aircraft hijacking case delhi court judgement_jitender mohla

IN THE COURT OF SHRI I.S.MEHTA, DISTRICT JUDGE & ADDITIONAL SESSIONS JUDGE, INCHARGE SOUTH WEST DISTRICT, NEW DELHI

Session Case No: 8/2009Date of Institution : 16.2.2009Date of Decision : 25.10.2012

State Vs. Jitender MohlaS/o Sh. Ashok KumarR/o 662, Air Force Naval Officers Enclave, Plot No. 11, Sector-7,Dwarka, New Delhi.

FIR NO : 5/2009PS : IGI Airport (Domestic)U/S 336/503/506/170 IPC, 3 (1) (d) & 3 (2) of Suppression of unlawful Act against the Safety of Civil Aviation Act 1982 and 3 (2) & 4 under Anti Hijacking Act 1982.

For State : Sh. Vishnu Saran, Ld. Designated PP.For Accused : Ms. Kamna Vohra, Adv. Ld. Defence counsel.

J U D G M E N T

1. Accused Jitender Mohla is facing trial for committing

offence under Section 336/503/506/170 IPC, 3 (1) (d) and 3 (2) of

Suppression of unlawful Act against the Safety of Civil Aviation Act

1982 and 3 (2) & 4 under Anti Hijacking Act 1982, on 1.2.2009, while

he was travelling in flight No. 6E334 of Indigo Airlines, from Goa to

Delhi between chocks off at 15:12 hours from Goa and chocks on at

IGI Airport, New Delhi at 17:13 hours.

2. Brief facts stated are that on 1.2.2009, at about 17.10

hours, Inspector H.K Rai (PW32) Incharge of CISF, Operation Control

Room, Palam Airport, Domestic, received a message from ATC

Control Room that one Indigo aircraft No 6E334, from Goa to Delhi

has been hijacked and he accordingly, informed all concerned

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including his senior officers and NSG. He also informed HC Ishwar

Singh (PW21) Duty Officer PS Domestic Airport, District IGI, on

telephone about the hijacking of flight no. 6E334. The said

information was reduced down into writing vide DD No. 30 by HC

Ram Parkash (PW43). The said DD 30 was sent to SI Atma Singh

(PW17) through Ct. Rakesh Kumar (PW44) for inquiry/investigation.

On receiving the said information SI Atma Singh along with Ct.

Rakesh reached at the arrival hall of the IGI Airport. On receiving the

said information, Inspector Raj Kumar (PW45), SHO Domestic Airport

Palam along with Inspector J.S Mishra (PW23) and other staff also

reached at Arrival Hall of the Domestic Airport, New Delhi. Inspector

Raj Kumar, SHO Domestic Airport IGIA, recorded the statement of

Ms. Neha Chhikara, after her arrival at Arrival hall of the Domestic

Airport, Palam. Ms. Neha Chhikara in her statement has stated that

She was working as Cabin Attendant in Indigo Airlines, since,

September 2007. On 1.2.2009, she was operating at flight No. 6E334.

The flight departed from Goa at 15:15 hours. Just before take off, her

colleague Ms. Anchal Mehta (PW1) informed her that there is a

passenger who claims to be a DGCA Official and he is preparing a

report against the crew members. After take off, she went to the

passenger whose name was later known as Jitender Mohla, who was

sitting at the seat No. 16-D, but was frequently changing his seat and

moving in the aircraft. She tried to convince and calm him but he was

arrogant, shouting and misbehaving with co-passengers and crew

members. During the course of flight the said passenger Jitender,

came to rear and told her and her colleague Ms. Anchal, that, he, is,

carrying a gun and some infected needles which can be used for

infection and to cut throat. He also told that he was involved in

Kandahar hijacking and soon he along with his associates is going to

hijack the aircraft. He came forward and moved his hand towards

her neck to show her the point which he can press to make a person

unconscious. She moved backward and got scared. Keeping in mind,

the safety hazards and security of passengers, she went to the front

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and informed Ms. Jyoti Chhetri (PW3) about it and she informed the

crew members in the cockpit. Safety procedure of lock down of

cockpit was adopted. Later, the aircraft landed at New Delhi in

emergency. Legal action be taken against Jitender Mohla.

On the basis of the statement of Ms. Neha Chhikara, case

FIR 5/2009, under Section 336/506 IPC was got registered and

Inspector Raj Kumar, SHO Domestic Airport IGIA, carried out the

investigation of the case. SHO Inspector Raj Kumar carried out site

inspection of the aircraft. He also recorded the statement of the

passengers and crew members who had arrived from Goa to Delhi in

flight No. 6E334 on 1.2.2009.

On the basis of the statement of the oral witnesses and in

pursuance to FIR No. 5/2009, of P.S Palam Airport, U/S 336/506 IPC,

accused Jitender Mohla was arrested. Thereafter, vide office order

No. A-32016/01/2009/Admn. Dated 9.2.2009, issued by the Bureau of

Civil Aviation Security (BCAS), the further investigation of the case

was carried out by Sh. S.K Bhatnagar, Deputy Commissioner of

Security (CA), BCAS. The IO S.K Bhatnagar, interrogated the accused

in judicial custody and he arrested the accused under Section 3(1)

(d) of Suppression of unlawful Acts Against the Safety of Civil Aviation

Act 1982. He further recorded statement of some of the passengers of

the said flight and collected the incriminating documents.

During the investigation it was revealed that on 1.2.2009,

Indigo flight 6E334 took off from Goa Airport at 15:12 hour and its

scheduled arrival time at Domestic Airport, IGIA, New Delhi was

17:10 hours on 1.2.2009. In the said flight there were one hundred

sixty one passengers, four cabin crews and two cockpit crews. Mr.

Amit Singh (PW4) was the Captain and Mr. Punit Prasad (PW5) was

the Flight Officer of the aircraft. Two cabin crews namely Ms. Jyoti

Chhetri (PW3) and Ms. Neha Gogia (PW2) were deployed in front of

the cabin and other two cabin crews namely Ms. Neha Chhikara

(complainant) and Ms. Anchal Mehta (PW1) were deployed in the

rear of cabin of the aircraft. Ms. Jyoti Chhetri was the Lead Cabin

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Crew of the aircraft.

After boarding of the passengers the exit doors of the

aircraft were closed and mandatory safety announcement was made

and demonstration about use of seat belt and oxygen mask was made.

As a routine operational requirements, when cabin crew Ms. Neha

Chhikara, was briefing passengers, sitting on row 13A and B, about

procedures for use of the emergency doors during emergency, she

was informed by Ms. Anchal Mehta another cabin crew, that one

passenger (accused) seated at seat No. 16D had called her and told

that he was a DGCA official and would make a report against the

cabin crew for permitting passengers to move from their seats when

aircraft was taxing for take off. When Ms. Neha Chhikara turned back

to see the movement on other side of emergency seats of the rows 12

and 13, she saw that three male passengers were sitting at row 13D,

E and F, who were not there initially. By this time captain of the flight

had made announcement for all cabin crew members to be seated. So,

she briefed those three passengers who had occupied these seats of

emergency doors and took her seat. Ms. Anchal Mehta also informed

Ms. Jyoti Chhetri, Lead Cabin Crew about the same. The Lead Cabin

Crew directed Ms. Anchal Mehta to tell the accused that if the

accused had any problem they could discuss the same, after take off

of the flight

Thereafter, when the fasten seat belt sign was switched

off, Ms.Neha Chhikara went to the accused sitting on seat No. 16D,

who was later identified as Jitender Mohla and enquired from him for

any help. The accused started shouting on her and expressed his

annoyance. Ms. Neha Chhikara tried to calm down the accused and

explained to him about the procedure. The accused then moved to row

13 and told passengers of that row, who came from other seats, that

they could not change their seats and directed them to go back to

their allotted seats. The accused, further, told them that he was

godfather of aviation services in India and he made all the rules of sky

aviation. The accused also brought one lady passenger to the row on

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emergency door and sat by her side.

Later, Ms. Jyoti Chhetri noticed that the accused was

standing in the rear of aircraft and talking to both crew members. She

then went to the rear of the aircraft and enquired from the accused if

he had any problem and on this, the accused requested for a glass of

water. Thereafter, Lead Cabin Crew started service in the front of

aircraft but she noticed that service in the rear did not commence and

the accused was still talking to crew members and thus, delaying the

service in the aircraft. Lead Cabin Crew informed the Captain that a

passenger claiming himself sometime to be a DGCA official and

sometime a Sky Marshal, was disturbing the rear cabin crew and not

allowing them to perform their duty. Captain asked Lead Cabin Crew

to verify the identity of the accused but crew members, however,

could not go up to accused to verify his identity.

During the flight, it was noticed that the accused was

moving frequently in the aircraft and was changing his seat. The

accused came again and again in the rear of aircraft and kept on

harassing the cabin crew at the rear and disturbing their

working/functioning as well as hampering the safety procedures

/requirements of cabin crew.

The accused, later, claimed before the cabin crew, at the

rear, that he was a Sky Marshal.

Some of the passengers of the flight also observed the

unruly behaviour of the accused during the flight. Mr. Sameer Uppal

(PW6), a passenger became curious on the action of accused and

enquired from the accused about his background, whether he was

from airport security. To this, the accused told to the said passenger

that he was an IAF Officer of the rank of Air Commodore. The

accused also told Mr. Uppal that he was carrying one pouch with

some needles and when Mr. Uppal asked whether he was authorized

for the same, the accused replied yes, and that he did not require any

permission for the same.

After some time the accused told the cabin crew at the

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rear that he was carrying a gun and some infected needles and these

needles could be used for infecting any one and cut the throat.

The accused, once also moved his hand towards the neck

of Ms. Neha Chhikara in the name of explaining procedure to press

particular nerve to make any one unconscious within no time. Ms.

Neha Chhikara had to step back to save herself from his attempt.

Ms. Neha Chhikara did not smell any odor of liquor from the mouth of

the accused when he brought his face close to her. The accused also

enquired about availability of restraining devices like handcuffs to

restrain the passengers and on the refusal of the cabin crew for the

same, he claimed that he was carrying a rope with him. The accused

was seen keeping his one hand in the pocket, raising doubt of

concealing something.

Later, the accused enquired from Ms. Neha Chhikara

whether she remembered about the killing of one passenger in

Kandahar hijacking case and then claimed that he was involved in

Kandahar hijacking incident. He said that he was a Muslim and he

knew how to kill people. He said, that, there were two other

associates with him in that aircraft, who would take charge of the

aircraft shortly. He asked the cabin crew at the rear whether they

could support the hijackers if they hijack the aircraft. Accused was

also seen in arguments with passenger sitting on seat No, 30E. The

accused later claimed before the cabin crew that the passenger sitting

on that seat had been made unconscious by him. From time to time,

both the cabin crews at the rear were keeping the Lead Cabin Crew

informed of what the accused told them from time to time and other

developments.

The accused did not fasten seat belt himself even after

announcement made by the crew before landing and was rather seen

directing other passengers to fasten their seat belts and thus

endangering the safety of the passengers as well as of the aircraft.

Before landing, the accused came to row 08 and directed the person

sitting at seat No. 8C, who was carrying a two months old infant on

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his lap, that he could not sit on the aisle seat with the infant and that

he should move to the middle seat with the infant and fasten the seat

belt covering her too, which was dangerous to the baby's life.

The Lead Cabin Crew informed the Captain from time to

time, about the conversations made by the accused with cabin crew in

rear and also about his misbehaviour, dictating language and issuing

directions on his own for changing seats etc. to other passengers.

The Captain contacted ATC and told them that the aircraft

had an unruly passenger and requested for priority landing and

security curtain to the aircraft. He also informed ATC about above

conversations he had with crew members and also informed them

that there was all sort of threats including a hijack threat to the

aircraft. ATC informed the Captain of the flight that they were

treating this as a hijacked aircraft. The Captain also requested for a

Discrete Frequency (an exclusive frequency for conversation between

Pilot and ATC which cannot be overheard by any other aircraft in

air) for communication with the ATC.

Sh. Vipin Gupta (PW38) WSO, ATC IGIA, New Delhi, was

informed by the Area Control Center (ACC) (West), ATC, IGI, Airport,

New Delhi at 11:33:37 UTC, (17:03:37 hrs.) that flight No. 6E334,

Indigo Airlines arriving from Goa was having an unruly passenger on

board and the pilot of aircraft requested for priority landing and

requested for security personnel to attend the aircraft. At 11:38:48

UTC (17:08:48 hrs) the ACC (West) heard the Pilot informing cabin

crew as follows : “Ok nothing to worry we are informing ATC that

there is hijack threat they will take care.” Barely a minute later i.e

11:39:12 UTC (17:09:12 hrs) the following transmission was received

from the Pilot : “Can we have a discrete frequency ? Sh. Vipin Gupta,

WSO, ATC, IGIA, signed a discrete frequency 119.3 MHz to the Pilot

of the aircraft.

At 11:41:39 UTC, the following transmission was received

from Pilot : “At first he claimed that there is hijacker in board and he

is Muslim and he know how to kill people to support Muslims. I feel

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his charity is in question, he is not, his mental balance is not okay,

but” At 11:42:20 UTC the following transmission was received from

pilot : “He said he is Muslim and he himself is a hijacker at first he

said there is hijacker on board then he said that ....... he says he is

hijacker and is Muslim but name is Jitender Maula”. Sh. Vipin Gupta

gave instruction to Officer manning the discrete frequency to continue

with the aircraft till it landed and that no time should be wasted and

he went to activate respective control rooms.

The Captain also informed Central OPS that the aircraft

had an unruly passenger who claimed that there was threat on board.

All the cabin crews were terrified due to threat made by the accused

to take over the aircraft. Lead Cabin Crew also informed Captain that

Neha and Anchal were crying at that point of time, due to the threat

made by the accused. Some of the passengers also noticed that the

cabin crews at the rear were crying. Aircraft landed at runway 28

instead of 29 due to this emergency at about 17.37 hours on 1.2.2009

and aircraft was taken to isolated parking bay.

Thereafter, on completion of the investigation Sh. S.K

Bhatnagar filed the charge sheet under Section 170/336/503/506 IPC

and 3 (1) (d) and 3(2) of Suppression of Unlawful Acts Against the

Safety of Civil Aviation 1982 and 3(2) & 4 under Anti Hijacking Act,

1982 against the accused.

3. Prima facie case having been made out charge for offence

under Section 336/503/506/170 IPC, 3 (1) (d) and 3 (2) of Suppression

of Unlawful Act Against the Safety of Civil Aviation Act 1982 and 3 (2)

& 4 under Anti Hijacking Act 1982, was framed against accused, to

which he pleaded not guilty and claimed trial.

4. In order to prove its case prosecution examined as many

as forty seven witnesses, as under:-

PW1 Ms. Anchal Mehta : Cabin Attendant/crew member

PW2 Ms. Neha Gogia : Cabin Attendant/crew member

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PW3 Ms. Jyoti Chhetri : Cabin Attendant/crew member

PW4 Sh. Amit Singh : Captain/Pilot/cockpit crew

PW5 Sh. Punit Prasad : Flight Officer/Co-pilot/cockpit crew

PW6 Sh. Sameer Uppal : Passenger

PW7 Sh. Vibhor Tyagi : Passenger

PW8 Sh. Suresh Chand Sharma : Passenger

PW9 Sh. Amit Aggarwal : Passenger

PW10 Sh. Nitin Khandelwal : Passenger

PW11 Sh. Ankur Garg : Passenger

PW12 Sh. Yogesh Mahajan : Passenger

PW13 Mrs. Hardeep Anand : Passenger

PW14 Dr. Anand Lakshman : Passenger

PW15 Sh. Shobit Goel : Passenger

PW16 Mr. Parag M. Nagarcenker : Passenger

PW17 SI Atma Singh : Police witness

PW18 Sh. Nilesh : Assistant Manager, Indigo Security, IGI Airport, New Delhi.

