Delhi District Court
State vs . 1. Saqib Rehman @ Masood, on 2 February, 2011
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 24/10.
Unique Case ID No.02405R1310232005.
State Vs. 1. Saqib Rehman @ Masood,
S/o Sh. MahmoodurRehman,
R/o Lal Nagar Colony, Chanapora,
P.S. Sadar, District Badgaon,
Srinagar,
Kashmir.
2. Bashir Ahmed Shah @ Basir,
S/o Sh. Gautam Mohammad Shah,
R/o Village Nagabai Trai, P.S. Trai,
District Pulwama Kashmir,
Presently residing at :
C/o Maharashtra Wani, Dalgate Colony,
P.S. Gagribai, Srinagar.
3. Nazir Ahmed Sofi @ Doctor Nazir,
S/o Sh. Mohd. Jabbar Sofi,
R/o H.No.24, Old Barzula Colony,
P.S. Sadar, Sadar District,
Srinagar,
Kashmir.
SC No.24/10. Page 1 of 112
4. Hazi Gulam Moinuddin Dar @ Zahid,
S/o Sh. Gulam Rasool Dar,
R/o Village Putrigam, P.S. Rajpora,
District Pulwama,
Kashmir.
5. Abdul Majid Bhat,
S/o Sh. Wali Mohd. Bhat,
R/o Village & Post Zewan,
P.S. Pantha Chowk,
District Srinagar, J&K.
6. Abdul Qayoom Khan,
S/o Late Sh. Ali Mohd. Khan,
R/o H. No.242, Yarwari Lal Nagar,
Chanpora,
Srinagar, J&K.
7. Birender Kumar Singh,
S/o Sh. Kailash Singh,
R/o /o Awadesh Sinha, Poorvi Lohanipur,
P.S. Kadam Kuan, Patna, Bihar.
Permanent Resident of Village Kumhala,
P.S. Charpokari, District Bhojpur, Bihar.
Date of Institution : 30.8.2005.
SC No.24/10. Page 2 of 112
FIR No. 146 dated 02.7.2005.
U/s. 307/353/186/489(c)/482/120B/34 IPC &
25/27 Arms Act & 3/5 Explosives Act.
P.S. : Kapasahera.
Date of reserving judgment/Order : 18.1.2011.
Date of pronouncement : 02.2.2011.
JUDGMENT
1. The aforesaid seven accused have been branded as Kashmiri terrorists by the police and have been chargesheeted for various offences under Indian Penal Code, Explosive Substance Act and Arms Act. Accused Birender Kumar Singh and Abdul Qayoom Khan are out on bail, whereas the other five accused are languishing in jail since the date of alleged incident i.e. 02.7.05. However, the contention of these accused is that they were apprehended by the police much before 02.7.05 and were kept in illegal custody and were shown to have arrested on 02.7.05 after fabricating an imaginary incident. According to them, they are totally innocent and no occurrence at all took place on 02.7.05 and they have not committed any of the offences for which they have been chargesheeted.
2. Whether or not, the accused are innocent would be seen SC No.24/10. Page 3 of 112 as this judgment goes on but I would like to remind myself here that claim of innocence is the constitutional right of the accused. It is a golden rule of the criminal jurisprudence of the country that an accused is presumed to be innocent unless he either admits his guilt or is proved to be the guilty by the prosecution.
3. Now the prosecution story first.
In June, 2005, SI Ravinder Kumar Tyagi was posted in the office of Special Staff, South West District, Delhi. On 27.6.2005 a secret informer provided to him information that two Kashmiri's Masood & Zahid, who have been involved in terrorist activities earlier also, have made their base in Delhi and have been staying in Delhi in the past about one or 1½ months and are about to strike in Delhi, Gurgaon and other satellite towns of Delhi. This information was recorded as DD No.6 dated 27.6.05 in the office of Special Staff. SI Ravinder Tyagi apprised his senior officers about such secret information and asked the informer to develop the information further. Thereafter, nothing happens for a few days. On 01.7.05 at 10.30 p.m., the same secret informer again came to the office of Special Staff and informed SI Ravinder Kumar Tyagi that the Kashmiri terrorists Masood & Zahid, alongwith their two associates, are about to come to SC No.24/10. Page 4 of 112 Delhi at 12.30 a.m. (approx.) from Gurgaon in a blue Tata Indica Car bearing No.HR26S0440. A large number of arms and ammunition is in their possession and they can be apprehended, if trap is laid. This information is recorded as DD No.12 dated 01.7.05. SI Ravinder Tyagi brought this information to the notice of his senior officers and also formed a raiding party consisting of SI Raj Kumar, ASI Charan Singh, ASI Nirakar Sharma, HC Raj Kumar, HC Ombir Singh, Ct. Surender Singh, Ct. Vinay, Ct. Dinesh Kumar, Ct. Raja Ram, Ct. Zaffar Khan, Ct. Kishan, Ct. Sanjay Singh, Ct. Rohtash, Ct. Santraj and Ct. (Driver) Suresh, which set out for the task in two vehicles, a Gypsy and Swaraj Mazda.
4. The raiding party laid a trap on Gurgaon Delhi Road near NH8 & Rajokri Crossing at about 11.30 p.m. At about 12.45 a.m. Blue colour Tata Indica Car No.HR26S0440 was seen coming from Gurgaon Road. On being signalled to stop, it sped towards Delhi and took turn towards Samalkha Village on account of traffic diversion. Police chased the said car and was made to stop near Randhawa Farm House with the help of Police Gypsy which had overtaken it. The other police vehicle Swaraj Mazda blocked the Tata Indica car from behind. Accused Saqib Rehman @ Masood, who was sitting on the SC No.24/10. Page 5 of 112 front seat of the car immediately came out and fired two rounds on the police party with his pistol. SI Ravinder Tyagi fired one round in return from his service pistol. He and Ct. Vinay snatched away the pistol from the hand of Saqib Rehman. Accused Nazir Ahmed Sofi @ Doctor, who was on the driver's seat of the Tata Indica vehicle was exhorting Saqib Rehman to shoot at police party but was overpowered by ASI Nirakar Sharma. Accused Gulam Moinuddin Dar sitting on the back seat of the Tata Indica vehicle tried to remove pin of the handgrenade, which he was holding in his right hand but was overpowered by Ct. Surender Singh, who also removed the handgrenade from his hands. The fourth person accused Bashir Ahmed Shah @ Basir was exhorting Gulam Moinuddin Dar to hurl the handgrenade upon the police but was overpowered by HC Raj Kumar.
5. SI Ravinder Tyagi checked the pistol recovered from Saqib Rehman and found four live rounds of 7.62 bore loaded in the magazine and one live round in the pistol chamber. The same were unloaded. Two catridges fired by Saqib Rehman @ Masood on the police party were found lying on the ground and taken into possession. On the personal search of Nazir Ahmed Sofi, 12 live catridges of 7.62 SC No.24/10. Page 6 of 112 bore were recovered having been kept in a polythene bag. HC Raj Kumar conducted personal search of Bashir Ahmed Shah and recovered 35 bullets of AK47 assault rifle kept in a yellow colour polythene bag, from the right pocket of his pant.
6. Thereafter, SI Ravinder Tyagi prepared a rukka and sent it to the P.S. Kapasahera through Ct. Surender Singh for registration of a FIR. The rukka was sent at 4.15 a.m. on 02.7.05 and the FIR No. 146/05 was accordingly registered at 4.33 a.m. U/s.307/186/353/34 IPC, Section 3 & 5 Explosives Act and Sections 25, 27, 54/59 Arms Act against the aforesaid four persons. Thereupon, SI Mahender Singh alongwith Ct. Surender Singh of P.S. Kapasahera reached the spot and conducted further investigation. SI Mahender Singh inspected the crime scene and prepared a site plan. He searched the Tata Indica vehicle and found a briefcase containing an Army Combat Uniform and fake currency of Rs.50,000/. From the personal search of Gulam Moinuddin Dar @ Zahid, a sketch of Palam Air Force Station was recovered by SI Mohinder Singh from his left pant pocket. He interrogated the four accused and arrested them. Their written disclosure statements were recorded by SI Mahender Singh, who also recorded the statements of other witnesses U/s.161 Cr.PC. SC No.24/10. Page 7 of 112
7. It is alleged in the chargesheet that during their interrogation, the aforesaid four accused disclosed that they are working as per the directions of ISI agency and also gave information about their associates in J&K and the arms/ammunition kept by them in J&K.
8. During investigations, it was revealed that the four accused had been staying in Hotel Baba Continental, Saraswati Marg, Karol Bagh, Delhi. A team lead by ASI Charan Singh alongwith accused Saqib Rehman and Gulam Moinuddin Dar was sent to Srinagar and another team lead by SI Mahender Singh alongwith accused Bashir Ahmed Shah and Nazir Ahmed Sofi was sent to Patna, Bihar, for arrest of coaccused and recovery of arms/ammunition etc. The team lead by ASI Charan Singh arrested accused Abdul Qayoom Khan on 07.7.05 and recovered fake currency notes of Rs.5,000/ from his possession. One AK47 Assault Rifle, 2 magazines, 130 live catridges, 2 handgrenades & 3 UBGL grenades were recovered at the instance of accused Saqib Rehman. Ten UBGL grenades alongwith one wireless set No.144057 were recovered at the instance of Gulam Moinuddin Dar. Another accused Abdul Majid Bhat was also SC No.24/10. Page 8 of 112 apprehended on 11.7.05 by ASI Charan Singh from Paharganj, New Delhi, Opposite Railway Station and recovered 3 detonators from his travel bag. During further investigations, a part of the amount received by this group from their mentors in ISI of Pakistan, was recovered at the instance of Saqib Rehman from bank accounts in Srinagar and Delhi. The amount of Rs.4.5 lacs was found deposited by accused Saqib Rehman in his father's A/c No.13043 in J&K Bank, Connaught Place, Delhi, on 11.5.05 and on 16.5.05 a sum of Rs. 50,000/ had been deposited in the same account. A further sum of Rs.50,000/ had been deposited in A/c No.11052 of Mahmoodur Rehman, the father of Saqib Rehman, in J&K Bank, Srinagar, on 17.5.05. Sh. MahmoodurRehman had the knowledge about the deposit of aforesaid sum by his son Saqib Rehman in his bank accounts and also withdrew an amount of Rs. One lac from J&K Bank, Srinagar, on 04.7.05 i.e. after the arrest of Saqib Rehman. ASI Charan Singh tried to trace him but did not find him.
9. On 19.8.05, SI Mahender Singh alongwith other staff again left for Patna to arrest accused Birender Kumar Singh. He was arrested on 21.8.05 with the help of police officials from P.S. Gandhi Maidan, Patna. Birender Kumar Singh was formally arrested in this SC No.24/10. Page 9 of 112 case on 22.8.05 and fake currency in the sum of Rs.82,000/ was recovered at his instance from Patna. His associate Mohd. Wahid, R/o Samastipur, Bihar, could not be apprehended for want of complete details.
10. During further investigations by SI Mahender Singh, it was revealed the HR26S0440 was not the real registration number of the Tata Indica vehicle of the accused but a false one. Its actual registration number was HR51M6358 and the same was registered at Faridabad, Haryana, in the name of one Azad Singh Yadav and the said vehicle was wanted in case FIR No.527/03, U/s.406 IPC, P.S. Pandav Nagar, Delhi. The car was sold to Saqib Rehman by one Surender, who could not be apprehended. Recovery of the vehicle was conveyed to the concerned police station.
11. It is further alleged that during investigations, it was revealed that accused Saqib Rehman @ Masood has been involved in other criminal cases in J&K.
12. The arms and ammunition seized from the accused by the police was sent for examination to FSL, Rohini, Delhi, by SI SC No.24/10. Page 10 of 112 Mahender Singh. The fake currency recovered from the group was sent to Govt. Press, Nasik, for opinion. The permission to explode/destroy the grenades was sought from the concerned court. The sanction for prosecution of the accused under relevant provisions of Arms Act as well as Explosive Substance Act was also sought.
13. After the conclusion of the investigation of the case, as aforesaid, Charge Sheet was laid before the Court against the accused for the offence U/s. 307/353/186/489(c)/482/120B/34 IPC & 25/27 Arms Act & 3/5 Explosives Act.
14. Charges were framed against all the accused on 20.5.06 as follows :
Against accused Abdul Mazid Bhat :
"that on 11.7.2005 at about 8.10 pm at Railway Station, New Delhi, Pahar Ganj, Delhi within the jurisdiction of PS Kapashera, you were found in possession of three detonators with lead, an explosive substance which were under your control and was not for a lawful object and thereby committed an offence punishable u/s 5 of Explosive Substance Act and within SC No.24/10. Page 11 of 112 my cognizance."
Against accused Saqib Rehman @ Masood :
"that on 2.7.2005 at about 12.55 am (night) at Main road near Randhawa Farm House, Samalakha Road, New Delhi within the jurisdiction of PS Kapashera, you were found in possession of a pistol and four live cartridges of 7.62 bore without any valid licence or permit and you had fired the shots in commission of offence punishable u/s 307 IPC and on 8.7.2005 you got recovered one AK47 riffle, two magazine, 130 live cartridges, two hand grenades and 3 UBGL grenades from your house Lal Nagar Colony, Chanpura, Sri Nagar and thereby committed an offence punishable u/s 25/27/54/59 of Arms Act and within my cognizance."
Against accused Nazir Ahmed Sofi @ Dr. Nazir :
"that on 2.7.2005 at about 12.55 am (night) at Main road near Randhawa Farm House, Samalakha Road, New Delhi within the jurisdiction of PS Kapashera, you were found in possession of 12 live cartridges of 7.62 bore SC No.24/10. Page 12 of 112 without any valid licence or permit and thereby committed an offence punishable u/s 25/54/59 of Arms Act and within my cognizance."
Against accused Basir Ahmed Sofi @ Basir :
"that on 2.7.2005, at about 12.55 am (night) at Main road near Randhawa Farm House, Samalakha Road, New Delhi within the jurisdiction of PS Kapashera, you were found in possession of 35 live cartridges of AK 47 assault riffle without any valid licence or permit and thereby committed an offence punishable u/s 25/54/59 of Arms Act and within my cognizance."
Further Charge framed against accused Saqib Rehman @ Masood, Basir Ahmed Shah @ Basir, Nazir Ahemd Sofi @ Dr. Nazir and Hazi Gulam Muhiddin Dar @ Zahid is as under: "that on 2.7.2005 at about 12.55 am (night) at Main road near Randhawa Farm House, Samalakha Road, New Delhi, within the jurisdiction of PS Kapashera, you all in furtherance of common intention voluntarily obstructedSI SC No.24/10. Page 13 of 112 Ravinder Kumar Tyagi, SI Raj Kumar, ASI Charan Singh, ASI Nirakar Sharma, HC Raj Kumar, HC Ombir Singh, Constable Surender Singh, Const. Vinay Kumar, Const. Dinesh Kumar, Const. Raja Ram, Const. Zaffar Khan, Const. Kishan Kumar, const. Sanjay Singh, Const. Rohtash and Const. Sant Raj of Special Staff, South West District, public servants in discharge of their public function and thereby committed an offence punishable u/s 186 r/w Section 34 IPC and within my cognizance.
