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Sunday, February 17, 2013

a fake encounter = for issuing directions to respondents 1 to 4 for registration of FIR under Sections 302 and 201 of the Indian Penal Code (“the IPC”) against respondents 5 to 9, who were policemen attached to Police Station Bawal, District Rewari (Haryana), at the relevant time, for committing the murder of Sunil, son of the appellant in a fake encounter in the night intervening 12/10/2008 and 13/10/2008 at Rewari Road, Narnaul and for further direction to the Central Bureau of Investigation (“CBI”) to investigate the said FIR. = Ignoring the mandate of Section 154 of the Code and the law laid down by this Court, the police have merely conducted inquiries which appear to be an eyewash. It is distressing to note that till date, no FIR has been registered on the complaint made by the appellant. The only FIR which was registered is against Umesh under Sections 332, 353, 307 read with Section 34 of the IPC at the instance of ASI Ram Sarup. As already noted, in that case, Umesh has been acquitted. 13. Once we come to a conclusion that Sunil is killed in an encounter, which appears to be fake, it is necessary to direct an independent investigating agency to conduct the investigation so that those who are found to be involved in the commission of crime can be tried and convicted. -We share the pain and anguish of the appellant, who has lost his son in what appears to be a fake encounter. He has conveyed to us that he is not interested in money but he wants a fresh investigation to be conducted. While we respect the feelings of the appellant, we are unable to direct fresh investigation for the reasons which we have already noted. In such situation, we turn to Nilabati Behera, wherein the appellant’s son had died in custody of the police. While noting that custodial death is a clear violation 19Page 20 of prisoner’s rights under Article 21 of the Constitution of India, this Court moulded the relief by granting compensation to the appellant. In the circumstances of the case we set aside the impugned judgment and order dated 13/9/2010 and in light of Nilabati Behera, we direct respondent 1 – State of Haryana to pay a sum of Rs.20 lakhs to the appellant as compensation for the pain and suffering undergone by him on account of loss of his son - Sunil. The payment be made by demand draft drawn in favour of the appellant “Rohtash Kumar” within a period of one month from the date of the receipt of this order.


Page 1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 306 OF 2013
[Arising out of Special Leave Petition (Crl.) No.9359 of 2010]
ROHTASH KUMAR … APPELLANT
Versus
STATE OF HARYANA
Through the Home Secretary,
Government of Haryana,
Civil Secretariat,
Chandigarh & Ors. … RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. In this appeal, by special leave, judgment and order
dated  13/9/2010  of  the  Punjab  and  Haryana  High  CourtPage 2
dismissing  Criminal  Misc.  No.M-2063  of  2009  filed  under
Section 482 of the Criminal Procedure Code (“the Code”) is
challenged.    In  the  petition  before  the  High  Court,  the
prayer was for issuing directions to respondents 1 to 4 for
registration of FIR under Sections 302 and 201 of the Indian
Penal Code (“the  IPC”) against respondents 5 to 9, who
were policemen  attached to Police Station Bawal, District
Rewari (Haryana), at the relevant time, for committing the
murder of Sunil, son of the appellant in a fake encounter in
the night intervening 12/10/2008 and 13/10/2008 at Rewari
Road, Narnaul and for further direction to the Central Bureau
of Investigation (“CBI”) to investigate the said FIR. 
3. Brief facts of the case need to be stated:
According  to  the  appellant,  in  the  night  intervening
12/10/2008 and 13/10/2008, his son - Sunil was killed in a
fake  encounter  by  the  officials  of  Police  Station  Bawal,
District Rewari.  It is alleged that on 13/10/2008, the SHO of
Police Station City Narnaul came to the appellant and asked
him  to  accompany  him  to  identify  an  injured  person
2Page 3
suspecting him to be his son at Civil Hospital, Narnaul.  The
appellant found his son lying dead in the mortuary and on
hearing the news from SHO that his son has been killed in an
encounter by a team of Bawal police headed by respondent
5,  he  became  unconscious.   The  post-mortem  of  the
deceased had already been conducted.   On persuasion of
SHO Sadhu Singh, the dead body of Sunil was consigned to
flames.  According to the appellant, he observed 13 days
mourning for the death of his son.  During this period, he
collected copies of post-mortem report and FIR No.351 dated
13/10/2008 registered at Police Station City Narnaul.   He
came to know that respondents 5 to 9 had murdered his son
with ulterior motive and had given  shape of encounter to
the  murder.   The encounter  never  took place.   It is  the
appellant’s case that FIR No.351 and the post-mortem notes
themselves prove that the story of encounter is a concocted
story, rather it is a clear case of murder by respondents 5 to
9.   According to the appellant, the truth will come out only if
this court directs registration of FIR under Section 302 and
3Page 4
201 of the IPC against respondents 5 to 9 and directs its
investigation by CBI.