PW19 Ms. Marlene : Ground staff Indigo Airlines, Goa.

PW20 Sh. Ajay Shiva : Joint General Manager, ATC, AAI, IGI Airport, New Delhi.

PW21 HC Ishwar Singh : Police witness/duty officer

PW22 Dr. Manish Narayan : Junior Resident Doctor, Safdarjung Hospital

PW23 Inspector J.S. Mishra : Police witness

PW24 Sh. Neeraj Verma : Junior Executive, Air Traffic Control, IGI Airport

PW25 Sh. Sanjeev Ram Dass : Vice President, Manager Airport operations Flight Safety, InterGlobeAviation, Gurgaon Haryana.

PW26 Sh. Rakt Kamal Singh : Aircraft Maintenance Engineer, Indigo Airlines.

PW27 Sh. Ajay Kumar Pandey : Senior Aircraft Maintenance Engineer, Indigo airlines.

PW28 Sh. Karunesh Tirpathi : Senior AME, IGI Airport, New Delhi.

PW29 Sh. Sanjay Pathak : Crew Scheduler, Indigo Airlines

PW30 Sh. Ripun Borah : Junior Executive (Air Traffic Control), Area Control West Sector, Planning,IGI Airport.

PW31 Sh. Sanjay Chopra : Director, Security Inter Globe Aviation Limited (Indigo), Gurgaon.

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PW32 Inspector H.K Rai : Incharge of CISF, Control Room, Domestic Airport, IGIA, New Delhi.

PW33 Sh. G.S Kalyan : Crew Scheduler, Indigo Airlines

PW34 Sh. R.S Pasi : Deputy Director, Air Safety, at Directorate General of Civil Aviation, Ministry of Civil Aviation, Safdarjung Airport, New Delhi.

PW35 Sh. Malkeet Singh : Radar Controller, West IGI Airport

PW36 Ms. Ritu Sharma : Assistant General Manager, ATC, IGI Airport

PW37 Sh. M.P Arun Kumar : Manager ATC, IGI Airport, New Delhi.

PW38 Sh. Vipin Gupta : Joint General Manager ATM, WSO, ATC, IGI Airport New Delhi.

PW39 Sh. M.K Garg : Junior Executive, ATC, IGI Airport, New Delhi.

PW40 Sh. Deep Kumar : Manager Communication,ATC,Airport Authority of India, IGI Airport, New Delhi.

PW41 Sh. Pramod Kumar Mishra : General Manager (ATM) AAI, IGI Airport, New Delhi.

PW42 Sh. Anirudh Choudhary : Manager Flight Safety InterGlobe Aviation, Gurgaon, Haryana.

PW43 HC Ram Parkash : Police witness

PW44 Ct. Rakesh Kumar : Police witness

PW45 Inspector Raj Kumar : SHO PS Domestic Airport, Distt. IGI Airport, New Delhi. Initial IO of the case.

PW46 Sh. S. Gauri Shanker : Under Secretary, Aviation Security of Ministry of Civil Aviation, Government of India, New Delhi.

PW47 Sh. S.K. Bhatnager : Deputy Commission of Security (CA) , BCAS. IO of the case.

Thereafter prosecution evidence was closed.

5. In the statement recorded under Section 313 Cr.P.C,

accused denied all the incriminating evidence and circumstances

appearing in evidence against him and claimed false implication.

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6. The accused in his defence examined four witnesses

namely Mr. S.A. Dwarkanatha as DW1, Mr. Satender Kumar as DW2,

Mr. Sajjan Kumar as DW3 and Mr. Sandeep Govil as DW4.

7. I have heard Sh. Vishu Saran, Ld. Designated PP on behalf

of the State and Ms. Kamna Vohra, Ld. counsel for the accused and

also perused the entire evidence as well as the material placed on

record.

8. Ld defence counsel has submitted that prosecution has

examined 47 witnesses in all, in the present case and accused has

examined four witnesses in his defence. While arguing, Ld. Defence

counsel has pointed out that the prosecution has to prove its case on

its own leg and has relied upon judgment in Sohan Sahai Vs. State,

Asad Bai @ Asar Bai Vs. State & Munna Lal Vs. State,

2009 (3) JCC 2436; Mohd. Afzal Kumhar & Ors. Vs. State 158 (2009)

Delhi Law Times 549 (DB) Delhi High Court; Vikas & Ors. Vs. State of

Maharashtra, 2008 (1) Crimes 288 (SC); Devesh Kumar & Ors. Vs.

State 2010 (1) JCC 762; Kali Ram Vs. State of H.P. AIR 1973 SC 2773;

Rathinam Vs. State of T.N. 2011 (3) SCC (Crl.) 111 and S.J

Chaudhary Vs. CBI 2009 (159) DLT 673.

Further, she has submitted that unless the ingredients of

the prima facie case are established, the surmises, conjectures and

presumptions will not help to the prosecution and further relied

upon judgment in case of State (through Inspector RPF) Vs. Ravikant

2010 (1) JCC 26 and Sahira Habibullah Sheikh & another Vs. State of

Gujarat & others (2006) 3 Supreme Court Cases 374.

Ld. Defence counsel has further submitted that while

appreciating the evidence, the defence witnesses and the prosecution

witnesses be treated equally as relied upon by Hon'ble Supreme

Court of India in case Dudh Nath Pandey Vs. State of U.P. AIR 1981

SC No. 8/2009 /90

Supreme Court 911 and Kali Ram Vs. State of Himachal Pradesh AIR

1973 Supreme court 2773.

The credibility of the witnesses be tested on the following

five counts :

1. Whether they have means of correct information2. Whether they have any interest in concealing the truth. 3. Whether they all agree in their testimonies4. Is the evidence consistent with itself. 5. Is the evidence consistent with the usual and known principals of human action and with common experience of mankind.

Ld. Defence counsel has further pointed out that all the

forty seven witnesses in the present case are mutually destructive,

inconsistent and singing song in their own way and does not bring

out the real truth of the case and has relied upon judgment in case

Sarwan Singh Rattan Singh & Harbans Singh Bhan Singh Vs. State of

Punjab AIR 1957 Supreme Court 637.

Ld. Defence counsel has further pointed out what could

be the evidence on record, must be legal, reliable and

unimpeachable before the accused can be convicted. Prosecution

cannot drive strength from the weakness of the accused. Accused

may or may not bring witness but silence will not strengthen

prosecution case. If two views are possible, on the basis of the

material collected, the view which is favourable to accused be

adopted and has relied upon judgment in case Harijana Thirupala &

Ors Vs. Public Prosecutor High Court of A.P. AIR 2002 Supreme Court

2821.

Ld. Defence counsel has further submitted that

prosecution has miserably failed to prove that there is intention to

commit offence. Mensrea/intention is a state of mind. Unless it is

proved that the accused has intention to commit offence, it cannot be

said that the accused has committed the offence and has relied upon

judgment in State of Maharashtra Vs. Mayer Hans George AIR 1965

SC No. 8/2009 /90

Supreme Court 722; Director of Enforcement Vs. M/s MCTM

Corporation Pvt. Ltd & Ors AIR 1996, Supreme Court 1100 and State

(Through Inspector RPF) Vs. Ravikant 2010 (1) JCC 26.

Ld Defence counsel has further pointed out that

prosecution has failed to establish the motive in the present case

and relied upon judgment in case State of West Bengal & another Vs.

Mohammed Khalid, State of West Bengal & Another Vs. Mohammed

Rashid Khan and State of West Bengal & Another Vs. Abdul Aziz &

ors AIR 1995 Supreme Court 785.

Ld. Defence counsel has further submitted that while

reading the statutory provisions, the court should give natural

meaning first unless there is ambiguity in the provision and only

then the court could look into the intention of the legislature and has

relied upon judgment in S.A Venkataraman Vs. The State AIR 1958

Supreme Court 107; Hamdard Dawakhana Vs. Union of India AIR

1960 Supreme Court 554; Shri Ram Daya Ram & Ors. Vs. the State

of Maharashtra AIR 1961 Supreme Court 674; Sarjoo Prasad Vs.

State of UP AIR 1961 Supreme Court 631; State of Maharashtra Vs.

Mayer Hans George AIR 1965 Supreme Court 722 and Sadanandan

Bhadran Vs. Mahdavan Sunil Kumar 1998 (2) JCC (SC) 91.

Ld. Defence counsel has further submitted that the

preparation is not an offence, whereas the attempt is otherwise.

The prosecution has failed to prove preparation in the present case

and there is no evidence against the accused on attempt to hijack the

aircraft and has relied upon judgment in Abhayanand Mishra Vs.

State of Bihar AIR 1961 Supreme Court 1698; Malkiat Singh &

another Vs. The State of Punjab AIR 1970 Supreme Court 713

and Sudhir Kr. Mukharjee Vs. State of W.B. AIR 1973 Supreme Court

2655.

SC No. 8/2009 /90

Ld. defence counsel has further submitted that in the

present case, FIR was not sent to the area Magistrate, which is

mandatory provision under Section 157 Cr.P.C. It is further

submitted that section 155 Cr.P.C was also not followed. Accused

was sent to JC on 2.2.2009. Judicial remand of accused was sought

under Section 3 (1) (d) of Suppression of unlawful Act against the

Safety of Civil Aviation Act 1982 on 2.2.2009 whereas, accused was

arrested under Section 3 (1) (d) of Suppression of unlawful Act

against the Safety of Civil Aviation Act 1982 on 16.2.2009 therefore,

the accused was illegally detained from 2.2.2009 to 16.2.2009

without the arrest and his right under article 19 & 21 of constitution

was violated and same is curtailed without the due process of law.

Police never sought police remand of the accused. No offence can be

added after registration of the FIR and has relied upon judgment in

case Directorate of Enforcement Vs. Deepak Mahajan & anothers AIR

1994 Supreme Court 1775; Ravi Kumar Vs. State of Punjab AIR 2005

SC 1929; State Vs. Jai Prakash & Ors 2011 (3) JCC 1878; Rajinder &

Others Vs. State of Delhi 2011 (2) JCC 1134 and Rajeevan & Anr. Vs.

State of Kerala 2003 (1) JCC 527.

Ld. Defence counsel has further submitted that G.D Entry

Ex PW 13/A should have been the FIR. There is delay in lodging of

the FIR. GD Entry is not treated as FIR in the present case, which is

fatal to prosecution case and has relied upon judgment in Hallu &

others Vs. State of Madhya Pradesh AIR 1974 Supreme Court 1936;

Apren Joseph @ Current Kunjukunju & ors Vs. The State of Kerala

AIR 1973 Supreme Court 1; Sunil Kumar & Ors. Vs. State of Madhya

Pradesh AIR 1997 SC 940; Superintendent of Police CBI & Ors Vs.

Tapan Kumar Singh AIR 2003 SC 4140; Rajesh Kumar @ Raju

Sharma Vs. State of Delhi 2011 (4) JCC 3055; Lallan Chaudhary &

others Vs. State of Bihar & Another AIR 2006 SC 3376; Hasib Vs.

State of Bihar AIR 1972 SC 283 and Shankar Vs. State of UP AIR

1975 SC 757.

SC No. 8/2009 /90

Ld. defence counsel has further submitted that any

statement which is recorded after commencement of investigation, is

not an FIR as it has happened in the present case. At the most,

present FIR can be treated as statement u/s 161 Cr.P.C. Similarly,

statement of complainant Neha Chhikara, at the most can be treated

under Section 161 Cr.P.C. Ld. Defence counsel has further submitted

that in the event of treating statement of Neha Chhikara as FIR, in

such situation also, the FIR Ex PW 43/B is not a substantive piece of

evidence as the said statement is to be proved through its maker. It

does not prove the contents of FIR because the maker of the FIR did

not depose in the witness box. Since, the contents of the FIR are not

prove the same cannot be read in evidence and has relied upon

judgment in case Harkirat Singh Vs. State of Punjab AIR 1997

Supreme Court 3231; George & others Vs. State of Kerala and

another AIR 1998 Supreme Court 1376 and Moti Lal & Others Vs.

State of UP AIR 2010 SC 281.

Ld. Defence counsel has further submitted that if the

present FIR Ex PW43/B is treated as an FIR in such situation also

there is delay in lodging the FIR and has relied upon judgment in

Apren Joseph @ Current Kunjukunju & ors Vs. The State of Kerala

AIR 1973 Supreme Court 1 and Gunnana Pentayya @ Pentadu &

others Vs. State of Andhra Pradesh, (2009) 16 Supreme Court Cases

59.


prosecution failed to prove the sanction to prosecute the accused in

the present case. Ex PW 46/A is not the sanction but only letter

through which PW 46 S. Gowri Shankar has conveyed the sanction

and has relied upon judgment in State of West Bengal & others Vs.

Mohammed Khalid & others AIR 1995 Supreme Court 785 and

Madan Mohan Singh Vs. State of Uttar Pradesh AIR 1954 Supreme

Court 637.

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prosecution has examined PW 34 R.S Passi as as expert witness but

he does not fall under definition of an expert and has relied upon

judgment in Sidhartha Vashisht Vs. State AIR 2010 Supreme Court

2352 and State of H.P. Vs. Jai Lal AIR 1999 Supreme Court 3318.

Ld. Defence counsel has further submitted that maker of

the FIR is Ms. Neha Chhikara. Ex PW 45/A is the statement alleged

to have been given by Neha Chhikara before the police but she has

not been examined before the court. Statement of Neha Chhikara is

recorded after seven hours. FIR is full of manipulations and

concoctions. Ld. Defence counsel has further submitted that as per

prosecution version Ms. Neha Chhikara made statement to IO

Inspector Raj Kumar PW45, IO sent the same to Police station

through Ct. Rakesh Kumar PW44. At Police Station Duty officer HC

Ram Parkash PW43, handed over the same to computer operator and

after the FIR was recorded, same was given to Ct. Rakesh Kumar PW

44 who took the same and handed over to the IO Inspector Raj Kumar.

Inspector Raj Kumar, during the course of his statement has stated

that statement of Neha Chhikara is in the hand of PW 23 Inspector

J.S Mishra however, Inspector J.S Mishra has made statement that

SHO Inspector Raj Kumar has recorded the statement of Neha

Chhikara. There is contradiction in the statement of PW23 Inspector

J.S Mishra and PW45 Inspector Raj Kumar and has relied upon

judgment in State of Gujarat Vs. Anirudhsing & anothers AIR 1997

Supreme Court 2780 and Shanker Vs. State of UP, AIR 1975 Supreme

Court 757.

Ld. Defence counsel has further submitted that on the

date of incident the cabin attendants on board were deceased Neha

Chhikara as R2, PW1 Anchal Mehta was L2, PW2 Neha Gogia was

R1 and PW3 Jyoti Chhetri was the Lead cabin attendant. In the

cockpit PW4 Amit Singh was the commander of the flight and PW5

SC No. 8/2009 /90

Punit Prasad was the co-pilot.