Secondly, on the above date, time and place you all in furtherance to you common intention used criminal force to SI Ravinder Kumar Tyagi and his team, the public servants namely police officials of Delhi Police in execution of their duties as such public servants or with intend to prevent or deter such public servants from exercising their duties or in consequence of anything done or attempted to be done by police officers in lawful discharge of their duties as such public servants and thereby committed an offence punishable u/s 353 IPC read with Section 34 IPC and within my cognizance.
Thirdly, that on the above mentioned date, time and SC No.24/10. Page 14 of 112 place, you all in furtherance of your common intention fired two founds aiming at SI Ravinder Kumar Tyagi and tried to throw hand grenade on police party with such intention or knowledge and under such circumstances that by that act you had caused the death of SI Ravinder Kumar Tyagi and Police party you would have guilty of murder and thereby committed an offence punishable u/s 307 read with Section 34 IPC and within my cognizance. ' Fourthly, that on the above mentioned date, time and place, you all in furtherance of your common intention used false property mark an army combat uniform to denote that the army uniform belong to you and that such marking was done with an intention to defraud and thereby committed an offence punishable u/s 482 IPC read with Section 34 IPC and within my cognizance.
Fifthly, that on the above mentioned date, time and place, you all were found in possession of four counterfeit currency notes five packets of rupees 100 denomination (Rs. 50,000/) knowing or having reasons to believe that the same to be forged or counterfeit and intending to use SC No.24/10. Page 15 of 112 them as genuine and thereby committed an offence punishable u/s 489 (C) IPC and within my cognizance.
Sixthly, that on the above mentioned date, time and place, you all were found in possession of hand grenade an explosive substance and you had attempted to cause explosion by trying to throw it on police party with intend to endanger life or property or to cause serious injury and at that time the explosive substance i.e. hand grenade was under your control and thereby committed an offence punishable u/s 4 of Explosive Substance Act and within my cognizance.
Seventhly, on the above said date, time and place, you all were found in possession of hand grenade, an explosive substance and on 8.7.2005 you Saqib Rehman @ Masood got recovered one AK47 assault riffle, two magazine and 130 live cartridges, two hand grenade and 3 UBGL grenade, an explosive substance from your house at Lal Nagar Colony, Chanpura, Sri Nagar and you Hazi Gulam Mohammad Dar also got recovered 10 UGBL grenade, an explosive substance and one wireless set from your house Village Putrigam, District Pulwama, Kashmir SC No.24/10. Page 16 of 112 on 8.7.2005 and the possession of explosives was not for a lawful object and thereby committed an offence punishable u/s 5 of Explosive Substance Act and within my cognizance."
Charge framed against accused Birender Kumar Singh :
"that on 22.8.2005 at your house Purvi Lohanipur, PS Kundan, Patna, Bihar, you got recovered 164 counterfeit currency notes of Rs. 500/ denomination (Rs. 82,000/) knowing or having reason to believe that the same to be forged or counterfeit and intending to use them as genuine and thereby committed an offence punishable u/s 489 (C) IPC and within my cognizance."
Against accused Abdul Qayum Khan Khan :
"that on 7.7.2005, at H. No.242, Yarwari,Lal Nagar, Chanpura, Srinagar, you got recovered 10 counter feit currency notes of Rs. 500/ denomination (Rs. 5000/) knowing or having reason to believe that the same to be forged or counter feit and intending to use them as genuine and thereby committed an offence punishable u/s SC No.24/10. Page 17 of 112 489 (C) IPC and within my cognizance."
15. The prosecution examined 32 witnesses in all to prove the Charges against the accused. It also tendered in evidence the FSL report dated 17.1.06 as Ex.PZ1 and two reports received from Govt. Press, Nasik, both dated 13.8.05 as Ex.PZ2 and Ex.PZ3.
16. The accused Saqib Rehman, Bashir Ahmed Shah, Nazir Ahmed Sofi and Gulam Moinuddin Dar in their statement U/s.313 Cr.PC have termed the alleged encounter dated 02.7.05 a fake one and have denied having been in possession of the Tata Indica vehicle (Blue colour) at any point of time. All the accused have also denied recovery of any sort of incriminating material from their search or at their instance. Accused Saqib Rehman had denied that he stayed in Hotel Baba Continental voluntarily as a guest or associate of Gulam Moinuddin Dar. According to him, he was kept in illegal detention by Delhi Police since 23.6.05 and his signatures were taken on blank papers by SI Charan Singh. According to him, accused Abdul Qayoom Khan was arrested from his house in Srinagar on 06.7.05 and accused Abdul Majid Bhat also was arrested in Srinagar and was brought to Delhi alongwith them on 10.7.05. According to him, he has SC No.24/10. Page 18 of 112 been implicated falsely in this case at the instance of certain criminal elements, whom he had got apprehended in a fake currency racket and arms/ammunition case in Srinagar. He gave information about the racket to DCP Devender Singh, who mischievously released the culprits without booking them.
17. Similarly, accused Haji Gulam Moinuddin Dar in his statement U/s.313 Cr.PC has denied that he had taken any room on rent in Hotel Baba Continental on 02.7.05. However, he admits that he was staying in this Hotel in the month of April, 2005 and June, 2005. He also stated that no encounter at all took place on the night intervening between 01.7.05 and 02.7.05 as alleged by the prosecution and further stated that he also was under illegal custody of Delhi Police since 16.6.05. He further stated that no recovery was effected from any of the accused or at their instance and he was made to sign certain blank papers after tutoring him and he did not know what had been written on those papers. He further stated that accused Abdul Qayoom was brought to police station Sadar, Srinagar, J&K, on 06.7.2005 where he alongwith other accused were already present. He denied having been made any disclosure statement. According to him, he was involved in anti militancy operations in Kashmir Valley and SC No.24/10. Page 19 of 112 was instrumental in surrender of various militants before the police. One Major Shama of Army Intelligence wanted him to get the militants surrendered before him, which he refused to do as he doubted the integrity of Major Sharma. Major Sharma remained posted in Kashmir for about six years and thereafter was transferred to Delhi as Lt. Colonel. In order to seek revenge from this accused, Major Sharma got him implicated in this case falsely in collusion with SI Ravinder Tyagi.
18. Similarly, is the stand of accused Bashir Ahmed Shah in his statement U/s.313 Cr.PC. He also claimed to have been in illegal custody of police since 16.6.05 when he was taken into custody by SI Ravinder Tyagi. According to this accused also, the story of encounter dated 02.7.05 is totally false and fabricated. He denied that any recovery was effected from any of the accused or at his instance and further stated that his signatures were taken on blank papers after torturing him in illegal custody. He further stated that he has been doing business with accused Gulam Moinuddin Dar in Kashmir and they were dealing in Guleanar Royal Tea. He states that Gulam Moinuddin Dar has some enmity with Major Sharma and were falsely implicated in this case on account of that enmity. SC No.24/10. Page 20 of 112
19. Accused Nazir Ahmed Sofi has also denied that any encounter had taken place between them and Delhi Police on the night intervening between 01.7.05 and 02.7.05. He also denied that he was arrested on 02.7.05. According to him, he was arrested on 20.6.05 when he landed at Delhi Airport in a Jet Airways flight from Srinagar alongwith his friends Shafat Ahmed and Mukhtar Ahmed and they had come to see a patient, who was admitted in AIIMS, which patient was related to one Farooq Ahmed, who was in custody of Delhi Police at that time. He was apprehended at the airport itself and kept in custody. Farooq Ahmed, Mukhtar Ahmed and Shafat Ahmed were let off after taking money from them, but he was implicated falsely in this case.
20. As per examination of accused Birender Kumar Singh U/s.313 Cr.PC no recovery at all was effected at his instance and he has been implicated falsely in this case as he had a quarrel with some police officials in his native village Bihar, who got him involved in this case in order to take revenge from him.
21. Accused Abdul Mazid Bhat has stated that he was SC No.24/10. Page 21 of 112 arrested in Srinagar on 08.7.05 and brought to Delhi on 10.7.2005. He denied that any recovery of incriminating material was effected from him or at his instance. He has also denied that any railway ticket was recovered from him from his personal search. According to him, he was having only Rs.800/ to Rs.900/ in his pocket and a mobile phone when he was apprehended and both of these were taken from him in Srinagar itself. He also claims to have been involved in anti militancy operations under DGP Gopal Sharma. He was also given a PSO by the J&K Government. One Major Sharma was posted in Kashmir at that time wanted his sources to work for him, but this accused did not oblige him. DGP Gopal Sharma tried to persuade him to work for him, but he refused to do so. Thus, Major Sharma bore a grudge against this accused and, therefore, got him implicated falsely in this case after being transferred to Delhi.
22. Accused Abdul Qayoom in his statement U/s.313 Cr.PC has stated that he was arrested on 06.7.05 in Srinagar. He states that he does not know father of accused Saqib Rehman, but only knows accused Saqib Rehman, who is his first door neighbour. According to him, some property dealing was going on between him and accused Saqib Rehman, pursuant to that deal, he paid a certain sum of money SC No.24/10. Page 22 of 112 to accused Saqib Rehman. He also stated that Abdul Mazid Bhat was brought from Kashmir alongwith him in the same vehicle. He denied the recovery of any incriminating material was effected from him.
23. On behalf of the accused, Haji Gulam Moinuddin Dar entered the witness box as DW1. I shall refer to his testimony in detail in later part of the judgment. The accused also summoned and examined Sh. Rajesh Kumar Chaudhary, Sr. Manager (Legal), Zee News Limited as DW2, but his testimony is not worth consideration as he did not prove anything either in favour of or against the accused.
24. I have heard the Ld. APP for State and the Ld. Defence Counsels Sh. Navin Gaur, Sh. S.N. Thakur and Sh. M.K. Singh. All of them took me through voluminous evidence recorded in the case and the documents referred to and proved by various witnesses produced by the prosecution as well as by defence witness DW1. According to Ld. APP, all the Charges against the accused stand fully established and they are liable to be convicted for the same. However, Ld. Defence Counsels have submitted that the prosecution has failed to prove the Charges against the accused and the accused are, therefore, liable to be acquitted.
SC No.24/10. Page 23 of 112
25. The case of the prosecution starts with recording of DD No.6 dated 26.6.05 (Ex.PW12/A) in the office of Special Staff, South West District, Delhi, on the basis of information received by SI Ravinder Kumar Tyagi to the effect that two Kashmiries namely SaqiburRehman @ Masood and Gulam Moinuddin Dar @ Zahid, who have been involved in the terrorists activities earlier also, have made their base in Delhi for the past of one and a half months and were about to strike in Delhi, Gurgaon and other satellite towns of Delhi. SI Ravinder Tyagi has testified for the prosecution as PW12. In his testimony before the Court, he has deposed that he advised the informer to develop the information further. It is quite astonishing and intriguing that he did not pass on such valuable information regarding alleged Kashmiri terrorists to his senior officers or to intelligent agencies like IB and RAW. He kept quite and simply advised the secret informer to develop the information further.
26. It is shocking and unbelievable that when the country is engulfed in terrorism from Kashmir to Kanyakumari, a police officer getting certain leads about the Kashmiri terrorists would remain silent and idle. Admittedly, this police officer SI Ravinder Tyagi did not do SC No.24/10. Page 24 of 112 anything till 01.07.05 night. What, if the terrorists, about whom he had been informed by his informer, would have struck by that time and wreaked havoc in and around Delhi. This leads me to only two conclusions, either there was no such information or the SI Ravinder Tyagi did not act deliberately for certain ulterior and motivated reasons.
27. As per his deposition, the secret informer approached him again on 01.7.05 in his office and informed him that Zahid and Masood alongwith two other associates were coming to Delhi from Gurgaon in a Tata Indica Car bearing No.HR26S0440 blue colour alongwith illegal arms and ammunition. He recorded this information as DD No.12 (Ex.PW12/B). According to him, he brought this information to the notice of senior officers and on their directions, he formed a raiding party. This is what this witness PW12, the author of D.D. No.12 has stated in his examinationinchief. He contradicts himself in his cross examination on this point. In the cross examination dated 23.05.09 at pages 3 & 4, this witness deposes that he had developed the secret information himself through technical surveillance as well as through other secret informer/sources. However, it is worthwhile to note that there is no record regarding the SC No.24/10. Page 25 of 112 steps taken by this PW12 to develop the information either in any of the DD's or in the Case Diary. He even did not explain in the Court as to what kind of technical surveillance did he do and with the help of what technical equipment. At page 4 of the aforesaid cross examination, he states that the informer provided to him only the code name of terrorists on 27.06.05 as Masood and Zahid. Then how could he get to know the real identity of the alleged terrorists? According o him, again by technical surveillance. What kind of technical surveillance, he fails to explain.
28. He then goes on to say that he checked the veracity of the secret information from Central Intelligence Agencies through his senior officers. Though there is no record about the same, yet no senior officer has come to depose about the said verification. Which central intelligence agency was contacted and what reply was received from it regarding the terrorists, has neither been recorded anywhere nor disclosed in Court. At the same time, this PW12 deposed in the same cross examination at page 4 that he did not check the antecedents of the persons named in the secret information from J&K as he was not having complete details. Thus, he contradicts himself. Earlier he stated that he decoded the names of terrorists by technical SC No.24/10. Page 26 of 112 surveillance but now says he did not have complete details regarding these persons given by any central intelligence agency to his senior officers. Hence it still remains a mystery as to who developed the secret information further in order to get the complete details about the alleged terrorists and how? Was it the secret informer or SI Ravinder Tyagi or his senior officers? It also remains a mystery as to why there is no record of the same. It is recorded in DD dated 26.06.05 (Ex.PW12/A) that the terrorists are going to strike in Delhi and its satellite towns, which include Gurgaon, Faridabad, Noida, Sonepat etc. PW12 fairly admits in his cross examination that he did not inform the police officers or the State intelligence agencies of Haryana or U.P. but fails to give any specific reason for the same.
29. Further testimony of this witness in his cross examination shakes the prosecution case as well as the veracity of this witness terribly. It is recorded in DD dated 01.07.05 (Ex.PW12/B) proved by this witness that the secret informer told him that the two terrorists are about to reach Delhi from Gurgaon alongwith their two more associates and huge haul of arms/ammunition in a blue colour Tata Indica vehicle bearing registration No.HR26S0440. It is said that truth cannot be hidden too long and it has to come out. Similarly, this SC No.24/10. Page 27 of 112 witness could not suppress the truth any more and revealed the same in his cross examination dated 23.5.09 at page 4 saying that the secret informer did not tell him about the type of vehicle being used by the terrorists despite his asking as he was not aware of the same. He further deposes that the secret informer did not tell him about the nature & type of arms being carried by the terrorists as he was not aware of the same.
30. To my mind, the whole prosecution case gets demolished by the aforesaid deposition of its star witness PW12 SI Ravinder Tyagi itself. This witness has himself revealed the falsehood of the contents of DD No.12 (Ex.PW12/B) on which the case of the prosecution is founded. It is the case of the prosecution that the raiding party was formed to nab the terrorists, who would be coming from Gurgaon to Delhi in a blue colour Tata Indica car No.HR26S0440. Then wherefrom did the police and more particularly this PW12 came to know about the details of the car to be used by the terrorists? No answer is coming forth from any of the witnesses examined by prosecution. It is again a mystery. It seems that there are more and more mystries in this case then the secret information itself received by this PW12.