4. The  other  version  which  also  needs  to  be  stated  is
disclosed from FIR No.351 dated 13/10/2008 lodged at Police
Station City Narnaul by ASI Ram Sarup.  It is stated in the FIR
that ASI Ram Sarup of Police Station Bawal along with others
was sent for the search of accused Parveen @ Sunil s/o.
Rohtash, r/o. Mohalla Jamalpur, Narnaul, named in FIR No.52
dated 19/4/2008.  When they were at Narnaul Bus Stand,
they  received  a  secret  information  at  12:15  a.m.  in  the
midnight that the said Praveen @ Sunil, who is the most
wanted criminal in the districts of Rewari and Mahindergarh
will be crossing Narnaul.  The officials of Bawal Police Station
started checking the motor cycles passing through Narnaul.
At about 12:25 a.m., a pulsor motor cycle driven by Umesh
was seen approaching.  Sunil was the pillion rider.  Constable
Gulab Singh knew Sunil personally.  He identified Sunil in
street light.  The motor cycle rider was signaled to stop but
he did not stop and, instead increased its speed and hit one
4Page 5
constable.   The  constable  fell  down.   Sunil  brandished
firearms  with  both  hands.   The  motor  cycle  was  turned
towards Rewari Road.  The police vehicle chased the motor
cycle.  In the chase, the police vehicle hit the motor cycle.
Due to imbalance, firearm held by Sunil in his left hand fell
down.  The motor cycle, Sunil and his companion also fell
down.   Sunil  stood  up  and  fired  at  the  police  with  the
intention  to  kill  them.   The  police  managed  to  save
themselves.  Sunil took out another cartridge from his pant
pocket and tried to load it in his firearm to kill the policemen.
ASI Ram Sarup ordered the policemen to fire in self defence.
Constable Keshav Kumar opened burst fire on Sunil in self
defence.  Bullets hit on the chest and stomach of Sunil.  Sunil
died on the spot.  If the police had not opened fire, Sunil
would have killed policemen.  ASI Ram Sarup informed about
this incident to Police Station City Narnaul through wireless
set.  Umesh, the driver of the motor cycle, taking advantage
of darkness, fled away towards Rewari Road by leaving the
motor cycle behind.  Umesh was chased and arrested.  On
receiving  information  from  ASI  Ram  Sarup,  Police Station
5Page 6
Bawal, FIR No.351 dated 13/10/2008 was registered under
Sections 332, 353, 307, 34 of the IPC at Police Station City
Narnaul.  
5. Mr.  Gagan  Gupta,  learned  counsel  for  the  appellant
submitted that the High Court misdirected itself in holding
that  there  was  nothing  on  record  to  establish  that  the
appellant’s  son  Sunil  died  in  a fake  encounter.   Counsel
submitted  that  the  police  version  that  in  the  night
intervening 12/10/2008 and 13/10/2008, on receipt of secret
information that Sunil, who was wanted in several cases was
to pass by the bus stand of Narnaul, the officials of Police
Station Bawal reached Narnaul bus stand; that they saw a
motor cycle approaching the bus stand; that they recognized
Sunil who was sitting on the pillion seat; that they asked him
to stop the motor cycle, but instead of stopping, Sunil fired
at the police and in self defence, the police had to fire back
and in that firing Sunil died, is a concocted story.  Counsel
submitted that this story is belied by the fact that in the
post-mortem  notes,  it  is  stated  that  the  bullet  injuries
6Page 7
received by Sunil were caused from a distance of 3 to 8 feet
and there was blackening around the edges of the entry
wounds.   This  proves  that  Sunil  was  shot  at  from  close
quarters.   Sunil had received injuries on  his chest which
indicates that this is a case of murder.  If the police wanted
to arrest Sunil, they could have fired on non-vital parts of his
body.  The post-mortem notes also show that there is one
wound of entry on the back of Sunil.  This demolishes the
police version that Sunil was the aggressor.  Besides, not a
single policeman was injured in this incident.  If there was
really cross-firing as alleged, at least one of the policemen
would  have  received  some  firearm  injuries.   Counsel
submitted that the inquiry conducted by the Tahsildar is an
eyewash. Same is the case with the inquiry conducted by
Additional  Deputy  Commissioner.   Counsel  drew  our
attention to the advertisement issued in the newspapers and
submitted  that  the  photographs  of  Sunil  shown  in  the
advertisements are dissimilar.  Counsel submitted that in an
encounter death, a separate FIR has to be registered with
respect to the encounter, which has not been done in this
7Page 8
case.  Counsel submitted that the Magisterial enquiry under
Sections 174 to 176 of the Code cannot be a substitute for
the  obligation  of  the  police  to  register  FIR  and  conduct
investigation into the facts and circumstances under which
the person died.  Counsel submitted that in such a case, the
High  Court  ought  to  have  directed  the  CBI  to  conduct
investigation  and submit report  to  this  court so  that the
offenders  could  be  prosecuted.   In  support  of  his
submissions, counsel relied on  Rubabbuddin  Shaikh   v.