Ld. Defence counsel has further submitted that the duty of

Anchal Mehta was from row 22 to 30 and accused was sitting on seat

no. 16D. PW1 Anchal Mehta subsequently, resigned from the Indigo

Airlines on medical ground which shows that she was not medically fit

and incompetent. The cabin crew were not maintaining orderly

behaviour in the cabin on 1.2.2009 and were not following the rules

laid down by DGCA. There was deviation of duty. Cabin attendants

were permitting use of phone during flight and during taxing. They

were allowing passengers to change the seat when seat belt signs

were on. Cabin crew was not objecting to the passenger's who were

changing the seats. Cabin Crew was not providing Child Restrain

device to the passenger travelling with infant and allowed the

passenger who was with an infant, to sit on isle seat. Passenger's are

not allowed to sit on overwing exit row however, as per her

deposition the passenger's were sleeping (lying down) on overwing

exit row. Ld. Defence counsel has further submitted that PW1 Anchal

Mehta is an infirm and hostile witness and no ingredient of offence

have been made out by the deposition of PW1 as per the charges

framed against the accused.

Ld. Defence counsel has further submitted that statement

of PW2 Neha Gogia is not admissible as the same is hearsay

evidence. Handwritten statement of Neha Gogia is Ex PW2/D2.

Accused was perturbed on the inefficiency of the cabin attendants to

maintain the discipline in the cabin as it was endangering the safety

and security of the aircraft and the passenger's on board.

Ld. Defence counsel has further submitted that PW3 Jyoti

Chhetri is the Lead cabin attendant and her statement is again

hearsay evidence without any effect on the case.

Ld. Defence counsel has further submitted that PW4 is

Captain Amit Singh. He is not the witness to the incident. Captain

Amit Singh did not press the transponder or informe the ATC, at any

stage, during the flight because the flight was normal and there was

SC No. 8/2009 /90

no threat to the flight. PW4 Captain Amit Singh never said that there

is a threat to the plane. It was the ATC who informed the captain

that they are treating the flight as hijack.

Ld. Defence counsel has further submitted that PW5 Punit

Prasad was the co-pilot and his statement is not admissible as the

same is hearsay and has relied upon judgment in Balram Prasad

Aggarwal Vs. State of Bihar & Ors. 1997 JCC 185 (SC); State

(Collector, Central Excise) Vs. Papas Kumar 1985 CRI L.J 871;

Laliteshwar Prasad Sahi Vs. Bateshwar Prasad & others AIR 1966

Supreme Court 580; Jagroop & another Vs. Rex AIR (39) 1952,

Allahabad 276; Kirtan Prasad Vs. State of Madhya Pradesh 2005 CRI.

L.J 69 and Avadh Bihar Sharma Vs. State of M.P. AIR 1956 SC 738.

Ld. defence counsel has further submitted that there is

contradiction in the statement of PW1, PW2, PW3, PW4 and PW5

which was given in the court and their statement which was given to

the police under Section 161 Cr.P.C and has relied upon judgment in

Namdeo Daulata Dhayagude & others Vs. State of Maharashtra, AIR

1977 Supreme Court 381.

Ld. Defence counsel has further submitted that PW6

Sameer Uppal, PW7 Sh. Vibhor Tyagi, PW8 Sh. Suresh Chand

Sharma, PW9 Sh. Amit Aggarwal, PW10 Sh. Nitin Khandelwal,

PW11Sh. Ankur Garg, PW12 Sh. Yogesh Mahajan, PW13 Mrs.

Hardeep Anand, PW14 Dr. Anand Lakshman, PW15 Sh. Shobit Goel,

PW16 Mr. Parag M. Nagarcenker are the passengers. They are

independent witnesses in the present case. All the independent

witnesses/passengers are saying that flight was normal. No

independent witness has said anything against the accused. Accused

did not threaten or talk to any of the independent witness/passenger.

Most of the passenger's were sleeping thought out the flight. Some of

the passenger's have said that accused was frequently moving in the

aircraft. Ld. Defence counsel has further submitted that accused was

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frequently moving in the aircraft as he is a diabetic patient and

diabetic patients need to go to lavatory very frequently and PW22 Dr.

Manish has also said so.


prosecution has examined PW30 Ripun Borah, Junior Executive ATC;

PW 35 Malkeet Singh, Radar Controller ATC; PW36 Ms. Ritu Sharma,

Deputy General Manager ATC and PW38 Mr. Vipin Gupta, Joint

General Manager, ATM.

Ld. Defence counsel has further submitted that in the

present case, the captain PW4 Amit Singh did not conveyed the

information regarding the possibility of hijacking to ATC but the

cockpit conversation is stated to be overheard by PW30 Ripun Borah.

PW35 Malkeet Singh is Radar Controller ATC and PW36 Ms. Ritu

Sharma is Deputy General Manager, ATC. She is stated to be on

radar till the flight landed and was taken to isolated bay. PW38 Vipin

Gupta is the Joint General Manager, ATM. He was not the controller.

Ld. Defence counsel has further submitted that in the

present case there is no evidential value of ATC. Whatever

information is conveyed to ATC is based on the information given by

PW4 Ms. Jyoti Chhetri Lead Cabin attendant, who is being given

information from the aft. The captain is not giving his own

assessment i.e what he saw, what he heard and what he perceived.

Captain is saying, what he is being informed by the Lead. ATC comes

into picture at fourth stage and ATC acted accordingly. Captain has

given information to the ATC, which was being informed by the Lead

and who was given information by the cabin crew. This evidence is no

evidence under the Indian Evidence Act and has relied upon

judgment in Sharad Birdhi Chand Sarda Vs. State of Maharashtra

AIR 1984 Supreme Court 1622 ; Bhugdomal Gangaram & others etc

Vs. The State of Gujarat AIR 1983 Supreme Court 906 and Subhash

Harnarayanji Laddha Vs. State of Maharashtra (2006) 12 Supreme

SC No. 8/2009 /90

Court Cases 545.


prosecution has examined PW41 Pramod Kumar Mishra, General

Manager ATM, PW 37 M.P. Arun Kumar Manager ATC, PW39 M.K

Garg, Junior Executive ATC and PW40 Deep Kumar, Manager

Communication, Airport Authority, pertaining to proving of tape

transcript Ex PW37/A. As per prosecution version, the tape transcript

was forwarded by PW PW41 Pramod Kumar Mishra, General Manager

ATM on 12.3.2009. Ld. Defence counsel has further submitted that

this witness only forwarded the tape transcript. Ld. Defence counsel

has further submitted that in the present case, it is admitted fact that

the ATC tapes were not seized and produced before the court till

today. Spool of ATC, which is also a very vital piece of evidence, is

also not seized. Seizure of the taps is must in the present case, as it is

electronic evidence. Electronic evidence is very easy to alter. Ld.

Defence counsel has further submitted that in the present case the

tape is a very sensitive document and its custody, is must and has

relied upon judgment in Ram Singh & Others Vs. Col. Ram Singh

1985 (Supp) Supreme Court Cases 611; Devesh Kumar & Ors. Vs.

State 2010 (1) JCC 762; J. Yashoda Vs. K. Shobha Rani (2007) 3

Supreme Court Cases (Cri) 9; Hira H. Advani etc. Vs. State of

Maharashtra AIR 1971 Supreme Court 44; State Vs. Mohd. Afzal &

Ors. 107 (2003) DLT 385; M/S V.S Lad & Sons Vs. State of Karnataka

2009 Cri.LJ 3760; All India Anna Dravida Munnetra Kazhagam Vs.

L.K. Tripathi AIR 2009 Supreme Court 1314 and Chandrakant Ratilal

Mehta & others Vs. The State of Maharashtra 1993 CRI, L.J 2863.

Ld. Defence counsel has further submitted that Cockpit

Voice Recorder is important as far as accidents and serious incidents

are concerned. Cockpit Voice Recorder is a primary and vital piece of

evidence. Decoding of Cockpit Voice Recorder is only done by

Cockpit Voice Recorder experts. Ld. Defence counsel has further

SC No. 8/2009 /90

submitted that in the present case, Cockpit Voice Recorder has not

been seized/sealed. Ld. Defence counsel has further submitted that

the aircraft, which is containing the Cockpit Voice Recorder/black

box, a vital piece of evidence, has also not been sealed/seized in the

present case. Ld. Defence counsel has further submitted that PW 42

Anirudh Choudhary has exhibited the CD of Cockpit Voice Recorder.

He is the manager/employee of Indigo and not a Cockpit Voice

Recorder decoding expert. Ld. Defence counsel has further submitted

that the version of the Cockpit Voice Recorder, which is placed on

record, is not authentic as original Cockpit Voice Recorder is neither

seized nor produced before the court and hence, Cockpit Voice

Recorder is not proved on the court record. Ld. Defence counsel has

further submitted that though the Cockpit Voice Recorder is not

proved on record, but in the eventuality of looking into the evidence

of Cockpit Voice Recorder, following facts be considered :-

1. Voice of accused is not there in Cockpit Voice Recorder.2. Voice of complainant Ms. Neha Chhikara is not there in Cockpit

Voice Recorder.3. There is no identification of the voices in the transcript by its

maker and also by PW4 Captain Amit Singh, PW5 Co-Pilot Punit Prasad and PW3 Lead Cabin Attendant Jyoti Chhetri saying that their voices are there.

4. The lead players in the cockpit have not heard the Cockpit Voice Recorder at the time of its making.

5. During trial also the Cockpit Voice Recorder was not put to lead players in the cockpit.

6. The recording was never done in the presence of captain, co-pilot and Lead cabin attendant.

7. Cockpit Voice Recorder is an incomplete document.8. The pilot comes into picture, i.e something was communicated

to the pilot by Lead, after 1 hour 25 minutes.

Ld. Defence counsel has further submitted that accused

has examined DW1 S.A. Dwarkanath. He is the passenger who was

in the said flight on the date of the incident and was sitting on seat

No. 30 E. As per prosecution version, the passenger on 30E was

made unconscious by the accused but the witness has deposed

otherwise. DW2 Satender Kumar is the Ahlmad of the court of Ms.

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Joginderi JMIC, Gurgaon Haryana. DW3 Shri Sajjan Kumar is the

DSP, State Vigilance Bureau, Rohtak and DW4 Dr. Sandeep Govil is a

Practicing Psychiatrist.


was concerned with the safety of flight and passenger's on board

including himself. Ld. Defence counsel has further submitted that

with regard to incompetency and inefficiency of the crew members

the admitted facts are as under :

1. Mobile phones were used on board as stated by prosecution witness, PW13 Mrs. Hardeep Anand.

2. Passenger's were changing seats and moving in the aircraft when plane is taxing and seat belt signs were on.

3. Passenger's/Prosecution witnesses were sleeping on emergency seats.

4. Supplementary loop was not given to child/infant on board.

Ld. Defence counsel has further submitted that as per

ICAO pilot can apprehend the person or take the help of other persons

to apprehend the person, who pose risk to the safety of the aircraft

and also any cabin attendant/passenger can take preventive measures

without the commander's authorization. Ld. Defence counsel has

further submitted that in the said flight nobody was at risk so the

pilot did not press the transponder. Commander, who is final

authority, did not press the transponder as he did not assess any risk

to the flight. Ld. Defence counsel has further submitted that there was

no violence on board in the present case and has relied upon

judgment in case Sunder Singh & Ors. Vs. State AIR 1955 Allahabad

232.

Ld. Defence counsel has further submitted that after going

through the complete record, the points/facts which emerges are :-

1. Accused never spoke or attempted to spoke with the captain during the flight.

2. All operations were normal during the flight.3. Captain was in control of the flight. 4. Accused never approached or attempted to approach the

SC No. 8/2009 /90

cockpit. 5. Captain did not press transponder 7500 code while in the air.6. Captain did not press transponder code 7700 (situation is very

grave) while in air.7. Captain is maintaining the same assigned squawck through out

the flight. 8. Nothing has been recovered at the instance of the accused or

from his person.9. He was not accompanied with any hand baggage/cabin luggage.10.There is no violence on board. Accused has not touched and

mishandled anyone. 11.There is no injury to anyone hence there is no MLC of anybody

except the accused. 12.There is no deviation of flight from its scheduled route i.e from

Goa to Delhi.


ingredients of Section 3 (1) (d) and 3 (2) of Suppression of unlawful

Act against the Safety of Civil Aviation Act 1982 and 3 (2) & 4 under

Anti Hijacking Act 1982 are not proved on the record. Ld. Defence

counsel has further submitted that in the present case what actual

words accused has spoken, have not been proved by the prosecution.


was one of the sixteen suspects and only he was sent for trial. Ld.

defence counsel has further submitted that the act done by the

accused was done in good faith and not to jeopardize the safety of the

aircraft as well as passengers and has relied upon judgment in

Brijendra Singh Vs. State of U.P. and others AIR 1981 Supreme Court

636 and her this submission is further strengthen by Ex

PW45/D/X/DY1, which is the Incident report prepared by Sh. B.S

Tiwari, RDCOS BCAS on 1.2.2009 and prays that the accused be

acquitted from the charges framed against him.

9. On the other hand, Ld Designated PP on behalf of the

State has submitted that the prosecution has examined forty seven

witnesses. Complainant Neha Chhikara, maker of the FIR, could not

be examined as she expired, before her examination in court. Ld.

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Designated PP has further submitted that on 1.2.2009, Neha

Chhikara was on board i.e Flight No. 6E334, as R2 while coming

from Goa to Delhi. The flight No. 6E334 was coming from Goa to

Delhi. There were four cabin crew members i.e Neha Chhikara,

Anchal Mehta, Jyoti Chhetri and Neha Gogia and two cockpit crew i.e

Captain Amit Singh and Co-pilot Punit Prasad. The said flight was

carrying 161 passengers including the accused Jitender Mohla. The

flight took off from Goa at 15.12 hours and touched down at Delhi at

17.13 hours.

Ld. Designated PP has further submitted that after the

closing of doors of the aircraft when the aircraft took off from Goa the

accused Jitender Mohla impersonated himself to be DGCA official and

Sky Marshal and intimidated the cabin crew about making of

complaint against them to DGCA and threatened Neha Chhikara cabin

crew, other cabin crew members and also the passengers on board

by saying that he is carrying gun and some infected needles for

infecting and cutting throat and claimed that he has already made

one passenger unconscious who was sitting on seat No. 30E.

Accused Jitender Mohla further threatened to Neha Chhikara that he

is one of the hijacker of Kandahar hijacking case and he is a Muslim

and know how to kill people on board and there are two other

associates with him on board who will take charge of the aircraft

shortly and sought help from Neha Chhikara, for hijacking the

aircraft, if they hijack and committed offence under Section

336/503/506/170 IPC, 3 (1) (d) and 3 (2) of Suppression of unlawful

Act against the Safety of Civil Aviation Act 1982 and 3 (2) & 4 under

Anti Hijacking Act 1982.