SC No.24/10. Page 28 of 112
31. It is worthwhile to note here that original of both the aforesaid DDs have not been produced before the Court. Only the attested copy has been produced, which has been marked as Ex.PW12/A and Ex.PW12/B. This creates doubt regarding the authenticity of the DD's itself.
32. Since the case of the prosecution is totally founded upon the secret information received by PW12, which has been recorded by him in the shape of DD No.6 dated 27.6.05 and DD No.12 dated 01.7.05, in my opinion, it was necessary for the prosecution to examine the so called secret informer, who provided such information to SI Ravinder Tyagi, PW12. It is very difficult to rely upon such a secret information and to nail the accused on the basis of the same, in the absence of the testimony of the said secret informer, which needed to be tested on the touchstone of the cross examination by the accused. A secret information received by the police cannot be made the basis of conviction of the accused unless and until the secret informer is examined before the Court and subjected to cross examination by the accused.
SC No.24/10. Page 29 of 112
33. In the present case, in view of my observations herein above, it is apparent that the secret information projected by SI Ravinder Tyagi is absolutely fake and fabricated and no such information at all has been received by him. If in fact, such kind of secret information would have been received by SI Ravinder Tyagi, he would have immediately passed on the same to the Central Intelligence Agencies such as CBI, RAW etc. for the necessary action on their behalf. He would not have remained silent for about five days after receiving such information. He would have grilled this secret informer about the source of his knowledge and information, and above all, the secret informer would have examined as a prosecution witness before the Court. Also there would not have been the discrepancy between the contents of DDs and the deposition of their author, PW12 before the Court as stated by me hereinabove.
34. In the examinationinchief, PW12 has stated that after receipt of secret information on 01.7.05, which he recorded as DD No. 12 (Ex.PW12/B), he, on the directions of senior officers formed a raiding party consisting of SI Raj Kumar, ASI Charan Singh, ASI Nirakar, HC Raj Kumar, HC Ombir, Const. Dinesh, Const. Krishna, Const. Rohtash, Const. Raja Ram, Const. Sanjay, Const. Surender, SC No.24/10. Page 30 of 112 Const. Sant Raj, Const. Vinay and Const. Zafar. Thus, the raiding party consisted of 15 police officials including SI Ravinder Tyagi. He does not disclose as to under the directions of which of the senior officers, he formed the raiding party. No such direction in writing has been produced on the record or proved by this witness. However, this witness has testified in his cross examination that he formed the raiding team for the apprehension of the terrorists as per advice of his immediate senior officers i.e. ACP Sh. R.P. Meena and DCP Sh. Deependra Pathak. It may be noted here that the raiding party was formed in late hours of 01.7.05. The accused have proved reply dated 31.7.09 (Ex.DW1/1) sent to them by an Addl. DCP (P.I.O) South West, New Delhi, to their application under Right to Information Act, wherein it has been stated that Sh. Deependra Pathak was posted as DCP South West, Delhi, from 23.6.04 to 27.6.05 and thereafter Sh. Ravinder Yadav took the charge of DCP. This means that on 01.7.05 the DCP South West, Delhi, was Ravinder Yadav and not Sh. Deependra Pathak, from whom PW12 alleges to have received directions for the Constitution of the raiding party. ACP R.P. Meena has been examined as PW22. He nowhere states in his examination inchief that he was apprised about the secret information received by SI Ravinder Tyagi on 01.7.05. He also does not say that he gave SC No.24/10. Page 31 of 112 directions for forming a raiding party to nab the terrorists. In his cross examination, he specifically deposed that he came to know about the circumstances and apprehensions of the accused as well as the recoveries effected from them on 02.7.05. He has only proved the filing the complaint U/s.195 Cr.PC dated 09.8.05 as Ex.PW22/A.
35. He further states that he did not issue any guidelines to SI Ravinder Tyagi in this case. He tried to shield SI Ravinder Tygi by saying that he has informed about the secret information wherein accused were referred to as Kashmiri militants. He admits that under such circumstances, intelligence agencies ought to have been informed but were not informed. He also admitted that the DD entries recorded in this case were neither shown to him nor produced before him. Spilling further beans, he says that SI Ravinder Tyagi had conveyed to him on 27.6.05 that accused SaqiburRehman, Gulam Moinuddin Dar, Nazir Ahmed Shah and Bashir Ahmed Shah (Kashmir based militants) are already in Delhi and planning to create terror at VVIP places. Then says he was told so on 01.7.05.
36. This implies that SI Ravinder Tyagi was aware about the names of the terrorists even before the so called encounter whereas the SC No.24/10. Page 32 of 112 secret informer had given the two names only as Masood and Zahid. How can it be so? Only when the accused were known to him already and he was conspiring to implicate them in a false criminal case. It also becomes evident from following portion of the cross examination of this PW22 :
"At the time, raiding party left the office of Special Staff, I was at my house. SI Ravinder Tyagi had informed me at 10.30 p.m. that he is leaving for the raid at Kapasahera. I do not remember whether he sent a messanger or informed me on telephone. I discussed the manner, in which the raid is to be conducted, and also gave information. Volunteered : during day time itself, it was discussed as to how raid is to be conducted and where it is to be conducted. I cannot tell the time regarding discussion of raid as it was an on going process."
37. The aforesaid testimony of PW22 shows that the modus operandi of the raid was discussed during the daytime whereas SI Ravinder Tyagi received the secret information about the travel of terrorists from Gurgaon to Delhi in the evening. It is, therefore, SC No.24/10. Page 33 of 112 apparent that the story about the receipt of secret information and subsequent raid was in fact, scripted earlier in the day and that the accused were already in the custody of Delhi Police. A plan was being devised in the office of Special Staff to implicate the accused in a serious offence.
38. DCP Ravinder Yadav, who took over charge from earlier DCP Deependra Pathak, has not been examined as a prosecution witness. Deposition of PW22 shows that he did not direct formation of the raiding party. Then how and under whose directions, did SI Ravinder Tyagi form the raiding party is not discernible from the whole gamut of evidence on record. Thus, the prosecution has failed to prove the formation of the raiding party itself.
39. Assuming that the secret information received by PW12 SI Ravinder Tyagi was true and genuine. The information received by him on 01.7.05 was to the effect that two terrorists Zahid and Masood alongwith two other associates are about to enter Delhi from Gurgaon side alongwith arms and ammunition in a blue colour Tata Indica vehicle bearing No.HR26S0440. It is to be noted that the raiding party was formed pursuant to the aforesaid information to nab the so SC No.24/10. Page 34 of 112 called terrorists, but admittedly neither was Bomb Disposal Squad informed about such information and asked to reach the particular place nor was any member of Bomb Disposal Squad included in the raiding party. As per the deposition of SI Ravinder Tyagi and other witnesses, a trap was laid to nab these terrorists at Rajokri Red Light on the Delhi Gurgaon Highway. This highway is not the only link between Gurgaon and Delhi and there are about 3 or 4 other roads, which link Gurgaon to Delhi. It has nowhere been explained by any of the witnesses as to why the trap was laid on this main Delhi Gurgaon Highway and not any other roads linking Gurgaon to Delhi. There was no mention of any road to be taken by terrorists to reach Delhi from Gurgaon in the secret information allegedly received by SI Ravinder Tyagi. Therefore, it was logical and normal in these circumstances to lay trap on all the roads connecting Gurgaon to Delhi, but it appears that SI Ravinder Tyagi presaged that terrorists would take only the main highway to reach Delhi from Gurgaon, which thinking is quite illogical for the reason that the terrorists would never take the main highway to reach Delhi from Gurgaon. This removes one more brick or stone from the edifice sought to be raised by the prosecution for the conviction of the accused. SC No.24/10. Page 35 of 112
In re. : the encounter with terrorists
40. Be that as it may, let me take it that the raiding party consisting of 15 police officials was formed fairly and properly. The raiding party proceeds to nab the two terrorists Masood and Zahid as well as their two associates, who are about to enter Delhi from Gurgaon. It is the case of the prosecution that in a fierce encounter near Randhawa Farm, the four terrorists were nabbed alongwith arms/ammunition. It is also the case of the prosecution that the terrorists were coming in the blue colour Tata Indica car No.HR26S0440, as informed by the secret informer and were overpowered after a short chase. It is interesting to note what the witnesses have deposed about the so called fierce encounter.
41. Out of the 15 members of the raiding party only 9 have been examined by the prosecution as follows :
SI Ravinder Tyagi PW12
ASI Charan Singh PW13
ASI Nirakar PW6
HC Raj Kumar PW8
HC Ombir PW21
SC No.24/10. Page 36 of 112
Ct. Raja Ram PW17
Ct. Sanjay PW23
Ct. Vinay PW16
Ct. Zafar PW15
42. PW12 has deposed that the raiding party left the office of Special Staff in two government vehicles i.e. a gypsy and Swaraj Mazda at 11 p.m. on 01.7.05. He further deposed that they tried to include a public person in the raiding party near Shiv Murti on Delhi Gurgaon Highway, but nobody was prepared to do so. They reached near Rajokri Red Light at 11.30 p.m. and parked their vehicles there. According to him, at 12.45 a.m. a blue colour Tata Indica car came from the side of Gurgaon bearing registration No.HR26S0440 when the car started coming near to them only then they could see the number of the car. He signalled the car to stop, but the occupants of the car did not stop the car. They started chasing the aforesaid Indica car in their government vehicle and intercepted it after chasing it for about two and a half kilometers near Randhawa Farm House. The gypsy was put ahead of Indica Car and it was gheroaed by the Swaraj Mazda vehicle. PW12 says that he was in the gypsy near the driver and initially he got down from the gypsy, whereas other police SC No.24/10. Page 37 of 112 officers also got down one by one from the gypsy as well as Swaraj Mazda. They introduced them as 'Police' and after hearing the word 'Police', one person, which was sitting on the left side of the driver in the Tata Indica vehicle fired towards the police party. This witness has further deposed that to save himself and the police party, he fired one round from his service pistol in the air. Constable Surender also fired one round in the air and they rushed towards the occupants of Tata Indica car. This witness Ravinder Tyagi with the help of Const. Vinay apprehended Saqib @ Masood. The person, who was sitting on the dirver seat of the Tata Indica vehicle exhorted "Masood Bhai Goli Chalao". The said person was thereafter apprehended by ASI Nirakar, whose name as such revealed as Nazir Ahmed Sofi @ Doctor. Thereafter, according to this witness, Hazi Gulam Moinuddin Dar and Bashir Ahmed, the other two occupants of the Tata Indica vehilce were also apprehended. He says that the names of these persons came to be known after their apprehension. Haji Gulam Moinuddin Dar was apprehended by Const. Surender and Bashir Ahmed Shah was apprehended by HC Raj Kumar. He further has testified that when Const. Surender was going to apprehend Haji Gulam Moinuddin Dar, Bashir Ahmed Shah exhorted him saying that "Dar Bhai Handgrenade Ka Pin Nikal Kar Police Par Phek Do".
SC No.24/10. Page 38 of 112
43. In the cross examination, this witness PW12 has deposed that barricades were available at the Chauraha, but they did not get any opportunity to install barricades because of heavy traffic. He states that they arranged pickets as per orders of the Commissioner of Police. However, no such order has been placed on record. At another place, in the cross examination, he states that only Const. Ashok was in uniform and other members of the raiding party were in civil clothes. The two drivers also a part of the raiding team and ten members of the raiding party were having pistols. He states that they had information that the terrorists were not having any big weapon with them and therefore, they did not take any big weapon with us as 9 mm pistol was sufficient enough to intercept the terrorists because it is a weapon of interception. However, DD No.12 nowhere mentioned that the terrorists are not having any big weapon and this information also later on turned to be untrue as allegedly the terrorists were found having handgrenades and assault rifles in their possession, which could not have been retaliated with the fire by 9 mm pistol. He reiterates that the terrorists fired two shots towards the raiding party but the bullet did not hit any member of the raiding party. This witness has admitted at two places in cross examination i.e. on page 3 SC No.24/10. Page 39 of 112 of cross examination on 08.7.08 and page 1 of the cross examination dated 14.7.08 that the secret informer did not specifically disclose to him about the specifications and the type of weapon in possession of the terrorists. In the cross examination dated 23.5.09 he has stated that they were wearing bulletproof jackets, but as the jackets were very heavy weighing 15 to 20 kg., which was becoming unbearable and therefore, he removed the bulletproof backet at about 12.30 a.m. and kept the same in police vehicle, while admitting that the informer had told him that the terrorists shall enter Delhi at about 12.30 a.m. It is, therefore, not understandable as to how this witness, who was the leader of the raiding party removed his bulletproof jacket just at the time when the terrorists were expected to reach Delhi. He further states that the police gypsy was parked on the left side of the road and was facing towards Delhi, whereas Swaraj Mazda was parked behind the gypsy at 90 degree angle to the gypsy on the road leading towards Najafgarh and facing the Red Light. Thereafter, in the cross examination dated 07.7.09, he states that he came to know that the Indica Car with terrorists in it is approaching them at a distance of about 60 to 70 yds. They identified the car first on the basis of its blue colour and then on the basis of its registration number. He states that the headlight of the car was on at that time. The Indica car was SC No.24/10. Page 40 of 112 approximately in the middle of the road. They could see the registration number of the car, when it was about 30 yards away. He further states that the colour of the car could be seen even when its highlights were on as there were flood lights on the highway and its number could be seen from the distance of 10 to 15 feet as they were standing on the side and not directly in front of the car. In the same cross examination, he goes on to say that they could not stop the Indica Car with the barricades as there was another vehicle moving in front of the India car and they had to allow the said vehicle to pass through the barricades. The distance between the said vehicle i.e. the truck and the Indica car was about 4 to 5 yds. He was not in a position to tell approximate distance between their position and the position of the truck on the road. He further states that he himself, Const. Vinay and Const. Surender were present near the barricades. However, this fact is not mentioned in the rukka. Now he says that Maruti Gypsy was parked at a distance of about 8 to 10 ft. on Kucha road ahead of the barricades towards Delhi side, whereas Swaraj Mazda vehicle was parked before the barricades on the Kutcha road at a distance of about 20 to 25 ft. from the barricades.
44. In the cross examination dated 08.7.08 this witness has SC No.24/10. Page 41 of 112 stated that the speed of the Indica car was around about 60/70 kms. per hour and they chased the car for about 2 21/2 kms. Now in the cross examination dated 10.7.09, he states that the Indica Car was approaching the barricades at a speed of 40 to 50 kms. per hour, but on reaching near the barricades, the driver slowed down the vehicle and its speed reached 20 kms per hours. Thereafter, the driver of the car increased the speed. In the cross examination dated 28.8.09 he states that the headlight of the truck, which was in front of the Tata Indica vehicle were also on at that time. They had signalled the Indica car to stop at Rajokri Red Light from a distance of 20 to 25 yds. after they saw its number. The speed of the truck was 30 to 35 kms. per hour. They had stopped the Indica car after overtaking it and by switching on the indicator as well as by force by blocking its way. The Indica car driver slightly increased the speed when they were overtaking it, but they managed to overtake it and block its way with their gypsy vehicle.
