on wirich he ar.ngwith other
membcrs of the Latrana conrmunity had gone to the V.lsad Hospiral and taken
p.ssession of the tiead h.tly alter the completion of the p.sr mortem examination
and had performed rhe iasr rites. A statement to the sanre elfcct was made on 7,h
Septembe r,2013 during rhc course of further investigati.n by the S.T.F. and was
recorded by D.S.p. A.M.parel, the Investigating Officer.
At the rimr ol discussion on this matter on l-lr, Februa ry, 2016 Mr.Prashant Bhushan, Mr. Somnath Vatsa , Mr. Rahul Shar.nra and Mr. I.S. Syed
Advocate s appeared on rre hal' of the petitioners and Mr. A.y. Kogie Advocate onbchall t-rl'the S'T.F. wrirrcn submissions have arso beun frlcd by Mr. Bhushan in
143
this matter. The first subrnission raised by Mr' Prashanr llhushan is that the story
was inherently improbable in as much that in all ninc ihots which had hit the
deceased appearerJ to be wirhin two feet as the margins uere inverted' greasy and
smoky and uniformly ol 0.5 cm and if the story as prtrjcctcd by the police was
corrcct and that there had hcun some scuffle as a preludc to the firing, dift'erent
characteristics such as distanccs, angles and dimensions ought to have been
visible . He further stared that this uniformity appears to hc Ihe hall mark of an
exccurion sryle killing. tle relerred to the statements ot DI. N.M. Labhani and Dr.
Mittal B. Tandel recurtlcd on 15'h June, 2014 in which they clearly stated thal
there was smoke and grease on the entry wounds found rui the body but there was
no indication of smokc or grease on the clothes lhut rlre deceased had been
wearirtg. Dr. Labhani also recorcled his statemenl on 23'd April, 2013 which is to
the sarnc eft'ect and also indicated that the shots had becn lired from a distance o[
4i5 tect. Mr. Prashant []hushan has accordingly poinred out thirr if the deceased had
bccn killcd in the mannur suggested by the policc the smoke antl grease residue
would have been lbund on his shirt as well around rhr bulle t holes. He has also
emphasizcd that thc irrcirient was close to a residentilrl area and though thc
stalsmcnts of many residents had been recorded none hrd stated that they had
actually seen the incidcnr or heard the sound of gun|irr: though they had the
knowledgc that sonre incidenr had incleed taken prace a,d has argue<l that the
,\-i)'{),I
t44
rlcceased had been killsd elsewhere and the body brougirt ttl this place. He has
lurthcr submitted that the vcry antecedents of the deceasccl, in as much that he was
an accused or involvctl in about 18 Serious criminal cases over a periOd Of l2
ycars, made him a prinrary target for a fake encounter' Ilc has finally submitted
that it was of the utmrtst importance to notice that the deceased had allegedly
caused injuries to scvcral police officials with a Ramhtr knile before it had been
knockctj out of his hantl with a torch, but the medical cvidr:nce showed that none
ol thc police officials had any cutting or penetrating in.iurics as they all appeared
to have been caused with a blunt weapon and on the c()ntrary as there was no
serious damage to the motorcycle or any injuries in the shape of abrasions or
contusions on the deceitsed, would in the circumstanccs. poinl to a ditferent story.
Mr. A.Y.Kugle has strongly controverted thc .irguments raised by the
lcarned counsel on the orher sitlu. He has pointed our rhirt the argument that the
shr-rts had been fired fr.m a uniform and very short range .f less than two feet was
n.t brrne out fiom thc record as in this situation signs of burning, scorching or
blackening would have hcen visible on the clothes and hoi1),, the more so when
wcapons of high calibur i.c. a .38 bore revolver had been uscd. Hc has accordingly
urged that this was nol a casc of an execution style cortl bl.oded kilting and that
the incident had happenctr as per rhe porice version. Hc has turther argued that on
heing aske<j in clarificari.n lhr: two Doctors who had c.rrciuctcd the medico legal
rtil^i\l(''
145
examination of the injured policc officers had stated that thc iniuries found on them
coukl have been causctl ra,ith a Rambo knife and as a mllttcl oi fact that there was
no allugation that any injury had been caused with a Ranrho knife and all that had
hcen saicl was thar hc hatl atracked the police officers thercu'ith. lt has further
bcen poinred out thar thc question of any witness bein-e present at the time of the
incitlcnt was remotc in as much that the incident harj h.rppcncd suddenly after
suntlown and that the time gap between the arrival t,f the deceased on his
motorcycle and thc firirrg of l4 shots would have taken rtot more than a minute or
lw0
The first argumunt raised by Mr. Prashant llhushan is with regard to
the nature of the wountls on thc dead body. As already indicated there were nine
wountls of entry ol almrrst unitbrm dimensions and surrounded by greasy and
smoky rnargins. What is to hc seen here is that coukl thc dirnensions and nature of
the in.iuries (given thar they have been caused wirhin a clistance of 2 feet as
suggestcd by Mr. Bhushan) raisc serious suspicion rhat thc deccased had in tact
been exccuted and nor killed by the police in the manner srrggesred. As per Modi's
Medical Jurisprudence .nd 'fuxic.logy(23'd Edition) pagc 726 if the shots had been
tired within abour 60 cnr i.e. about 2 feet there oughr r. have been signs of
tattooing around rhe injury. .fhcre is no such indication and what is said is that
margins were greasy und srnoky. This appears to bc irr c()nsonance with the
(r^'-
146
opinion of the two Po\r Morlem Doctors who clariticd yet further in their
statcmcnts recorded b1 thc S.'f.lr. on 23'd April,2013 that the shots appeared to
have been fired trom a distance of 415 feet.lt is rruc rhai thcre appears to be no
greasy or smoky residuc artlund the bullet holes on the clothes worn by the
deceased and no explanation has been given by the Doctors lor this absence as in
rhe starement of Dr.'l'antlel recorded on the 14rh June. 2()14 he again stated that
thcre was no presence ol smoke or grease noticed by thern on the clothes and as
such rhey had handed ovcr tho clothes to the police on cornpletion of the post
mortern. The explanation is. however, available in Dr. U.R.Sharma's Forensic
Sciencc in Criminal lnr'esrigation and Trials at page 460. l-hc relevant paragraph
9.10.-1.4. Dirt Ring as unde r:-
"9.10.3.4 Dirt ring
de r)sited h some IO ectile around thu wo nd. The ectile
turn. is dr:no sited around the wound. when tlrcr, euter the body.
In shotgun amrnunition, shots are rubhed w ith graphite. A small
amount of graphire is carried by the shots, lvhich they deposit around
the hotc when enrcring the body.
\\"-.
often carry grcasc on them. Dirt gets collectt! on the grease which. in
147
medium loth(r: rls() mud walls or from sur Ce rom) in ricoclr il the
which thc orrrit:r:lile has ricoc eled. This d II\ rravh denositedh
does not \c ra c."
It is evidcnt, thcrefore, that the greasy and srnoLy wounds represented
dirt rings, and were n.r marks of blackening and tarro()ing which could fix the
rangc ol lire and the dirr ring was expected to be only arourrd the wound of entry.
I he F.S.L. examined rhe clorhes taken off the deceasetl's dead body and in its
rcport dalcrJ 3'd June, l(x)6 thc Laboratory opined that rhrce rrf rhe lbur holes found
on the trousers were bullct holcs whereas no opinion could bc given with regard to
the fourth. Likewise thc l.aboratory found that hole N,s.r io 6 and 7 and g on the
shirt worn by the tleceased had bcen caused due to fire.rnr discharge whereas no
opinion could be given wirh regard to hole number five . rhe hores rbund on thc
vest and underwear coukr n,t he conclusivery said to bs bulet hclles. In this view
ot the matter no burning .r blackcning signs had been detected on the dead b,dy
as the shots had becn lirctl lrom 4/5 feet or more and as ruch could not have been
rcllected on the clothes,s wrlr. on the contrary the posirivc findings of the F.S.L.
is that many of the horcs lirund on the trousers and shirt lrorn bv the deceased wcre
A-I
Dirt mav .l2r picked up by the projectilc q[rlc passing through a
around thc untrance hole.
Existence of a dirt ring indicates the entranclsids of a firearm injury.
148
in tact bullet holes. 'l'he suggestion made by Mr' Bhushan thal the deceased had
been killcd elsewhere antl his borly was brought to ths sPot is not acceptable as it
delics krgic for the sirnplc reason that the police would trot kill a person in a
rcm()tc area and throw rhe botly in the midst of a residenti l area. on the contrary
the starcments of many krcal residents have been rec0rtled and they did say that
s0me incident had rahen placc orr the day and time in qucstitrn and they include
Jogindernath Chatrerli. Uablibcn, Sonalben, Devchantl Patel' Bhanuben'
Hcmanthhai and Yogitaben.
The story is lurthcr borne out of the tact thilt irr the time of recording
ol thc panchnama on l7'r' January, 2006 at about 10.30 p.nr. the description of the
motorcycle used by thc deceased was given and it was notctl that the signal lights
ol thc lclt side of the moturcycle had been broken and therc appeared to be skid
marks of the tyres when rhc motorcycle had slipped. tn adrlition there was blood
lying all around including a trlood stained Rambo knife. 'frr say, therefore, that no
glass picces had becn lirund at the spot is incorrect. I-ikewisc, the blood stained
earth picked up from rhc \por and the blood stains tbund orr ihc Rambo knife were
.l lhe bl.od group ol rhc dcceased, as on account ol rnulriple gunshot wounds
there had been profusc blceding. The presence of bloocl stains matching with the
dr:ccascd clearly tixes not only thu place of incident but rhe arlclitional fact thar the
knilc had been usetl [r1 thc deccascd.
,&.r.-
149
IhavegonethroughtheEnglishtranslation.ofthecertificatesissued
with regard to the injuries on the police personnel allegedly caused by the deceased
with a Rambo knife. Mr. Bhushan has in his written submissions pointed out that
as per the English Translation of the injury statements the injuries are said to have
been caused by a sharp cutting object though the original documents which are in
the file indicate that at least in three cases i.e. in the case of Satishbhai, Jitender
and Rupsinh the injuries seem to have been wrongly translated as having been
caused with a sharp cutting object instead of a hard and blunt one. Be that as it
may, the facts indicate that the deceased was in fact taken by sulprise by the
Presence of the police party looking for him and he had fallen from the motorcycle
in an attempt to escape. In the reconstruction made by the F.S.L. he is shown to be
surrounded by about 10 police personnel and the normal tendency in such a
situation would be to flay his arms in an attempt to intimidate the police personnel
with a knife and in that eventuality the injuries could have been caused by any
part of the knife and not necessarily the sharp or pointed one. Moreover the police
officers were conscious of the fact that the deceased was a man of desperate
character and they would have kept a little distance away from him, It, therefore,
appears that the mere facr that the injured policemen did not appear to have cutting
injuries does not in any way detract from the police version. The F.S.L.
,N=-
150
examination Of thc spcnt cartridges as alsO thc bulletr, rccgvered from the dead
hody shows that they rnatched with the revolvers that hrrtl hee n uscd.
I find that in the prcsent case there coultl lrc \(]mc suspicion about the
killing of the deceasetl in the light of the fact that he wrrs a notorious criminal and
could, therefore, possihly bc a target for the police but irr lhc abscnce of any cogent
evidcnce linking and suggesting that the deceased had been killed in cold blood, I
am ot thc opinion that no lurthcr action is called for in this case.
I-C.R.No. 8 2003 D.C.B. Police Station Ahmedabadcit under Sections 120-B 212 LzIA t22 123 307
353 186 and 224[.P.C. and 25 1 B A of the Arms Actand u/s 135(l ) of B.P.Act
Only a vcry concisc description o[ thc frcts necd ttl bc given in tht:
background that the nratter has been concluded by a Courf's order. ln this case two
pcrsons alleged to be rcrrorisrs, Ganesh Khunte and Mahcndra Jadav, were killcd
in a police encounrer on rhc 23'd June, 2003. ln all thcru wcre eight accused of
whom Ganesh Khunrc and Mahendra Jadav were killcc, tirur were acquitted and
three wcre convicted antl .nc discharged by the porA court. Two sets of appeals
werc taken before thc tligh Court, one by the Stare Lrl Gu.jarat seeking the
ctlnviction of the acquitred accused and an increase in the qu.ntum of scntence or'
thtlsc who had becn c,nvictecr, and the second by thosc uho had been convicted.
,q /^,
N4 t/_I
151
Both scts of appe als wcrc dismissed by the High Court r idc its judgment dated 2l''
Novumber, 2013. l'his mattrjr was referred to the Monitoring Authority consequenl
to thc orders ol' thc Suprcnre Court in Writ Petitions (Crirninal) Nos' 3l of 2001
and ti.l of 2007 and crrmu up tbr tjnal discussion belirrc rhs Monitoring Authority
on the l3rh February.201(r alongwith several other cascs lrncl arguments addreSsed
hy Mr. Prashant Bhushan Advocate, Mr. A.J.Yagnik, and Mr' Somnath Vatsa
Advocates tbr thc pctitiorrers and Mr. Alpesh Y. Kogfc' Advocate for the S'T'F''
wcrc heard. The ordcr passcd by me on that date is quotetl below in extenso t()
avoid rcpetition:-
"ln the casc me ntioned at Serial No.2 (C.R.No.0ti ol 2003) Mr. Bhushan and
Mr. Yagnik, learncd counsel for the petitioners. havc argued that Ganesh
Khunte and Mahcndra ladav were victims of a lake cncounter and in this
cttnnection havc rcterred to some of the evidencc morc particularly thc Post
Mortem Report to \upport their assertion. I havc gonc through the relevant
lacts with the hclp ol the learned counsel on lrtrrh sides as well as of thc
lnvestigating Olliccr. -[hc allegations are that (iancsh Khunte, Mahendra
Jadav and severul othcrs were said to be involver.l in waging war against the
State, attempts to murder Police Officers and conspiracy to murdcr political
tigures in Gujarat. Ganesh Khunte and Mahendra Jitdav were gunned down
by the police in an encounter on 23'd June,2(X).1 u,hercas the others werc
hrought to trial undcr various sections of the prcvcntion of Terrorisnr Act.