Ld. Designated PP has further submitted that the

prosecution has examined all the relevant witnesses except the

complainant Neha Chhikara. Cabin Crew members i.e PW1 Anchal

Mehta, PW2 Neha Gogia, PW3 Jyoti Chhetri are the direct witnesses

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to the incident. The factum of the incident was brought to the notice

of the Lead Cabin attendant PW3 Jyoti Chhetri, who too is witness to

the incident and reported the matter to commander of the aircraft

Amit Singh PW4 and Punit Prasad PW5 in the cockpit. Commander

Amit Singh after taking the discrete frequency, communicated the

information, given by the Lead, to the ATC Delhi, who treated the

flight as hijacked. The pilot Amit Singh has been examined as PW4

and co-pilot Punit Prasad has been examined as PW5. Prosecution

has also examined material eleven passenger witnesses, who were on

board and who are witness to the said incident.

Ld. Designated PP has further submitted that

communication so made to ATC by Amit Singh, Captain of the flight,

was collected from the records available at the concerned offices and

they are log book entries Ex PW 30/A, Ex PW35/A, and Ex PW38/A ;

tape transcript Ex PW 37/A and transcript of cockpit voice recorder

Ex PW 42/A and Ex PW 42/B.

Ld. Designated PP has further submitted that accused

during the statement under Section 313 Cr.P.C has admitted that he

has stated that he was a DGCA Official and he shall report the

authorities for the laps on the part of the cabin crew. Ld. Designated

PP has further submitted that plea of the accused that he has so

stated in good faith is not correct. The definition given in Section 52

of good faith in IPC is not equivalent to Section 3(22) of General

Clause Act. The onus to prove that accused has stated so, in good

faith, lies upon the accused and the accused did not prefer himself to

examine as defence witness nor lead any evidence on this point.

Ld. Designated PP has further submitted that the

statement of all the witnesses and material documents on record

proves the case of the prosecution beyond reasonable doubt and

accused be convicted accordingly as per law.

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10. Thus, from the above submission of the respective parties,

following points arises for determination in this case:

(i) Whether the prosecution has been able to prove its

case against the accused beyond reasonable

doubt, if so, its effect?

(ii) Final order.

11. For the reasons to be recorded hereinafter, while

discussing the points for determination, my findings are as under:

Point No.1 : Yes.

Final Order: Accused Jitender Mohla is convicted as per

the operative part of the judgment.

REASONS FOR FINDINGS

12. The case of the prosecution is that accused along with one

sixty passengers, six crew members i.e two in cockpit and four in

cabin, were on board, in Indigo flight No. 6E334, which took off from

Goa at 15.12 hours on 1.2.2009 and was coming to Delhi.

The accused Jitender Mohla, while on board on 1.2.2009

impersonated himself to be a DGCA Official, Sky Marshal and

intimidated the cabin crew about making complaint against them to

DGCA. Accused further, while on board, endangered the human life

and personal safety of the passenger and crew members, by moving

frequently in the cabin and directing other passengers to fasten the

seat belt and directing the passenger sitting on seat No. 8C who was

carrying a two months old infant in his lap, to fasten his seat belt

covering the infant, even after the announcement was made to fasten

the seat belt.

Accused further threatened Neha Chhikara cabin crew at

rear, while on board that he is carrying a gun and some infected

needles for infecting and cutting throat and claimed that the

passenger sitting on seat No. 30 E had been made unconscious by

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him. He further moved his hands towards Neha Chhikara, explaining

the procedure to press a particular nerve to make anyone unconscious

within no time. He further threatened Neha Chhikara by putting one

hand in his pocket raising doubt of concealing something and by

saying that does she remember killing of one passenger in Kandahar

hijacking case and that he was involved in Kandahar hijacking

incident and know how to kill people and there are two other

associates with him in the aircraft who will take charge of the

aircraft shortly and further sought support from Neha Chhikara for

hijacking the aircraft, if they hijack.

Accused threatened Neha Chhikara and Cabin Crew at the

rear with injury to their person, with intend to cause alarm by

unlawfully and intentionally communicating such information which

he knew to be false and endangered the safety of the aircraft in the

said flight and further he intended to exercise control of the aircraft

in flight. The said information, after receiving by the Lead Jyoti

Chhetri PW3 from the crew members, was communicated to the

Captain Amit Singh PW4 in the cockpit and accordingly Captain Amit

Singh after taking the discrete frequency on board, communicated to

ATC at Delhi, who treated the aircraft to be in hijack situation and

the aircraft was landed in emergency at Delhi airport at 17.13 hours

and was taken to isolated bay.

It has been held by their Lordship Hon'ble Justice V.R

Krishna Iyer, P Jagan Mohan Reddy and H.R. Khanna in Shivaji

Sahebrao Bobade & Anr Vs. State of Maharashtra, AIR 1973 SC

2622 and has observed as under :-

The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but on innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will breakdown and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as

SC No. 8/2009 /90

a learned author (1) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'person' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say' with Viscount Simon, that “a miscarriage of justice may arise from the acquittal of the , guilty no less than from the conviction of the innocent....' In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic.

It has been further held in Inder Singh and anothers Vs. State of

Delhi Administration, AIR 1978 SC page 1091, wherein the

Hon'ble Supreme of India has observed as under:-

“Credibility of testimony, oral circumstantial depends considerably on a judicial evaluation or the totality, not isolated scrutiny. While it is necessary that proof beyond reasonableness doubt should be adduced in all criminal cases. It is not necessary that it should be perfect, if a case is proved too perfectly, it is argued that it is artificial, if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool proof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic.”

13. Ocular Evidence of Cabin Crew

(i) Prosecution in order to prove its case has examined

Anchal Mehta as PW1. Complainant Neha Chhikara died before her

examination in the court. PW1 Anchal Mehta has deposed that she

was one of the crew member/cabin attendant operating in Indigo

flight No. 6E334, from Goa to Delhi on 1.2.2009. She was on duty in

the aircraft. When she was coming back to her seat, after checking,

accused told her that he is a DGCA Official. He would make report

that the passengers are moving in the aircraft while the aircraft is

taxing. She told him that they will get back to him after takeoff as

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the flight was about to takeoff. She further deposed that when she

was in aft i.e back side galley of the plane, accused said that he was in

Kandahar hijacking and thereafter, he spoke about some infected

needles and Neha informed about the incident to the Lead and they

informed the cockpit crew. There was a slight disturbance and they

landed at Delhi and National Security Guard were around the plane.

After the checking, they were taken to airport police station and her

statement Ex PW 1/A was recorded at the police station. This witness

was declared hostile at the request of Ld. Designated PP pertaining

to recording of her statement by Inspector Raj Kumar and

subsequently by S.K Bhatanagar. Her statement Mark A' and Mark

B' was given to Inspector Raj Kumar and S.K.Bhatanagar.

During the cross-examination, she has stated that she

joined Indigo Airlines on 3.12.2007 and she resigned from Indigo

airlines on 17.3.2010. She has further stated that she got married on

5.10.2009 and out of the six crew members, none attended her

marriage. She has further stated that on 1.2.2009 the crew members

who were flying with her were Lead Ms. Jyoti Chhetri, R1 i.e next to

the Lead was Ms. Neha Gogia, at the back R2 was Ms. Neha Chhikara,

and she was L2. Mr. Amit was the Captain and Mr. Punit was the

the First Officer. She stated that R1 is responsible for row 1 to 11,

R2 is responsible for row 12 to 22 and L2 is responsible for row 22 to

30. She further stated that on 1.2.2009 her duty position was L2 and

she was responsible for row 22 to 30. She further stated that she did

not talk to any Indigo Officer on phone after her arrival in Delhi to

take instructions from them. On 1.2.2009, the flight duration from

Goa to Delhi was around two hours. All the cabin attendants crossed

checked the cabin in their respective zones. There were thirty rows in

the aircraft of Indigo Airlines on 1.2.2009 from Goa to Delhi and there

were more than 150 passengers on the said flight. Some passengers

from row 30 changed their seats and sat down on overwing exit seats

in row 12 and 13 on 1.2.2009 as Neha Chhikara told said fact to her.

The changing of seats by passengers, did not happen in her presence.

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Ms. Neha Chhikara had briefed those passengers who had changed

their seats as it was part of her duties. She saw the accused for the

first time on the flight from Goa to Delhi on 1.2.2009 when he told

her that he is from DGCA and he will make a report and that is the

first time when she came across him. Accused was seated on seat 16D

which was aisle seat. Row 16 comes under R2's responsibility zone.

Neha Chhikara went up to the accused. The incident did not take

place in her presence. She informed the Lead about the said

incident before taking her seat for take off. She also informed the

Lead that there is a passenger who is claiming himself to be a DGCA

official. She admitted that when the plane landed and the doors did

not open for a period of 4-5 hours, the passengers started getting

restive and they were inquiring from the cabin attendants what is the

reason and why the doors were not being open for them to come out.

She further admitted that she went to the front galley as the

passengers were very restless. She has further admitted that on

1.2.2009 she was responsible for row 22 to 30 in the aircraft while

flying from Goa to Delhi. She also admitted that it is mandatory for

the cabin attendants and passengers to be on their seats before

takeoff of the flight. She further clarified during the cross-examination

that Neha Chhikara was very upset due to the things said by the

accused and she went to front galley and Neha Gogia was sent to aft

because she was feeling bad seeing Neha Chhikara. She further said

that the accused came to the aft galley and showed her a pen and

asked her to identify the same to which she said that this is a pen. On

this the accused said that what if someone kills using this pen. She

further stated that she did not tell this fact to the police as the same

has nothing to do with the flight but the accused sacred her in the

flight by saying the same. She was carrying her mobile on 1.2.2009.

PW1 Anchal Mehta is the witness to the incident and her

presence on duty, in the aircraft has not been disputed by the

accused during the cross-examination. There is no cross-examination

on the side of the accused that her statement is based on enmity.

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There is no cross-examination that she has made the statement due

to the closeness of Neha Chhikara or any other crew members. She

has seen the accused in the Indigo flight No. 6E334 and talked to the

accused and heard the talks between the accused and Neha Chhikara

and she has identified the accused in the court.

The contention of Ld. Defence counsel that PW1 is a

hostile witness and her statement, made before the court, could not

be relied upon, does not seems to be forceful in the facts and

circumstances of the present case. PW1 Anchal Mehta has supported

the version of the prosecution and only showed her ignorance about

her statements given before IO Inspector Raj Kumar and Sh. S.K

Bhatnagar Mark A' and Mark B'. The said statements Mark A' and

Mark B' is not preferred to be cross-examined by the accused, during

the cross-examination. Therefore, her statement cannot be rejected

merely on the ground that she has been declared hostile. It has been

so held by Hon'ble Supreme Court of India in Radha Mohan

Singh @ Lal Saheb & Ors Vs. State of U.P. with Kaushal Kishore

Singh and Anr. Vs. State of U.P. 2006 Cri. L.J 1121 and State

Tr PS Lodhi Colony New Delhi Vs. Sanjeev Nanda in Crl. Appeal

No. 1168/2012 arising out of SLP (Crl) No. 3292 of 2010.

The contention of Ld. Defence counsel that PW1 Anchal

Mehta is infirm witness is also not convincing. PW1 Anchal Mehta

has specifically stated that she joined Indigo Airlines on 3.12.2007

and subsequently, she remained on duty till she resigned on

17.3.2010 from Indigo Airlines. There is no suggestion put to PW1 on

behalf of accused that on the date of the incident she was infirm and

she was not medically fit to be on duty on 1.2.2009. Rather, the

accused has put suggestion to the witness that she was on duty on

1.2.2009 and she was responsible for row 22 to 30 in the aircraft.

The said suggestion is reproduced as under :-

Question: Is it correct that on 1.2.2009, your were responsible for rows 22 to 30 in the aircraft, while flying from Goa to Delhi ?

Answer: Yes.

SC No. 8/2009 /90

(ii) Prosecution has examination Neha Gogia as PW2, who has

stated that she was on duty on 1.2.2009 on Indigo Flight 6E334, from

Goa to Delhi. Her position was R1 and complainant Neha Chhikara

was R2. After closing the doors of the aircraft, she was to give

demonstration at the first row and Neha Chhikara was to given

demonstration at the twelfth row. After completing the service to

the captain she and Jyoti Chhetri brought the cart in the cabin and

started service and saw accused Jitender Mohla seated on 12C. He

was having a word with Jyoti Chhetri, which she could not hear as

she was busy in service to the passengers. After completing the

service, while they were going back to forward galley, Jyoti Chhetri

told her about what she had interaction with Jitender Mohla, who

was saying that he is a hijacker. He is accompanied with two more

passengers carrying arms and needles along with him and planning to

hijack. After hearing this, Jyoti Chhetri informed the Captain about

the same. Captain switched on the seat belt sign and instructed to

secure the cabin as they have to prepared for landing and make

everyone sit. She further stated that accused Jitender Mohla was

instructing all the passengers to fasten their seat belt. She told him

to go back to his seat and to fasten his seat belt and let her do her job

as other passengers were annoyed as to who is he to instruct them.

Accused Jitender Mohla got up from his seat and rushed to aft galley.

Neha Chhikara made announcement asking passenger to be seated.

Accused Jitender Mohla continued to walk in the aft and reached to

the aft galley. She asked Jitender Mohla as to why he is rushing in

the aft galley again and again. He told her that he want to use the

lavatory. After the passenger came out of the lavatory, Jitender

Mohla used lavatory and thereafter, she told him to go back to his

seat. The aircraft landed at Delhi and was taken to remote bay.

NSG commandos and Sniffer dogs continued their work of frisking

and checking the cabin. Later, they all were taken to the police station

in front of the arrival hall.

During her cross-examination, she has stated that she is

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graduate. She joined Indigo Airlines on 1st June 2007. She completed

her schooling in the year 2005 from Ramjas School, Pusa Road from

Arts Stream. On 1.2.2009, her area of responsibility was from row 1

to 11. She does not remember the exact time when the flight from

Goa to Delhi took off but as far as she recalls it was around 3.45 pm.

She does not remember exact number of passengers who were in the

said flight. Anchal Mehta was L2 and was responsible from row 22 to

30. R1, R2 and L2 are required to do the demonstration. All the three

crew members do the demonstration simultaneously, in the cabin. It

was the first flight which she did with Neha Chhikara on 1.2.2009

from Delhi and Goa and Goa to Delhi. It was the first time on

1.2.2009, when she met Neha Chhikara in the office briefing, before

flight. Prior to it, she did not meet Neha Chhikara. As per her

conversation, later she thought that she was married. As she was

talking about her husband she believe that she was married. She

does not have any personal relation with her as she did not know

about her parental house. Mr. Bhatnagar met her on 26.8.2010

outside the court. She has denied to the suggestion that she is

deposing falsely under the pressure of Indigo Company as she is still

in the service. She has denied to the suggestion that accused was

perturbed on the inefficiency of cabin attendant to maintain discipline

in the cabin as it was endangering the safety and security of the

aircraft and he had no option but to say that he is a DGCA official. She

further denied to the suggestion that accused did not do any illegal

act or spoke any word to endanger either the safety of the passengers

or the aircraft.

PW2 Neha Gogia, is the witness to the incident. There is

no allegation of false deposition on the ground of enmity with the

accused or with Neha Chhikara or Anchal Mehta. She has identified

the accused and saw him talking with Neha Chhikara but she could

not hear what exactly the word of exchange taken place between

Neha Chhikara and the accused. Her statement to the extent of that

she is being told by Neha Chhikara, that accused is saying that he is

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a hijacker and further that he is accompanied with two more

passengers carrying arms and needles along with him and planning to

hijack, is hearsay evidence.