45. It is apparent that this witness was totally confused during his aforesaid deposition, which was recorded at various dates. He has contradicted himself on various material points. His deposition appears to be concocted and far from being true. At one place, he SC No.24/10. Page 42 of 112 states that the car was visible to them at a distance of about 60 to 70 yds. and they first recognised the car by its blue colour and then by its registration number, but at the same time, he deposed that there was a truck moving in front of the car, which also had its headlights on. He also states that the distance of Tata Indica vehicle and the truck was just 4 to 5 yds. Therefore, it could not have been practically possible for the raiding party to identify the car by its colour and its registration number at a distance of 60 to 70 feet when a truck was moving ahead of it at a distance of just 4 to 5 feet. At one place, he states that they parked the gypsy on the left side of the road facing towards Delhi, whereas Swaraj Mazda vehicle was parked behind the gypsy at a 90 degree angle to it, but at the same time, he deposed that the Maruti Gypsy was parked at a distance of 8 to 10 feet on the kachha road ahead of the barricades towards Delhi side where Swaraj Mazda vehicle was parked before the barricades on the kachha road at a distance of 20 to 25 feet from the barricades. It is also not understandable, how they could signal the Tata Indica vehicle to stop when it was following a truck just at a distance of 4 to 5 feet from it. It is also highly improbable that four terrorists coming from Gurgaon with arms and ammunitions including handgrenades and assault rifles would surrender to police party so peacefully and without any blood SC No.24/10. Page 43 of 112 shed. It is also not possible that the Tata Indica vehicle being driven at a fast speed may be around 50 kms. Per hour and leaving the police party near the barricades at Rajokari red light could be taken over just after 2½ kms. near Randhawa farm house. This witness himself says that members of the raiding party had got down from the vehicle and were standing on the road, waiting for the Tata Indica vehicle. Therefore, it would have taken considerable time for them, after the Tata Indica car passed before their eyes, to board the vehicle again, to switch on the engine and to start chasing Tata Indica vehicle. This witness has further deposed that accused Nazir Ahmed Sofi exhorted the driver of the vehicle Saqib Rehman by saying "Masood Bhai Goli Chalao" and accused Bashir Ahmed Shah also exhorted Haji Gulam Moinuddin Dar saying that "Dar Bhai Handgrenade Ki Pin Nikal Kar Police Par Phek Do". As per the own contention of the prosecution, all the four terrorists were Kashmiries. Therefore, it was convenient for them to converse in their own native language i.e. Kashmiri before the police party, so that the police party could not understand what they are saying. I find it unbelievable that these terrorists were exhorting each other in Hindi language to attack the police party. At one place, this witness states that they did not get any opportunity to install barricades because of heavy traffic, but at the same time, he SC No.24/10. Page 44 of 112 states that one vehicle was parked ahead of the barricades and other was parked before the barricades, giving the impression that the barricades were installed by them. He further deposed that they could not stop the Tata Indica vehicle with the barricades as there was another vehicle moving in front of the same and they had allowed the said vehicle to pass through the barricades. This also gives an impression that the barricades have been installed by them, which is contrary to his earlier statement that they did not find any time to install the barricades because of heavy traffic.
46. The other members of the raiding party, who have been examined by the prosecution have also deposed contradictory to that this witness PW12 has deposed. PW12 has testified that they have erected barricades near the Rajokari red light in order to stop the Tata Indica car coming with terrorists. However, PW6 ASI Nirakar and PW8 HC Raj Kumar does not speak about the erection of barricades at all in their testimony. PW6 in his cross examination dated 21.8.06 has deposed that at that time widening of road and construction of Flyover on NH8 was going on. He further deposed that the construction work of the Flyover was going on near the Rajokari red light also. PW8 also deposed in his cross examination dated 17.7.06 that at that time, SC No.24/10. Page 45 of 112 there was hoardings and barricades at the Rajokari red light due to construction of Flyover on NH8. In his cross examination dated 18.12.07 he stated that they had barricades material like sticks, but they had taken this material for their own defence. In his cross examination dated 07.3.08 he admitted that the Special Staff does not have its own barricades, but they used the barricades left by the local police at various places on NH8 to block the road for checking the vehicles.
47. This witness (PW8) has further deposed that Tata Indica vehicle was identified on the pointing out of secret informer. It is only this witness, who mentions the presence of secret informer alongwith them at the place of raid. Neither PW12 nor any other witness has testified about the presence of secret informer on the spot.
48. PW13 ASI Charan Singh is also alleged to have been a member of the raiding party, but interestingly, he does not say even a word in his examinationinchief regarding the raid conducted on 01.7.05 in late hour near Rajokari red light. It is in cross examination that he awoke from the slumber and states that when they reached the spot i.e. Rajokari Mor, NH8 Crossing at 11.30 p.m., barricades were SC No.24/10. Page 46 of 112 already there. He states that the barricades were erected on the road as per the directions of SI Ravinder Tyagi, who in his deposition has stated that they did not find any time to erect the barricades.
49. Similarly, PW15 Const. Zafar did not testify about his being a member of the raiding party. He has mentioned nothing about what happened near the Rajokari red light during the course of raid in the late hours of 01.7.05. On this aspect, PW16 has deposed in his cross examination by saying that the barricades of P.S. Kapasahera were already lying at the spot and they were used to do Nakabandi. He also deposed that the barricades were placed in such a manner that only the vehicle of which number was given, can be made to halt after placing barricades in front of the same and not the other vehicles. He admitted that there was heavy traffic on the highway at that time. In cross examination dated 27.7.10 he states that there was only a single barricade placed on the road, which was operated by himself and Const. Surender. However, Const. Surender has not been examined at all by the prosecution and testimony of this witness is totally contrary to what others have stated about the same. None of the other members of the raiding party have corroborated the version given by this witness PW16.
SC No.24/10. Page 47 of 112
50. PW17 HC Raja Ram has fairly admitted that his statement U/s.161 Cr.PC was not recorded by the IO. However, he deposed that he took part in the raiding party on 01.7.05, but has not given the details of raid at all in his examinationinchief.
51. PW21 HC Ombir Singh and PW23 Const. Sanjay, who are also stated to have been member of the raiding party, have not deposed anything about the raid in their examinationinchief.
52. As per the deposition of PW12, they intercepted Tata Indica vehicle by chasing it for 2½ kms. Near Randhawa Farm House. They managed to stop the Indica Car after overtaking it and by switching on the indicator as well as by blocking its way with their gypsy vehicle. Contradictory statements have come in this regard also from various prosecution witnesses. PW6 says in his cross examination dated 07.12.07 that there was a distance of about 1 to 2 feet between Tata India car and the police gypsy when they both stopped near Randhawa Farm House. The distance between Indica car and Swaraj Mazda was also the same i.e. 1 to 2 feet. He further deposed that the headlights of the gypsy was not falling on the car of SC No.24/10. Page 48 of 112 the accused persons and the lights of the car of the accused persons was not falling on their gypsy as engine of the car had gone off as soon as it stopped. According to him, the light of Swaraj Mazda vehicle were on, but it did not reach Maruti gypsy vehicle. Thus, it is seen that this witness contradicts himself also. If the distance between the two vehicles is just 1 to 2 feet, it is quite obvious that the light emanating from the headlights would definitely fall on the other vehicle.
53. PW8 in his cross examination dated 06.7.07 goes on to say that the distance between Maruti Gypsy and the car of the accused persons was about 10 feet and the distance between the vehicle of accused persons and Swaraj Mazda vehicle was about 15 feet. He says that the lights of Swaraj Mazda vehicle were on and lights were falling on Swaraj Mazda as well as on the car of the accused. He further stated that when they rushed towards accused persons, the lights of Swaraj Mazda vehicle went off as it was stationed. At another place in the cross examination dated 18.12.07, he states that there was a distance of 4 feet between their vehicle and Tata Indica vehicle.
SC No.24/10. Page 49 of 112
54. Interestingly, PW13 ASI Charan Singh, important member of the raiding party, has not deposed even a single word regarding the chase of the Tata Indica vehicle and overtaking it. However, he has stated in his cross examination dated 25.2.10 that they were behind Maruti Gypsy as well as Tata Indica vehicle when they reached the spot, the Tata Indica vehicle was intercepted, police official of the gypsy had already overpowered the occupants of the Tata Indica car. This witness has, therefore, deposed in total contradistinction to what PW12 had deposed.
55. If we visualize as to what happened near Randhawa Farm House, soon after the Tata Indica vehicle was intercepted by the two police vehicles, through the testimony of the members of the raiding party, who has been examined as prosecution witness, it all seems to be absolutely false and poorly conceived story. As mentioned herein above, the witness says that the Tata Indica vehicle was intercepted in such a way that it got sandwiched between police gypsy and Swaraj Mazda vehicle. Soon thereafter, PW12 SI Ravinder Tyagi, got down from the gypsy and other police officials also got down one by one from both the vehicles, as per the testimony of PW12. According to him, after they declared themselves to be police, persons sitting on the SC No.24/10. Page 50 of 112 left side of the driver in the Tata Indica vehicle fired towards the police party, whereupon PW12 fired one round from his service pistol in air in order to save himself, and thereafter Const. Surender fired one round in the air. They thereafter immediately rushed towards the occupants of the Tata Indica vehicle and overpowered them. It is very difficult to imagine that one of the terrorists in the Tata Indica vehicle opened fire upon the police party in the gypsy vehicle, which had stopped in front of the Tata Indica vehicle, but the bullet neither hit police gypsy nor any police official, even though the distance between the two was not more than 3 feet or 4 feet. What is more amazing is that after realising that terrorists are bent upon firing towards police party, the PW12 and his staff did not try to hide behind the police gypsy vehicle but straightaway headed towards the same alongwith Const. Surender and overpowered the terrorists. Such kind of imaginary bravery is only seen in Bollywood movies and not in real situation as is being projected by the prosecution in this case. It is also intriguing that despite the fact that Const. Surender was with PW12 Ravinder Tyagi in the first instance and he also fired one round in the air, he has not been examined by the prosecution at all to confirm the version given by PW12. Further, it astonished me a lot that why would the terrorists, who are armed with weapon like A56 and with SC No.24/10. Page 51 of 112 handgrenades would surrender to the police without any stiff resistance and without hurling a handgrenade or to on the police party.
56. PW6 in his cross examination dated 05.7.07 has stated that after exhortation by Nazir Ahmed Sofi "Masood Bhai Goli Maar Do", nobody fired thereafter. PW8 in his cross examination dated 06.7.07 has, by saying that the police party had fired firstly in the air two bullets, contradicted the version of PW12 and PW6 in this regard, who had stated that first, terrorists fired on the police party and thereafter SI Ravinder Tyagi and Const. Surender fired in the air. This PW8 has also deposed in the same cross examination that after they announced that they are police, accused persons did not fire, which is highly unbelievable. Since the alleged terrorists were four in number, the encounter should have been a fierce one lasting several minutes and with injuries to one or more persons (either terrorists or police personnel) as well as damage to any of the vehicles as the firing would have been from close range. Nothing like this has happened which shows that it is a totally imaginary or hypothetical story conceived by the police to implicate the accused in a false case. SC No.24/10. Page 52 of 112
In re : vehicles i.e. Police Gypsy and Swaraj Mazda used by police to reach encounter spot
57. The police claim to have reached the encounter spot in two government vehicles i.e. Police Gypsy DL1cg6431 and Swaraj Mazda DL1LD1264. This claim is also falsified by the copies of Log books of these two vehicles obtained by the accused under RTI Act and proved as Ex.DW1/S. The entries in the Log book of Gypsy vehicle on 01.7.05 show its travel on that day from P.P. Dhaula Kuan to P.S. Najafgarh and back to P.P. Dhaula Kuan (Total 52 kms.). The Log book further shows that this vehicle travelled 108 kms on 02.7.05 i.e. P.P. Dhaula Kuan to P.S. IGI Airport to P.S. Vasant Vihar to P.P. Dhaula Kuan to Patiala House to P.P. Dhaula Kuan to P.S. Mayapuri to P.P. Dhaula Kuan.
58. The Log book of Swaraj Mazda vehicle shows that it travelled just 16 kms on 01.7.05 i.e. P.P. Dhaula Kuan to P.S. R.K. Puram and back to P.P. Dhaula Kuan. These copies of the Log books of the two vehicles have not been disputed by the prosecution. Besides since the same have been furnished to the accused under RTI Act, these cannot be doubted at all. As per the details mentioned in these Log books, the two vehicles did not travel to the encounter site SC No.24/10. Page 53 of 112 at all on the night intervening between 01.7.05 and 02.7.05. The places to which these two vehicles travelled on these two dates, as noted hereinabove are other than the encounter site. This reinforces the doubt against the genuineness of the encounter.
In re : Preparation of Rukka
59. As per the prosecution case and the testimony of various PWs such as PW6, PW8 and PW12, ASI Nirakar sent Rukka (Ex.PW12/A) at 4.12 a.m. to the P.S. Kapasahera through Const. Surender for registration of FIR. PW12 has deposed that all the writing work including preparation of Rukka was done by him while sitting in the Govt. vehicle i.e. Maruti Gypsy, which had hard cop. PW13 says that SI Rainder Tyagi (PW12) was preparing documents while sitting in the Swaraj Mazda vehicle. PW8 contradicts both of them by saying that paper work was done at a distance of 100 yards away from the Randhawa Farm House. Had the said encounter been genuine and the documents including rukka, in fact, prepared at the spot, there would not have been such material contradictions in the testimony of these witnesses regarding the manner, in which the documents including rukka were prepared.
SC No.24/10. Page 54 of 112
60. As mentioned earlier, SI Ravinder Kumar Tyagi was the leader of the raiding team and everything was being done under his directions. In his cross examination dated 09.4.08 he testifies as under :
"First of all, I prepared the sketch of the pistol Ex.PW12/C, recovered from accused Saqib Rehman @ Masood. Thereafter, the seizure memo of the same was prepared. Thereafter, the seizure memo of cartridges which were recovered from Nazir Ahmed Sofi was prepared. Same is Ex.PW6/A. Thereafter, I prepared the memo of cartridges recovered from accused Bashir.
Same is Ex.PW8/A. These are the same documents which were prepared by me at the spot. I took about two hours in preparing the aforesaid documents. These documents were got prepared with the help of other associates also. ASI Nirakar had prepared all the abovesaid documents. I did not record the statement of ASI Nirakar U/s.161 Cr.PC pertaining to the fact that the aforesaid documents were prepared by him under my supervision. I did not think it appropriate to mention this fact in the memos. It is incorrect to suggest that I had SC No.24/10. Page 55 of 112 deliberately withheld this fact. After preparing the aforesaid documents. I prepared the rukka and same is Ex.PW12/DA. I did not record any case diary in this case from the point of arrest of the accused persons as well as the preparation of abovesaid recovery memos by ASI Nirakar and the rukka. It is prima facie clear from these documents that there is no description that these documents were prepared by ASI Nirakar. Apparently, it looks that these documents have been prepared by me. In Ex.PW12/DA, it does not bear the testimony of "in the hand of". The rukka Ex.PW12/DA was drawn and prepared by ASI Nirakar."