2002(POTA) rcad with Section 120-8 of the [ntlitrn pcnal Code. One of the
accused was dischargcd, three were convicted antl tirur were acquitterJ vide
t.Z,M
L52
judgment ot lhc POTA Court dated 22nd Junc. ltX)7. The Court while
dealing with thc question as to whether Ganesh Khuntc and Mahcndra Jadav
had been victims trl a fakc encounter observed as under:-
"llaring considered the evidence as rvcll as the arguments of
the prosccution as well as defence, I arn of the opinion that this
court has not to decide whether it is a fake encounter or rcal
encountcr. but this Court has to dccide whether both the
dcccascd accused made an attempt ttt nrurder of (sic) the Police
Otll cers
Thl ( ourt thcn concluded:-
" So. I am of the view that deceased Ganesh Khunte and
Mahendra ladav made an attempt to tnurde r Police Officers
and, therelbrc, in self defence, Police Ollicers tircd and both
thr accused were injured and fell dow n."
ln other words thc Court had at one stage observod that no opinion was to
he rendered as to rvhether it was a fake or real cncour)ter but subsequently
there is a categoric tinding that the police party wls iustitied in killing
Ganesh Khunte and Mahcndra Jadav as they did so in sclf det'ence int'erring
that there was nothing to suggest that it was a laLc encounter. Two sets ol'
appeals wcre filcd bclilre the High Court, one bv rhc lccuscd who har) been
convicted and the other by the State seeking to challcnge the acquirtal ol'
some of the accused and tbr seeking enhanceme rrr ()l'thc scntence of thosc
cttnvicted. Iloth sets ol appeals were dismisscd by the High Court vide its
ludgment datcd 2l'' November,2013 but while dtring so (in para l3 of the
iudgment) made rhc lbltowing observations:-
IY,e
153
"We are unable to persuade ourselvcs that no case is made out
against the accused nos. 5 to 7 unrler POTA considering the
ohscrvations and conclusion arrivcd at hy the trial court which
are iust and proper. We are convinccd thirt the decisions cited
belirrc the loarned trial judge have bcerr rightly considered in its
truc perspective. It has been proved hy cogent evidence that the
deccased namely Ganesh Khunte and Mahendra were lerrorists.
The accuscd who were found guilty havu served their term. We
are corrsidering the appeals in thcir t()lality. The evidence of
PW.l inspires confidence. The cvide ncc of PW.2 corroborates
with that ol PW.1. The evidences which have been placcd on
record arc so clinching against the irccused who have been
tirund guilty rrf conspiring to do away trr death late Shri Bhatt,
thc thcn Law Minister with Governrrrcnt ol Gujarat and one Mr.
Barol."
I anr, howcvcr, of the opinion rhar in the light ol the facts
pointed out abovc, more particularly of the crrtugoric findings against(ianesh Khunte and Mahcndra Jadav made by the courts be low on a judicial
appraisal by thc Pol'A Court and the High courr. ir w.ultl be inappropriatefi)r me to go inr. rhis marrer as the judiciar proc.ss arruatry stands concluded.on this Mr' Bhushan srares that he will make an application ro the supremeCourt seeking a cllritication as to the procetlurc to be tbllowed in this
Mr. I'rashant Bhushan the learned cuunsel lbr the petitioners
has argued that in thc background that the quesli(xl us to a fake encounter
having been leli undecided, it was open to rhc Monirrrring Authority to go
into the allegations and ro rletermine the exact nature tlf the incident.
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154
matter. Hc lurthcr states that the clarification will hr: \ought, if possible' by
the next datc.
.........In thc rncanwhile learned counsel lil r the pcritioners are requested
ro furnish their written submissions with respcct t() the matters taken up
today within two wccks with copies to the S.l-.1r. ls wcll as to Mr' Kogie
who may subnrit thcir counters within two wecks with advance copies ttr
rhe learned couns0] lirr rhe petitiopers. copies ol this order be supplied to the
leamed counsel rnrmediately."
Against thc ttrtler atbresaid Criminal Misc l'etition No. 230 ol 2017
was tlled in the Suprcrrrc Coun and was taken up by thc lltrn'ble Bench on the 6'h
January,20lT leading t() thc order reproduced below:-
"The tbllou ing observations have been recorded by Hon'ble Mr
Justice Bedi in his trrde r dated 13.02.2015:
I am, however, ol the opinion that in the light ol the lacts poin(ed out above'
more particularlr ()[ ths categoric findings agilinsl Ganesh Khunte and
Mahendra JarJav mirdc by the courts below on l judicial appraisal by the
POTA Court and thu tligh Court, it would be inapprol;riate tbr me to go into
lhis matter as thu judicial process already stands concluded. On this Mr.
Uhushan states that he will make an applicatitrn lo rhe Supreme Court
sce king a clarilication as to the procedure to be lirlltxvcd in this matter. He
lurther states thar rhe clarification will be soughr. il possible, by the nexr
dale."
In view .l rhe above, we find no justitic.ti.n to entertain the
application, tor clarificariorr ol the above order daterl 02.{)-3.20 12.
lb\Y
155
Crl.MP. \o. liO of 2017 is accordingly disrnrssed."
I am, thcrclitrc of the opinion that in lho light of what has becn
observr:tl above, no turther proceedings are possiblc rts ol ntlw. The matter ts
accordingly cl<-rsed.
I-C.R.No. 94 t)004 Police Station Vvara District .Suratunder Sections 307.332 53.392 r.P.C. & underSections 25(1)BA. 27Ql the Arms Act
Subhash Ilhrskar Nayyar (hereinafter callcri thc deceased), a resident
of Kullu, District Pathanamithitta (Kerala) was under polrce remand in I-C.R.No.
56 ol 2004 registercd uirh rhe Olpad Police Station, Disrricr Olpad, under Sections
302 e tc. of the l.P.C. 'fhe invcstigation in that casc was bcing conducred by PSI
K.N.Patel. ln order to rnake a comprehensive investiglrion the Superinrendent ol'
Police, Surat (Rural) lormed a team of three officcrs on thc 3'd June, 2004
c.mprising in-additi.n PSI S.G.Yadav and Inspector p.p.p'rdhan. on the next day
(thc c.rly morning ol 4"' Junc, 2004) the deceased told the cornprainant, Inspector
K.N.Patel and the .ther rw. oft'icers, that when he hud bcen staying at Navapura
hc had hidden one 'l'irnrtrncha (country made weap.,) in an old abandoned
bungal,w near the Rairwal* crossing. The police olriccr <rrew up a panchnama at
iwy
156
about 5 a.m. and requustcd two panches, Udeypratap antl Kundansinh, to join their
group. The police party comprising Inspector K.N.Plrcl. lnspector Pradhan' S'l'
S.(i.Yadav, H.C. Raghunalh and several other policc oiIicials and two panches
making a total of eight pcrsons sat in a Tata 407 trucL and left for Navapura,
close ly lbtlowerl by three other Government vehicles holding several other police
officials as well. At alxrut 6. l-i a.m. the deceased exprussecl his desire to answer
the call of nature on which thcir vehicles were stopped tteirr lhe Kasturba Asharam
compound. lnspector K.N.Patel and S.l. Yadav alightcrl from thc vehicle followed
by thc deceased and polrcc constable Mahadev, H(l Parkashbhai and Inspector
Pradhan and they madu rhc dr:ceased stand on the leti side ol rhc road t<l answer thc
call ol nature. Thc hlnds ol rhe deceased were ticd uirh a rope and he was
handculled as well whercas rhe other end of the rope was in the hands ol H.C.
Mahadcv who was sranding bchind the deceased antl HC l,arkash was standing
t.wards his left and lnspcctor Patel and Inspector yirdirr were standing on thc
riSht side at some disrancc when suddenly the deccascd m.ved to his lett and
snatched the service rcv.rver ,r' HC Raghunath. He rrranaged to jerk away the
rcvolver from the pers.n .f the Head constable and t'ircd ,nc round at the police
pcrsonnel. Inspect.r Patel ancr pradhan and S.r. yadav lirctl .ne round each from
their scrvice rev,lvcrs hitring him on which the deceasrd loll d<lwn. He was sent
to thu Government Hospiral vyara where he was declared dead on arrival. On the
,ff1h-rt
LS7
complainr of lnspector K.M.Patel C.R. No. 94 ol 20()4 under Section 307 etc'
l.P.C. and under various Scclions of the Arms Act was registered at Police Station
Vyara on the 4'r' June, 2004 at about 8.00 a.nr' lnd on instructions of
S.P.Surar(Rural) invcstigation was taken up by Inspecttrr M'S' Bharada' He visited
the place of occurrencc in thc presence of panchcs Rarncshbhai More and Pravin
Sahebrao Kumavat ar atrour 9.00 a.m. on 4'h June,200.t. l'he dead body was also
subjectetJ to inqucst panchnama late in the morning hy Shri A.V. Vadher, S'D'M'
'I-hc sitc was also inspccred hy Shri D.B.Patel, an ol'licer ol'the F.S.L., who alstt
cxamined the dead botiv antl submitted a preliminarl report whereas Shri
D.M.Modi a Finger Print Otficer from Surat also examined lhe revolver which had
been snatched and fired bv the deceased. The dead bodr was subjected to a post
mortem examination hr a panel of four doctors on the 5"' Junc, 2004. The weapons
used by the police ofl ice rs and the empty cartridgcs wcre also taken into
posscssion by the lnspecrur Bharada and these along rvirh the hand wash and
clothcs of the deceasccl wcrc sent to the F.S.L., Ahmcdrrbacl, for examination. On
complction of thc invcstigation Inspector Bharada recommended abatement ol'
procccdings and an applicarion to that effect was filed herirre thc competent court
on the I'r March, 200.5 rvhich was allowed on 17'h Novcnrbcr,2007. on reference ol'
the m,tt.,r to the s.T.tr. and thc Monitoring Authoriry, an application under section
173(ti) .t' the code ol (.riminal procedure was movcd bclbre the chicf Judicial
$.>--
158
Magistrate, Vyara who all0wed the same and directeil lurther investigation. The
mattcr was thercattr:r initially entrusted to Smt. tishu Rada D'S'P' and
subscqucntly to D.S.P. A.M.Parcl w.e.f.22"d October, l0 12. D.S'P' Patcl recorded
the srarcments ol thu policc ollicials and panch witncssus whose state ments had
been recorded in the inirial investigation. He also gol the rrjport of the Magisterial
lnquiry dated l4'h March, f005 conducted by Shri A.V. Vadher S.D.M', which
supported the police vcrsion. The D.S.P. also recordetl the statement of the elder
brolhcr of the deceascd Suresh llhaskar Nayar resident ol Vazhamuttam, District
Pathananthitta (Kerala) rrn 2tl'h November,20l3 whercin he stated that his brother
had bccn killed by'lnspector P.P.Pradhan, S.l. S.(i.Jadav and Constable
Parkashbhai in a stagcd uncounter. The statement ot one o[ the doctors who had
conducted the post m()rtcrn cxamination was also recordcd on the 13th December,
2013 which suppttrtctl thc police version. D.S.P. Parel accordingly submitted his
reporl that further irrr,esrigati0n had not revealerl anything new and that thc
deccascd had been killcd by thc police personnel in sclt dctence atier he had first
snatchcd the revolvcr f*rrn (lonstable Raghunath and Iircd at the police party.
Noticc or' rhc rcrerence to the S.T.F. and rhe Moniroring Authority
was conveyed to the gcneral puhlic vide notitication issucd in Timcs of India clated
13'h July. 2012. Anncxure .A'. and also in the Gujarat Sanrachar(Gujarati) and
Sandcsh tlh avan((i u.iar;r ri,) purrlished from Ahmedabacr arrd als. in Janmabhumi
t>L 2'
159
(Malayalam) published on 5'h August, 20112 ftom Trivandrum, Kannur, Kottayam
and Kozhikode Personal notices were served on the 11'h February, 2013 on
Santosh Bhaskar Nayar, a friend of the deceased, and also on Suresh Bhaskar
Nayar, brother of the deceased. Santosh Bhaskar Nayar appeared before me on
the 186 February, 2Ol3 and recorded his statement. He stated that he along with
the deceased and some others had been arrested in an offence of robbery etc. and
had served about 4/5 days in jail and on release they had started a retail business of
clothes whereas the deceased had returned to Kerala to his native place but had
returned to Surat after five or six months and had started living with a person
named Ramesh who was involved in the liquor trade and that it had come to his
notice after a few days that the deceased had been involved in a murder in Daman.