(iii) Prosecution has further examined Jyoti Chhetri, Lead

Cabin Attendant as PW3, who has stated that on 1.2.2009, while she

was on flight duty, as Lead Cabin Attendant from Goa to Delhi, her

crew Anchal Mehta called her and told her that there was a passenger

who was claiming to be DGCA Official and he was irritated about

something but Anchal Mehta did not tell her what was that. Then

she told Anchal Mehta that they will talk about it after take off as

they were ready to take off. After take off, she did not notice much.

When she went to the aft to get something from there she saw

accused Jitender Mohla talking to the crew but she does not

remember, whether she was Anchal Mehta or Neha Chhikara. Then,

she asked the accused Jitender Mohla whether he want anything.

Then accused told her that he wanted a glass of water. Then, she

went to the forward. Thereafter, Neha came to her at the forward and

told her that accused Jitender Mohla is threatening her and is saying

that he is carrying some weapons and some needles and he said that

he can slit the throat and he will also hijack the aircraft. After that

she went to the cockpit and communicated to the captain and the

captain informed the ATC.

During the cross-examination, she has stated that she

joined Indigo Airlines, in December 2007 as a Lead Cabin Attendant

and she left the Indigo Airlines in the month of May 2010. She further

stated that after door was closed, announcement was made by her

regarding the non usage of mobile phones during the flight on

1.2.2009 from Goa to Delhi. There were 161 passengers on flight from

Goa to Delhi on 1.2.2009. She did not meet anybody from Indigo

Airlines, before coming to court.

The contention of the Ld. Defence counsel that statement

of PW3 Jyoti Chhetri Lead Cabin Attendant is hearsay, does not

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seems to be correct in toto as she is the witness to the incident and

was working as cabin attendant. During the cross-examination, no

suggestion is put to the witness that she is inimical to the accused or

accused knows her prior to the date of incident.

14. Occular Evidence of Cockpit Crew

(i) The prosecution has further examined Amit Singh pilot in

command as PW4, who has stated that on 1.2.2009 he was operating

on Indigo flight 6E334 from Goa to Delhi as pilot. He stated that the

incident happened on 1.2.2009 on Indigo Flight, 6E 334 from Goa to

Delhi. Soon after takeoff from Goa, he was informed by the Lead cabin

attendant Ms. Jyoti Chhetri that there is a DGCA person on board and

he is objecting to a passenger who had moved from his seat and sat on

the overwing seat. A little while later, there was some turbulence and

he put the seat belt signs on. The Lead again came in the cockpit and

informed him that the DGCA person is objecting to the portable

electronic device sign not been put on during turbulence. When they

were close to Mumbai during cruise, the Lead again came to the

cockpit and informed him that the person who was claiming to be

from DGCA, is now saying that he is a Sky Marshal and he has pins

and infected needles which can put a person to sleep. Close to Delhi,

the Lead again came to him and said that the said person is now

saying that there is a threat to this aircraft and there are hijackers on

the board. He further stated that later the Lead further told him that

now the person claims that he has a weapon and he knows how to kill

and if the crew will assist him in the hijacking. He put the seat belt

sign on and made an announcement for all passengers to sit down

immediately. He contacted the Air Traffic Control and asked for

discrete frequency, which was alloted to him. On this frequency, he

told Air Traffic Control that there is a person who first claims to be

from DGCA, then a Sky Marshal and thereafter, a hijacker and that

there is a threat to the aircraft. Since, the person claimed to be in

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possession of a weapon and that there was threat to the aircraft, he

asked for priority landing. The ATC informed him that they are

treating as a hijack. Soon the security forces came in and after a

while took the charge of the aircraft and all the passengers were de-

boarded under supervision of NSG. They were then taken to the

Palam police station wherein, they were asked about the incident.

During the cross-examination, he has stated that he joined

Indigo as a pilot on 27th June 2006. He was working as a pilot with

Indian Airlines prior to joining Indigo. He further stated that on

1.2.2009, the Indigo flight No. 6E334 took off from Goa at around

15:30 hours. The duration of the flight was approximately two hours

and the flight landed at Delhi Airport at around 17:30 hours. He

further admitted that the alleged incident on 1.2.2009, on the flight

from Goa to Delhi was communicated to him through Lead cabin

attendant. The doors remained closed till about two hours, after flight

landed at Delhi Airport. He was in control of the aircraft, during the

flight. He came out of the plane close to 21:00 hours. During period

from 17:30 to 21:00 hours he was in touch with his company. On

1.2.2009, approximately, at 16:30 hours, he was close to Mumbai

during cruise. He further admitted that Mumbai is the closest

suitable airport to Goa while flying from Goa to Delhi, as per the

scheduled route of the flight on 1.2.2009. Approximately at 17:10

hours, he was over Jaipur. On 1.2.2009, the flight took approximately

twenty minutes from Jaipur to Delhi. He further admitted that on

1.2.2009, the aircraft landed at Delhi airport close to its scheduled

time. On 1.2.2009, about 163 passengers were on scheduled Indigo

flight from Goa to Delhi. He further admitted that he had no

knowledge that any Sky Marshal was on board on 1.2.2009 from Goa

to Delhi. He was not informed of any Sky Marshal flying on board.

The aircraft from Goa to Delhi, on 1.2.2009 was equipped with the

Portable Electronic Device System. The pilot flying did switch on the

CVR during cockpit preparation, prior to departure of the flight on

1.2.2009. He was the captain of the flight on 1.2.2009. He denied to

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the suggestion that the cockpit voice recorder system was not

switched on, on 1.2.2009. The co-pilot was the pilot flying at the time

of taxing for the purpose of take off on 1.2.2009. He has admitted that

in case of hijack the captain will activate the transponder code 7500,

but in case of unlawful interference it may depend on the severity. He

denied to the suggestion that in case of every unlawful interference

irrespective of its severity the transponder will be pressed to code

7500 by the commander/captain. He further admitted that all the

operations of the flight, from Goa to Delhi, on 1.2.2009 were normal.

He asked for discrete frequency. He admitted that as per the security

and DGCA rules, the captain is the final authority to make an

assessment of the circumstances prevailing in the flight. He

authorized the cabin attendant to check for the credentials of the

passenger claiming to be a DGCA person and then Sky Marshal at

approximately 16:45 hours. At around 17:00 hours, he was given some

more information about the passenger, after which the Lead told him

that she had not checked the credentials of the person involved and

whether he still want the credentials to be checked. He further

submitted that at 16:45 hours he authorized the Lead cabin

attendant to check the credentials of a person claiming to have pins

and infected needles which can put a person to sleep but the Lead did

not check the same and she told him this fact when she came in the

cockpit at around 17:00 hours to give him some additional information

and further asked whether now she can check the credentials. He

asked for discrete frequency at around 17:10 hours. At around 17:00

hours the Lead informed him that there is threat to the aircraft. He

was given information about the alleged incident by the Lead after

take off from Goa and thereafter periodically. At 16:40 hours, when

the aircraft had crossed Mumbai enroute to Delhi, he got a bit of

information from the Lead. He took controls of the aircraft during the

period when the co-pilot left the cockpit to visit the lavatory.

Secondly, after the threat to the aircraft was communicated to him by

the Lead Cabin Attendant till the end of the episode, he was at the

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controls of the aircraft. Co-pilot was assisting him as pilot not flying.

He took the charge of the control, during the flight from Goa to Delhi

at 16:40 hours when the co-pilot left the cockpit to visit the lavatory

and then at 17:10 hours till the end of the flight. He further denied to

the suggestion that there is a procedure for issuance of warning

letter by the captain, if informed about the unruly passenger flying on

the board. He further denied to the suggestion that he has deposed

falsely at the instance of the Indigo Airlines and Investigating Officer

of the case.

PW4 Captain Amit Singh is the material witness who was

controlling the aircraft as pilot in command. Accused during the

cross-examination did not dispute him to be working as pilot in

command in the Indigo flight on 1.2.2009. Accused did not put any

allegation against the present PW Amit Singh that his statement is

based on enmity. The contention of Ld. Defence counsel, that the

captain Amit Singh did not press the transponder and informed the

ATC at any stage, during the flight, because the flight was normal

and there was no threat to the flight, is not convincing. PW4 Captain

Amit Singh, has specifically clarified during the cross-examination

that in the event of hijacking the captain will activate the transponder

code 7500, but in case of unlawful interference it may depend on the

severity. In the present case, PW4 Amit Singh has clarified that he

was in the control of the flight. His statement shows that when he

received the information from the Lead, about the presence of a

person who claims to be DGCA person, Sky Marshal and that the

said person is having pins and infected needles which can put a

person to sleep and further extending threat to aircraft that there

are hijackers on board and that he knows how to kill and if crew will

assist them in hijacking, he asked for discrete frequency from the ATC

and ATC gave discrete frequency and on the basis of the discrete

frequency, ATC overheard the talks between the pilot and the crew i.e

Lead Cabin attendant and the ATC treated the plane as hijack.

The contention of Ld. Defence counsel that the captain

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Amit Singh did not contact ATC Mumbai, ATC Jaipur and ATC Udaipur

etc regarding the presence of hijackers on board till Delhi, which

otherwise means that the flight was normal, does not seems to be

correct as he specifically stated that the information regarding the

presence of hijackers on board was given to him by the Lead when

the aircraft was close to Delhi. The accused during the cross-

examination also did not put any suggestion to Captain Amit Singh

PW4 that aircraft while flying over Mumbai, Jaipur and Udaipur was

flying so low and was in touch with direct connectivity with the

respective ATC's.

(ii) Prosecution has further examined PW5 Punit Prasad, who

has stated that he was operating in Indigo Flight 6E334 from Goa to

Delhi on 1.2.2009 as co-pilot. After take off from Goa, at around

10,000 feet, when they switched off seat belt signs, the Lead came to

the cockpit and said there was a passenger who claimed to be DGCA

official and was shouting at another passenger who changed his seat

to emergency exit when the aircraft was taxing. The said passenger

was then shouting at the Lead as to how could she let the passenger

change the seat when the aircraft was taxing. Then the Lead went out

of the cockpit. When there was little turbulence around 15,000 to

20,000 feet, and they switched on the turbulence sign, the Lead

called them and told that a passenger is shouting at the Lead that

why is the PED sign not on and that he will complain and get her

fired. After some time, the Lead called them again saying that the

passenger is now claiming to be Sky Marshal and that he is saying

that there are two more Sky Marshals on the board and they asked

from the Lead who are they. Then Lead replied that there was a

passenger on seat 30 echo who was little rude to the crew while the

crew was serving the passenger. She further stated that the said

passenger went and started shouting on the passengers after which

he went to the crew and told her that he is having needles which can

incapacitate the people and put him to sleep and the said passenger

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will not get up. The said passenger also told the crew that he is a

Muslim and he had something to do with Kandhar hijacking and if

they get support from the crew. The said passenger also told crew

that he has knives and he know how to kill people. Somewhere around

Jaipur, the crew told them all this. They switched on the seat belt

sign so that no one moves around in the cockpit and told the crew

that the cockpit doors will not be opened for her to come in and

whatever she had to say would be over the interphone. The crew then

told them that accused was moving around the cabin telling

passengers to take their seats. During decent the crew told them that

he is saying that he is a hijacker and there is another hijacker with

him on board and something is going to happen to this aircraft very

soon. They informed the ATC of what Lead informed them of what

accused Jitender Mohla was telling to her and they thought it is a case

of his sanity. Delhi ATC then told them that they are treating this as

a hijack case. The flight was landed at Delhi and taken to isolated bay

and they shut down the engines and aircraft was surrounded by CISF

persons and NSG. It took about 2 hours to open the doors of the

aircraft.

During the cross-examination he stated that he joined the

Indigo Airlines on 3.11.2008. He was the pilot flying on 1.2.2009. The

flight took off from Goa at around 3.30, which was its scheduled time.

The route from Goa to Delhi was Goa, Mumbai, Udaipur, Jaipur and

Delhi. The maximum hight the aircraft flew on that sector was 33,000

feet. He does not remember where they reached their top of flight.

That information would be on the Flight Data Recorder. He does not

recollect the exact number of times the Lead Cabin Attendant

entered the cockpit during the flight from Goa to Delhi. He denied

that the Lead entered the cockpit only once when he had to be

relieved to go to the lavatory. The flight landed at New Delhi Airport

at around 5.30 pm on 1.2.2009. The flight time from Goa to Delhi was

around 2 hours. Around 163 passengers were flying on 1.2.2009 in

flight no. 6E334 from Goa to Delhi. All the information is based on the

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information being passed over to him by Lead Cabin Attendant as he

did not go out of the cockpit other than going to the lavatory and later

the cockpit was locked down after Lead informed them that there was

threat to the flight. As per his knowledge, Lead was passing the

information to the cockpit, which was given to her by the aft crew. He

denied to the suggestion that nothing was told by the Lead to the

cockpit crew and he has deposed falsely. He further denied to the

suggestion that accused is falsely implicated at the behest of his

employer and also by investigating agency. He further denied to the

suggestion that no such incident took place in the flight on 1.2.2009

from Goa to Delhi, which could jeopardize the safety and security of

the passengers and the aircraft. He further denied to the suggestion

that there was no threat to the aircraft. He further denied to the

suggestion that the cabin attendants have fixed the accused, as aft

crew was scared of an adverse report and of losing their jobs when

the accused told to them that he is a DGCA officer and he will report.

PW5 Punit Prasad is pilot flying on 1.2.2009 and is

material witness to the incident. He has deposed what the Lead has

told them in the cockpit or communicated by Lead in the cockpit.

15. In the present case, complainant Neha Chhikara has not

been examined as she is stated to be died before her examination.

Statement of Neha Chhikara Ex PW45/A, the basis of the FIR Ex PW

43/B is reproduced as under :-

“I am working as a cabin attendant in Indigo airlines since September 2007. Today, I was operating at flight No. 6E334. The flight departed from Goa at 15.15 hours. Just before take off my colleague Ms. Anchal Mehta informed me that there is a passenger who claims to be a DGCA official and he is preparing a report against the crew members. After the take off, I went to the passenger whose name was later known as Jitender Mohla, who was sitting at the seat No. 16D but was frequently changing his seat and moving in the aircraft. I tried to convince and calm him but he was arrogant shouting and misbehaving with co-passengers and crew members. During the course of flight the said passenger Jitender came to the rear and told me and my colleague Ms. Anchal that he is carrying a gun and some infected needles which can be used for infection and to cut the throat. He also told that he was involved in Kandhar hijacking and soon he along with his associates going to hijack the aircraft. He came forward

SC No. 8/2009 /90

and moved his hands towards my neck to show me the point which he can press to make a person unconscious. I moved backwards and got scared. Keeping in mind the safety hazards and security of the passengers, I went to the front and informed Ms. Jyoti Chhetri about it. Subsequently, she informed the crew members in the cockpit. Safety procedure of lock down of cockpit was adopted. Later the aircraft landed at New Delhi in emergency. Kindly take appropriate legal action against Jitender Mohla.”

The FIR Ex PW 43/B is not a substantive piece of evidence

in the present case for want of statement of complainant Neha

Chhikara. However, its importance cannot be brushed aside merely

on the ground of non examination of the complainant Neha Chhikara

particularly in the presence of the statement of PW1 Anchal Mehta

and other circumstantial evidence. It has been so held by Hon'ble

High Court of Delhi in case Ramchander Vs. State (Govt of NCT of

Delhi) 2009 CRI L.J 4058.