State of Gujarat & Ors.
1
 and Narmada Bai  v.  State of
Gujarat  & Ors.
2
  Counsel urged that this court may issue
necessary instructions to the respondents.
6. Mr.  P.N.  Misra,  learned  senior  counsel  for  the
respondents  drew  our  attention  to  the  affidavits  filed  on
behalf of the respondents. He submitted that Sunil was a
dreaded criminal.  He was charge-sheeted in several cases.
He was declared a proclaimed offender.  Counsel drew our
attention to the radiogram dated 10/7/2007 and pamphlets
1
 (2010) 2 SCC 200
2
 (2011) 5 SCC 79
8Page 9
issued by the police declaring that any person who gives
information  about  Sunil  would  be  rewarded.    Counsel
pointed out that on 13/10/2008, the FIR was registered.  The
District  Magistrate  directed  the  Tahsildar  to  conduct  an
inquiry.  The Tahsildar conducted inquiry and submitted a
report  that  Sunil  died  in  a  genuine  encounter.   Counsel
pointed  out  that  after  notice  was  issued  in  the  present
appeal, even the Additional Deputy Commissioner conducted
an  independent  inquiry  and  submitted  a  report  that  the
encounter was genuine.  Counsel submitted that this is a
clear case of a genuine encounter and, hence, the appeal
deserves to be dismissed.
7. Mr.  Raju  Ramachandran,  learned  amicus  curiae,  has
filed a detailed note.  Counsel submitted that the Tahsildar’s
inquiry is not satisfactory and no credence could be given to
his  report  because  the  Tahsildar  appears  to  have  been
carried away by the fact that Sunil was a dreaded criminal
against whom six FIRs were registered.  Counsel submitted
that though the report notices that there was blackening and
9Page 10
tattooing around the entry wounds, it does not take note of
the fact that the blackening and tattooing around the entry
wounds are indication of the fact that the shots were fired
from  a  short  distance.   The  police  have  produced  two
photographs of two different persons stating that they are of
Sunil.  Therefore, their case that they identified Sunil using a
torch  at  midnight  on  the  basis  of  photographs  becomes
doubtful.  No firearms were recovered from the body of the
deceased  and  the  police  officers  have  not  received  any
injuries.  These facts are not consistent with the theory of
encounter.   Counsel  submitted  that  the  police  have  not
followed the guidelines issued by the National Human Rights
Commission, which is violative of the mandate contained in
Article  21  of  the  Constitution  of  India.  No  FIR  has  been
registered in this case till date on the complaint filed by the
appellant.  In law, an FIR is to be mandatorily registered
whenever a complaint of a cognizable offence is filed. In
support of this submission, counsel relied on  Babubhai  v.
State of Gujarat
3
, and State of Haryana v.  Bhajan Lal
4
.
3
 (2010) 12 SCC 254
4
 1992 Supp. (1) SCC 335
10Page 11
Counsel submitted that the appellant has been effectively
denied access to justice and legal remedy, which is violative
of Article 21 of the Constitution of India.   Counsel submitted
that it is true that in such cases, this Court can direct fresh
investigation by an independent agency.  But, directing an
investigation at this distant time would be an exercise in
futility.  No ocular evidence would be available now.  Records
of the two police stations involved in this case would also not
be available.  Counsel submitted that in such a case, where
directing a fresh investigation at this stage is not going to be
of any use, it would be appropriate to direct the State to pay
heavy compensation to the appellant.  In this connection,
counsel  relied  on  Nilabati  Behera  (Smt.)  Alias  Lalita
Behera  (through  the  Supreme  Court  Legal  Aid
Committee)  v.  State of Orissa & Ors.