61. It is utterly painful to note the aforesaid deposition of this star witness of the prosecution and the leader of the raiding team. At one place, he says, he prepared memos Ex.PW6/A and Ex.PW8/A but at the same time adds that ASI Nirakar prepared all these documents. Then he says that apparently it seems that these documents were prepared by him and again adds that Rukka Ex.PW12/DA was drawn and prepared by ASI Nirakar. A look at these three documents shows that all of these have been prepared by SI Ravinder Tyagi and also SC No.24/10. Page 56 of 112 bear his signatures. It is difficult to believe that the leader of the raiding party, who has prepared the Rukka does not remember that it has been prepared by him and is so confused about the said fact. This only shows that Rukka is a fabricated document and contains an imaginary story.
In re : Arrival of IO SI Mahender Singh on spot
62. PW6, ASI Nirakar has stated in his cross examination that SI Mahender Singh came to spot around 6 a.m. SI Mahender Singh himself appearing as PW24 has deposed in his cross examination that he left P.S. Kapasahera for the place of incident at 5.30 a.m. on 02.7.05, reached back P.S. Kapasahera at 10.45 a.m. but did not make arrival DD entry, reached Hotel Baba Continental at 12 noon, left from there at 1.30 p.m., went to Patiala House Court at about 3 p.m., from there took the accused to Safdarjung Hospital at about 5.30 p.m., reached back P.S. Kapasahera at about 9.30 p.m. or 10 p.m. when he deposited entire case property recovered from spot as well as from Hotel Baba Continental in the Malkhana. This whole story appears to be totally fabricated and from being true in view of the records maintained in the P.S. Kapasahera. The accused has proved a reply dated 12.3.2010 received by them under RTI Act from Addl. DCP, SC No.24/10. Page 57 of 112 South West, New Delhi, at Ex.DW1/W, which shows that SI Mahender Singh left the P.S. on 02.7.2010 at 6.35 a.m. and returned at 6.30 p.m. The departure entry has been shown as 7A and arrival entry as 26A. The huge time difference implies that either the testimony of PW24 is untrue or the DD entries are false, however, in both cases, the prosecution story gets falsified.
In re : Site plan Ex. PW24/A
63. SI Mahender Singh has deposed in his examinationin chief that at the instance of SI Ravinder Tyagi, he inspected the spot and prepared the site plan Ex.PW24/A. It gives me intense pain to note that the site plan is patently wrong. SI Mahender Singh has admitted in his cross examination that the site plan may be wrong as Randhawa Farm House has been shown on turning right from the main road while coming for Gurgaon side, which is factually incorrect. He has also shown the place in the site plan where barricading had been done but admits that he did not see the place where barricades were erected. He has prepared a rough site plan only and admits that no scaled site plan was got prepared. There is no explanation coming forth as to why was not scaled site plan of the site of encounter got prepared when the whole case is based upon the so SC No.24/10. Page 58 of 112 called fierce encounter near Randhawa Farm House. It only makes it evident that SI Mahender Singh did not visit the spot but prepared the rough site plan on the basis of his imagination based upon the dictation of SI Ravinder Tyagi. Definitely, a wrong site plan prepared by the IO of the case makes the prosecution story only a figment of imagination and unbelievable.
In re : recovery memos Ex.PW6/A and Ex.PW8/A
64. As per the testimony of PW6 and PW12, recovery memo Ex.PW6/A was prepared in respect of recovery of 12 live cartridges of 7.62 bore in a transparent polythene bag from the personal search of accused Nazir Ahmed Sofi. It is evident from the deposition of PW12 that these were recovered immediately after the apprehension of the accused Nazir Ahmed Sofi and much before the registration of FIR. In that case, the recovery memo should only mention the DD Number on its top and not the FIR Number, whereas it mentions FIR No. 146/05 on its top, which, not only is surprising but also casts doubt on the genuineness of the document. According to PW12, he prepared these two recovery memos Ex.PW6/A and Ex.PW8/A (regarding recovery of 35 cartridges of AK47 assault rifle from accused Bashir Ahmed Shah). If that is so, then naturally, he would have signed these SC No.24/10. Page 59 of 112 two memos by the same pen and ink with which he wrote the same. However, that is not the case here. Even a cursory look on these two memos shows that pen and ink used in writing the same are markedly different from the pen and ink with which these have been signed by SI Ravinder Tyagi.
65. Further, it is shocking that the signatures of HC Raj Kumar appear to have been fabricated on recovery memo Ex.PW8/A. The signatures of this witness appear at point 'S1' on this document. Though, he reiterated in his testimony before the Court that he has signed the document Ex.PW8/A but could not say anything about the signature at point 'S1' as the same is visibly different from his admitted genuine signature on his deposition before the Court. It is quite apparent that recovery memo Ex.PW8/A is not at all signed by PW8 and same is a fabricated document. This document also bears FIR No.146/05 at its top and not the DD Number, even though it had been admittedly prepared before the registration of the FIR in this case.
66. It may also be noted here that as per the FSL report filed alongwith the supplementary Chargesheet, the 35 cartridges (Ex.A17 SC No.24/10. Page 60 of 112 to Ex.A51) are of 7.62 bore which are used only in an SLR and not in AK47 assault rifle. This is not a minor thing which can be ignored as the police officers of the SI rank and conducting raid to nab dreaded terrorists can't be believed to be ignorant about the size and nature of bullets used in a SLR or AK47 assault rifle. These are major contradictions and point towards the falsehood of the whole proceedings.
In re : recovery of sketch of Palam Air Force Station
67. As per the case of prosecution a sketch of Palam Air Force Station was recovered from the personal search of accused Gulam Moinuddin Dar @ Zahid by SI Mahender Singh after his arrival at the spot. SI Mahender Singh has reiterated the same in his deposition as PW24. As noted earlier, PW24 reached the spot allegedly around 6 a.m. and before that recoveries had been effected by SI Ravinder Tyagi from the personal search of four occupants of the Tata Indica Car including accused Gulam Moinuddin Dar. Then how did this sketch could not be discovered by Ravinder Tyagi from the personal search of accused Gulam Moinuddin Dar. Further, PW24 says that he recovered the sketch from the front pocket of the pant of accused Gulam Moinuddin Dar. Then naturally, it should have been SC No.24/10. Page 61 of 112 folded two or three times before keeping it in the pocket. According to this witness PW24, the sketch was double folded when it was taken out from the pocket and its folded size was about 5 cm. X 3 cm. The sketch has been proved as Ex.PM.
68. Patently, the sketch seems to have been planted upon the accused. The same is on a ruled paper page of a register. Its dimensions are 27 cms. X 17.5 cms. If it is folded longitudinally, its size would be 13.5 cms. X 17.5 cms., which is much more than the size mentioned by PW24. It is also apparent that it cannot fit into a pant's pocket in double folded state. It has to be folded more than twice to reduce it to such a size as to fit in the pant pocket. A look at the sheet Ex.PM reveals that it has only one fold in the middle longitudinally making it of the size 13.5 cms. X 17.5 cms. by which it can never fit in the pant pocket without protruding out of it. Moreover, it is matter of common knowledge that if a paper or handkerchief etc. is kept in front pocket of pant, the same gets multiple folds when the person wearing the pant sits down or folds his legs near hips. No such folds can be seen on the sketch Ex.PM.
69. Be that as it may, it remains to be proved by the SC No.24/10. Page 62 of 112 prosecution that the handwriting on the said sketch is that of accused Gulam Moinuddin Dar. No investigation has been conducted as to the source from where did the accused get his sketch. No attempt has been made to get the handwriting on it matched with that of the accused. It is also admitted by PW24 in his cross examination that he did not inform the authorities at the Palam Air Force Station about the recovery of sketch to alert them about the threat to the station. What about if a bomb or other explosive device had already been planted there which could have triggered a big catastrophy. This shows either the carelessness and in efficiency on the part of the IO or strengthens the belief that the sketch has been deliberately planted upon the accused. The latter seems to be more true in view of my foregoing discussion.
In re : recovery of briefcase from Tata Indica Car
70. PW24 IO SI Mahender Singh, who reached the spot of encounter in the morning of 02.7.05 at about 6 a.m. has deposed that he searched the Indica car and found a grey colour briefcase on its back shelf which was visible from the windshield from behind the car. I wonder what SI Ravinder Tyagi and his raiding party was doing at the spot till the arrival of SI Mahender Singh, when they could not see SC No.24/10. Page 63 of 112 the briefcase which was easily visible from the rear windshield of the car. Is it that they became complacent after the recovery of catridges, bullets, pistol, handgrenades etc. and completely forgot the car. What if the car was full of explosives which could have burst at any moment, killing all the members of the raiding party.
71. Further, it is evident from the testimony of PW24 that he also did not make any honest and sincere effort to make any public person witness to the recoveries made by him. He deposes in his cross examination that he tried to have public witnesses but no such witness was available at that time. In any opinion, that is not sufficient at all. His further cross examination would reveal that he did not make any attempt to contact any public witness. He admits that a petrol pump is at a distance of 80 to 90 meters from the spot and the office of NSG is located a distance of less than 100 meters from it. He also admits that neither he went to these two places personally nor did he send any Constable to call any public person from there to be the witness to the recovery. A Hotel by the name Uppal Orchids is also situated at about half a kilometer from this spot, as deposed by this witness himself, but nobody was called from there also.
SC No.24/10. Page 64 of 112
72. PW24 says that accused Gulam Moinuddin Dar told him the lock code of the briefcase. But the same is not mentioned in any of the disclosure statements of accused Gulam Moinuddin Dar.
73. This witness PW24, further testifies that after opening the briefcase, he found one Army uniform and five packets of fake currency notes of Rs.100/ denomination. According to him, accused Gulam Moinuddin Dar told him that he purchased the uniform from Gopi Nath Bazar, Delhi Cantt. He candidly admits that he did not mention so in any of the statements recorded by him. He also did not make any DD entry in this regard. Why? No explanation is coming forward. PW24 has recorded the disclosure statement of accused Haji Gulam Moinuddin Dar on 02.7.05 but nothing is mentioned in that statement about the seizure of briefcase, the contents of the briefcase and the source wherefrom he purchased the army uniform.
74. The police keeps quiet on this issue for about a week and suddenly awakes from the slumber on 10.7.05 by recording third disclosure statement of accused Gulam Moinuddin Dar disclosing that he purchased the army uniform from M/s.South India Tailors, Gopi Nath Bazar, Delhi Cantt. It is the case of prosecution that on the same SC No.24/10. Page 65 of 112 day, ASI Charan Singh alongwith some other staff went to Gopi Nath Bazar in a government vehicle Swaraj Mazda bearing registration No.DL1LD1264 to verify this disclosure. But interestingly, as per the Log book of this vehicle for that day i.e. 10.7.05 (Ex.PW15/D1) the said vehicle remained parked at the police station throughout the day.
75. In this regard, Sardar Gurcharan Singh, who works in the said shop, has been examined as PW1. His testimony clearly indicates that he has been a stock witness for the police and he gave false evidence at the behest of the police. He deposed in the examination inchief that accused Gulam Moinuddin Dar, present in court, purchased an Army Combat uniform from his shop for Rs.600/ or Rs. 650/ and also identified the same when shown to him in Court. He also deposed that the said accused Gulam Moinuddin Dar again came to his shop on 10th (he did not remember month & year) alongwith police officers, obviously referring to date 10.7.05 when ASI Charan Singh allegedly visited his shop alongwith the accused. However, in the cross examination, he deposed that uniforms are made after receiving the order and the measurements given by the person concerned. At the same time says that uniform sold to accused Gulam SC No.24/10. Page 66 of 112 Moinuddin Dar was a readymade one. He further says that he does not have a regular shop and carries on his business on pavement outside a shop but did not tell the shop number. He admitted that police and MCD authorities used to remove their goods for removing the encroachment on the public land/pavement, several times his goods were also removed by police/MCD officials, he does some jobs at the asking of police and MCD officials in order to keep them happy as he does not pay 'hafta' to them. At another place in cross examination, he says that he was called to the police post Dhaula Kuan by the police officials on 10th and accused Gulam Moinuddin Dar was present there.
76. It is quite apparent from the testimony of this witness that he was called to police station on 10th July, 2005 by employing coercion and made to sign certain documents there. He is certainly a planted witness, who is used by police for their vested interests whenever the occasion arises. I have no hesitation in discarding his evidence in toto.
77. If, in fact, this witness had sold the army uniform to the accused Gulam Moinuddin Dar, he would have been booked for selling an Army uniform to an unidentified person illegally. SC No.24/10. Page 67 of 112
78. Thus, it is evident that the briefcase as well as its contents have been planted by the police themselves and no such thing was recovered from the accused. It is for this reason, SI Ravinder Tyagi did not see the briefcase in the car during the whole night and the disclosure statement of accused Gulam Moinuddin Dar in this regard was recorded on 10.7.05, after seven days of his arrest, till the contents of the briefcase were arranged and stock witness found.
In re : Tata Indica Car HR26S0440
79. The case of the prosecution is that the aforesaid car in which the four so called terrorists were caught at Kapasahera alongwith arms and ammunition belonged to one Sh. Azad Singh Yadav, who had given the said car on rent to a person namely Surender Kumar, who misappropriated the same. It is further case of prosecution that the actual registration number of the said vehicle is HR51M6358 and the same was wanted in case FIR No.527/03, U/s. 406 IPC, P.S. Pandav Nagar. It is also the case of prosecution that the four accused apprehended in the encounter at Kapasahera has got the said car from one Sakir Khan at Srinagar (J&K) and they brought the same from Srinagar to Delhi. Azad Singh is said to have identified the SC No.24/10. Page 68 of 112 said Car by having a glance at it while passing in front of the P.S. Kapasahera where the same was parked. When he came to the P.S., a few days later, his statement U/s.161 Cr.PC was recorded and he also handed over the photocopy of the RC of his Car bearing No. HR51M6358 and copy of FIR No.527/03. The FIR No.527/03 has been registered on 07.10.03.
80. It is evident from the record that Azad Singh Yadav purchased the Tata Indica Car in May, 2003 and in the same month gave the same to Surender Kumar on rent but he misappropriated the same and did not return the same to Azad Singh. It is mentioned in the statement of Azad Singh recorded U/s.161 Cr.PC. However, the RC of the vehicle shows that it was registered at the Faridabad Transport Authority on 08.7.03 in the name of Azad Singh. As per the relevant rules, a vehicle is produced before the registering authority for inspection at the time of its registration. When the car was got misappropriated in the month of May, 2003, how could the same be registered on 08.7.03. What was inspected by the registering authority at that time and how the authority gave a registration number to the vehicle. The original record of the authority was produced before the police by Sh. Pratap Singh, Record Clerk.
SC No.24/10. Page 69 of 112
81. This goes on to show that Azad Singh never gave the said car to Surender and it was never misappropriated. The same remained throughout in the custody of Azad Singh. He got the same registered on 08.7.03 and thereafter made the same available to the police and was planted upon the accused.