He further stated that sometime later the deceased had come to his house at night
where he persuaded him not to indulge in criminal activities and thereafter he left
his residence but returned a few days later saying that his life was in danger. He
also stated that he had advised the deceased on several occasions to go to Surat and
to surrender before the police. He further stated that he had met Advocate Fareed
Mastan and discussed the surrender of the deceased with him after it came to his
notice that one Deepak Daruwala had been murdered and the deceased was being
named as the accused and that after about 15 days it also came to his notice that the
deceased had been arrested in Derhi and this fact had been flashed in the
tW-
160
newspapers with photographs. He went on to say that the deceased had been
brought back from Delhi and was being taken from one Police Station to anothel
and ultimately he received information that he was in the Olpad Police Station, but
before he could go there as it was far away from his residence, Newspaper reports
flashed that he had been killed in a police encountef, whereafter he had gone to the
Civil Hospital, Surat and taken the dead body and cremated it. It will be seen that
the deceased was a hardened criminal and he had also been discharged from the
Army for misconduct and in this background the possibility that he had been killed
in a staged encounter becomes more prominent. The evidence and circumstances
need to be examined with more than usual care.
The matter came for final discussion before the Monitoring Authority
on the 2nd July, 2016 and Mr. Parshant Bhushan Advocate, along with Mr.
A.J.Yagnik and Somnath Vatsa Advocates, appeared on behalf of the petitioners.
Written submissions have also been filed by Mr. Yagnik on behalf of the
petitioners and by Shri R.C.Kodekar the learned counsel for the S.T.F.. It has been
pointed out in the written submissions and even during the course of arguments,
that the story projected was unbelievable as it would not have been possible for the
deceased to have snatched the revolver of constable Raghunath while his hands
were tied with a rope and one hand was also handcuffed, in the light of the fact
that both hands would be needed to cock and load the revolver. It has also been
kL
161
submitted that suspicions were also raised as the police party consisted of fourteen
policemen, two panches and the deceased, all in three police vehicles had chosen to
go for the recovery at about 5 a.m. and as no traces of gunpowder had been found
on the hands of the deceased as per the F.S.L. repoft the story that he had fired the
revolver could not be believed. It has also been submitted that the nature of injuries
and the fact that all three bullet wounds were on vital parts of the body was
suggestive of a staged killing and in the given circumstances the firing would have
been from a very close range and marks of scorching, blackening or burning ought
to have been found on the dead body at the time of the post mortem examination'
As against this Mr. Kodekar has submitted that in addition to the police party there
were two independent eye witnesses, Udeypartap and Kundansinh, who had stated
to the facts and had confirmed as to what had happened on the day in question by
supporting the police version. It has also been submitted that as per an order
received from the Magistrate, the police had been allowed to handcuff the deceased
as he was a desperate character, accused in fourteen serious crimes, and as the
holster from which the weapon had been snatched by the deceased was made of
leather and had only a button over the flap and the fact that when the the revolver
was pulled out of the holster the stitches of the holster had been dislodged and torn,
clearly proves the police version. It has been submitted that the three bullet wounds
received by the deceased were on vital but disparate parts of the body and this
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162
would normally be the case in a sudden incident such as in the present one and as
the deceased had fired two shots at the police party it would be normal for the
police party to fire at the deceased on vital parts of the body so as to disable him
from causing any damage.
Theleamedcounselhavebeenheardandtheirsubmissionsalso
considered.
The first argument raised by the learned counsel is with regard to the
unnatural story projected and the circumstances under which the deceased was able
to snatch the revolver from Constable Raghunath. It is indeed true that the hands of
the deceased had been tied with a rope and one of them was handcuffed as well
and the other end of the rope was in the hands of the police officials and it would,
therefore, be difficult in normal circumstances, to catch hold and snatch away the
revolver from HC Raghunath or to load it with the use of one hand. The deceased
was however not a normal man as the facts tell a different story. He was a man of a
deep criminal mind and even as per the statement of his brother, had been
involved in a number of murders and in all 14 serious offences in the State of
Gujarat and that he was an Army personnel dismissed on account of misconduct.
He was thus a man with a ruthless streak and aggressive by nature and also
familiar with the use of firearms. The argument with regard to the necessity of
using two hands to load a revolver, is without rnerit. In Modi's Medicalv
163
Jurisprudence and Toxicology (23'd Edition) page 712 it has been observed that "a
modern revolver is one in which cartridges are loaded into a rotating cylinder (or
drum) in the rear of the breech of the barrel. The revolving cylinder (which rotates
to right or left depending on the design) has a series of chambers (usually five to
nine) into which cartridges are loaded. Cocking the revolver rotates the cylinder
and aligns one of the chambers with the bore of a revolver banel'" In contra
distinction to a revolver, however, two hands are required to load a pistol. As
Modi says a pistol may hold 6 to 14 cartridges or rounds which are generally fed
into the chamber from the magazine in the grip of the frame of a pistol."
Furthermore the grip has to be held with one hand and the cocking piece has to be
pulled backwards with the other to enable the cartridge to be pushed into the
chamber from the magazine and when the cocking piece is released it pushes the
cartridge into the barrel ready for firing. In view of the clear distinction between
the firing systems of a revolver and a pistol, the argument that both hands would
have been needed to fire a revolver, cannot be accepted.
The version given by the police finds support from the two panch
witnesses, udeypartap and Kundan singh. Their statements had been recorded at
the time of the investigarion by the Gujarar police and again before the S.T.F. They
clearly support the police version. The statements of the various police officials
were recorded and they too supported the version given by the police officer.
/bv,
164
Some arguments had been addressed by the learned counsel with
respect to the nature of the injuries found on the deceased in the background in
which the incident had happened. This argument would indeed require a look at
the post mortem report and the forensic evidence collected soon after the incident.
The Post Mortem examination revealed the following bullet injuries:-
1. Firearm bullet entry wound present on left parietal region of skull size Lcm x
0.8 cms, with surrounding abrasion in an area of 0.2 x 0.1 cms, circular in
shape, situated 8 cm above left eyebrow and 6 cm left to midline, margins
inverted, brain matter and blood coming out from the wound.
2. Firearm bullet entry wound present over left side front of chest of size lcm
x 0.8 cms x chest cavity deep, with surrounding abrasion in an area of 0.3 x
0.1 cms, circular in shape, situated 23 cms below top of shoulder and 12 cms
left to midline, margins inverted.
3. oval shaped wound present over left side abdomen of size 1.3 x 0.g cms x
subcutaneous tissue deep with surrounding area contused and abraded in an
area of 0.4 x 0.2 cm obriquely placed situated 1 19 cm above reft heal and 10
cm left to midline.
4. Abrasion presenr over back of left side chest of size 2.5 xl.5 cm situated 22
cm below root ofneck and 3cm left to midline. Reddish in colour.
tW2
165
Note:Above mentioned injuries Nos. 1,2 and 3 are obliquely placed and
abrasions are more broader at upper end than lower end and are read in colour'
It will be noticed that there was no charring or blackening meaning
thereby that the shots had been fired from a distance beyond two or three feet' The
bullet wounds caused great damage to the underlying parts of the body' The S'T'F'
recorded the statements of the Doctors who had conducted the post moltem on the
dead body and two bullets were recovered therefrom and handed over to the
Investigating Officer as in the case of a revolver shot the bullet is often lodged in
the dead body as it is a low velocity weapon. It will be seen that there was no
charring or blackening around the three wounds of entry which clearly shows that
the shot had been fired beyond 2 or 3 feet. This was to be expected as the weapon
had been snatched away and the deceased as well as the police officer would have
instinctively taken evasive action, when the firing had erupted. The reconstruction
report sought by the S.T.F. was given on the 19'h November, 2013 after examining
the site and it was reported that the distance between the deceased and the police
officers was 7 feet and the distance between the officers themselves was 2 feet.
The reconstruction report also indicates that considering the height of the police
officers and the deceased, the ground situation, and taking into account the
direction of the bullets when rhey travelled within body of the deceased, the police
version appeared to be in consonance with the facts. In this background, the police
ll*ry-r
r66
officers were not bunched together, as contended by Mr. Prashant Bhushan, and as
the incident happened very quickly and perhaps in seconds the fact that the shots
hurriedly fired by the deceased, failed to hit any of the police officers, is not
surprising.
The truthfulness of the police version is further, established by the
report of the F.S.L. dated 9'h November, 2004 relating to the holster from which
the revolver had been snatched by the deceased. The report clearly shows that the
holster was of the size which could take the revolver and that the stitching from
one side had been detached. This clearly bears out that the weaPon had been
grabbed by the deceased from its holster and in the process the stitches had broken.
It has been submitted by Mr. Bhushan that if the deceased had indeed
fired from the revolver, traces of gun powder etc. would have been detected on his
hands. In the report of the F.S.L. dated 9'h November, 2004 it was clearly observed
that samples C and D of the hand wash of the left and the right hand respectively
collected at the time of the post mortem examination "the presence of residues of
nitrites and lead of fired cartridges (ammunition). It's presence has not been
found'" This indeed would be a significant matter but the primary report of the
F.S.L. given on the 5'h June, 2004 i.e. a day after the incident observed ..the
presence of fire arm residue was found on the right hand of the deceased.,, Mr.
Kogie, has, in addition, referred to the letter dated 12tr' March 2014 addressed by
A-v
167
Mr. D.B.Patel Assistant Director, F.S.L. Ahmedabad to D.S.P. Patel in which in
response to the query raised by the D.S.P. regarding presence or absence of firearm
residue on the hands of the deceased, the Assistant Director opined as under:-
" In the hand wash fire arms remnants presence PPM is taken. Thus at
site the test regarding the presence of the fire arms discharge remnants
is done, therefore, accept the same during the testing at site fire arms
discharge remnants presence was detected in very minor proportion
during the testing it might have been used up, thus in such
circumstances during the laboratory testing in the hand wash the fire
arms discharge rernnants may not not be found."
The language is slightly convoluted, but rhe meaning is clear.
To my mind, therefore, the absence of fire arm residue which was not
detected in the analysis by the laboratory, would not be conclusive for the reasons
given by the Assistanr Director and quoted above .No further action is called for in
this matter.
I. .R.No. 336 Police Station Uma aon004valsad under Sections 307
27 the Arm
Dis
ons 25 1 B
b-b
s ActI.P.C. & under
168
This matrer was taken up for final discussion before the Monitoring
Authority on 13'h February,2016.
ThedeceasedSanjay,residentofVillagePavangau,District
Kausambi, Uttar Pradesh had been arrested by the police of Police Station
Umargaon, District Valsad in C.R. No. 336 of 2004 under Sections 332 and 307 of
the Indian Penal Code and various sections of the Arms Act. Transfer warrants had
been obtained by Inspector K.G.Erda of the Crime Branch, Valsad, with respect to
the deceased in C.R. No. 315 of 2OO4 registered against him in Police Station
Umargaon under Sections 489 (A) (B) (C) of the Indian Penal Code and he had
been remanded to police custody till 29'h November, 2004. While in police custody
the deceased told Inspector Erda that he could get and circulate counterfeit
currency notes on which the Inspector discussed the matter with his seniors and a
decision was taken to take him to Umargaon in connection with the investigation.
At about 4.30 a.m. on 26'h November,2004 Inspector Erda accompanied by ASI
Manharbhai , HC Bhaskar Rao, HC Kantilal, Constable Satish, constable Rupsinh,
constable Gumansinh and commando Apc Ganeshbhai and several others left for
Umargaon. on the way the deceased complained of a vomiting sensation and on
the directions of Inspector Erda he was taken to the Government dispensary,
Bhilad at 5.30 a.m. The doctor on duty examined him and after he had been given
/k,
159
medical aid, the party left for Umargaon. About 213 kms away from Bhilad (at
6.00 a.m.) the deceased again complained of nausea and that he wanted to vomit
on which the driver Gumansinh was directed to stop the vehicle. As the deceased
had handcuffs on both hands, HC Bhaskar Rao removed the handcuff on the right
hand while holding the handcuff on the other. ASI Manharbhai followed by the
deceased and several police officers alighted with Commando Ganesh armed with
a carbine standing on the right side of the deceased and the other members of the
party standing around him. The deceased then stood up and made a pretense of
vomiting but then suddenly pushed HC Bhaskar Rao aside and snatched the
weapon of Constable Ganeshbhai and opened fire on ASI Manharbhai and HC
Kantilalbhai. The shot, however, missed its targets on which the deceased
attempted to fire on Inspector Erda but before he could do so, the Inspector fired
three rounds from his service revolver followed by three rounds from S.l. yadav
felling the deceased with the carbine slipping from his hands. The deceased, who
was bleeding profusely, and HC Bhaskar Rao who too had suffered an injury were
taken to the Bhilad dispensary but the Doctor declared the deceased to be dead on
arrival. c.R. No.336 of 2oo4 for offences punishable under sections 332l3oi and
various Sections of the Arms Act was registered against the deceased at Umargaon
Police Station at 7.55 a.m. on 26'h November, 2004. The investigation was
ultimately taken over by Sub Inspector R.R.patel of Bhilad police Station as the
)r-I _-z
V
170
incident had happened in the jurisdiction of that Police Station. The inquest on the
dead body was conducted by Shri M.M.Chaudhary, Executive Magistrate'
Umargaon. The post mortem examination was performed by a panel of two
doctors, Dr. Srivastava and Dr. Patel of Bhilad Government dispensary' The place
of the incident was inspected and three cartridge cases of .9 mm pistol were picked
up from the spot along with blood stained earth. The hand wash of the deceased
was also taken from the dead body along with other items and sent to the Forensic
Science Laboratory for examination. The laboratory opined that shots that had hit
the deceased had indeed been fired from the two weapons held by the police
officers and that the bullet sample D matched with the carbine of Commando
Ganeshbhai which had been snatched by the deceased and used to fire at the police
officials. The F.S.L. also opined that the blood stained earth picked up from the
sPot contained human blood and in its report dated 29'h March, 2005 confirmed
that the hand wash of the deceased had traces of carbon on both hands which
indicated that he had fired some weapon before he had been killed. The police
accordingly filed an application for abatement of proceedings and an order to that
effect was made on 26th April, 2005. on reference of this matter to the S.T.F. and
the Monitoring Authority an applicarion under Section 173(g) of rhe code of
criminal Procedure was made and allowed on 23'd July, zolz and at first Ms.