16. Occular Evidence from ATC

(i) Prosecution has examined Ripun Borah, Junior Executive

ATC, as PW30, who has stated that on 1.2.2009, he was working as

Area Planning Controller in Delhi area west sector. He was on duty

from 1123 UTC to 1240 UTC and he monitored Indigo Flight 6E334

who requested for priority landing and security assistance due to

some unruly passenger on board. He overheard the conversation

which indicted possibility of hijack and Indigo Flight 6E334 was

changed over to 119.3 MHz. He reduced down the said information

into writing which is Ex PW30/A, in log book and bears his signatures

at point B', C' and D.

(ii) Prosecution has examined Malkeet Singh, Radar

Controller as PW35, who has stated that on 1.2.2009 he was working

as Radar Controller in area West at IGI Airport. He proved log entry

Ex PW 35/A in log book which bears his signatures at point B'.

The log entry Ex PW 35/A is reproduced as under : -

“1132 (UTC) 1GO 334 VAGO – VIDP reported unruly passenger on

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board and requested priority and security personnels to attend the acft. Infd all concerned.1139 (UTC) IGO 334 requested discrete frequency and was released to 119.3 mhz in cood with WSO. All concerned informed. (Cockpit conversation regarding suspected hijack was overheard on 124.55).1101 (UTC) Took over watch. 1225 (UTC) Handed over watch.”

Accused during the cross-examination did not put any

suggestion that the log entry Ex PW 35/A is not in his hand and same

does not bears his signatures. The log entry Ex PW35/A shows that

PW35 Malkeet Singh was on duty on the aforesaid date and time and

he made entry in the log book and his entry in log book that Indigo

Flight 6E334 reported to be having an unruly passenger on board

and pilot in command requested for priority and security personnels

to attend aircraft and request for discrete frequency and which was

released to 119.3 MHz in coordination with WSO, is material evidence

on record against the accused as the entry is done in due course of

official duty of PW35 Malkeet Singh, particularly when there is no

suggestion on behalf of the accused that the entry Ex PW35/A is

otherwise.

(iii) Prosecution has further examined PW 36 Ritu Sharma,

Deputy General Manager ATC, IGI Airport. She has stated that on

1.2.2009, she was on duty from 1.30 IST and 0800 UTC. At 1140 UTC

her Watch Supervisory Officer (WSO) Mr. Vipin Gupta instructed her

to open a discrete frequency to handle the flight IGO 334. The flight

was to be given priority landing. On radar the flight was provided

separation with the other landing and departing traffic and on priority

assisted to make a safe landing and taxing upto the bay.

During the cross-examination she has admitted that the

flight IGO 334 made a safe landing. She has further admitted to the

suggestion that captain in command was in constant touch with ATC

through out the flight 334.

(iv) Prosecution has further examined Vipin Gupta, Joint

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General Manager ATM as PW38. He has stated that he was the Watch

Supervisor Officer of the shift in which the incident took place. He

further stated that he was informed about the incident which had

taken place on the Indigo Flight 6E334, by the area west controller.

He was maintaining a log book in which he made log entry Ex PW38/A

running into three pages, during his duty hours, with regard to the

incident.

During his cross-examination he admitted that all the

entries in the log book, during his watch from 0810 (UTC) to 1422

(UTC) on 1.2.2009, are in his handwriting.

17. Occular Evidence of Tape Transcript

Prosecution has examined M.P. Arun Kumar Manager ATC

as PW37, M.K Garg Junior Executive ATC as PW39 and Deep Kumar

Manager Communication Airport Authority of India as PW40, who

have prepared the tape transcript. It is stated that after the incident,

the department formed a committee, consisting M.P Arun Kumar, M.K

Garg and Deep Kumar, to prepare the tape transcript. The tape was

stated to have replayed in concerned technical section where the

recorder was lying. Mr. Arun Kumar instructed the technical person

to insert the tape and played the same for different frequencies. PW

37 M. P. Arun Kumar was noting down each and every conversation

between the pilot and the controller and PW Deep Kumar and Manoj

Kumar were verifying the test written by M.P Arun Kumar. After

verifying the written text, it was typed by M.P. Arun Kumar and same

was signed by M.P Arun Kumar and Deep Kumar. Ex PW 37/A is

reproduced as under :

TAPE TRANSCRIPT

DATED 1.2.2009 FREQ 124.55 MHz CALL SIGN 1GO334

UNIT AREA (W) RADAR

TIME (UTC) UNIT TEXT

IGO334 Delhi ready for descent

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RADAR Descent to FL 150

113319 1GO334 And we have unruly passenger on board request priority landing

113327 RADAR Say again

113333 IGO334 Say again sir

113337 IGO334 We have unruly passenger on board we request priority on landing

113342 RADAR Roger, any assistance required

113348 IGO334 We will require security to attend the aircraft

RADAR Roger we will advice Tower

IGO334 Thank you.

113434 RADAR IGO334 any assistance required on Runway

IGO334 Say again

113436 RADAR Confirm in addition of security personal any additional assistance required on Runway

113442 IGO334 Only security, IGO334

RADAR Roger

113848 Overheard cabin

conversation

“OK nothing to worry we are informing ATC that there is hijack threat, they will take care.”

113907 IGO334 Delhi 1GO 334

RADAR IGO334 go ahead

113912 IGO334 Can we have a discrete frequency

113916 RADAR Affirm sir stand by

114013 RADAR IGO334, Delhi Contact 119.3

IGO334 119.3

TAPE TRANSCRIPT

Date : 01/01/2009 Frequency 119.3 MHzUnit : Approach Radar Aircraft : IGO334

TIME (UTC)

UNIT TEXT

114123 RADAR IGO334 Delhi RADAR

114123 IGO334 Go ahead

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114132 RADAR IGO334 confirm the person says that the hijacker is the person himself or someone else, request his name

114139 IGO334 At first he claimed that there is hijacker in board and I am a Muslim and know how to kill people to support Muslims. I feel his charity is in question, he is not, his mental balance is not okay, but




114216 IGO334 Delhi IGO334 reading you strength five

114220 RADAR IGO334 RADAR, I was not getting you sir, I just missed last part of your transmission.

IGO334 He said he is muslim and he himself is a hijacker at first he said there is a hijacker on board then he said that ...... he says he is a hijacker and he is a muslim but his name is Jitender Maula.

114252 RADAR Roger sir his name is Jitender Maul.

IGO334 Affirm

RADAR Roger Sir

114300 IGO334 And we are requesting further descent from FL 150 and 28 for arrival

114306 RADAR Roger sir expect Runway 28 for arrival stand by for descend

IGO334 Roger IGO334

114408 IGO334 Stand by for descend IGO334

RADAR Roger IGO334 descend to FL110

IGO334 Descend FL 110 IGO334

114451 RADAR IGO334 RADAR

IGO334 Go ahead

114456 RADAR Confirm the person who is claiming to be hijacker has given threat to the aircraft

114510 IGO334 He has been saying a lot of things right form beginning first he said that he is a DGCA personal he is on a check surveillance check than he claimed he is a..

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114517 RADAR Confirm he is claiming some weapon with him

IGO334 He hasn't said he has any weapon but he says that he had some pin which can disable people and the person on 30E is sleeping and will continue to sleep.

RADAR Roger the person who is adjacent to him is sleeping

IGO334 He is on another seat his seat no. is 16 correction 12A as of now but he claim the person on 30E is sleeping and he has done something to him he will continue to sleep.

114601 RADAR Copied and confirm, he has not contacted you in person, he contacted airhostess only.

IGO334 He has'nt contacted me or attempted to contact me, he is only basically troubling cabin attendants and doing all sort of that ..

114613 RADAR Roger sir, copied, we are treating the plane as hijacked

114618 IGO334 Roger

114734 IGO334 Further descend IGO334

RADAR IGO334 RADAR descend FL90

114741 IGO334 90 IGO334

114801 IGO334 IGO334 Which Runway do we expect 28 or 29

114808 RADAR You expect Runway 28 sir

114836 RADAR IGO334, RADAR turn right heading 090 vectors for ILS Approach runway 28

114841 IGO334 Turn right heading 090 vectors ILS Runway 28 IGO334

RADAR IGO334 RADAR descend to FL070

IGO334 070..IGO334

115126 RADAR IGO334 continue descend to FL060

IGO334 Continue 60 IGO334

115243 RADAR IGO334 continue descend to 2600 feet QNH 1014

115245 IGO334 Descend 2600 NH 1014 IGO334

RADAR IGO334 RADAR turn left heading 040

115249 IGO334 Turn left heading 040 IGO334

RADAR IGO334 RADAR continue turn heading 020

SC No. 8/2009 /90

115349 IGO334 Turn left heading IGO334

RADAR IGO334 turn left heading 315 clear ILS Approach report established on localizer Runway 28

115400 IGO334 Roger turn left 315 cleared LS Approach Runway 28 call you established on Localizer

115420 IGO334 IGO334 established on the localizer

RADAR IGO334 clear ILS Approach Runway 28

115423 IGO334 Cleared ILS Approach Runway 28 IGO334

115446 RADAR IGO334 RADAR continue turn left 255 to intercept

IGO334 Continue 255 to intercept IGO334

115522 RADAR IGO334 RADAR cleared to land Runway 28

IGO334 Cleared to land 28

RADAR Winds are 270 degrees 10 knots

1GO334 270 at 10 IGO334

IGO334 Tower IGO334 taxi

RADAR IGO334 RADAR vacate via D1, Further Taxi via D Runway 09 and Runway 15/33 you have to proceed to Dumbbell 15

IGO334 D1, 09, 15/33 to dumbbell 15 IGO334

115947 RADAR Dumbbell 15 affirm

115950 IGO334 Roger

120000 RADAR And IGO334 after vacation of Runway kindly report sir

120001 IGO334 Runway vacate IGO334

RADAR IGO334 Roger sir, stand by

IGO334 Standing by

RADAR IGO334 wait for follow me sir follow me service will be provided to you

120014 IGO334 Waiting for follow me, IGO334

120041 RADAR IGO334 request follow me insight

IGO334 Follow me insight

120044 RADAR IGO334 now contact Ground 121.9

120047 IGO334 121.9 IGO334 Thank you madam

120051 RADAR You are welcome sir.

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Tape Transcript

Date: 01/01/2009 Frequency : 121.9 MHzUnit : SMC Aircraft : IGO334

Time Unit Text

120042 GND Fire station, Delhi ground

120042 Fire station

Go ahead sir

120050 GND Fire station follow indigo A 320

120051 Fire station

Delhi ground, fire control go ahead sir

120053 GND Fire control advise CFT to follow indigo A 320 on D1

120103 Fire station

Copied

120105 F/M 8 Delhi ground, this is follow me 8 sir, fire tender as well as follow me 7 on D 1 now

120120 IGO334 IGO334 is with you

GND Confirm follow me in sight

IGO334 Follow me in sight sir

GND Roger sir

120208 GND IGO334 follow follow me

120210 IGO334 Following follow me IGO334

121219 GND Follow me 8, provide follow me

120326 F/M8 Roger follow me commenced

120353 IGO334 Ground IGO334, the others ...now all operation are normal

GND Confirm all operations normal on board

IGO334 Affirm sir

120405 GND IGO 334 follow follow me

120554 IGO334 Ground IGO 334

GND Go ahead sir

120552 IGO334 The gentle man on 12A wearing a greenish shirt and dark trouser

GND Confirm 12A

IGO334 Affirm seat no. 12A wearing a greenish shirt and dark trouser and passenger on 30E which whom he claim that he has sedated or done something

SC No. 8/2009 /90

is now OK

120626 GND Roger

120630 IGO334 Crew claimed that there are other persons who might be with him but they are not very sure they suspect

120633 GND Roger copied

120716 GND Follow me 8 hold the aircraft on middle position on 15/33

120725 F/M8 Roger sir needful is done and we are holding aircraft

GND Roger

120757 F/M8 Delhi this is follow me 8, the aircraft is on designated position on 15/33

12075 GND Roger

120800 IGO334 IGO334 is shutting down

GND Roger

GND IGO334 maintain listening watch

IGO334 Roger

120810 F/M4 Taking position to cross Rwy 27 to 15/33

GND Approved

120834 F/M4 Follow me 4 vacated Rwy

121111 F/M3 Follow me 3 requesting cross Rwy 27 with indigo engineers and equipments

121313 GND IGO334 ground

IGO334 Go ahead

121315 GND IGO334, have you given all information regarding this to your company

IGO334 Affirm the company know it

GND Say again

IGO334 The company is aware confirm you want us to pass any other information

GND Nothing maintain listening watch

IGO334 Roger


IGO334 Go ahead

GND IGO334 report persons on board

IGO334 We have 156 person on board

SC No. 8/2009 /90

GND Confirm including crew

IGO334 Affirm including crew

GND Roger

121941 IGO334 Revised person on board 169

GND IGO334 confirm 169

IGO334 Affirm 169

GND Follow me ground

122424 GND Door still closed

122434 F/M4 Follow me 4 waiting for NSG

1226 Follow me crossing Rwy 15/33 to A

GND IGO334 ground

IGO334 Go ahead

GND IGO 334 report pilot in command name and co-pilot name

122650 IGO334 Pilot in command Amit singh and first officers Punit Prasad



GND Confirm engines are running

IGO334 Engines are switched off

GND Both engines are switched off

IGO334 Affirm sir

123012 GND IGO334 delhi ground

IGO334 Go ahead sir

GND Any suspicion after that

IGO334 We have suspicion on passengers on 30 Row no. 30 D,E and F but we cannot confirm, but the passengers who was creating threat is on 12A

GND Confirm 30 D

IGO334 30 D E F under suspension and person who is giving threat is on 12A

GND OK

123128 GND IGO 334 confirm person sitting on 12 A is still threatening.

123157 IGO334 Nothing now he is sitting quietly but he has changed his position to 12 C

GND Any suspected thing he is having

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IGO334 Say again

GND Any suspected things like something like knife or guns having

IGO334 He has threatened that he have weapon with him and blades with which he can kill

GND Roger

124100 GND Follow me 1 report the agencies arrived on 15/33 along with you

F/M1 NSG and CISF commandos

GND Any other

F/M1 Stand by for details

GND Follow me 1 confirm still door closed

F/M1 Affirm sir

124202 GND Confirm airport police is there

F/M1 Affirm sir CISF is there

124226 GND Follow me 1 delhi ground confirm commando, CISF, Airport police all seated near airport

F/M1 Affirm sir taken position

GND Roger


IGO334 Go ahead

125325 GND I need 3 information whether door between passengers and copied is closed or not

IGO334 Cockpit is secured door is closed all communications channels are opened

GND Any passenger trying embark cockpit

IGO334 No one is trying to enter the cockpit

GND Passengers are sitting on seat

IGO334 Passengers are all standing up they are wondering what is happening so

GND OK about suspect passengers

IGO334 I just confirm sir

130600 GND IGO334 request registration

IGO334 VTINT

IGO334 While he was talking the crew claim he was very angry furious shivering while he was talking with them

GND Roger

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IGO334 Go ahead

GND IGO334 confirm you are having a cell phone

IGO334 Affirm

GND Can I have the number

IGO334 9899399776

GND Can you give the number of cabin crew

IGO334 Stand by

133342 IGO334 Ground IGO 334 lead attendant is Jyoti cell number 9990548450

1341 15/33 E cross by follow me E4

1344 Follow me 8 15/33 to E

140510 Ground IGO334

IGO334 Ground go ahead

140513 Confirm any reception for us to open the door

Stand by Sir will advise


IGO334 Go ahead

Confirm you will given the instruction to open the door or (team below Y not clean) negative sir stand by will advise shortly

140916 Ground IGO334 Ground

IGO334 Go ahead sir

Ground As per central committee direction you can open the door

IGO334 Roger

141617 ground IGO334 ground

IGO334 Go ahead sir

Ground Confirm door has been opened

IGO334 Negative sir, we still coordinating with team below awaited for open the door, now

Roger

142525 Delhi ground

Follow me jeep

Follow me jeep go ahead

Coming to position on C1---------15/33 do you have to permission to enter Rwy 27/09

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142628 Follow me 7 Delhi Ground

142638 Follow me Delhi ground

142644 Follow me Delhi ground

142658 Ground Follow me 7 go ahead

Follow me 7 ground confirm calling

Negative sir

1428... FM2 Delhi ground this is follow me 2

Follow jeep ground go ahead

Position 15/33 dumble request permission to cross Rwy 15/33 to E

Ground Follow me jeep roger approve report on E

142856 Follow me

Report on E thank you

142916 Follow me

Delhi ground Follow me 2 we clean of RWY 27 on taxi E now thank you

Ground Roger

145541 Follow me2

Delhi ground this is follow me 2

Ground Follow me 2 ground go ahead

Follow me

Position on taxi way request permission to cross Rwy 10/28 from W to c in 10 sec clear

Ground Follow me 2 confirm you can select 118.1 frequency

Roger 118.1

145652 ground Follow me.............