5
8. After  carefully  perusing  the  inquiry  report  dated
17/11/2008 submitted by Tahsildar, Narnaul  and the inquiry
report dated 7/1/2011 submitted by the Additional Deputy
Commissioner and other relevant record, we are inclined to
5
 (1993) 2 SCC 746
11Page 12
agree with learned counsel for the appellant and learned
amicus curiae that Sunil appears to  have died in  a fake
encounter.  Post-mortem notes of Sunil state that the bullets
were fired from a distance of about 3-8 ft. from the body.
They  further  state  that  blackening  and  tattooing  were
present around the entry wounds caused by the bullets. This
indicates  that  the  shots  were  fired  from  a  very  short
distance.   There  was  entry  wound  on  the  back.   Entry
wounds are also seen on the chest. The location and nature
of wounds are not consistent with the theory of genuine
encounter.  If the police party wanted to merely prevent
Sunil from running away, they could have fired on the nonvital parts of his body.  If the police version that Sunil was
aggressive, that he and his companion wanted to kill the
policemen  to  deter  them  from  doing  their  duty  and,
therefore, Sunil fired at the police party was true, at least
one member  of the police party would have got injured.
Significantly, no one from the police party was injured. There
is also no formal record of any recovery of firearms from the
body of Sunil.  It is significant to note that Umesh who was
12Page 13
riding the motorcycle at the time of encounter, was arrested
and tried for offences under Sections 332, 353, 307 read
with Section 34 of the IPC inter alia for using criminal force
to deter public servants from discharge of their duty.  The
Sessions Court acquitted Umesh.  Acquittal of Umesh makes
a dent in the prosecution case that Sunil fired at the police
when the police asked him and Umesh to stop.  The police
claim to have identified Sunil at the time of encounter on the
basis of photographs in their possession.  Our attention has
been  drawn  to  two  photographs  of  Sunil,  shown  on  the
pamphlets  announcing  reward  to  anyone  who  gives  any
information to the police about him.  These two photographs
appear to be of two different persons.   This is tried to be
explained by Head Constable Gulab Singh in his affidavit that
one of the two photographs was taken from Haryana School
Education Board and the other was given to him by a police
informer.  It is stated that one photograph shows Sunil as a
teenager  and  the  other  shows  him  as  a  young  man.
Assuming this to be true, it is not understood how the police
could have identified Sunil in the midnight in torch light.  It is
13Page 14
also not understood as to on the basis of which of the two
photographs,  at  dead  of  night,  they  identified  him.   The
assertion  that  Head  Constable  -  Gulab  Singh  knew  Sunil
personally  and  he  identified  him  in  street  light  does  not
inspire confidence.  Pertinently, there is reference to use of
torch in the FIR filed by ASI Ram Sarup.
9. It is the case of the police that Sunil was a dreaded
criminal and six FIRs were registered against him.  In none of
the FIRs, however, the name of Sunil appears.  It is true that
it is not necessary that the FIR must contain the name of an
accused.  The involvement of an accused can come to light
after the police record statements of witnesses and collect
relevant materials. It is possible that Sunil may be really
involved in all these six cases. It also appears that he was
declared  absconder.  But  merely  because  a  person  is  a
dreaded criminal or a proclaimed offender, he cannot be
killed in cold blood. The police must make an effort to arrest
such accused.  In a given case if a dreaded criminal launches
a  murderous  attack  on  the  police  to  prevent  them  from
14Page 15
doing their duty, the police may have to retaliate and, in that
retaliation, such a criminal may get killed.  That could be a
case of genuine encounter.  But in the facts of this case, we
are unable to draw such a conclusion.
10. We find that while inquiring whether the encounter is
genuine or not, the Tahsildar, Narnoul is carried away by the
fact that six FIRs are registered against Sunil and that he is a
proclaimed offender. The inquiring authority must first focus
its attention on the circumstances that led to the death of a
person in an encounter. If it comes to a conclusion that it
was the deceased who had attacked the police to prevent
them from arresting him or to prevent them from performing
their public duty and, therefore, the police had to retaliate,
then the antecedents of the deceased could be taken into
consideration as additional material at that stage to support
the police version that it was a genuine encounter. But the
inquiring authority cannot start the inquiry keeping in mind
the antecedents of the deceased.  The Tahsildar was in error
in  doing  so.   The  Tahsildar  has  placed  reliance  on  the
15Page 16
statements  of  two  chance  witnesses,  both  named  Amar
Singh, who were allegedly present at the time of encounter.