Usha Rada, D.S.P. was entrusted with the inquiry. Subsequently, however, the
trY
t7t
investigation was taken over by D.S.P. A.M' Patel. Notice of the further
investigation was issued in the Newspapers Times Global (Times of India)etc.
dated 18s July,2012 Annexure A and also in the Hindustan Venture Media Ltd.
(Hindi) dated 3'd August, 2012 published from Lucknow, Kanpur, Meerut,
Gorakhpur, Bareilly, Allahabad, Aligarh and Agra. Notices were served personally
on the father of the deceased, Shardaprashad, resident of Pavangau, District
Kausambi, Uttar Pradesh on the 7'h February, 2013. He appeared before me on the
2nd April, 2013 and stated that the story of the encounter was a lie and that he was
unaware of what his son was doing in Gujarat. He further stated that his son was
unmarried and that the watch and finger ring taken into possession from his body
should be returned to him.
Mr. A.J.Yagnik, Advocate appeared on behalf of the petitioner and
has raised several submissions during the course of hearing. He has first and
foremost argued that the story that the deceased had snatched the carbine (an
automatic weapon) from Commando Ganesh and had fired at the police personnel
could not be believed as it would have taken some time for the weapon to be put on
"unsafe" firing position and then loaded with a cartridge from the magazine into
the chamber, the policemen could have easily disarmed him in the interregnum as
there were so many surrounding him. He has further submitted that consrable
Bhaskar Rao had also been injured in the incident and taken for examination to
/w;
t72
hospital under injury certificate bearing No. 33214822 anQ. it was not clear as to
how this injury had been sustained by him which too cast a serious doubt on the
police version. It has also been submitted that injury on the finger of the deceased
had not been explained and the fact that though the deceased is supposed to have
fired with an automatic weapon no bullet injury had been sustained by the
policemen though they had been bunched together, made the police story suspect.
He has further submitted in this connection that as no spent cartridge case had been
picked up from the spot is clearly indicative that the incident had not happened at
the place in question and that if Nitrate traces had been found on the hands of the
deceased would have supported the police version but the F.S.L. had in its report
only opined that carbon traces had been found and there is no reference to any
other chemical being found in the hand wash.
As against this Mr. Kogie has submitted that the deceased was a
hardened criminal familiar with the use of fire arms and as such it was not difficult
for him to load and fire the carbine machine gun after having snatched it away
from Commando Ganeshbhai. He has further submitted that it was a matter of
great significance that the police party had taken the deceased to the hospital for
medical aid and also stopped the vehicle a second time in order to enable him to
vomit and if it had been the case of a custodial killing there would have been no
need for the police officers to indulge him in this manner. He has further submitted
173
that the injury found on the person of Constable Bhaskar Rao was perfectly in
consonance with the facts on record.
In this case the eye witnesses to the offence were all primarily police
officials as already referred to above. The police officers have unanimously
supported the version given above. The two panch witnesses Hemant Kumar Soni
and Mustaq Hussain too have supported the police version in its entirety. Hemant
Kumar has stated that he had left his house at about 3.30 a.m. on 26th November,
2OO4 for his morning walk when he had come across a police Party and it had
requested him to act as panch and he had accepted that request. Mustaq Hussain
stated that he had gone to the Railway Station to see off his brother Jakir Hussain
who was to go by the Gujarat Queen and when he was returning home at about
3.30 a.m. he had been stopped along the way by one Kantibhai who told him that
he was wanted in the office of the D.S.P. at act as panch. He too supported the
police version.
It is true that the F.l.R. does not say that the weapon was ready for
firing but in his statement recorded on 26'h November, 2004 Commando
Ganeshbhai stated that carbine gun was "on single shot action and after first hre
and during second fire the aforesaid officers fired on the accused in their self
defence and got him injured." The inference that can be drawn is that the carbine
was ready for firing and as would be the case as the deceased was a hardened
AP<---"-
174
criminal and as his handcuff had been removed in order to facilitate him to vomit
the police personnel surrounding him would have normally been expected to be
prepared for all eventualities. The injury present on the person of Bhaskar Rao
finds contemporaneous supPort from the entry in the Register bearing No'
33214822. Dr. Lelaben who medico legally examined Bhaskar Rao on 26'h
November, 2004, confirmed that the deceased had been brought to the hospital
complaining of a stomach pain in the early morning of 26'h November,2004 at
about 5.15 a.m. the and that the police party had thereafter left along with the
patient. She further stated that at about 6.3017 .00 a.m. the same morning the police
personnel had returned with the same person who had been treated by her earlier,
as also the injured Bhaskar Rao, and that she had given her statement in the inquest
proceedings as well. The implication of the doctor's statement is that police party
including the deceased had gone to the hospital early in the morning of 26'h
November, 2004 stands proved on the record. The other inference is that had it
been the intention of the police to indulge in a custodial killing the exercise of
taking the deceased to the hospital half an hour earlier, would have been
unnecessary and meaningless. The fact that the deceased had fired a weapon is
proved by the report of the F.S.L. dated 26'h November, 2004 where in answer to a
query by the police officer as to whether there were carbon traces in the hand wash
of the deceased, the reply had been that carbon traces had been found in the hand
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175
wash taken from both hands. It has been pointed out by Mr. Yagnik that carbon
was an element which was not found on the hands after firing from a weapon and
that the presence of carbon traces would, therefore, not lead to the inference that
the hands had been used to fire a weapon. To my mind this argument is
unsustainable. In Dr. B.R.Sharma's Forensic Science in Criminal Investigation and
Trials (Fourth edition) page 440 it finds mention that carbon traces can also be
found on the hands in the case of gun fire. The presence of carbon traces on both
hands indicates that the weapon that had been held by the deceased was an
automatic one and such a weapon can be fired accurately only with two hands,
with one hand being used to steady the weapon and the other to press the trigger. It
is clear from the record that the deceased was a notorious character and was an
accused in about 13 cases including very serious ones in which he had used fire
arms. The submission that if the deceased had indeed used an automatic weapon
greater damage would had been caused to the policemen who were bunched
around him as a large number of rounds would have been automatically released
and is also not tenable. It has come in evidence that a carbine is generally loaded
with 20 rounds but commando Ganeshbhai in his statement has said that the
weapon was on single shot mode and not on automatic mode. Moreover, a look at
the reconstruction map would reveal that the policemen were not bunched together
but were all around the deceased at various distances. In any case, as the weapon
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176
was on single fire mode explains why it had been easy for the police officers to
shoot the deceased before he could cause too much damage. I am, therefore, of the
opinion that no further action is called for in this case'
I-C.R.No. 244 005 Police Station Uma
District Valsad under Sections 307 I.P.C. & under
Sections 25 (1)B)/ 27Ql the Arms Act
This matter was taken up for final discussion in the meeting of the
Monitoring Authority held on the 19'h November, 2016.
On 9'h October, 2005 intelligence was received by Sub lnspector Prag
P. Vyas and the special police group that Haji Haji Ismail (hereinafter called the
deceased) a resident of Jamsalaya, District Jam Nagar and a notorious smuggler
would be going to Chotila on National Highway No.8 in his Maruti Zen car No.
MH-4J-A-8196. The above information was conveyed to Sub Inspector S.K. Shah
and to the Superintendent of Police, Valsad, and it was planned to seal a part of
National Highway No.8 and to arrest him. on this Inspector K.G.Erda in his
official jeep bearing Regisrration No. GJ-15-G-521 accompanied by ASI Manhar
Baburao, Police Constable Maheshbhai, Sub Inspector S.K.Shah, Sub Inspector
Prag P' vyas and a large number of police personnel cordoned off part of the
tl6\-_.<
177
Mumbai-AhmedabadRoadwithironbarricades.TheyalsopostedConstable
Rupsinh with a walkie-talkie set in a strategic place from where he could see the
deceased driving down towards the police check point and to convey the
information to the police party. The police party also blocked one side of the
Highway leaving only one side to traffic in both directions. At about 3.05 a'm. on
9'h October, 2005 Constable Rupsinh radioed Inspector Erda that the Maruti Zen in
question had passed by village Achhad. The police party was accordingly alerted'
About L0 minutes later the Zen car came to the check point and a signal was made
to the driver to stop the vehicle. The driver stopped the vehicle a little head of the
jeep of Inspector Erda and came out of the car firing at the Inspector. The Inspector
and the other officers with him ran behind the police gypsy standing close by and
firing between the two sides continued for sometime. The deceased, was thereafter
hit and as he was seriously injured he was taken to the Civil Hospital, Bhilad
where he succumbed to his injuries during treatment. Case C.R.No. 244 of.2005
under Section 307 of the Indian Penal Code and various Sections of the Arms Act
was registered at Police Station Umargaon against the deceased and the
investigation was entrusted to D.S.P. P.K.chaudhary. The inquest proceedings
were drawn up at the community Health centre, Bhilad between 7.30 to 9.30 a.m.
in the presence of witnesses and the scene of the incident was also inspected later
that morning. As per the police version 20 shots in all had been fired at the
/YY,---/
t78
deceased,5 rounds by Inspector Erda,2by S'l' Monpara' 4 by S'l' J'M'Yadav' 5
by S.K.Shah and 4 by S.l. Vyas' The 20 empty shells were handed over to the
Investigation Officer alongwith the weapons that had been used by the police
officials. D.S.P. Chaudhary also sent the following articles to the F'S'L' for
examination:-
1. Mark A-two used cartridge shells'
2. Mark B- .32 bore cartridge empty case'
3. Mark F-'32 bore revolver and live cartridge in it-1 and used
cartridge-5
4. Mark G-.32 bore pistol in which two live cartridges-2
5. Mark H- two used cartridge copper metal like pieces and one
cartridge cap.
6. Mark I-9 mm cartridge empty shells-13
7. Mark J-.38 bore used cartridge sheels-5
8. Mark K-.38 bore used cartridges shells-2
The .32 bore weapons had been allegedly fired by the deceased and the .38 bore
and 9 mm weapons by the police. After investigation the D.S.P. ultimately opined
that the police officers had fired in self defence and were justified in killing the
deceased and as he was in the meanwhile dead, the matter should be closed as
t79
having abated. An application for abatement of the proceedings was allowed on the
5'h May, 2006.
On reference of the matter to the S'T'F' and the Monitoring Authority
an application was moved under Section 173(8) of the Cr'P'C' for further
investigation and was allowed on 22nd January, 2013' The matter has now been
further investigated by D.S.P' A.M.Patel.
Notice of the reference to the S'T'F' and the Monitoring Authority
was conveyed to the general public vide notification issued in Times of India dated
l8'h July, 2ol2 andalso in the Lokmat Media Ltd.(Hindi) published on 5'h August,
2012 ftom Nagpur, Akola, Jalgaon, Nasik, Aurangabad, Ahmadnagar, Solapur,
Mumbai, Kolhapur and Pune appended as Annexure 'A'. Personal notice was
served on 126 July, 2012 on Hanif Haji Sambhaniya and on 7'h February, 2013 to
Mehboob H. Sambhaniya, sons of the deceased, but nobody has come forth to
appear before the Monitoring Authority. In further investigation D.S.P. Patel
recorded the statements of the police officials who had been involved in the
encounter including Inspector Erda and he reiterated the facts as narrated above
and named the various police officials who had been deputed with him to
apprehend the deceased. He stated that in the course of firing ASI Manhar Baburao
and Police Constable Maheshbhai too had been injured and had been taken to the
Civil Hospital, Bhilad for treatment. He also reiterated the number of shots that had
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180
been fired and by whom' D.S.P. Patel also recorded the statements of the
following police officials on 26'h June, 2013:-
1. ASI Manharbhai
2. ASI Kantibhai
3. APC Satish Sayajirao
4. APC Mahesh Ravan
5. APC Rupsinh
6. ASI Prahlad
7. APC Rupabhai
8. APC Anil Bhai
The statements of other policemen who were part of the nakabandi were also
recorded on different dates and they all unanimously supported the police version
of the encounter. D.S.P. Patel also stated that he had gone to Mumbai on the 8th
August, 2014 and made inquiries about the heirs of the deceased but they were not
found and as such their statements could not be recorded and though he had served
notices on the sons of the deceased on 12'h luly,2012 and 7'h February,2013 they
had not appeared before the Monitoring Authority. It was, however, pointed out
that Mehboob Sambhaniya son of the deceased, had been arrested for an offence
under the Arms Act on l0th October, 2005 though he had been acquitted
subsequently.
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181
In the background that the entire eye witness account has been
furnished by the same set of police officers who had been involved in the incident
special importance has to be attached to see if it was in consonance with the
Forensic and Medical evidence which has come on record. The case of the police is
that the deceased had been told to stop his car by a gesture but he had moved a
little ahead and then had come out firing with a pistol and revolver in his hands'
When the site was examined on 9'h October, 2005 at about 10'00 a'm' in the
presence of an officer from the F.S.L. one .32 bote revolver with three empty
shells in the magazine was found in front of the Maluti Zen car whereas a.32 bore
pistol alongwith two live cartridges in the magazine was also found almost 40
inches away. The hand wash of the deceased was also taken. Along with the
revolver five used empty shells and one live shell were also recovered. The
suggestion is that these were the two weapons that the deceased had used while
firing at the police party. These items were sent to the F.S.L. along with the clothes
and hand wash of the deceased and several other items which will be referred to
as the matter proceeds. The dead body was also subjected to a post mortem on the
9th October, 2005 and the following injuries were found thereon:
1. Right upper chest lateral 1/3'd clavicular region through and
through bullet wound anteriorily 1.5 cm x 1.5cm red colour----blackening
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182
edge inverted entry wound direction anterior to posterior and below
medially.