Follow me

Ground go ahead sir

We unable to contact via 118.1 it possible to have via, 121.9

Stand by I am co-coordinating via Twr frequency

145810 Follow me jeep

Ground

Ground Follow me go ahead sir

Ground Cross Rwy 28 from W to C request to C

Follow me

Roger clean to cross from W to C, will report on C

145835 Ground Follow me 12 we clear Rwy on C

Thanks for cooperation

SC No. 8/2009 /90

Roger


IGO334 Go ahead

IGO334 Sir all passenger have been disembark now

Roger sir

IGO334 We are now going off the air

Ground Say again sir

We are going off the air now

Roger

18. Occular Evidence of Passenger Witnesses

Prosecution has examined PW6 Sh. Sameer Uppal PW7

Vibhor Tyagi; PW8 Suresh Chand Sharma; PW9 Amit Aggarwal;

PW10 Nitin Khandelwal; PW11Ankur Garg; PW12 Yogesh Mahajan;

PW13 Mrs. Hardeep Anand; PW14 Dr. Anand Lakshman; PW15 Shobit

Goel; PW16 Parag M. Nagarcenker, who were passengers on board

on 1.2.2009.

(i) PW 6 Sameer Uppal has identified the accused and stated

that accused present in the court was moving here and there and

giving instructions to others. Accused told him that he is from Indian

Air Force but he has not given much attention on that.

This witness was not cross-examined by the accused.

(ii) PW7 Vibhor Tyagi has stated that he was travelling from

Goa to Delhi on 1.2.2009 in the Indigo Flight and identified the

accused that he was on the board on 1.2.2009 when he was travelling

from Goa to Delhi. He observed one lady air hostess was terrified.

During the cross-examination, he has admitted that it was

not possible to hear the normal conversation between the passengers

occupying the seats in row eight, nine or ten. The vibration and sound

SC No. 8/2009 /90

in the aircraft is so much that it is not possible to hear the

conversation between the passengers occupying the seat at row eight

or ten if he is seated in row nine. He further admitted that there was

no panic hijack like situation in the aircraft.

(iii) Prosecution has further examined Suresh Chand Sharma

as PW8 who identified the accused and stated that the accused was on

board when he was travelling from Goa to Delhi on 1.2.2009 and he

was later declared hostile.

During the cross-examination, he admitted that he was

sleeping in the flight from Goa to Delhi and the flight was normal

however, the passengers were restless after landing in view of the

fact that the doors were not being opened for about 2 to 3 hours.

(iv) Prosecution has further examined Amit Aggarwal as PW9

who has stated that he was sitting on seat No. 16C and his friends

were sitting on seat No. 30B and 30C. He was sleeping on the seat

behind the seat alloted to him. The accused came there and asked to

go to his alloted seat and thereafter he sat on his alloted seat and

accused was directing other passengers and was claiming that he is

god father of aviation who has framed rules. He does not know what

exactly accused meant. Accused was also saying that he was Sky

Marshal. The situation in the plane was not normal when the plane

landed at Delhi. He was terrified as the plane was cordoned by the

security personnels.

During the cross-examination he denied that his friends

were also frequently changing the seats when the plane was taxing for

take of and also during the course of flight. He further denied to the

suggestion that frequent changing of his seats along with his friends

was endangering the flight hence, the accused present in the court

was objecting to the same and requested him to go back to his allotted

seat. He admitted that there is a noise of engines during the flight. He

further admitted that one cannot hear the conversation between the

SC No. 8/2009 /90

passengers occupying seats in two rows ahead or behind.

(v) Prosecution has further examined Nitin Khandelwal as

PW10. He has stated that he along with his two friends Amit Aggarwal

and Ankur Garg, was coming from Goa to Delhi in Indigo Flight. He

was not feeling well and laid down on another vacant seat, adjacent

to seat No. 16C. The accused present in the court came there and

told that he is from Aviation and he cannot sleep there. Thereafter,

he left the said seat and he went back to some other vacant seat, after

two three rows from row 16 and laid down on the said seat. At the

time of landing, he woke up.

This witness was declared hostile by the Ld. Designated

PP.

(vi) Prosecution has further examined Ankur Garg as PW11.

He has stated that he along with Amit Aggarwal and Nitin Khandelwal

was coming from Goa to Delhi by flight Indigo on 1.2.2009. He was

alloted seat No. 30B. The person, who is present in the court, was

saying he is god father of Aviation. (“I am the godfather of the

Aviation”). The air hostesses seems to be perturbed. Thereafter, he

was sleeping.

During cross-examination, his statement u/s 161 Cr.P.C Ex

PW11/DA was put to him wherein he admitted that in his statement

u/s 161 Cr.P.C word (“I am the godfather of the Aviation”) is not

recorded.

(vii) Prosecution has further examined Yogesh Mahajan as

PW12. He has stated that he was on the board on 1.2.2009 and was

alloted seat No. 27D. During the flight accused was seen going here

and there, moving forward and backward in the plane, following the

air hostess in the plane. He met the accused at Goa air port before

boarding the flight. He noticed accused something like intoxicated.

When plane was landed, the same was taken to corner of the airport.

SC No. 8/2009 /90

During the cross-examination, he has stated that he was

allowed to leave airport by the police at about 1-1.30 am.

(viii) Prosecution has further examined Mrs. Hardeep Anand as

PW13, who has stated that she was travelling in Indigo Flight on

1.2.2009 from Goa to Delhi. She has seen the accused before boarding

the plane at the airport and asking for red bull energy drink from the

security personnels having in his hand empty cane of red bull energy

drink. In the flight she noticed 5-6 persons were having the mobile

phones and they were not switching off their mobile phones, the crew

staff/air hostesses were requesting those persons for switching off

their mobile phones in the plane but those six persons did not switch

off their mobile phones despite the request of the crew staff/air

hostesses. After taking tea she slept and she woke up on the noise of

weeping. She saw two crew members/air hostesses who were sitting

in their respective seats at the rear side, one of them was weeping.

After sometime, they landed at Delhi and the plane was taken to the

corner of the airport.

During the cross-examination she admitted that she was

detained by Delhi Police for inquiry. She was told by the Delhi police

that her name was also there in the names of suspects.

(ix) Prosecution has further examined Dr. Anand Lakshman as

PW14. He stated that he was travelling with his wife on 1.2.2009

from Goa to Delhi. After the takeoff his wife had gone to the toilet

and he was holding his infant daughter. He was sitting in the aisle

seat. Accused told him that he is not supposed to sit in the aisle seat

while holding a child in hand and asked him to move to the middle

seat and wear his seat belt around him and his daughter. On this he

called air hostess, who replied that please follow his (accused)

directions. Accused was checking other passengers and accused told

him that he is officer of airlines.

SC No. 8/2009 /90

During the cross-examination he stated that he is public

health physician. He denied to the suggestion that the accused was

only securing his safety as well as his infant daughter.

(x) Prosecution has further examined Shobit Goel as PW15,

who has stated that on 1.2.2009, they were coming from Goa to Delhi.

During taxing time in the plane, some passengers changed their seat

and the persons sitting next to him called air hostess and told her that

same is not allowed. Thereafter, the air hostess told him that she will

give him hear, after the take off. After take off, she came to the said

person and the said person was accused Jitender Mohla. There was

talk between them during the flight time. The said person was

frequently changing the seat. The said person thereafter, went back.

The air hostess then came in front and was crying.

During the cross-examination, he has denied that he is

one of the suspect. He has admitted that the flight was a normal

flight.

(xi) Prosecution has further examined passenger Parag M.

Nagarcenker as PW16, who was declared hostile.

During the cross-examination he has admitted that the

disturbance was due to changing of seats by 2-3 passengers when the

plane was taxing and not due to the accused. He denied to the

suggestion that the cabin staff was scared of loosing their job as they

could not control 2-3 passengers who had changed their seat.

19. Defence witnesses

(i) The accused has examined S.A Dwarkanath one of the

passenger as DW1 who has stated that he was travelling from Goa to

Delhi in Indigo Flight 6E334 on 1.2.2009. He stated that no untoward

incident happened during the flight and flight was normal. The flight

landed at Delhi. He was shocked to see number of security persons

SC No. 8/2009 /90

around the aircraft. His statement was not reduced into writing.

During the cross-examination he has stated that he was

busy in his work.

(ii) Accused has further examined Satender Kumar Ahlmad of

the court of Ms. Joginderi JMIC, Gurgaon Haryana as DW2, who has

brought the case record title Suresh Chikkara Vs. Ankit Dalal &

anrs. in Criminal Complaint no. 279/2010, under section

498A/406/304B/120B IPC and also judicial record in case FIR No.

4/2010, under section 498A/406/323 IPC of PS Sector-18, Gurgaon.

(iii) Accused further examined Sh. Sajjan Kumar, DSP State

Vigilance Bureau, Rohtak, who has proved report Ex DW3/A in FIR

No. 4/2010, U/S 498A/304B/406/323IPC of PS Sector-18 Gurgaon.

(iv) Accused further examined Dr. Sandeep Govil as DW4, who

has stated that he is practicing psychiatrist for the last ten years. He

has further submitted that Serlift 50 is a medicine with the chemical

name of Sertaline usually prescribed for patients of depression.

However, its lower dose can be used for anxiety, Post Traumatic

Stress Disorder and other eating disorders.

20. Witnesses relating to information and investigation of the

present case

(i) Prosecution has examined Inspector H.K Rai Incharge of

CISF, Control Room, Domestic Airport, IGI, New Delhi as PW32, who

has stated that on 1.2.2009 he was working in operation control

room Palam Airport and he received message from ATC control Room

that one of the aircraft No. 6E334 from Goa to Delhi has been

hijacked. He brought the original GD Serial No. 563 dated 1.2.2009 of

CISF, IGI Airport. The extract is Ex PW32/A.

During the cross-examination, he denied to the suggestion

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that he has not given any information to the control room and that he

was not on duty.

Ex PW 32/A is the extract of GD S.L. No. 563 dated

1.2.2009 of CISF, IGI airport and PW32 Inspector H.K Rai was on duty

and brought the original GD Extract and since the Ex PW32/A is the

extract only, same has been proved.

(ii) Prosecution has further examined HC Ishwar Singh, duty

officer at PS Domestic Airport, District IGI as PW21 and HC Ram

Parkash as PW43, who have stated that on 1.2.2009, they received

intimation on telephone from Inspector H.K Rai about hijacking of

flight No. 6E334. The said information was reduced down into writing

by PW43 HC Ram Parkash vide DD No. 30 and copy of the same was

given to Ct. Rakesh for handing it over to SI Atma Singh for

investigation. PW 21 HC Ishwar Singh and PW43 HC Ram Parkash

brought the original DD No 30 dated 1.2.2009 and the copy of the

same is Ex PW17/A.

During the cross-examination, PW21 HC Ishwar Singh

stated that copy of DD was handed over to Ct. Rakesh Kumar for

handing it over to SI Atma Singh for investigation.

PW21 HC Ishwar Singh was the duty officer on 1.2.2009 at

PS Domestic Airport, District IGI, who received information regarding

hijacking of Indigo Flight 6E334 and PW43 HC Ram Parkash reduced

down the said message into writing vide DD No. 30. They have

original of the DD No. 30. Ex PW17/A is the copy of DD No. 30,

therefore, DD No. 30 stands proved.

(iii) Prosecution has further examined Ct. Rakesh Kumar as

PW44, who has stated that on 1.2.2009 he was working as Constable

at PS Domestic Airport. He received DD No. 30 Ex PW17/A and he

handed over the same to SI Atma Singh at the airport.

He further stated that thereafter, SHO Inspector Raj

Kumar handed over to him tehrrier and same was handed over to

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Duty officer PW43 HC Ram Parkash to register the case FIR No.

5/2009 of PS Domestic Airport. After registration of the FIR, he

brought back the original tehrrier and the FIR and handed it over to

Inspector Raj Kumar for investigation.

PW43 HC Ram Parkash also stated that in the mid night on

2.2.2009, he was working as duty officer at PS Domestic Airport and

Ct. Rakesh Kumar brought the tehrrier i.e statement of Neha

Chhikara in English along with endorsement of Inspector Raj Kumar

SHO Domestic airport and submitted to him. On the basis of the

same, FIR No.5/2009 was registered and the copy of the same was

handed over to Ct. Rakesh for onward handing it over to Inspector Raj

Kumar. Consequently, DD No. 2 is recorded in his handwriting and

bears his signatures. Copy of the same is Ex PW43/A.

During the cross-examination, PW43 HC Ram Parkash

denied to the suggestion that DD No. 30 is not in his handwriting.

PW43 HC Ram Parkash was duty officer and he received

statement of Neha Chhikara along with endorsement of Inspector Raj

Kumar SHO Domestic Airport and accordingly, FIR was registered

under section 336/506 IPC. The FIR is Ex PW43/B, bears his

signatures and stands proved to the extent of mode of registration of

the FIR.

(iv) Prosecution has further examined SI Atma Singh as PW17,

who has stated that on receiving Ex PW17/A i.e the DD No. 30 dated

1.2.2009, he along with Ct. Rakesh reached to the arrival hall of

domestic airport in connection with inquiry where they met with SHO

Inspector Raj Kumar.

(v) Prosecution has further examined Inspector J.S Mishra as

PW23, who has stated that on 1.2.2009 he along with Inspector Raj

Kumar SHO, ASI Ramjee and Ct. Rakesh reached inside the domestic

airport where they met passengers of Indigo flight 6E334 and SHO

Inspector Raj Kumar recorded the statement of Neha Chhikara and

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thereafter rukka was sent to PS for registration of the case.