82. It is also shocking to note the FIR No.527/03 U/s.406 IPC has not been got registered by Azad Singh. In fact, same was lodge at the behest of one Mrs. Sneh Lata Sukhija against Sh. S.K. Sharma for misappropriation of her Maruti Esteem Car No.DL7CC6679. The FIR No.527/03, P.S. Pandav Nagar, does not relate to any Tata Indica Car. Therefore, it turns out to be an imagination of the mind of SI Mahender Singh only that the Tata Indica Car allegedly seized during raid was the subject matter of FIR No.527/03. The DCP (East) also informed the accused in reply to a query in this regard under RTI Act that Tata Indica Car bearing registration No.HR51M6358 is not wanted in FIR no.527/03, P.S. Pandav Nagar.
83. Azad Singh Yadav appearing at PW3 also states in his examinationinchief that he has never lodged an FIR in connection SC No.24/10. Page 70 of 112 with the theft or misappropriation of his car, which is involved in this case. He has not produced any document to show that he gave the said car on rent to any Surender.
84. PW24 SI Mahender Singh has also deposed in his cross examination that complaint pursuant to which FIR No.527/03 registered in P.S. Pandav Nagar was filed by Ms. Sneh Lata Sukhija and the same was in respect of Maruti Esteem and not in respect of Tata Indica. He further admits that he did not examine Smt. Sneh Lata nor did he try to trace out her and that Sneh Lata was not a relative of Azad Singh Yadav. This is also manifest that Tata Indica Car belongs to Sh. Azad Singh Yadav was neither stolen nor misappropriated by Surender.
85. A General Power of Attorney dated 23.8.04 has been filed on record by the prosecution (though not proved) as per which Sh. Azad Singh Yadav allegedly sold aforesaid Tata Indica vehicle bearing No.HR26S0440 to one Masood Ahmed Shah, son of Sh. M. Rehman Shah, resident of Srinagar. The power of attorney is notorised one, typed on two stamp papers of Rs.10/ each, which has been purchased from a stamp vendor at Asaf Ali Road, Delhi. It bears SC No.24/10. Page 71 of 112 the signature of Sh. Azad Singh as the executant and does not bear the signature of attorney at all. One Pradeep Kumar and Sonu Dabas are shown to have witnessed the execution of this GPA. PW24 SI Mahender Singh has stated in his cross examination that he did not make any investigation about Masood Rehman and candidly admitted that he cannot give any reason as to why no efforts were made to trace out Masood Rehman, in whose favour the said GPA was. He also admitted that he did not try to verify the contents of GPA, he did not collect any stamp paper of Rs.10/ available in the market in the year 2004 so as to compare it with the stamp paper on which the GPA is written, he did not make any attempt to ascertain whether stamp paper, on which the GPA is typed is genuine or not and whether or not notarial stamp affixed on the GPA was genuine, he also did not try to interrogate the stamp vendor from whom the stamp papers are allegedly to have been purchased or the typist, who typed the same. He states that he tried to trace the witness Pradeep Kumar and Sonu Dabas, but their addresses were found to be wrong. However, at the same time, he states that he did not record the statement of anybody in this regard nor he mentioned so in the Case Diary.
86. At other place in the cross examination, which was SC No.24/10. Page 72 of 112 conducted on 27.9.2010 SI Mahender Singh has admitted the suggestion that he did not find any document in the Tata Indica vehicle showing that it was purchased, rented or stolen by accused SaqiburRehman.
87. It is also the case of the prosecution that the four accused have been staying in Hotel Baba Continental, Karol Bagh, for quite some time before they were caught with arms and ammunition in the raid near Kapasahera border. However, PW24 SI Mahender Singh has himself admitted in his cross examination that no person from Baba Continental made the statement that the accused persons parked the car in the hotel premises or used to travel in the Tata Indica Car. Had the car been, in fact, got by accused in Srinagar and brought to Delhi, they would have definitely parked the same in the parking of Hotel Baba Continental, where they were allegedly staying and the hotel staff would have seen them using he said car. Moreover, the said car was not handed over to the concerned police station within the jurisdiction of which, case regarding its theft and misappropriation had been going on but was permitted to be released on Superdari vide order dated 29.9.05 by Sh. Virender Kumar, Ld. M.M., New Delhi. Perusal of the said order reveals that the police did not even bother to SC No.24/10. Page 73 of 112 appear and contest the application for Superdari submitted by Azad Singh Yadav. It was obligatory upon IO SI Mahender Singh to appear before the Ld. Magistrate to apprise him that the car was used in the commission of a henious crime and is needed in the proceedings of this case.
88. It is amply clear from the aforesaid discussion that Tata Indica Car was planted and merely used as a tool to falsely implicate the accused persons in this case.
In Re. : Recovery of mobile phones from the accused during the raid.
89. A mobile phone each is alleged to have been recovered from accused SaqiburRehman and from Gulam Moinuddin Dar, which they were using to converse with their associates for the commission of crime. PW24 SI Mahender Singh has admitted in his cross examination that he did not inquire even from accused Saqibur Rehman or Gulam Moinuddin Dar about the SIM number of their mobile phones. He also admitted that he did not collect the phone call details made from each mobile phone or the location of their Towers, SC No.24/10. Page 74 of 112 he did not verify the phone calls made from these mobile phones as he did not deem it necessary despite the accused persons being labelled as terrorists. The explanation given by this witness is that he did not deem it necessary to collect the phone call details as the accused persons had disclosed the names of their associates in their disclosure statements. The explanation is, however, totally unworthy of reliance as it was the duty of the Investigating Officer to collect the phone call details of the mobile phones to ascertain the correctness or otherwise, of the disclosure statements made by the accused. Apparently, no investigation has been made in this regard for the reason that the mobile phones also have been planted.
In Re. : Deposit of recovered articles in Malkhana
90. PW24 IO SI Mahender Singh has deposed in his cross examination that he left the spot of raid on 02.7.05 at 10.30 a.m. and reached back police station Kapasahera at 10.45 a.m., but he did not make any arrival entry as investigation was under progress. Obviously, he was having alongwith him all the material allegedly recovered from the accused including the cartridges, pistols, bullets etc. etc. He does not deposit this material in the Malkhana. This is SC No.24/10. Page 75 of 112 apparent from the statement of PW25 HC Suresh Kumar, who was working as a Munshi to MHC(M) HC Ravinder of P.S. Kapasahera on 02.7.2005. He has proved photocopy of the relevant pages of the store room register as Ex.PW25/A, which though does not bear the time, on which the seized articles were deposited therein, but reveal that certain seizure articles have been deposited by SI Ravinder Singh, who was not the IO of the case and who had entrusted all the seized articles to SI Mahender Singh and, therefore, could not have deposited the same in the Malkhana. Further, the articles/goods seized in Hotel Baba Continental from the rooms of the accused later in the day have been shown to have been deposited first and the articles allegedly recovered from the spot of raid have been shown to have been deposited subsequently. Strangely, the MHC(M) has not been examined and in his place Munshi has been examined, who has stated in his cross examination that none of the pullindas was deposited with him and he only made entries. He further deposed that he did not know the time when he made the entries. He further stated that the entries in Register No.19 are verified by SHO, but in the present case, there are no remarks of the SHO having been verified the entries. Even no explanation has been put forward by the prosecution for not examining MHC(M) HC Ravinder of P.S. Kapasahera. Apparently, SC No.24/10. Page 76 of 112 this has been done to cover up the planted recoveries which at no point of time were deposited in the Malkhana.
In re: Press Conference held on 02.7.05 at the office of Special Staff, Dhaula Kuan.
91. It was submitted by the Ld. Defence Counsels that the accused were kept in the office of Special Staff, Dhaula Kuan throughout the night intervening between 01.7.05 and 02.7.05 and at 11 a.m. On 02.7.05, a press conference was arranged wherein the accused were shown with the planted material and it was represented to the media that in a fierce encounter, Kashmiri terrorists have been apprehended alongwith arms and ammunition. A copy of the newspaper 'Jansatta' (Hindi Edition) dated 03.7.05 showing the photograph of all the accused alongwith allegedly seized material has been proved on record as Ex.PW12/DX.
92. Replying to questions in this regard, PW12 SI Ravinder Tyagi has said in his cross examination dated 03.10.09 that he does not know if he had produced accused persons before Media in a press conference on 02.7.05 at 10.30 a.m. He admitted that the newspaper reporting Ex.PW12/DX pertains to press conference held on 02.7.05 SC No.24/10. Page 77 of 112 wherein his photograph appears at point A alongwith accused persons.
93. As per the deposition of PW24 SI Mahender Singh, he took the accused alongwith him from the encounter site to P.S. Kapasahera at 10.45 a.m. And from there he reached Hotel Baba Continental, Karol Bagh, at 12 noon, left from there at 1.30 p.m. for the Patiala House Courts. In his cross examination, he firmly denied that any press conference was held after the arrest of accused on 02.7.05 between 10.30 a.m. to 11 a.m. at Police Headquarter, ITO. He says that photograph of the accused appearing in Ex.PW12/DX must have been taken at the time of taking their fingerprints.
94. PW22 ACP R.P. Meena has deposed that press conference regarding the arrest of four accused was held by DCP but did not recollect the place where it was held. He did not admit or deny that he took part in press conference held at Police Headquarter on 02.7.05 between 10.30 a.m. and 11 a.m., which is a vague statement.
95. From the deposition of PW12 and PW22, it is manifest that the accused were produced before the media soon after their SC No.24/10. Page 78 of 112 alleged arrest on 02.7.05 at about 10.30 a.m. in Police Headquarter, ITO, alongwith alleged seized material. This belies the deposition of PW24 that he left encounter spot alongwith accused on 10.45 a.m. and reached Hotel Baba Continental at 12 noon. The ignorance of PW24 about the press conference shows that he was made a puppet I.O. later on and the pivotal role in whole proceedings dated 02.7.05 was played by SI Ravinder Tyagi.
In re : Hotel Baba Continental, Karol Bagh
96. It is the case of the prosecution that the accused Gulam Moinuddin Dar and SaqiburRehman were staying in Hotel Baba Continental for a long period before they were allegedly arrested in raid on 02.7.05 near Kapasahera Border alongwith their two other associates Bashir Ahmed Shah and Nazir Ahmed Sofi. Though, as admitted by PW24 in his cross examination that he did not record any disclosure statement of accused in this regard, still SI Charan Singh (PW12) and SI Mahender Singh (PW24) went to the said Hotel alongwith the four accused for further investigation on 02.7.05 itself during the day.
97. PW13 says in his examinationinchief says that from the SC No.24/10. Page 79 of 112 Manager of the Hotel Ajay Tomar, they came to know that room nos. 102 and 206 were occupied by these four accused, these two rooms were got opened and one suitcase containing clothes and daily use items belong to accused Bashir Ahmed Shah were recovered from room no.206, one suitcase make VIP and one raxine bag containing clothes and daily use items of Gulam Moinuddin Dar from same room and another rexine bag containing clothes and daily use items of SaqiburRehman from room no.102 were recovered and seized vide memos Ex.PW13/A, Ex.PW13/B and Ex.PW13/C respectively.
98. As per seizure memo Ex.PW13/A following articles were found in the suitcase belonging to Bashir Ahmed Shah recovered from Room No.206:
1. One small Bag having metal coins, total value Rs.632/ & Four Nepal coins.
2. One Shaving Kit Bag.
3. Two Magzines.
4. One Mobile Phone Charger.
5. One Mobile Phone Cover Black.
6. Some pairs of daily use wearing apparels etc. SC No.24/10. Page 80 of 112
99. However, when the said suitcase was opened in Court during the deposition of this witness, much more was taken out from it such as some old clothes, one phone charger make Nokia, one small Mehroon colour raxine bag, one ear phone cum speaker, one mobile phone cover, one belt buckle, one small lock with two keys, four small soap cakes, one match box, one magazine Competition Success Review (CSR) May, 2005, four small booklets of CSR, one CD of Movie Munna Bhai MBBS, one invoice dated 14.05.2005 of two air tickets air Sahara in the name of Mr. Shah/BR and Mrs. Nazneen/Reyaz from Banglore to Delhi dated 14.05.2005 with corresponding receipts, one pamphlet of Doctor Batra in the name of G.M Dar, one more pamphlet of Doctor Batra in the name of G.M Dar and envelope, one pamphlet of Akbar Travels with something written in pen, many restaurants bills, one Doctor Batra's Care therapy booklet, one carbon copy of registration form of Doctor Batra in the name of G.M. Dar, one envelope containing some medicines and one newspaper advertisement of Doctor Batra and other papers of Doctor Batra's clinic with one receipt dated 16.06.2005 in patient name Mr. Dar GM and one paper bag, one small stapler and one Reebok pouch containing coins amounting to Rs.632 and four Nepalese coins. SC No.24/10. Page 81 of 112
100. Similarly, according to seizure memo Ex.PW13/B following items were found in suitcase and raxine bag of Gulam Moinuddin Dar :
1. Four Shaving Kits.
2. Two Powder boxes.
3. Three pairs of shoes.
4. One pair of Chappals.
5. One small black colour bag.
6. One mobile phone's box containing one Mobile Phone make Nokia Model No.6670 with Mobile Phone with Mobile Charger with Computer Lead.
7. Two Flutes.
8. Two pair of daily wearing apparels.
101. However, when these were opened in Court during the testimony of this witness, these were found containing three pairs of shoes, three plastic pouches containing daily use items, two powder boxes, one handkerchief box, one cardbox of Nokia phone containing a Nokia phone6670 with its accessories and bill dated 3.5.2005, some clothes, some negatives and some papers such as visiting cards, platform ticket of New Delhi Railway Station, one air Sahara Booklet, SC No.24/10. Page 82 of 112 one colour plus tag with something written on it, one Nokia1100 phone bill in the name of G M Dar, one Sanjeevan Hospital Casualty slip in the name of GM Dar dated 23.9.2004, two letters written to the Under Secretary, Election Commission on the letterhead of Haji Moinuddin Dar dated 20.10.2004 and 28.10.2004, one booklet of Pore Clingers, one carbon copy along with two photocopies of a complaint to Mandir Marg PS regarding missing of one mobile phone dated 19.9.2004, negatives kept in a envelope Tulsiyan Colour Lab, Patna, a notice issued by Under Secretary, Election Commission dated 24.8.2004 and some old clothes in the main chamber. In the one side pocket there is a black colour small raxine bag which contains some papers viz pamphlets of Nokia, jet Airway, Berkowits, an IDEA booklet with its cover, some visiting cards, some tissues etc of jet airways, one receipt of RBS Travels in the name of Bashir Ahmed dated 10.4.2005, one receipt of Berkowit in the name of J M Dar, some hand written slips, one receipt executed by one Inder Singh dated 10.11.2003 of Rs.1,50,000/, one receipt of J & K Board for specified Wakf properties, a pamphlet of NYTE Medicine, three tablets of Cetamol, one bank receipt dated 15.6.2005 of J& K Bank in token of issuance of bank draft of Rs.20,000/, one appointment letter in the name of Ghulam Moinuddin Dar as Election Agent dated SC No.24/10. Page 83 of 112 29.4.2004 and one computer Bar Code, a currency note of Rs.500/ and one booklet of Nokia1100 phone, a phone bill of the same phone dated 9.4.2005, four tablets Lomotil and one air ticket counterfoil of Jet Airways flight dated 4.4.2005 from Sri Nagar to Jammu in name of SHAH/BA MR and one tag and cash receipt of Red Tape/Wings shoes.