2. Right chest back 8cm from midline upPer part of scapular region exit wound
2cmX1.5cm everted edge red colour with active bleeding'
3. Right chest autenorly on anterior axillary line at 10cm below and laternal to
the right nipple through and through' Bullet wound 1'5cm x 1'5 cm edge
inverted red colour with blackening entry wound direction anterior to
posteriorily straight.
4. Right chest posteriorly on posterior axillary line at the level of interior angle
of scapula bullet exit wound 2cm x 1.5 cm everted edge red colour with
active bleeding.
5. Left upper abdomen interiorly through and through bullet wound at the level
of vertical nipple line from left nipple and 7 cm below to left costal margin.
ZcmxZcm edge inverted red colour with blackening, direction left to right
with slightly
6. Right upper abdomen anteriorly bullet exit wound with a palpable bullet
3cm x 2 cm edge everted and red colour at the level of just outer to right
nipple vertical line 8 cm below to right costal margin.
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183
7. Leftlower abdomen anteriorly through and through bullet wound at the level
of L0 cm below and lateral to umbilicus 15 cm x 1'5 cm red colour edge
inverted, direction right to left-.
8. Left lower abdomen anterorily bullet exit wound on left iliac bone level 2cm
x L.5 cm edge everted and red colour with bleeding.
9. Right thigh antero lateral region through and through bullet wound at 7cm
below from iliac bone 1 .5cm x 1.5cm edge inverted red colour with
blackening direction-left to right straight.
10.Right gluteal region exit bullet wound 10 cm below and posterior from iliac
bone 2cm x 1.5 cm edge everted with blackening.
11.Left leg upper 1/3 posteriarly through and through. Bullet wound 10 cm
below later to mid fossa 1.5 cm x 1.5 cm edge-everted red colour
withblackeningdirection-tobelowandmedially.
7Z.Left leg upper 1/3'd on calf mid part exit and bullet wound 2cm x 2cm edge
everted and red colour with bleeding.
In turther investigation , Dr. champakbhai patel who alongwith Dr. A.K.Sinh had
conducted the postmortem on the dead body on the afternoon of 9th August, 2005
re-recorded his statement before the S.T.F. and he pointed out that there were a
total of six entry wounds on the dead body with five of them having blackened
edges and six exit wounds and that in injury No.3 there appeared to be two holes of
184
the same bullet hole as one bullet had passed out the the body and the other one
had remained inside and had been recovered during post mortem and handed over
to the Investigatom. It apPears to me, therefore, that there is some ambiguity with
regard to the number of shots that had hit the deceased inasmuch as that six
wounds of entry were detected and six exit holes and one bullet had remained
lodged in the dead body. However, an argument of great significance has been
addressed by Mr. I.H.Syed and Mr. Rahul Sharma Advocates in the light of the
observation made by the Doctor in the post mortem proceedings as supported by
the forensic evidence, that the nature of bullet wounds belied the police version.
It will be seen that out of the six wounds of entry, five had blackening round them
meaning thereby that these shots had been fired from a close range. Significantly
also, of the six entry wounds, wound Nos. 1,3,5 and 7 were on the front of the
body and Nos.9 and 10 on the back. This is clearly borne out from the injuries
reproduced above and also from the drawing made by the doctors in the post
mortem report showing the situs of the bullet wounds. The clothes worn by the
deceased had been referred to the Ballistic Department of the F.S.L. and a report
rendered on 15'h May, 20o6. In this report reference is made to the trousers and
shirt worn by the deceased and marked as L-1 and L-2 respectively. Four bullet
holes were detected on the trousers and thirteen on the shirt. The details of the
bullet holes are hereunder:-
f2
185
Area
1. Diameter 0.9 cm right side in front
2. Diameter 0.8 cm right side in front
3. Diameter 0.8 cm right side in front
4. Size 2.5 x 2 on the back
5. Size 0.9 on the back
6. Size 1.5.x1 on the back
7. Diameter 0.8 on the back
8. Size 1x1.5 on the back
9. Diameter 0.8 in front, near left pocket
l0.Diameter 0.9 near hole 10,11 and 12
ll.Diameter 0.9 in one line in front side
l2.Diameter 0.9
l3.Diameter 1.2 right sleeve on upper part
The Laboratory found as under:-
1. On sample L/l(pant) and L/2(shirt) holes there was no presence of nitrite
found. On the said samples the holes can be caused by 9 mm bullets. The
hole Nos. 1,2 and 3 on the Sample Lll and Hole Nos. 1,2,3,5,7.,9,10,11. and
L2 on the sample I/2 appeared to be entrance holes. Holes No. 4,6 and 8 on
/W---
No. AnProximate size (cm)
186
the sample LlZ appeared to be exit holes' Sample L/1 and L/2 holes
respectively No.4 and 13 whether they are entrance or exit holes' In this
regard definite opinion cannot be given.
In Sample 1 to 5 and 8 to 14 are exit or entrance holes or not, in this regard
definite opinion cannot be given.
Sample 7(bullet) one used 9 mm cartridge bullet on which on the right side
there is curve and 6 lands and six grooves marks are found."
Note:- .38 bore and 9 mm bore are identical only the unit of measurement is
different
The Laboratory categorically opined that the holes on the shirt and the
trousers could have been caused by 9 mm bullets. These were indeed the weapons
that were being carried by the police officers. It is also extremely significant that
the Laboratory in the aforesaid report clearly found that there was no presence of
nitrites in the hand wash of the deceased that had been forwarded to it. The
inference is that the deceased had not used any firearm.
On the above facts Mr. I.H.Syed and Mr. Rahul Sharma Advocates
have argued that findings in the post mortem report read with the facts of the case
as given by the police, the story projected was completely unbelievable as
admittedly the police personnel were all armed with handguns (revolvers and
kry.-
187
pistols) and the Doctors had found the signs of blackening around five of the entry
wounds and in the case of a hand gun the blackening would be present only if the
shots had been fired within a distance of nvo feet or so, and not from 15 or 20 feet
as claimed by the police. He has referred to Dr. Modi's Book Medical
Jurisprudence and Toxicology(23'd Edition) at page 721 that "blackening is found
if a fire arm like a shot gun is discharged from a distance of not more than 3 feet
and a revolver or pistol discharged within about 2 feet." It is significant that
blackening is not to be confused with scorching or burning which is caused from a
yet closer range. The post mortem thus clearly reveals that the distance between
the weapons and the deceased was at the most 2 feet, suggestive of a custodial
killing. Mr. Syed has submitted that the police version was completely falsified as
the wounds on the dead body could not have been caused in the manner suggested.
He has re-emphasized that the distance between the deceased and the weapon was
at the most 2 feet though as per the police version the distance was in fact much
greater. He has in this connection referred me to the site plan which had been
drawn up by the S.T.F. and was not part of the record earlier and pointed out to
file D page 139 which curiously does not show the distance from which the firing
took place. To my mind, this plan is therefore incomplete and inaccurate. The
Panchnama prepared at the time of the further investigation on 25'h June, 2014
however, indicates that the firing had taken place from a distance of 17 feet. This
N>
188
confirms the panchnama recorded by the Gujarat police at the initial stage which
indicated ,.at the said place of incident on the East of the Maruti zet car lying there
and on the "other side on the corner" at about 17 feet distance one official police
crime gypsy is parked.,, As a matter of fact from the facts that emanate from the
record and the arguments raised by the learned counsel, the distance between the
deceased and the police party is shown to be much greater than 17 f.eet. Mr. Syed
has given the dimensions of the Gypsy and Maruti Zen and put a sketch of the
situation in the written submissions and has pointed out that the aforesaid
particulars taken from Wikipedia shows that the distance could not be less than
24.75 feet. In the complaint made by Inspector Erda at about 4.00 a.m. on 9'h
October, 2005 the significant observations when translated from Gujarati to
English are as under:-
" Since the Maruti Zen beaming said registration coming towards
Bhilad from Nandigaam at about 04.00 hours, tried to stop by showing light
of battery, lathis (sticks) of the policemen and hands, he stopped his Maruti
Zen in front of my Gypsy. Since the driver of the Zen alighted from the
driver side and suddenly opened fire on me from his weapon, I came behind
mv Gvosv and Police Suh- nsnector and ol accomI n cem en na Ied me also
came behind the Gvns Hence he continuou fired on me and the polices
personnel from the front side under the obstruction/shadow of his Maruti
X%L,( ,t"
189
Zen. So myself and the police officers accompanied with' fired on him'
hence driver of Maruti Zen fell down on the road ' ' ""
This fact is further supported by the statement of Inspector K.G.Erda recorded by
DSP Patel during further investigation wherein he says that (after giving the details
of arrival of the Maruti Zen at the police check point) when the firing commenced
both the police party and the deceased had moved behind their respective vehicles'
Curiously, however, in the reconstruction made during the further investigation on
25s June, 20L4paragraph L reads as under:-
"L. The accused and the person firing were alive therefore the body
situation would keep changing therefore at the time of the incident the
definite situation cannot be clear therefore with regard to the firing
angle or distance the definite opinion cannot'be given."
To my mind this observation ignores the observations recorded in the post mortem
examination with regard to the blackening of the wounds of entry on the person of
the deceased and the evidence referred to above. It is, therefore, crystal clear that
firing on the deceased was from a distance of two feet or less completely falsifying
the police version and being suggestive of a custodial killing.
The arguments raised Mr. R.c.Kodekar that the distance could not
have been properly verified as there was no brackening on the clothes of the
Y4
190
tlecoascd cannot be acecptetl in the light of the positivu tintlings referred to above
that thc holes founrl on thc clorhes of the deceased hird becn caused by 9 mm
bullers. lt will be scerr thtrt the marks on the body wurc ol blackening and not
scorching. Had it becrr a casc of scorching there would have undoubtedly been
burn iniuries on the dcad body and the clothes. The fact that the dcceased had died
ol police bullets is adnrirtctl. It is true, that as per the reptrrt of the F.S.L' dated
l0'r' April, 2006 the two weapons used by the deceascti. rtne a .32 bore revolver
and the other a.32 bore pistol, had been used prior to their cxamination but this
tact by itself or that the re wsrc some simple injurics on two of the police otTicers
would not lead to thc (()ntplcre demolition of the fintiings mcntioned above. My
Sycd. in reply, has prrirrtctl out that the police party romprised harclened and
experienced police olticcrs ancl were expected to make irn attcmpt to ctlver up the
custtldial killing. Thc lacr rhat as many as 20 rounclr hatr bcen fired at the
dcccased tiom almost prrrnr brank range are indicativc .l a etrltl bl,odcd murder.
The suggesrron in the complaint that thc tlcccased was a notorious
smuggler appears to be rJ.ubtlur on record. I had matrc intluiries from the S.T.F.
olficc on this mattcr arui rhc tr owing reply dated -3,,r J.nua^,,201g was received:-
"With ret'rlence ro rhe above mentionecl sub.lect, I would like toinlbrm ytrur gtrodsclf respectfully thar rhc tirllorving oltences were
191
registered irilirinst deceased Haji Haji Ismlil R'ir Jam Salaya (Gujarat)
and at prcse nt [.ttnawala Di-Thane (Maharashtra):
(1)DCts Buntlra Mumbai II Crime Reg.No li4r()8 U/s 25(1)(A)(A) of
the Arms Act.
(2) Kalyanpur Policc Station District Jatrrttagar i'Crime Reg' No'
62/1993 Uis 121,121(a),122 of the lP(l lnrl 25(l)(a) of the Arms
Act and Urs 3,4,5 of TADA Act.
(3)Custorns & (iold and other articles oilcncc in which there were
warrants issucd against him.
(4) In Cotcposa, in live waltants he was wante d and he was alstl
involvcd in the snruggling of weapons."
This is an evasive repl,"-. lr dtlcs not reveal the nature ol the cases and the result o[
thc prosecu tion/procec cl ings it any. No firm conclusion can he arrived at with
rcgard to his antecende nls
At the initial stage I had laid down two tesrs rvhich to my mind needed
to be satisfied il a priml lacie finding against rhe policc oflicers had to bc
recordcd. I am of thc opinion that in the light of the facrs rncrrtioned abovc the two
tests arc satisfied and rhc mattcr needs to be brought rtl rrial. l, therefore,
recttmntend thar at the inrrial stage the five officers wh. had fatally shot at the
I-C.R.No. 25 2002 Police Station D.C.B. Ahmedabadunder Sections 307 186 I.P.C. & under332 24
Sections 25(l)8.A. 27 the Arms Act
This matter came up for final discussion hcfore the Monitoring
Authority on the l9'hN.rcmbcr,2016 although the finirl rcc,rd of the case had
been completed on thc iilirrg,l rhe aftidavit of Mr. Tirrh R.j dared 2nd February,
20t8.
Sameerkhrn alias NawabkhanSarfrazkhanprrthan (hereinaticr called
thc dcccased) residenr trr Khan.iaDarwaja, Jamalpur, Ahnrr:dabad was in police
custod) in c.nnecrion with c.R.No. 1-302 0f 1gg(r .r l,olice Station Naranpura.
