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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
FEBRUARY 14, 2013.
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