102. Seizure memo Ex.PW13/C shows that following articles were recovered from the raxine bag belonging to SaqiburRehman and recovered from room no.102 :
1. One Telephone Diary.
2. One black polythene containing Cosmetics items.
3. Some pairs of wearing apparels.
4. One Shaving Kit.
103. However, when the same was opened during the cross examination of this witness in court, it was found containing one red colour pouch(shaving kit), four magazines i.e. two "Nepal Travel Trade Reporters" , one "BOSS" in flight magazine and one "Casino Times" magazine(printed from Kathmandu), some photographs of SC No.24/10. Page 84 of 112 accused Saquib Rehman kept in a photo Album of Citi Top Colour Lab Pvt Ltd, Kathmandu, Nepal, one brochure of Hundai Electronics with some pamphlets, one black pen, one black polythene containing goggles in black colour case and some cosmetics, one planner diary 2004, one photograph kept in an envelope, one Alisha spiral note book, large number of STD phone booth receipts some of which are from Nepal to India, four ATM withdrawal slips, one of Nepal Investment bank, one of HDFC bank and two of SCT Network ATM, some visiting cards, many hand written slips/papers, one currency note of Rs.100 denomination cut into half in a pyramid shape, one small wooden like beads mala and some old clothes.
104. This shows that these seizure memos do not reflect the true state of things and the contents of these are imaginary. This gives us the vivid glimpse of the investigation carried out in this case was totally manipulated and motivated.
105. Now, does mere recovery of the aforesaid bags from the Hotel establish that all the accused were staying in the said Hotel? This witness PW13 has deposed in his cross examination that SI Mahender Singh did not request any other guest or employee of Hotel SC No.24/10. Page 85 of 112 to join the investigation. He admits that they did not collect any bills regarding eatables, telephone calls, room rent etc. from the hotel, which would have shown that these accused, in fact, stayed in the Hotel. He also admits that the accused were not asked to try the clothes found in the bags to find whether those belonged to them.
106. Regarding the recovery of aforesaid suitcase and bags from room nos.206 & 102 of the Hotel, PW24 has reiterated in his examinationinchief, what PW13 had said.
107. Sh. Ajay Tomar, the owner of the Hotel has been examined as PW2. In his examinationinchief, he states that accused Gulam Moinuddin Dar came to his Hotel on 04.4.05 and stayed in room no.302, he came again on 15.4.05 and stayed in room no.204 alongwith three other persons namely Nazir, Masood and Zahid. On 02.7.05 police officer again brought all the four persons to hotel. He stated that he can identify all those four persons but could only identify accused Gulam Moinuddin Dar by putting his hand on him. He identified accused Abdul Majid Bhat as Nazir Ahmed Sofi and further stated that he cannot identify the other two pesons on account of lapse of time. He proved the relevant pages of the Hotel registr as SC No.24/10. Page 86 of 112 Ex.PW2/A, Ex.PW2/B and Ex.PW2/C.
108. Perusal of the documents Ex.PW2/B and Ex.PW2/C reveal that accused Gulam Moinuddin Dar had booked room no.206 in this hotel on 14.6.05. It does not mention name of any other person. It also reveals that room no.102 was booked by one Gazi Ahmed Mir on the same day i.e. 14.6.05.
109. It becomes apparent from the deposition of PW2 and documents Ex.PW2/B and Ex.PW2/C that only accused Gulam Moinuddin Dar was staying in this hotel in room no.206. Then how and why was room no.102 raided by police is not discernible. It is not clear from the testimony of PW2 that till when did accused Gulam Moinuddin Dar stay in the Hotel. Ex.PW2/B shows duration of stay as one day in column no.10 but no date of departure is mentioned in column no.14.
110. PW24 has testified in his cross examination dated 30.8.2010 in this regard as under :
"I do not remember whether the room no.102, at Baba SC No.24/10. Page 87 of 112 Continental, Karol Bagh, from where goods of accused Saqib Rehman and Nazir Ahmed were recovered, was taken by Gazi Ahmed Mir. The witness has been shown the extract of the register alleged to be taken into possession from Baba Continental, but the witness says that he cannot say as to whose signature appear against entry at Room No.102. I cannot say whether the signature are one of the accused or not. I had not verified from the Hotel authorities or the Manager as to whose signature appear regarding hiring of Room No.102. Volunteered :
as per the statement of the Manager, Saqib Rehman and Nazir Ahmed were also staying in the said room. I had not made any inquiry as to under what capacity these two accused persons were residing in the said room. I had not made any inquiry as to who had made the booking of the said room. I had not made any inquiry as to the name of the person, under whose name the room was booked. I had not taken any action against the Manager or the owner of the hotel for not filling the due particulars in the register to be maintained in accordance with rules and regulations. It is correct that it is mandatory for a hotel to SC No.24/10. Page 88 of 112 mention the name and address of the person, in whose name the room is booked and even to keep a photocopy of the identification of the said person after verifying it from the original. I had not sent the entries in the hotel register to FSL to ascertain as to whether or not it bears the signature of any of the accused. It is correct that at entry at Srl. No.567 of Ex.PW2/B and Ex.PW2/C i.e. extract of register of Hotel Baba Continental, Gazi Ahmed Mir, son of M. Ramzan Mir, book room no.102, on 14.6.2005. It is correct that the date on which said person left is not mentioned, though the signature regarding departure are there. It is correct that time of arrival of Gazi Ahmed Mir is not mentioned in the register, which is so mentioned in the other entries. As per the statement of the Manager, the accused persons used to visit the hotel on daily basis. They had visited the hotel also on 1.7.2005. I do not know at what time, Hotel Baba Continental was visited by the accused persons. I have no knowledge whether the hotel owner made any complaint with P.S. Karol Bagh that his guests are missing. I have also no knowledge as to who had made the payment of the hotel bill or to what SC No.24/10. Page 89 of 112 extent. I have not made any inquiry in this regard from the hotel. Hotel Manager did not tell me that there is any due from the persons, who had made the bookings. I had not collected the bills regarding room service. I do not have any knowledge that at the time of room service, the bill is got signed from the occupant. No bill signed by Saqib Rehman or Nazir Ahmed was ever seized. I had not obtained the copy of the payment register nor have collected any sort of bills.
I had not made any inquiry regarding hiring of taxi service by the accused persons from the hotel. I had not collected the details of phone call made from the rooms, where accused persons were allegedly staying. I had not obtained the copy of the guest register or the particulars of the guest, who used to come to meet the accused persons."
111. Evidently no investigation has been carried out regarding Gazi Ahmed Mir, in whose name room no.102 was booked, who stayed in that room and for how many days and what was his real identity, if any at all. Why was room no.102 opened and how were SC No.24/10. Page 90 of 112 the goods of accused SaqiburRehman recovered from there is not understandable. Neither did the PW2 produce nor did the police seize any bills regards foods, room rent etc., which may show that all the four accused stayed in this Hotel till 01.7.05.
112. This only lends credibility to the version of these four accused that they were apprehended alongwith Gazi Ahmed Mir and kept in illegal custody in the Hotel since 16.6.05.
In Re. : Recoveries effected and arrest made in Kashmir
113. The next destination of the police was Kashmir as according to its story, accused had disclosed that they would get their associates arrested in Kashmir and would also get various types of arms and ammunition recovered from there hide outs in Kashmir. Investigation carried out in Kashmir were pursuant to the belief and assumption that the four accused Gulam Moinuddin Dar, Saqibur Rehman, Nazir Ahmed Shah and Bashir Ahmed Shah were terrorists and had been apprehended alongwith arms and ammunition in a raid near Kapasahera border. Since in view of the foregoing paragraphs of this judgment, it gets established that no raid at all was conducted by the Delhi Police, neither the four accused were apprehended in any SC No.24/10. Page 91 of 112 such raid near Kapasahera border nor was any material like arms and ammunition recovered from them and the whole story regarding such raid is absolutely false and fabricated, the necessary corollary should be that investigation in Kashmir were also farce and moonshine. Investigations were conducted in Kashmir just in order to plant more incriminating material upon the accused and to make the theory of raid watertight but alas! the police has here also failed in its attempt as is reflected by the deposition of various witnesses, who had gone to Kashmir.
114. According to the prosecution case, investigation of this case regarding Kashmir part were handed over to PW13 ASI Charan Singh on 03.7.05 and he interrogated accused SaqiburRehman and Haji Gulam Moinuddin Dar, recorded their disclosure statements Ex.PW13/D1 and Ex.PW13/D2. In pursuance to the said disclosure statements, he alongwith SI Ravinder Tyagi, HC Ombir and Const. Zafar Khan as well as other staff left for Srinagar in two private hired vehicles. They reached Srinagar on 04.7.05 in the evening at about 6/7 p.m. and stayed in Hotel International. As per the disclosure statement Ex.PW13/D1 Haji Gulam Moinuddin Dar is alleged to have disclosed that he had been sending secret information to ISI agency of SC No.24/10. Page 92 of 112 Pakistan alongwith his two associates Mustaq Ahmed Bhat son of late Sh. Abdul Gani Bhat, resident of Zewan, Pantha Chowk, Srinagar, and Abdul Mazid Bhat, son of Sh. Wali Mohd. Bhat, resident of Zewan, Pantha Chowk, Srinagar, and the arms recovered from him were given to him by these two persons after receiving the same from ISI agency of Pakistan. He has also alleged to have disclosed that aforesaid Mustaq Ahmed Bhat and Abdul Mazid Bhat belong to Al Umar Group and all of them together are working for ISI agency of Pakistan.
115. I find the aforesaid disclosure of Haji Gulam Moinuddin Dar quite a revealing one, which would have provided leads to the Central Intelligence Agencies like CBI and RAW in nabbing the ISI agents working in Kashmir and other parts of India. I fail to understand why ASI Charan Singh did not realise the value and importance of the aforesaid disclosure statement of accused Haji Gulam Moinuddin Dar, so far as the security and integrity of our country India is concerned. It is not understandable why he did not pass on this information to CBI and RAW for further action at their end. Since that has not been done, only logical conclusion could be drawn is that the disclosure statement in whole is false and fabricated. SC No.24/10. Page 93 of 112
116. Accused SaqiburRehman is alleged to have disclosed in his disclosure statement Ex.PW13/D2 that one Abdul Qayoom, who is employed as Deputy Director in Horticulture Department, J&K, Srinagar, is also working alongwith them for ISI agency of Pakistan.
117. So, ASI Charan Singh and his party reached Kashmir on 04.7.05 to apprehend Mustaq Ahmed Bhat, Abdul Mazid Bhat and Abdul Qayoom. ASI Charan Singh (PW13) has stated in his examinationinchief that on 05.7.05 they made search for Adbul Qayoom and other accused persons, but they could not be traced on that day, they deputed informer for tracing these two persons and ultimately, Abdul Qayoom was arrested from his house No.242, Yaar Wali Colony, Srinagar, on 07.7.05 at the instance of Saqibur Rehman. When asked in his cross examination as to what they were doing on 05.7.05 and 06.7.05, PW13 answered that they did not do anything else except whatever stated by him in his examinationin chief. He further stated that during the day time on 06.7.05 they had checked the house of Abdul Qayoom, but he was not found there. He also stated that they did not take help of local police prior to 06.7.05 and they did not make any entry at P.S. Sadar, Srinagar, on any day SC No.24/10. Page 94 of 112 during their stay in Srinagar.
118. Neither PW13 nor PW12 ASI Ravinder Tyagi has explained as to why Abdul Qayoom was not arrested from his office when they had the official address and his designation with them as disclosed by SaqiburRehman in his disclosure statement. Some fake currency is alleged to have been recovered at the instance of Abdul Qayoom, but again there is no public witness to such recovery. When asked reason for the same, PW13 in his cross examination states that one or two persons from the locality were requested to join the search and seizure, but they did not join due to language problem. He also admits that he did not mention this fact in the Case Diary. He admits that accused SaqiburRehman and Haji Gulam Moinuddin Dar were Kashmiries and were conversant with Kashmiri language and states that they did not request these two accused to converse with inhabitants of the locality in Kashmiri language to request them to join the proceedings. This raises serious doubt regarding genuineness of the recovery made at the instance of Abdul Qayoom. It may also be noted that PW13 has deposed in his cross examination that SHO, P.S. Sadar, had directed one Constable to accompany them to raid the house of Abdul Qayoom. Therefore, that Constable could have been SC No.24/10. Page 95 of 112 made a witness to the recoveries effected in the house of Abdul Qayoom. But interestingly, instead of that police Constable from P.S. Sadar, ASI Charan singh chose his own staff i.e. Const. Zafar to remain a witness to the seizure memo.
119. About 10 UBGLs and some assault rifles are stated to have been recovered from the house of accused SaqiburRehman in Srinagar on 08.7.05. PW13 has admitted in his cross examination that the house of accused SaqiburRehman is at a walking distance from the house of Abdul Qayoom. Both are situated in different lane of the same locality. So, when the police reached the house of Abdul Qayoom on 06.7.05 and 07.7.05, in his search, he would have definitely alerted the family members of accused SaqiburRehman and they would have concealed the arms and ammunitions stored in the house. It is for the reason that as per the prosecution case itself, accused SaqiburRehman and Abdul Qayoom were associates of each other working for ISI agency of Pakistan. However, as per the police theory, when raid was conducted on the house of SaqiburRehman on 08.7.05, arms and ammunitions were found there and recovered. I find same logically and practically false and impossible. It may also be noted here that PW15 Const. Zafar Khan has stated that no efforts SC No.24/10. Page 96 of 112 were made on 07.7.05 to associate neighbours of accused Abdul Qayoom in the investigation. He has deposed that the disclosure statement of Abdul Qayoom Ex.PW13/H was recorded at his house on 07.7.05 whereas PW13 states that the same was recorded after his arrest in the hired vehicles parked outside the police station Sadar, Srinagar. These are the material contradictions in the deposition of the two witnesses, which go on to demolish the prosecution case in this regard.
120. It seems that whatever has been done in Kashmir has been kept heavily guarded secret by Delhi Police. It was incumbent upon the police party led by ASI Charan Singh to inform their counterparts in J&K police about the purpose of their arrival and associate the local police in the raid. I wounder why that has not been done. The answer to the same is that in fact, no recoveries were effected in Kashmir and same have been planted later on and for these reasons, local police was not associated in the investigation in the Kashmir.