The allegation against the deccascd was that he along wirh his c.usin Sahistakhan
residcnt .l Jamalpur had snarchcd a gord chain of Gccrahcn lt ab.ul 3.00 p.m. on
l0'n May, 1996 antl rvhi': lrying to run away they h.tl hecn caughr by UpC
,l>-
192
dcccased and are narncd in the complaint i'e ' Inspcctor K G'Erda' PSI
t-.B.Munpara, PSI J.M. Yadav. PSI S.K.Shah and PSI l'rag P'Vyas are brought
to trial lirr murder antl rrthcr rrflcnces. If it is found on cvidcnce during trial that
others too werc involvctl in the murder they roo should he brought in and
prosccuted in due coursc ol law.
193
Vishnubhai uPC Anil Kunrar who were on duty at that timc and in the scuftle that
had tbllowed Sameerkhiln harl stabbed Police constablc vishnubhaiJhalla killing
him at the spot and hati rhcrr run away whereas Sahistakh nhatl becn arrcsted, tried
antl senrenced to imprisonrnunt lbr life. As per the police vcrsitln the deccased had
comc in contact with Muslirn Jchadi organizations and trn thr: basis of a passport
illegally obtained tionr tlhopal had got one month's visa to r isit Pakistan had gone
stayed thcre and had io that country for three years during which peritld he had
obtained training in wcapons tiom the Jaish-e-Mohantntitd at Places such as
Karachi, Lahore, Rawalpindi elc. and had thereatter re-r:ntered India through
Ncpal with the assistancc ot the t.S.l. and establishetl hidc outs in Mumbai, Rajkot
and l3hopal etc. lt is lurthcr rhe police version lhar aller the attack on the
AkshardhamMandir, thr tlcceasetl had been direcrcd bv Rizvan of the Jaish-e-
Mohammad who was a rcsidenr ol' Pakistan to go ro Ahnrcdirbad and kill the rhen
Chiel Minister Mr. NarcndrabhaiModi. The deceased wrrs. hrlwcver, arrested by
thc Crime Branch antl ( .R. No. 23 of 2002 undrr Sections 120-8, l2l,
l2l(A),122,197, 198,211.2t6. 4ts, 465, 476, 468,471. 5r r .f the lndian penat
code and various secri.ns .r rndian passport Act was rugistcred against hirn on
30'h Scptember, 2002 ar D.c.u. porice Starion Ahrnctiatrati City. swhile the
deceased was in cust.rrr i, rhc atbresaid matter a transrul w.rrant was obtained
{i.m thc Judiciar Magisrrarc Isr alass for investigati., i, (..R. No.302 of r996
k>I
194
Naranpura Police Statitrrt by Inspector R'C'Path'rk ot the Crime Branch'
Ahmcrjabad city who hantled ovcr the deceased to Policc lnspector K.M. vaghela
who arrested him in (l.R N0. -3()2/96 P.S. Naranpuraas well. During the course o[
interrogation the deccasr:d agrcetl to show to the police thc murder site where
P0lice (lonstable vishnuhhui had been killed on 10"'May. 1996' Accordingly
lnspector K.M.Vaghclaalongwirh InsPector J'G'Parnrar' S'l' Il'J'sadavruti'
lnspector A.A.Chauhan. lnspeclor T.A.Barot, H.C. Nijanrudtlin and a large number
ol othcr police otlicials in a Govcrnment vehiclc le[t lrorn the Gaekwad Haveli to
the place to be pointetJ trut by the deceased. The duceased told them to stop
oppositc the S.T.D. Boorh in lront of the Usmanpura ro;ttl whercupon he and the
other oflicers alighted lrom thc vehicle. The deceased was httttdcut'fed on his right
hand while the other cnti was with HC Nijamuddin. -l'he cieceased made a pretext
of showing the place whert rhc incident had happencd bur suddenly jumped up and
got ftlrced therelease ol rhe handcuff held by Constlhlc Nijamuddin and then
snatched the loaded re vrrlvcr of lnspector K.M.Vaghe la llom rhc pouch tied on his
waist and fired two rourrds ar him to kill him and to run awav. lnspector vaghe la
lay down on the ground trr savc himself and before the drccirsud could cause more
damage lnspector TarunlJur.r and Inspector A.A.chau han(since deceased) tired
tw. r,unds and one round respcctively on the deceascci hrttrng him on the head and
the chest' He was immctliatcry raken to the civil frospital, Ahmedabad in the
195
Government vehicle hul was dcclared dead by tluty l)r' Preeti Shah at 2'50 a'm'
C.R.No. 25 of 2002 was accordingly registered undcr Seclions 307'332'224' 186
l.P.c. and various Sccrions ()f rhe Arms Act at D.C.ll. Policu Station Aimedabad'
The inquest on lhe dcad botly of the deceased was hcld try the Sub Divisional
Magistrare, Ahmedabatl al l0 a.m. on 22"d October, 2(X)2 end hand wash of the
deceased was collectetl in the prcsence of witnesses at rtbout thc same time' The
placc ol the incident wus inspected later in the alicr n()orl in the prescnce of a
Scicntilic Officer ol thc Mobilc F.S.L. Gujarat who srrhrnitted his report dated
22"dOctober, 2fi)2. 'l'he de atl body was also subiccted lo a post mortem
examination and threc hullct wounds were found lhercon. I'hr- hand wash and the
wcapons used during thr incidcnt and the bullets exrra(rcd lrom the dead body
wcre also taken into posscssion and sent to the F.S.L. On rhc direction the D.G.P.
Gujarat State issued on 27'r' Octob er, 2A02, the investiuarion in this matte r was
entrustcd to the C-.1.D ((.rime), Gandhinagar, the Assistlnt Commissioner of
Police , (lrime Branch, Ahrncdabatl City and Inspecror N.K.Chutlasma of rhe C.l.D.
crime tsranch of the (-irr Ahmedabad Zone hacl taken .vcr the investigation on
30'h oct,ber, 2oo2 and subrcqucnly D.S.p. I.K.yadav inr e srig.rcd the matter tiom
tJ'r' Nove mber, 2oo2 t<t rst May, 2003. The investigation * as. thereafter taken .ver
by D'S'P' H.K.Sharma ()r rhr c.r.D. crime from D.S.p. )'adav on IstMay, 2003
and.n crncludingthat thc porice version reading to thc dcarh.r'the deceased was
4
197
reiteratud the story givcn carlicr. DSP Patel also had th0 rcconstruction drawn up
on 17"'July, 2014 in thc prescncc of the police officers rtncl .thers Prescnt at the
time ol lhe incident. l).S.1). Parcl also observed that the \tatemcnts which had been
recortled by DSP Yadar lrom ti'r'November,2002 to lst M1y,2003 when he had
been assigned thc invcstigation could not be taken inlo itccount as he had
prcssurized the witnesscs ancl lhreatened them tr,r muku statcments and to sign
thcm implicating the policc otficers. The statemcnt ()t'D.S.P. Yadav who had alstl
rctired in thc meanwhilu wes also recorded by DSP Patcl on I l'h December, 201.5
and hc reiterated that hr had takcn the statements albrenruntioned under signatures
as pcr instructions ol rhe highcr officers. D.S.P. Patcl ar lhc conclusitln ol his
investigation fountl thar thc investigation made earlicr $irs in order, thc deceased
was a n.torious crimin:rl ,nd terrorist who had been dcputcrl by his handlers in
Pakistan to cause dam,gc in tntlia and that he had bcen shot rlcad in sell'delence
by thc ptllice officers alirr he had snatched revolve-t lrrspcctor K.M. vaghela
and lired ar the policc ollicers.
A general ntrriue ol the matter for furthcr invesrigation by the S.T.F.
under thc supervision trr rhr: M.nitoring Authority was puhrished in the Times or
Intlia datc<i l8'h Jurl.lt)ll. In addition notices wcre puhiished in the Gujarat
Samacharand Divyahhrskar puhlished from Ahmcdtrhrrci, Barotla,Bhul, Rajkot
and Surat on r8'h Jury. r0l2 and personal notices wcle \crved .n Ayazkhan
sh4t^
198
ncphew of the deceascd. SirhistakhanPathan his cousin.srtrliirrtzkhanhis tather and
Mr. A.J.Yagnik Advocltr:.practising in the Gujarat High (.tturt' representing the
tamily of the deceascti. 'l'hcy appeared before me ort thc 2"r April' 2013 and their
statements were rccortlcrl. Sarlarazkhan stated rhat on il dllte which he could not
recall alter so many yetrs his y()unger son Saheiadkhan had come to him and told
him that a policeman huil been killed by Sameerbhai rtntl when he had reached
homc he had found a prrlicr party present there. He was lrrltl th:rt he should produce
the tleceased tailing which he anr.l his younger son woulti hr: ttlrtured. He further
sratcd that he and his \()n wcrc taken into custody and torturetl mercilessly which
had made him a cripplu irnd he was accordingly dischlrged tiom his service. Hc
lurther said that in 2001 llC Nijamuddin had taken hinr to thc Crime Branch and
he was asked to idenrily his son Samirkhan who hird treen arrested in thc
mcanwhile, and that lnspccror J.G.Parmar had used abusivc words against his son
and calle d him a rerrurist. tlc deposed that Ashish Khctan of thc Tehelka
ttewsmagazine had comc ro Ahmedabad tiom Dethi irnd hc had taken him to
I.G'Police Mr. Tirrh Ra.l's ot)ice where Mr. Tirth Ra.i adnritted amongst orher
matters the involveme rrt ol scnior persons in the cor e r up of the murder. He
lurthcr staled that hc hrrd gone lo rhe hospital and met thc dtrct.r who had told him
that thc shots had been tiretl [rom a very close range. c turther sairi that repon
given hy Inspector Yadav was thc correct one and thar his s.n had been taken out
lwY
20t
ileputed to carry out ussxssination of Hindu leadors lrrd that tho purpose of this
group and indeed of l,ukisttn was to create problems tirr lntlilr with the intention of
grabbing the State ol Jammu and Kashmir and t() carry out sabotagc and
destruction in Kashmir ancl other areas thereby posing great danger to the
secularism, unity and irrrcgrity of the country. In this cornplaint lnspector Vaghela
had also highlightetl thilt rhc deccased had visited Pakistirn on a illegal passport and
staycrJ in Pakistan lirr three yeais where he had takcn trrrining in the use ol
we ap()ns at Rawalpintli. l.uhore and Karachi etc. and hir(l rc-entered India with the
help ol the ISI through Nepal and created contacts in Maharashtra, Rajasthan and
other places and he had accordingly been arrested by the Crimc Branch in C.R. No.
23 ol 2002 under various Scctions of the Indian Penal ('odc und the Passport Act.
'fo my mind this lcngrhy inrroduction in C.R.No.l,5, l(X)2 which has been
summarized by me in a tcw lincs would not ret'lect thc roality of the situation.
c.R.No.23 pertained t. lit'tcen accused in all. Finding rro t.vidence against thcnr,
the del'ence counsel tilctl discharge applications in Dcr.urrrher,2002 and January
2003 though in the mcanwhile Sameerkhan was dead. I hcse applicarions werc
allowcd by the Addirirnul Sessions Judge, Ahmcdal,,ti vide order dated 2nd
January,2004 antr crrinrinar Rcvision No.g of 2(x).r lircd by the Srate was
dismisscd on 2nd April. J0t)4 hy rhe High courr. Speciar Lcavc peririon (criminar)
-1504 ot 2004 tiled againsr the.rder of the High c.urt in rhe Suprcrne Courr
202
S.L.P. was dismissetl un thc 6'r' December, 2005. l'hc alh:gations made by the
prosecution were contplcte ly disbelieved by the courrs right upto thc Supreme
court. lt was observed inrcr alia that as per the prosccutiorr. the deceascd had gone
to Pakistan on lhe l3'r'January, 1998 whereas the pirssptrrt under which he was
supposcd to have travclled, had been issued on the 27'r'March' 1998 and thal too in
the name of Nawab Khan antl that no person by that nirnre had gone to Pakistan'
'l'hat is another mattcr which belies the policc version and is a glaring
conrradiction. On onc sitlc it is said that the deceascd uar a dreaded tcrrorist and
fully trained to causc rnarimum damage and mayhenr but lrom the tacts which
havc come out on record, a vr:ry casual approach had been lbllowed by the police
olliccrs when they had taken him for site inspection on the day in question and had
ignored the vital security details. As a matter of fact the rule ol handcuffing oI
prisoner as given in thu rrorit'icarion G.L.H,D.No. MIS-l()()5i35442-C dated 28'h
August. 1966 and LG.l,'s No.G/1909(G134144) dared l.l'r' July, 1966, specifically
provides that "the handcutiing ol'prisoners is a marrer which shall be left to the
discretion of the senior rcsponsible Police officers conccrncd, as much depends
on the character, disposition antl behavior of the prisonr_.r or prisoners and not
necessarily on the typc ol alleged crime in which he or they are involved. The
handcufls should normallv be used by the police only whcrc rhc prisoner is vi,lenr,
disordcrly, obstructive .r is likely to attempt to escapc .r to comrnir suicide."
iVYa.--/
203
(Thesc instructions arc available in File A Part 2 pagc 72('). lt will be seen that the
precautions which wcrr: to be taken for handling rr dangcrous person were
categ,oric, and as pcr the story given by lnspector Vlghcla and recorded in
C.R.No.25 though hc had eight cases registered agairrst him over period of six
years including thc murdcr ol a police constable (C.R No 302 ol 1996) for which
thc police party had hrought him for site inspection, thc decr:ased was not properly
handcul'led and it appcurs to mc that this was done dclihurirtoly so as to make out a
plausiblc story to justily- thc killing. As a corollary to thrs lirrding another aspect ol'
the mattcr needs to bc tJiscussccl. lt appears that letter tlirretl l2nd October, 2002 had
becn addressed by Mr. Chitranjan Singh, lncharge Policc Commissioner
Ahmedahad City to Mr. P.P.l,andey, Joint Commissioner rrl Crime, Ahmedabad
City raising certain qur:rics which had to be answercd in thc light of the querics
raised by the National lluman Rights commission. pcrrint,nrlv paragraph 6 of this
communication questionud the ilelay in getting thc trirnslcr warrant in C.R.No.