We  have  already  referred  to  the  sessions  case  in  which
Umesh, who was said to be driving the motorcycle on which
Sunil was sitting, was tried.  It is significant to note that in
that case, PW-8 Amar Singh s/o. Khem Chand was given up
by the prosecution since he turned hostile.  So far as PW-7
Amar Singh s/o. Amit Lal is concerned, he appears to have
merely referred to some incident.  The Sessions Judge has,
therefore, merely reproduced his evidence and has not given
any weightage to it.  Reliance placed by the Tahsildar on the
statements  of  these  two  chance  witnesses  weakens  his
report further.
11. After notice was issued by this Court, the Additional
Deputy Commissioner conducted an inquiry and submitted
his report dated 7/1/2011.  This report places reliance on the
earlier report of the Tahsildar which we have found to be not
satisfactory.  This report places the burden of proof on the
appellant.  We find it difficult to accept the report of the
16Page 17
Additional  Deputy  Commissioner  which  concurs  with  the
Tahsildar’s finding that the encounter was genuine.   The
High Court has erroneously observed that the appellant has
failed to bring on record anything to establish his case of
false  encounter.   All  the  relevant  circumstances  were
completely overlooked by it.  In the circumstances, the High
Court’s order impugned in this appeal will have to be set
aside.
12. What disturbs us is the fact that the police have refused
to  follow  the  guidelines  dated  2/12/2003  issued  by  the
National  Human  Rights  Commission.   The  two  crucial
guidelines which have been completely ignored by the police
are that the investigation into the encounter death must be
done  by  an  independent  investigation  agency  and  that
whenever a complaint is made against the police making out
a case of culpable homicide, an FIR must be registered.  In
the instant case, the police have refused to even register the
FIR on the complaint made by the appellant alleging that his
son Sunil was killed by the police.  Section 154 of the Code
17Page 18
mandates that whenever a complaint discloses a cognizable
offence, an FIR must be registered.  This Court has, in a
catena of judgments, laid down that the police must register
an FIR if a cognizable offence is disclosed in the complaint.
[See:  State  of  Haryana  v.  Bhajan  Lal
6
]. Ignoring  the
mandate of Section 154 of the Code and the law laid down
by this Court, the police have merely conducted inquiries
which appear to be an eyewash.  It is distressing to note that
till date, no FIR has been registered on the complaint made
by  the  appellant.   The  only  FIR  which  was  registered  is
against  Umesh  under  Sections  332,  353,  307  read  with
Section 34 of the IPC at the instance of ASI Ram Sarup.  As
already noted, in that case, Umesh has been acquitted. 
13. Once we come to a conclusion that Sunil is killed in an
encounter, which appears to be fake, it is necessary to direct
an  independent  investigating  agency  to  conduct  the
investigation so that those who are found to be involved in
the commission of crime can be tried and convicted. But, as
6
 1992(supp)1 SCC 335
18Page 19
rightly pointed out by learned amicus curiae directing an
investigation, at this distant point of time, will be an exercise
in futility.  We are informed that witnesses would not be
available.  It would be difficult to trace the record of the case
from the two police stations. Handing over investigation to
an independent agency and starting a fresh investigation
would be of no use at this stage. Reliance placed by  learned
counsel  for  the  appellant  on  Rubabbuddin  Shaikh and
Narmada  Bai  is  misplaced.
Those  cases  arose  out  of
different fact situations. No parallel can be drawn from them.
14. We share the pain and anguish of the appellant, who
has lost his son in what appears to be a fake encounter.  He
has conveyed to us that he is not interested in money but he
wants  a  fresh  investigation  to  be  conducted.   While  we
respect the feelings of the appellant, we are unable to direct
fresh investigation for the reasons which we have already
noted. 
 In  such  situation,  we  turn  to  Nilabati  Behera,
wherein  the  appellant’s  son  had  died  in  custody  of  the
police.  
While noting that custodial death is a clear violation
19Page 20
of prisoner’s rights under Article 21 of the Constitution of
India,  this  Court  moulded  the  relief  by  granting
compensation to the appellant.  
15. In  the  circumstances  of  the  case  we  set  aside  the
impugned judgment and order dated 13/9/2010 and in light
of  Nilabati  Behera,  we  direct  respondent  1  –  State  of
Haryana to pay a sum of Rs.20 lakhs to the appellant as
compensation for the pain and suffering undergone by him
on account of loss of his son - Sunil. The payment be made
by demand draft drawn in favour of the appellant “Rohtash
Kumar” within a period of one month from the date of the
receipt of this order. 
16. The appeal is disposed of accordingly.
17. Before  parting,  we  record  our  appreciation  of  the
valuable  assistance  rendered  to  us  by  Mr.  Raju
Ramachandran, learned amicus curiae.
20Page 21
……………………………………………..J.
     (AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
FEBRUARY 14, 2013.
21