121. The another fact remains that nothing was discovered by the police party in Kashmir in respect of Mustaq Ahmed Bhat and SC No.24/10. Page 97 of 112 Abdul Mazid Bhat and they had to return empty handed in this regard. Abdul Mazid Bhat is alleged to have been arrested later on from Paharganj, New Delhi, opposite Railway Station on 11.7.05. Three detonators are alleged to have been recovered from his travel bag. As per testimony of PW13 a train ticket from Chakki Bank to New Delhi and Rs.1,250/ was recovered from the personal search of Abdul Mazid Bhat at the time of his arrest. The train ticket, which could have established that accused Abdul Mazid Bhat had in fact, travelled from Chakki Bank to New Delhi and was present in New Delhi at the relevant time has neither been deposited in the Malkhana nor has been produced by the police in Court, which raises a grave suspicion about the manner, place and time of arrest of this accused Abdul Mazid Bhat. Again no public person was made a witness to the arrest and search of Abdul Majid Bhat despite the fact that he was arrested from a crowded area like Paharganj, New Delhi. Even no efforts were made to rope in any respectable person of the area for the said purpose.
122. Same can be said regarding 102 UBGL/handgrenades and wireless set recovered from house of Gulam Moinuddin Dar in Kashmir. It has been done without associating either any member of J&K Police or any of the local respectable persons in the SC No.24/10. Page 98 of 112 investigation. PW13 has stated in his cross examination in this regard that they reached the house of Gulam Moinuddin Dar on 08.7.05 at 1 p.m. and he alongwith Const. Zafar Khan alone entered the house, but interestingly, all the recoveries effected from there have been proved by PW12 SI Ravinder Tyagi in the Court. This speaks volume about the nature of the raid and the recoveries effected thereupon. The fact that accused Gulam Moinuddin Dar has not been booked under the Customs Act and other relevant Statues for the possession of wireless set also shows that the same has been planted and in fact, no such recovery was effected from his house.
123. In this regard, it is useful to refer to the order dated 18.9.06 passed by Chief Judicial Magistrate, Bargam, Srinagar (Ex.DW1/P1) passed on an application filed on behalf of the accused. Before referring to the order, it may be noted that it was mandatory for the police team led by SI Charan Singh to involve the local police in the raid and make any member of the local police force as witness of the raids and the recoveries. The result of the raid was to be mentioned in the DDs entry in the local police station and local police should have informed about the recoveries made at the instance of accused persons. It may also be noted that as per the deposition of SC No.24/10. Page 99 of 112 PW13, as mentioned herein above, the SHO, P.S. Sadar, has verbally directed a Constable to accompany the raiding party and earlier in an order dated 07.7.05 of CJM, Badgam, also mentioned that the accused are identified by certain police offices, who are identified by Const. Aijaz Ahmed No.4353/S, which shows that Const. Aijaz Ahmed was a witness to the arrest of Abdul Qayoom and seizure of material at his instance but his signatures do not appear anywhere.
124. Now coming to the order dated 18.9.06, it has been recorded therein that on the basis of a detailed report filed by P.S. Sadar, that the police team from Delhi has neither conducted personal search of accused persons nor recovered anything from them at their instance during the period 05.7.05 to 07.7.05. It has also come on record that on 08.7.05 all the three accused SaqiburRehman, Gulam Moinuddin Dar and Abdul Qayoom were produced before CJM, Badgam for transit remand. In this regard also, there is contradiction between deposition of various witnesses as to the timings when the accused were produced in the Court for remand and when the raids were conducted on the house of accused Gulam Moinuddin Dar and accused SaqiburRehman. It is also not understandable as to why everything was done on the last date of stay in Srinagar, whereas SC No.24/10. Page 100 of 112 previous two dates i.e. 06.7.05 and 07.7.05 were wasted by doing nothing. Be that as it may, there is no court order from any court of Kashmir or any DD entry in any police station in Kashmir, which may go to show that the team led by ASI Charan Singh conducted any raid in Srinagar and recovered any material at the instance of the accused.
In Re. : arrest of accused Birender
125. Accused Birender is also alleged to be one of the associates of the other accused and an agent of ISI agency of Pakistan. As per the testimony of PW24, SI Mahender Singh, he proceeded to Patna in search of accused Birender and Vijay on 04.7.05. A look at the disclosure statements of all the accused recorded on 02.7.05 does show the name of either Birender or Vijay therein. So what prompted PW24 to embark upon the trip to Patna on 04.7.05 and how he dreamt about involvement of Birender and Vijay in present case is not understandable. Why he chose the place of Patna only for his visit is not discernible. According to PW24, they reached Patna on 05.7.05, did not find either of the two persons Birender and Vijay and thereafter returned to Delhi on 06.7.05. As per his testimony, he had gone to Patna alongwith accused Nazir Ahmed Sofi and Bashir SC No.24/10. Page 101 of 112 Ahmed Shah.
126. As per deposition of PW24 SI Mahender Singh, he again went to Patna on 20.8.05 and sought help from Sh. Siraj Khan, SHO, P.S. Gandhi Maidan. He stayed there at Hotel Welcome Palace, Bhattacharya Road, Patna. He further stated that SHO, Siraj Khan informed him in the morning on 22.8.05 that accused Birender has been apprehended He thereafter went to police station Gandhi Maidan, where he found accused Birender present and formally arrested him also, recorded his disclosure statement pursuant to which fake currency of Rs.82,000/ (consisting of currency notes in the denomination of Rs.500/) were recovered at the instance of this accused Birender from the house of Avdhesh Sinha, Ilaqa Kadam Kuan, from an almirah in the room. Thereafter, SI Mahender Singh returned to Delhi on 23.8.05. He has also deposed that SI Arun Mandal of P.S. Gandhi Maidan accompanied him at the time when accused Birender led the police party to the place of recovery of fake currency.
127. From the aforesaid deposition of this witness (PW24), it is manifest that he did not apprehend accused Birender himself, but he SC No.24/10. Page 102 of 112 was allegedly apprehended by SHO, Siraj Khan, P.S. Gandhi Maidan, Patna. No DD entry recorded in P.S. Gandhi Maidan in this regard has been proved. SHO Siraj Khan has not been examined as a witness by the prosecution to prove that he apprehended accused Birender. SI Arun Mandal has not been produced by the prosecution despite repeated opportunities to prove that the recoveries were effected at the instance of accused Birender in his presence.
128. Therefore, it remains a mystery as to how SHO Siraj Khan apprehended accused Birender when he neither had the full particulars of that person nor his photograph. It cannot be believed that there is only one person by the name Birender in the whole Patna. What about Vijay, nothing has been deposed by this witness in his whole testimony whether accused Vijay was apprehended and if not why?
129. Again no public person has been made as a witness to the alleged recovery of fake currency made at the instance of accused Birender even the seizure memo does not bear the signature of SI Arun Kumar Mandal as admitted by PW24 in his cross examination. I also fail to understand why the owner of the house, from which the SC No.24/10. Page 103 of 112 fake currency has been recovered allegedly at the instance of accused Birender has been allowed to go scot free and not impleaded in this case. No explanation has been given by the police in this regard. All these facts go to show that arrest of accused Birender was preplanned and the fake currency has been planted upon him deliberately to implead him in the present case falsely.
In Re. : diffusion/ destruction of 13 UBGL allegedly recovered from and at the instance of the accused
130. The prosecution case is that they recovered three handgrenades from accused SaqiburRehman (one from his person at the time of raid on 02.7.05 and two at his instance from his house at Srinagar later on) and 13 UBGL handgrenades from Srinagar at the instance of accused Gulam Moinuddin Dar. Thus, the total grenades/ UBGL recovered from and at the instance of the accused is 16.
131. On an application filed on behalf of the prosecution, this Court vide order dated 29.10.05 permitted the police to send 15 grenades (2 Chinese handgrenades and 13 UBGL) to CGO Complex, Lodhi Road, for chemical analysis. One handgrenade was preserved for matching fingerprint upon the same with those of the accused, but SC No.24/10. Page 104 of 112 no such report has been filed on record till date.
132. Despite the fact that only 15 grenades were sent for chemical analysis Lt. Col. S. Pandey (PW31) has submitted a report about the chemical analysis and diffusion of 16 handgrenades. The said report is Ex.PW31/C. This witness has admitted in his cross examination that court order was necessary for them for diffusing and destroying the explosive material sent to them and it was necessary to see the court order before signing the opinion Ex.PW31/B. At any place in the cross examination, he states that his report Ex.PW31/C is based upon the report given to him by the Officer Commanding, BDU, NSG. He also deposed that the Commanding Officer, BDU, NSG, is of the same rank as of his own and he had to issue the certificate Ex.PW31/C for the reason that BDU, NSG, is not authorised to correspond with Delhi Police directly.
133. It is apparent that the aforesaid certificate Ex.PW31/C has been manipulated from this witness PW31, who did not examine the handgrenades/UBGL but issued the certificate just on the mere asking of Commanding Officer, BDU, NSG. This is also manifest from the deposition of PW30 ASI Dharam Singh, who deposed that he took a SC No.24/10. Page 105 of 112 sealed pullinda containing 13 handgrenades to NSG, Manesar vide RC No.61/21 for the purpose of diffusing the same. It is not understandable as to how PW31 says that 6 parcels containing 16 grenades/UBGL were received from Delhi Police when only 13 handgrenades/UBGL were allegedly recovered from and at the instance of the accused.
In re. : Defence of the accused
134. Since the case put forward by the prosecution against these accused has fallen flat and it has been established that the encounter so projected by the police was an absolutely fake and stage managed, the defence put forward by the accused that they are innocent and have been framed up falsely in this case gains credence. Even otherwise, it has been proved on record by DW1 Gulam Moinuddin Dar (one of the accused) that he has been engaged in anti militancy operations in J&K and has got more than 300 militants surrendered in Kashmir valley. The other accused Bashir Ahmed Shah was his friend and paid the price for the same. The third accused SaqiburRehman also used to give valuable inputs to J&K police about various anti social elements. The other accused were ordinary citizens and no criminal or terrorism related background has been SC No.24/10. Page 106 of 112 proved in their case.
In re : Conclusion
135. Viewed from any angle, the encounter alleged to have been taken place on the night intervening between 01.7.05 and 02.7.05, did not take place at all and an absolutely fake encounter has been projected. The story of the encounter was carefully scripted in the office of Special Staff, Delhi Police, Dhaula Kuan, by its main author SI Ravinder Tyagi with the assistance of SI Nirakar, SI Charan Singh and SI Mahender Singh. All these four police officers have acted in advancement of their self interests in total disregard to the demands of their solemn duty. These four police officers whose duty was to protect and safeguard the citizens, have turned persecutors and tormentors.
136. The aim of the investigating agency is to collect evidence and not to create it. Its aim should be to discover the truth. It is not only unethical but also illegal for an investigating agency to resort to concoction, paddling, fabrication of evidence - all serious offences under the law even to bring a known criminal to justice. Its relevance in India is much felt as there are no defence investigators as SC No.24/10. Page 107 of 112 there are in various western countries. Hence the machinery of criminal law is often used here as a handy weapon to wreak vengeance on the enemy.
137. Fabrication of false encounter is not justified in any social setup where the rule of law prevails even if the person, so apprehended, is really a terrorist or otherwise, harmful to the society. In India, a section of some overzealous, overambitious and scrupulous police officers is seen, who seem to think that if a person is really harmful to the society, there is no problem in creating some evidence or supplying the missing link in the evidence to secure his conviction. If fabrication of false evidence were to be justified because of a laudable motive, the worst criminal on earth would justify the worst crime on the ground of good motive.
138. In the present case, the prosecution has failed to produce any evidence to show that the accused persons are in fact, terrorists having links with the ISI Agency of Pakistan. No investigation has been conducted in this regard by the Delhi Police. It has failed to trace out the source of the arms/ammunition allegedly recovered from and at the instance of the accused as also that of the fake currency SC No.24/10. Page 108 of 112 notes. No investigation has been carried out in Gurgaon from where the accused allegedly came to Delhi alongwith arms/ammunition. The secret information received by SI Ravinder Tyagi has turned out to be absolutely concocted. So, where was the justification for the raid and encounter.
139. See the plight of these seven accused, out of whom five have been languishing in jail for about five and a half years now for no fault of theirs. They are totally innocent and have been framed in this case by the aforesaid four police officers in order to achieve their personal gains and/or to settle petty personal scores, be that at the behest of one Major Sharma, whose attempts to persuade accused Gulam Moinuddin Dar to work for him in getting the militants surrendered in Kashmir were spurned by him (Gulam Moinuddin Dar) or to earn undue honours or awards for themselves. In today's aspirational world of glitter, fine dining and mall culture, only money and material matters. The values such as service to the nation, integrity and honesty are becoming rare.
140. All the accused are liable to be acquitted and are hereby acquitted honourably. I cannot resist reading out a prayer to these SC No.24/10. Page 109 of 112 accused which a Canadian Lady Judge read out to a prisoner, whom she had to free after spending 26 years in prison. The prayer is :
Dear friends, May the road rise to meet you, May the wind be always at your back, May the Sun shine warn on your face, May the rain fall softly upon you, May God hold you in the palm of his hand, now and forever.
141. I go again back to the stage managing of the fake encounter by the four police officials namely SI Ravinder Tyagi, SI Nirakar, SI Charan Singh and SI Mahender Singh, as it is difficult to take it out of mind. These four police officers have brought utter shame and disrepute to the whole Delhi Police Force. In my opinion, there cannot be any more serious or grave crime than a police officer framing an innocent citizen in a false criminal case. Such tendency in the police officers should not be viewed or dealt with lightly but needs to be curbed with a stern hand. It is because of such brazen acts of a few policemen that the general public is losing faith in the whole SC No.24/10. Page 110 of 112 police system. Such black sheep, who are out to defame and bring into disrepute the whole police force, need to be identified from the whole flock and taken to task.
142. I, therefore, direct the Commissioner of Police, Delhi, to initiate appropriate enquiry against the four police officers SI Ravinder Tyagi, SI Nirakar, SI Charan Singh and SI Mahender Singh (who by now may have been promoted to the post Inspector) for the misuse and abuse of their powers as a police officer, as detailed hereinabove. The enquiry shall be completed within three months from today, and report be submitted to this Court on the next date of hearing.
143. The SHO, Police Station Kapasahera is also directed to register FIR against the aforesaid four police officers U/s.167 IPC and forward the same to the Addl. Commissioner of Police (South/West) who shall conduct investigation which shall be completed within three months from today and a report be submitted to this Court on the next date of hearing. A copy of the FIR shall be sent to this Court within one month from today.
SC No.24/10. Page 111 of 112
144. A copy of this judgment be sent to the concerned Magistrate dealing with the cases of police station Kapasahera with directions to treat the same as a complaint against SI Ravinder Tyagi, SI Nirakar, SI Charan Singh and SI Mahender Singh of Delhi Police for offences punishable U/s.166, 193 and 195 IPC and to proceed with the same as per law.
145. Before concluding, I would like to remind the whole Delhi Police force about the disconcerting note sounded by Abraham Lincolon :
If you once forfeit the confidence of our fellow citizens, you can never regain their respect and esteem. It is true that you can fool all the people some of the time and some of the people all the time, but you cannot fool all the people all the time.
Put up for reports to be filed by the Commissioner of Police, Delhi, and Addl. Commissioner of Police (South/West), Delhi, on 05.5.2011.
Announced in open (VIRENDER BHAT)
Court on 02.2.2011. A.S.J. :Dwarka Courts
New Delhi.
SC No.24/10. Page 112 of 112