302/96 (on 21't ocrober, 2002) when the case had becn rrrrnslerrecl to rhe Crimc
Branch on Ist october, 2(x)2. Relerence was also maclc i, paragraph g ro qucstion
as t, why the proccdurc lor keeping prisoners handcutted was not adopted antl
paragraph 9 referrcd t. thc anxiety to take the pris,ncr lirr sire inspection late at
night and that roo inrmcrJiately. Another letter datcd 2-1,,r Ocrober, 2002 was
addressed by Mr. chirr.njan Singh in which he raiscd unorhcr pertinenr point that
lkL
204
atier the investigation in C.R. No. 302of 1996 had bctn transtcrred to the Crimc
Branch on l.,Octobcr, 2002 the investigation had ulso heen handed over to
lnspector G.J.Parmar vidc ulfice order dated 2n'r Oct,rlrer, 2002 and in that
eventuality if a transti'r warrant had to be takcn lor the custody of the
tieceased(accused) it shoukJ have been obtained b1' lnspector Parmar but the
transler warrant had irr lact been obtained by Inspector K.M.Vaghela. lt appears
that no reply was receivecl to these two letters and tht ntatlcr was lurthcr referred
filr invcstigation to (..1.1). Crime and D.S.P. l.K.Yadu,, was entrusted the
investigation. The qucstion raised by Mr. Chitranjan Singh do create a suspicion
about what had happencd.
The Mcdical and Forensic evidence whsn read together again casts a
very serious doubt un the story projected by the police. The post mortem
cxamination was perlbrmcd hy a panel of doctors including Dr. Dharmesh and Dr.
Kiran Pe nsuria on the l2"J ocrober, 2002. The tbllowing gunshr-lts wounds were
tirund on the dead body:-
Enlry wound prescnl ovcr lcft temporal region, ll cnt;rhrlve ir masroid, g cm
lcft to midlinc. wound is circular with blackenctl. inverted margins 0.5 cm
diameter in size
Exit wound presenr ovcr right side of occipital region. 1.5 cm x0..5 cm size.
Margins irregular tl cm prlsrerior to mastoid pr()cL,\\.
2
h._
205
3. Entry wound prtscnl tln front of right side ol' chcst I cm in diamet er' 127 cm
above right hccl lics in 6'h right intercostals sprrcc and is circular is lcm
away from midlinc anrt 13 cm below external n()lch' Margins contused'
abraded with blacke ning in 7'h intercostals sp ce l'l cm in diameter 126 cm
above leti hecl -1.5 cm leli to midline. Margins cotttuscd abraded'
4. Entry wound prescnt ovcr left side of chest on anterior aspect in 7rh
intercostal spacc 1.2 cm in diamete r 126 cm abtx'e lelt heel' 3'-5 cm lcft to
midline. Margins corrtused abraded.
5. Multiple small bruised present over back of chr:sl on left side in area of l0
cm x 5 cm and is 129 cm above left heel. Bullct sccn lnd palpated externally
underneath skin.
It will be observcd rhar two ol the wounds of entry hlvc blackened margins
whercas injury No..l which is also a wound of entry had contused and abraded
margins. lt is the admirred casc that.38 bore revolvers hrrd hecn used by Inspector
Tarun Barot and lnspector K.K.Chauhan and in this vicu ot the matter injury Nos.
I and 3 had been inflieretl tiom a range of less than ] lccr. ln Modi's Medical
Jurisprudcnce and 'lirxic.logy 2.1'd Edition page l2l ir h.s bcen observecl rhar
"blackening is found, il a rire arm like a shotgun is dischargecl tio,r a dislance of
not more than three leer and a rcvolver or a pistol dischargetl within about two
feet." fhe statement of'r)r. Kiran pensuria had also been recortied at rhe time of the
,D
206
initial investigation on thc l7'r' December 2002 anJ her clrcgorical opinion which
is quotcd below was thar trullet injury No.1 had been inllictcd by a shot from threc
f'eet or less whereas ctttry wound in the chest is (inlurl No'3) "battered and is
blackened around it, which c.uld be due to concentrati(), rll thc gun powder, since
the bulle t must have bccn l'ired lrom so close that thc I larnc created by the firing'
the skin could have becn lrurnl. The hold (sic), which appcirrs on the front Portion
of thc shirt put on by rhc duceased being of terri cotton matlr:, the fibers of thread
appears to have burnt. sincc had it been the cotton shin. the fibers would have
appeared to be torn, bur since thcre is synthetic yarn in lhis shirt, they appeared to
have hurnt and have bscrrnre round shaped at the end, which is called 'singeing' in
English language. -fhus it can bc said that the firing musr havu been done from the
lront side by standing very ncar. This bullet went pasr picrcing rhe heart and the
lett lung and also picrcing the cavity between the hcarr lnd lung and was sluck
between the eighth and ninth rib on the backside." ln .ther words the firing had
been made from a verl short distance stands provccl .ln the reconstruction report
submitted by the F.S.L. on l'' August, 2014 it was obse rvcd rhus:-
'' During the direction at the time oi' rcc on stt.uct ion. the distance
betwecn rhc lid of gutter and the dummy accused has been measureti
as 8 feet 3 inchcs, rhc distance of HC Nijanrutklin, who was standing
on thc righr ()l rhc accused is I tbot antl 6 irrchcs. the distance ol the
Aa*
207
dummy ol ShriK.M.Vaghela, PI (now in Saharmatijail) was measured
as 3 tcet. 'l'hc distanceof Shri 'I.A. Bart l,I nd du m fS
JN Pl who er di behin thc du nl us ()n
sn rrh are 6 feet and 5 t'eet 2 inches re ectivcl and thccross t()w rrl o SDil
distance in-between these two were about 2 ti'ct.''
A bare rerding ot this report falsifies the ptllice story as the injuries
tirund on the dead bodv could not have been caused lrorn a distancc ol .5 to 6 t'eet
but had been causcd lrom a closer, almost point blank range. It can always be
argued that vital mistakes can bc made by a witncss altcr:r lcngth ol time. To my
mind this argument is n.t available here as those indicarcd were experienced police
officers lamiliar in rhu use of rhe fire arms and wirh hind sight, could have
mouldcd their statenrenrs to suir their case.
There is anorhcr aspect which needs to he rakun into account as per
lhe c.unsel. Injury Nrr I was on the left temporar rc.gi.n with blackened and
invertcd margins. Thc exir ot injury No.1 was injury Nr.2.n the occipiral region
posterior to the masroitl procrrss which indicates that thr. hullet had gone thr,ugh
the head and the traject()r) was tiom left to right and upwards ro downwards. This
also lalsil'ies the policc'srsion in as much as the tacts rvhrch have been projected
even in the reconstrucri.n appear to suggest that rhc dcccased and the p.rice
olricers had been alm,st tacc to tace. However, as injurl N..r has becn caused
l--
208
trom a very close rangc and the hullet had travelled dorvnw;trds it w<luld mean that
thc Police officer wirs standing very near and above ths deccased otherwise it
would not have bcsn possiblc lo have the trajectory its shown. If the two police
ofllccrs i.e. Inspector llaror and lnsPector Chauhan hld in lact becn -5 or 6 feet
away liom the deceasutl. lhe rrajectory indicated would ntrl have been possible' lt
is, the rclbre, obvious rhat thc police officers were elose and towering over the
deceascd and he was prohably sitting on the grounrJ antl pcrhaps cringing tbr his
life. Mr. Kodekar's argument that the difference betueen the height of the
dr:cease d and the two policu otlicers could well havc dcter nrined the trajectory of
the bullet. This submission is, however, falsified by reli'rring to the reconstruction
report rcndered on l7'r'July, 2014 which reveals thar heighr ()f lnspector Vaghela
was abuut 5 feet 9 inchcs Inspector Barot 5 feet tJ inches and the deceased was
about 5 feet 11 inches. l'his in lact shows that the ricccased was taller than the
police otTicers.
There is also anothcr startling aspect of thc marter which needs to bc
examined. After the malr..r had hcen entrusted to D.S.p. yad*r lbr investigation he
had raised certain issucs antr uskcd for some records. S.nrc .l these issues werc
common with thosc thar bccn raised by Mr. chitranjan Si,gh in his letters datetj
22''r october, 2002 antr 2-3'd october, 2002 referretr t. rrb.r,e. D.S.p. yadav in a
notc rccorded on thr 2orr' March 2003 sought some inlorrnation liom the Crime
/-,.-
209
Branch primarily to scc as to how the matter was beill! handled by Inspector
Vaghe ta ancl Inspcctor S.S.Chudasma who had recortletl thc statements of the only
two inrlependent witncssus ()l'the incident,Navin Chantlt:r Patel and Pawan Kumar
Aggarwal, but investigation had shown that their prcsencc at the place of the
incidcnr had not br:on pt-rssiblc and that lhey were creatcd witnesses. Vide this note
D.S.P. Yadav also exprcssed some reservations as to how the injuries had been
sulfcred by the deccasctl. Hc also complained that whuncver he had made a
attempl to meet and clarily the position from the otlicers of thc Crime tsranch they
had refused to mect him on one pretext or the other. A rcplv was received liom Mr.
D.V.Vanzara, D.C.P. (-rimc Branch, Ahmedabad Citl vide letter No.
Gl725lCrimel7\6l2(l12 datr:d 2l'' December, 2002. Mr. Yanzara admonished
D.S.P. Yadav tbr whar hc lclr was over reach on his part und ohserved:
'' From thr language used in the letters wrinr:n by your good self is
unnecessarilv making an attempt to suggcsl lhat your rolc is not
limited ar t.e ot I-C.R. No. 25 of 2002, hur insread your goodself is
a Supcrvising Authority of the Crime Branch. Whencver, a suspect or
an accusud invurved in a offence is tbund try an orfice of the crimc
Branch, thcn in thc interest ofjustice whe. lrr rrrresl him that has to bc
taken by thc crncerncd officer as per the pnrvisi,ns of law and frr the
purpose ol supervising him, there are ol.l.iccrs ol. thc rank of A.C.p.,
l"=
210
D.C.P. Joint Commissioner of Police anrJ upttr thc Commissioner o[
Police in Crimc tlranch and in other rvolds, the atbresaid work is
either mine of my superior officers, antl rhcrclbre, as an l'O' ol'C'R'
No. 25 ol 2()02 rcgisrered with D.c.B. Police Station is irrelevant and
outside lhc purview of work ofyour goodscll'. and again
"Hence, the quesrion as to why the accusetl was not arrested in
connection with the offences in which hc was wanted between
27.09.2}(ll ro 01.10.2002, is wholly irrclcvanl and outside the
purvicw ot thu work of your goodself. ['hr: olficers o1 the Crime
Branch are ve ry well aware as to when an accuscd like Samirkhan or a
suspect is to be arrcsted or not to be arrcstecl or t0 rclease them in the
interest ol iustice and that you have no right t(' interIere with the work
of thc Crirne Branch by raising such poinls. As stated earlier, these
facts pertains ro only I-C.R.No. 23 of 2002, rhc invesrigation, whcrein
is being conducted by the Crime Branch, whr:rcas the investigation
being conducrcd by your goodself is limircd ro I-C.R.No.25 of 2002,
and theretorc, you are requested to carr) r)ut ln honest and neutral
investigarion in that regard. It is further t() slale lo your goodself rhat
while making correspondence with us in sur.lr arr important case, your
,l ^.{u'.)
zLL
goodscll rhttuld uptiate your knowledge ol hrw itnd then ttl quote thc
Sections ot'law."
D.S'P. Yatlar was also rebuked tbr douhtin! lhe presence of the two
eye witnesses referred to in his note. D.S.P. Yadav's norc and Mr. Vanzara's reply
when read togethcr clcarly rcveal that there was an intcntit)n to Put impediments in
the way of the investigatittn antl rather than answer thc qucries raised by the I'O'
and to dispel his misgivings, thc D.C.P. gave an unplcitsant and meaningless reply'
&o..-
It will be seen that thc invcsrigation into the three Inaltr:rs i.c. C'R. No. 302 ol
1996. C.R. No.23 of 2(X)2 and C.R. No. 25 of 2002 had sot so deeply intertwined
as thcy overlapped and thr allcgations against the deceaserl in the last two matters
were almosl identical.'l'hc qucrics raised by D.S.P.Yadar wcre relevant to come
to a positive finding with rcgard to the investigation m()re particularly in thc tight
of thc lact that Mr. Chirranjan Singh, Incharge Police Crinre lJranch, who was Mr.
Vanzara's senior, to. had raised somewhat simitar querics with regard to the
investigation. Furlher cvents showed the significance ul thcse tlbservations as the
tleceascd and his co-accused were discharged in c.R.No.13.f 2002 with a positive
finding that there was n. uvidence against them. As a nrirucr ot'tact D.S.p. yadav
wrote a letter to the Addirional D.G.p. c.l.D. crime and Railways, Gandhinagar
bearing No. outwardi598i9 rnward-817 dated 30'h Dece rnhcr. 2002 regarding the
lcttcr written by D.C.P. Vanzara and referred to abovc (rnrongst others) in which
212
he scr <.rur the justiliciltion tirr the information sought bv him and thc obstacles
being put in the wa_v- ot invcsrigation in c.R. No. 2-5 rrl 1002 as also threats of
physical harm being he ltl our r0 him. It appears, horvcvcr. that the investigatitln
was taken away lrom D.S.P. Yadav and handed over ttr D.S.P. H.K'Sharma on the
l'' May,2003. D.S.P. Sharma gave a clean chit to the policc olticials involved'
Therc is another aspect of the invcstigittion which requires
considcration. Sarlarazkhan tather of the deceased, had in .uldition to the statement
recorded by me which has treen referred to above, filed irn elfidavit dated l0'h May,
2017 in which he deposed that D.S.P. Yadav, alier in',estigation, had concluded
that his son had hecn killcd in a fake encounter but hc hatl hcen prevented from
submitting a charge-sheer on account of departmental and political pressure and on
thc contrary several policc oflicers of the Crime Branch had thrcatened him with
dire consequences if hc continuud with the investigation irnd that they had also
madc complaints against him accusing him of bias. t.lc also deposed that on thc
allegations made againsr D.S.P. Yadav a departmental inquiry had been held by
Mr. Tirth Raj, lnspecror General of Police, who in u rup()rt written in hand
absolved of him any *rtrng doing and in addition canru ttr rhe other signiticant
conclusion that the decr:ascd hatl heen killed in a fake crrcourrrer hut on instructions
tiom thc then Minister ot Starc for Home and Law rnti Jusricc and the D.G.p.
chakraborty the reporr and all inculpatory material had hr:crr destroyed. He, further
k=-
213
statcd that several othe r porsorls including Mr' Anand Yagrrik' Advocate' had read
the reptlrt written by lvlr. 'firth Raj and that a sting opcrirtion carried out by Ashish
Khetan of the Tchclkir Ncws magazine in the year 2007 Mr' Tirth Raj had
discussed the issues ol rhc I'ake encounter and allictl Initttcrs which had been
vitleographed, which provetl that the allegations against the policc oll'icers were
correcr. Mr. Tirth Raj was rcquested to file a reply to rhr: irlfidavit but no affidavit
was lirrthcoming for somctime but a reply was filed by I)'S.P. A.M'Patet instead of
Mr. l'irth Raj. On rccciring this reply I made an ortler tlared l5'h October,2017
that the so called altidlvir tiled by D.S.P. Patel was nol accoptable for the reasons
mentioned therein and it was directed that Mr. Tinh Rai himself should file the
atfidavit limiting his repll to the effect "whether arr inquirl had been held by him
or any report was in existence consequent thereto". Mr. I-irrh Raj thereatter filed a
short al'fidavit in which hc caregorically denied rhar an) deparrmcntal inquiry had
been hcld by him or any ctlnclusions drawn and that hr had never been assigned
any inquiry or conductcd irny departmental inquiry against D.S.P. Yadav and no
report had been preparcd by him and that there was n() question of any political
intcrl'erence. Sarfarazkhan thereafter filed yet an,trrur affidavir dated 4'h
Novemher,2017 whcrcin he sought to clarify thar wherr hs had relcrred to a
departmcntal or administrative inquiry he did not mean ir bc understood as in
service jurisprudence, but an inquiry which had been errrusred to a senior police
,ka
2L4
otTiccr to look into complaints made amongst poliee olricers and he also
reiteratcd the allegati.*s rnade in the earlier affidavit tli,tccl l0'h May,20l7 and
clarified that Mr. Tirth Ral had prepared a20page reP()rl in his own handwriting
indicring several policc ofllcers as also some persons lrorn the Chief Minster's
oltice. In paragraph .5 rrf this atfitlavit Sarfarazkhan dtposed that a sting operation
had bcen carried out hy Ashish Khetan of the Tehelkir Wcckly and that he had
accompanied Ashish Khctan when he had met Mr.'firth Rai though he (deponent)
was unaware thar lhe corrcspondent was carrying a \pv cilmeta to record the
discussion and in this sting operation he had referred to the 20 pages report which
hc had prepared and arlnrittcd that there had been a large scitlc cover up in the
encounter death. A copr ol thc video recording the convcrsatiun and a transcript ol'
the conversation was also appcncled alongwith the ailidavir. An affidavit dated 2nd
Fcbruary, 2018 in reply has buen filed by Mr. Tirth Ra.j in which he has admitted
the rccording but oncc again denied that any departnrcnral or any othcr intluiry
whatsoever with respect r. D.S.P. Yadav had been held by hirn and as a necessary
corollary there was no qucstion of having prepared anv rcport. He also denied that
he had handed over {irur uncerlified documents rell'rred to in Sart'arazkhan's
alfidavit during the clandusrine sting operation as therc would have been n. reason
whatsocver tbr him to carry thesc documents which wcre purportedry relating to
general, and thc same had their roots in whlt I had uathered from thc
media. throuuh the sraoevine and frr-lm unconlirmed inouts from the
intb mal chl n ne ls.
9. It may als0 be pertinent to clarify thar thc cvunts pertaining to the
encounter-death ol' ShriSamirkhan related ro thc period from October-
2002 (whcn the encounter-death of the tlecuasccl had taken place) to
Decembur-l(X)3(when a final report secking abatcd summary was
filed by thc Statc CID (Crime) in rhe juristiicrional Court), and rhat I
had remainctl on Central Deputation ourside Cujarat from January
1999 to Jurre 2(X).3. tlence, I submit thar ir wus nor physical possible
2t5
the rccrlrd of the Commissione r of Police, Ahmedabad Oirl and others. Paras No'8
and 9 of the affidavit are rcproduced below:-
"8. Regarling the contents of Tehelka slinB operalion' I affirm that
my inlbrmal d iscussion/assertions/obse rv i.r t io ns figuring therein were
not based on irny ofticial record, official lindings. personal knowledge
of the rclrrtcd cvents, first hand informatrtrn regarding the events or
any inquiryi investigation personally contluclctl by me. I submit that
the assc rtions/observations attributed to mq. on the basis of thc
Tehelka sting operation were mv perstrnal views. opinion and
misgivings abtlut the event in ouestion 4!d police encounters in
tu,,I .-:
216
for me to have any "personal knowledge" of any of the events that had
allegedly taken place during the period of my absence from Gujarat' It
was also not possible for me to have "derived knowledge" of the
alleged events, as I had no occasion whatsoever to investigate the
case, supervise its investigation, conduct any inquiry into any
application from any of the parties concerned or to conduct any
inquiry into the encounter-death in question' In the absence of
nal ed e" well "deriv wl e
di t n tute nabl
ShriSami khan wAS killed tn a fake encounter or to claim that somer
admin trative litical authorities had a dubious role to la ln
n unter as a n one. rh
to the official reCOrd had made s neralized and off-the- ff remarksI
in emoathizins with the father of the deceased d hedeceased's
who la I out to be the media nwhohr
estin recorded rtofm
conversation) who
c n info
had nrese nted t emselves befo me as victims ofre
alleped hish -han edness of State authonlv and has oersons who
desoera tel wan ted to be somehow heloed and gu ided in their pursuit
for al Ital remed v While aimino at not hurtins or not he ln rude to
b'.
277
the close rclatives of a oerson killed in r:xch anse of fire with the
police and in mvbidto SCAD their insistc n(:e for a coov of mv
r rt that r di t exlstI rdi lve evaslv re tha
could satist them and also convince thenr as o how their dvocate's
contentions and methodolosv could be given a chance."
A summary of thcse two paragraphs would reveal that thc lactum of the recording
has not been denied hut sorne of the allegations that have bcen made particularly
to the cnquiry reporr and (o the destruction and substitution of documents, have
been specifically denicLl. It has been explained that thc obscrvations were made in
an inl.rmal discussi.n n.t based on any official records and were his personal
views which had been garhered from the media and inlirrmar channels , the more
s. that he had remained,n cenrral deputation out of Gu.jarat from January 1999 to
June 2(X)3 and it was, rhcrclbre, not possible for hirn ro have any personal
knowledge of the evcnrs or' the time. He has accordingry condemned the sting
operalion as being "clandestinery recorded" and thus coulci not be reried upon to
conl'irm any informati,n regarding the genuineness or otherwise of thc enc.unter
in queslion.
It is true rhar rhe expranation tendered and srlme of the conclusions
drawn by Mr' Tirth Raj with respect to the stingoperarion arc perhaps justified and
Iair as the recording w,s surreptitious and he was not in any way involve, or
tk"l/'
218
connccted with the invesrigation in C'R' No' 25 of 2002 i'e' encounter death of
Samirkhan and he can we ll complain lack of any pcrstrnal knowledge as to what
harJ rranspired. lt can also bc sat'ely assumed that despitc thc fact that Mr' Tirth Rai
has retbrred to certain tlocuments and he had immediately handed over lbur o[
rhcm ro Ashish Khoran thc cxplanation furnished by hirn in his affidavit has to be
accepted for the reas()ns given above but with somc decp reservations' Thc
encounter was of thc year 2002 and Mr. Tirth Raj had returned to Gujarat after
completion of his deputation period in 2003. The sting opuration was of the year
2007. ln this sequence ol cvents Mr. Tirth Raj cannot sinrpll pass off the recording
as gossip picked up through conversation and media channels or justily his
conversation as showing cmpathy for an aggrieved father. The affidavits filed by
Sarfarazkhan, the replies thoreto by way of affidavit and the video-recording
albrementioned rel'er l() somc very senior functionaries ol the State Government,
both political as well as administrative. The persons so named are not before me in
any of the proceedings in the light of the fact that my mandare is a limited one and
is conlined to the determination as to whether the l7 encounrers which have been
referred to the Monitoring Authority and the S.T.F. were stage managed custodial
killings or genuine encounrers. In this view of the matter, r am not ca[ed upon to
comment on all the allegations levelled by Sarafarazkhan or on all the answers
made by Mr. Tirrh Rai.'rhc broacr principle which has to bc kcpt in mind is that no
W
2t9
person should be prcludicially effected unless he or shc has been heard' This
principle finds notice in Section 8(b) of the Commission of Inquiry Act' 1952
which inter alia providcs that if the conduct of any person is required to be
examincd by the Inquiry Commission and if the reputatiorr o[ any person can be
prcjudicially efl.ected, thc Commission shall give a norice to that person so that he
can be heard in his riclcncc. Concededly this provision cannot be applied to the
proceetlings of the Monitoring Authority but the principlc behind the provision
must be read into thc prescnt proceedings as wcll. I, therefore, deem it
inapprtlpriate to makc any comment on the allegations. charges and counter
chargcs that have been nrade by Sarafarazkhan or Mr. 'l-irth Raj with respect to the
individuals concerne.i.fTlowever, Mr. Tirth Raj's recording, which I have seenLtwice over, and the convicrion and the confidence wirh which he has spoken out
conllrm my suspicion thar rhcre was something drastically amiss in the dearh and
investigation in Samecrkhan's case. I, therefore, deem ir appropriate to use the
inlbrmation conveyetl in rhe recording for the limircd purpose of finrJing yet
further support for my conclusion that the killing of the deccased was indeed the
resull ol a fake cnc.untcr. lam therefore, of the tlpinion that Inspecror
K'M'vaghela and Inspccrur T.A.Barot at the first insrancc be prosecuted for
murder and other relevirnr oftences and if it is found during rhe trial that there is
l^,
220
evidence against others as well, they too should be brought in as per law' Inspector
A.A.Chauhan has since passed away' No proceedings against him are possible'l
There is one final matter which needs to be taken care off'
Sarfarazkhan has filed an application dated 16'h May,2017 seeking compensation
on account of his son's murder. He has pointed out that the allegations made
against him in C.R. No. 25 of 2002 registered by the Crime Branch' Ahmedabad
had resulted in the discharge of the co-accused of the deceased with a positive
finding that there was no evidence with regard to the allegations made and that he
(Sameerkhan) being dead could not be formally discharged. He has further stated
that he had been working as a bus driver in the Ahmedabad Municipal Corporation
and had been in service for more than 30 years but had been dismissed from
service after his son had been declared an absconder and was accordingly not
receiving any retirement benefits. He further stated that after his dismissal he had
worked as a driver with Mr. Anand Yagnik Advocate, upto 2014 but on account of
poor health and eyesight he had resigned from that job as well that his income of
Rs.100l per day was derived from hiring out his three wheeler auto. He further
stated that he had two sons initially, and whereas sameerkhan had been killed in
2002, the second son, Shezadkhan, had died of Tuberculosis in the year 2015 and
due to these factors he was now called upon to look after his widow and children
as well. A response was sought from the S.T.F. An affidavit has been filed by
22L
D.S.P. Patel wherein the facts given by Sarfarazkhan with respect to his family
details have not been denied. It has been admitted that Shezadkhan's wife and her
Admittedly Sameerkhan deceased was unmarried and as per the
statement made by his father was a rickshaw puller by profession. In the light of
the facts pointed out by Sarfarazkhan in his application and the prolonged litigation
which has been tortuous and agonizing for the family and in the light of the
conclusions drawn by me that the deceased had met a custodial death, I deem it
appropriate to grant a sum of Rs.10 lakhs as compensation to Sarfarazkhan.
)4"1" 2iaa-Justice Harjit Singh Bedi
Dated: February 26, 2018.RSK
two children aged 16 and 4 years have also to be maintained.
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