(vi) Prosecution has further examined Inspector Raj Kumar

SHO, Domestic Airport, IGI as PW45, who has stated that on receiving

the DD No. 30 Ex PW17/A, he along with other staff members

reached inside the airport and recorded statement of one crew Ms.

Neha Chhikara. Statement was read over to her and she signed it. Her

statement is Ex PW45/A. Thereafter, he made endorsement on her

statement and sent the rukka to PS through Ct. Rakesh. The

endorsement is Ex PW43/C. During the interrogation, the accused

made disclosure statement Ex PW17/F. Thereafter, the accused was

arrested vide arrest memo Ex PW17/D and his personal search memo

is Ex PW17/E. During personal search of accused, his boarding pass

Ex PW17/C and tag Ex PW19/A were seized vide seizure memo Ex

PW17/B. Accused was sent to Safdarjung hospital for medical

examination along with application Ex PW45/C and after his medical

examination MLC Ex PW22/A was collected. Accused was produced

before the court of Ld. ACMM, Dwarka for judicial remand on

2.2.2009 from where he was remanded to judicial custody. Application

for judicial remand is Ex PW45/D. During the course of investigation

General Diary Extract of CISF was received which is Ex PW32/A. He

recorded the statement of all the crew members including the

complainant and some of the passengers, correctly and lateron, the

investigation of the case was transferred to Bureau of Civil Aviation

Security and he handed over the investigation alongwith the

complete record to Sh. S.K Bhatnagar, Deputy Commissioner of

Security (CA) BCAS (Bureau of Civil Aviation Security), New Delhi.

During the cross-examination he has clarified that copy of

FIR Ex PW43/B was sent to the higher officers. He has admitted that

initially the FIR was registered u/s 336/506 IPC. He further admitted

that section 336/506 IPC are non-cognizable and bailable offences. He

admitted that he has investigated on the basis of Ex PW45/D/X/DY1.

SC No. 8/2009 /90

He admitted that he was investigating the case till 9.2.2009. He

further admitted that he did not arrest the accused under Section 3

(1) (d) of Suppression of Unlawful Acts Against the Safety of Civil

Aviation Act 1982. He further stated that he did not seek judicial

remand of the accused under under Section 3 (1) (d) of Suppression

of Unlawful Acts Against the Safety of Civil Aviation Act 1982.

(vii) Prosecution has further examined Mr. S.K Bhatnager,

Deputy Commissioner of Security (CA) Bureau of Civil Aviation

Security, New Delhi as PW47, who has stated that on receiving the

letter Ex PW45/DX2 along with notification Ex PW47/A, he conducted

further investigation of the present case. He collected the documents

from previous IO SHO Inspector Raj Kumar. He also received

notification Ex PW47/B from Delhi Government regarding designation

of court for trial. During investigation, he interrogated accused under

Section 3 (1) (d) of Suppression of unlawful Act against the Safety of

Civil Aviation Act 1982, after seeking permission from the court vide

application Ex PW47/C. He prepared his report Ex PW47/D. Vide

application Ex PW47/E, he sought permission from the court to arrest

the accused under Section 3 (1) (d) of Suppression of unlawful Act

against the Safety of Civil Aviation Act 1982. He arrested the accused

vide arrest memo Ex PW47/F. During investigation, he also recorded

statement of crew members, passengers, officials of Indigo Airlines,

Airport authority of India, DGCA and officials of Delhi Police. He also

received the documents pertaining to duties of Watch Supervisor,

Executive, Radar Controller, Planning Controller, ATC Circular 44 of

2004, Contingency plan vide letter Ex PW20/A. He also received

photographs Ex PW27/A (1-6), scale diagram of the entire cabin, copy

of aircraft registration certificate, certificate issued by AME at Goa

airport, details of cockpit crew and cabin crew in respect of Indigo

Flight 6E334 from Goa to Delhi, vide letter Ex PW25/A. He also

received copy of insurance cover of the aircraft, cost of the aircraft,

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schedule time of departure from Goa, exact time of departure,

schedule time of arrival at Delhi and exact time of arrival at Delhi in

respect of Indigo Flight 6E334 from Goa to Delhi, vide letter Ex

PW25/B. He also received one copy of recording of all the channels of

cockpit voice recorder CD Mark X in respect of Indigo Flight 6E334

from Goa to Delhi, vide letter Ex PW25/C. He also received tape

transcript of ATC Ex PW37/A, log extract Ex PW38/A, Ex PW35/A, Ex

PW30/A, vide letter Ex PW41/A . He also received information vide

letter Ex PW41/B, saying that there is no provision of direct recording

(making copy) in the equipment, of the original recordings. Recording

of the original as ambient sound on another tape is liable to be

tampered and may not be authentic. He also received information

regarding names and designation of officials who had prepared the

tape transcript and also the copies of extracts of the log entries made

by Watch Supervisory Officer of the Shift and the controllers manning

the ATC Units on which the particular aircraft was handled, vide

letter Ex PW41/C. He also received transcript of the CVR of Indigo

flight 6E334 on 1.2.2009 from Goa to Delhi, vide letter Ex PW42/A. He

also received the transcript of cockpit voice recording of flight 6E334

of 1.2.2009 from Goa to Delhi, vide letter Ex PW42/B along with CD

Ex PW42/C of cockpit voice recording. He also received permanent

address of the crew members of the flight No. 6E334 from Goa to

Delhi on 1.2.2009, duty chart of crew members of the said flight,

name and designation of Indigo Official who prepared duty chart for

crew members, copy of licence of cockpit crew, certificate issued by

the concerned authorities after conclusion of Training undergone by

the cockpit and cabin crew, name of AME who issued certificate,

name, designation, address and contact number who took videograph

and photograph of Indigo flight No. 6E334 and also CD of videograph

of the aircraft Mark Y, vide letter Ex PW31/C. He also received

sanction Ex PW46/A for prosecution under Section 336/503/506/170

IPC, under Section 3 (1) (d) and 3 (2) of Suppression of unlawful Act

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against the Safety of Civil Aviation Act 1982 and under Section 3 (2)

& 4 under Anti Hijacking Act 1982 from Under Secretary to the

Government of India. On completion of investigation, he filed the

chargesheet Ex PW47/H vide letter Ex PW47/J against the accused,

under Section 336/503/506/170 IPC, under section 3 (1) (d) and 3 (2)

of Suppression of unlawful Act against the Safety of Civil Aviation Act

1982 and under Section 3 (2) & 4 under Anti Hijacking Act 1982.

During his cross-examination, he has stated that he

discussed the matter with seniors. He investigated the case as per

the orders of the Government. He did not visit the residence of the

accused for investigation. He does not remember whether he has

investigated the case regarding the motive of the accused for

committing offence. His investigation was on the basis of CVR, tape

transcript and statement of the witnesses. He has not investigated

the present case on the angle of the complainant being a sensitive

and high strung woman having anxiety bouts. He came to know about

the death of Neha Chhikara through newspaper only. He did not

conduct polygraph test of accused at any point of time during the

investigation. He has admitted that he has taken over the

investigation on 11.2.2009. He arrested the accused on 16.2.2009

under section 3 (1) (d) of the Suppression of Unlawful Acts against the

Safety of Civil Aviation Act 1982 as amended. As per the investigation

on 1.2.2009, cabin crew were terrified from the acts of the accused.

He has admitted that Dwarkanath was sitting on seat No. 30E. He

stated that sixteen passengers were suspect as per the letter of

Indigo. Letter Ex. PW45/D/X/Y1 dated 1.2.2009 which is an incident

report, of Sh. B. S. Tiwari, RDCOS, BCAS to Commissioner of

Security was found in the case file of Delhi police. He has not taken

the custody of CVR during the investigation in the present case. All

operations of the flight from Goa to Delhi were not normal as it was

priority landing at the Delhi airport due to hijack threat

communicated by the pilot to the ATC. He has denied to the

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suggestion that the accused did not threaten or did not attempt to

threaten any crew with the injury to their person. He has admitted

that he did not seize tape recording in the present case. He has also

admitted that he has not seized the aircraft. He has also admitted

that he has not seized the CVR. He has admitted that he has placed

on record the extract of ICAO. Copy of the same is Ex PW 47/D-1.

Annexure X is Ex.PW47/D-2. Annexure 11 pertains to Air Traffic

Service is Ex PW 47/D-3. Section 15.1.3 of Chapter 15 pertains to the

activation of mode A code is Ex PW 47/D-4. Chapter 1 (part VIII)

Section 1.6 is Ex.PW47/D-5. He has received the letter Ex PW20/A.

Circular is Ex PW 47/D-6. He has denied to the suggestion that Ex

PW25/C is a tampered document. He further denied to the suggestion

that the cabin attendants of the flight 6E334 from Goa to Delhi were

ill trained, irresponsible and highly inefficient.

21. Offence committed is on board i.e flight No. 6E334 on

1.2.2009, from Goa to Delhi and the duration of the flight was two

hours. There were four cabin crew members i.e Neha Chhikara, PW1

Anchal Mehta, PW2 Neha Gogia and PW3 Jyoti Chhetri and two

cockpit crew i.e PW4 Captain Amit Singh Pilot in command and PW5

Punit Prasad co-pilot and 160 passengers excluding the accused

Jitender Mohla, on the board.

The offence on board felt special attention. The Question

of national air space first arose when the balloons were used during

the Franco-Prussian war in 1870-71. After the war, opinion was

divided as to whether the air should be treated like the high seas,

free from the use of all, or whether a nation should be able to

control who used it. The issue became relevant too powered flight in

1909, when the French pilot Louis Balriot crossed the English

Channel to England. The next year, in 1910 an international

conference of diplomats in Paris failed to reach an agreement on

question. Later, the formation of association of member States were

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felt and in 1919 International Air Traffic Association was formed and

in the year 1944, in the Chicago Convention, International Air Traffic

Association had set international airfare. Thereafter, ICAO was

created in 1944 to promote safe and orderly development of

International Civil Aviation through out the world. It has set the

standard and regulations necessary for aviation safety, security,

efficiency and regularity as well as for aviation environmental

protection. Subsequently, in pursuance to the Hague Convention, the

Parliament of India enacted Anti Hijacking Act 1982 (Act 65) and on

the basis of the Montreal Convention 1971, which was held in Canada

among the member nations, the Parliament of India has enacted

Suppression of Unlawful Acts against the safety of Civil Aviation Act

1982 (Act 66).

22. Anti Hijacking Act 1982 is related to hijacking of the

aircraft and Suppression of Unlawful Act against the Safety of Civil

Aviation Act 1982 is related to unlawful acts and violence against a

person on board.

23. Section 336 IPC deals with an Act endangering the life or

safety of others. Following are the essentials :

(1) that some Act was done(2) that the Act was rash and negligent(3) that such Act endangered human life or personal safety of others.

The rash and negligent Act is gravamen of the offence.

24. Section 506 IPC deals with the punishment for criminal

intimidation. Section 503 defines the said offence. It has following

essentials :

1. threatening a person with any injury,(a) to his person, reputation or property or(b) to the person or the reputation of any one in whom that person is interested.

2. the threat must be with intention, (a) to cause alarm to that person or ;

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(b) to cause that person to do any act which he is not legally bound to do as means of avoiding execution of such threat or ;(c) to cause that person to omit to do any act which that person is legally entitled to do as means of avoiding of such threat.

Therefore, intention must be to cause alarm to the victim and whether

he has alarmed or not is really of no consequence but material has to

be brought on record to show that intention was to cause alarm to

that person.

25. The injury defined in Section 44 of the IPC is an Act

contrary to law which include any tortious act, which is wider than

general term injury. The reference could be made in case titled as

Habibul Razzaq Vs. Emperor (1923) 46 All 61, wherein, Hon'ble

Allahabad High Court has held :

“...Before a person can be said to put any person into fear of any injury to that person, it must appear that he has held out some threat to do or to omit to do what he is legally bound to do in the future..”

26. Section 170 IPC deals with personating a public servant.

The essentials are as follows :

1. That the accused falsely pretended to be public servant or personated to be public servant.

2. That he did so knowingly and;3. That while assuming such character he did or attempted to do

something under the colour of such office.

Therefore, the person personating must do or attempted to do Act

under the colour of the office of the public servant whom he

personates.

27. PW1 Anchal Mehta in her examination in chief has

specifically stated that on 1.2.2009, in Indigo flight No. 6E334 from

Goa to Delhi, the accused posed as a DGCA official .

The accused also did not deny the said suggestion in his

statement under Section 313 Cr.P.C.

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The statement of Anchal Mehta is corroborated with other

witnesses to the incident i.e the cabin crew as well as the passengers.

28. Accused is facing trial u/s 3(1) (d) and 3(2) of Suppression

of Unlawful Act against the Safety of Civil Aviation Act 1982 and 3(2)

& 4 under Anti Hijacking Act 1982 besides section 170/336/506 IPC,

which are reproduced as under:

“3.Offence of committing violence on board an aircraft in flight, etc --(1) Whoever unlawfully and intentionally ---(a) ....(b) ....(c) ....(d) communicates such information which he knows to be false so as to endanger the safety of an aircraft in flight.

(2) Whoever attempts to commit, or abets the commission of, and offence under sub-section [1] shall also be deemed to have committed such offence and shall be punished with the punishment provided for such offence.

and

3. Hijacking – (1) ....(2) Whoever attempts to commit any of the acts referred to in sub-section [1] in relation to any aircraft, or abets the commission of any such act, shall also be deemed to have committed the offence of hijacking of such aircraft. (3) ....

4. Punishment for hijacking -- Whoever commits the offence of hijacking shall be punished with imprisonment for life and shall also be liable to fine.”

29. The intimidation has not been defined in Suppression of

unlawful Act against the Safety of Civil Aviation Act 1982 and in Anti

Hijacking Act 1982. Since there is no special interpretation given in

both the statutes, the word intimidation is to be understood by taking

the guidance of Section 503 of IPC. Here reference could be made in

case Romesh Chandra Arora Vs. The State AIR 1960 SC 154,

wherein Hon'ble Supreme Court has held :

“..We are unable to accept this contention as correct. We agree with the High Court that the charge framed against the appellant

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was not as clear as it might have been. It stated however, that the offence of criminal intimidation was committed by threatening X and his daughter with injury to their reputation by having the indecent photographs published; the intent mentioned was to cause alarm to X and his daughter. The real intention, as disclosed by the evidence accepted by the trial Magistrate and the High Court, was to force X to pay “hush money.” Section 506 is the penal section which states the punishment for the offence of criminal intimidation; the offence itself is defined in S. 503. Leaving out what is not necessary for our purpose, the section last mentioned is in two parts; the first part refers to the act of threatening another with injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested; the second part refers to the intent with which the threatening is done and it is of two categories: one is intent to cause alarm to the person threatened and the second is to cause that person to do any act which he is not legally bound to do or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat. On the findings arrived at against the Appellant, the first part of the section is clearly fulfilled; and as to the intent, it comes more properly under the second category, that is, to cause X to do any act ( in other words, to pay hush money) which he was not legally bound to do, as a means of avoiding the execution of the threat.... We, therefore, hold that the conviction of the appellant under S. 506 is correct. We further agree with the High Court that no prejudice was caused to the appellant by reason of the defect, if any, in the charge as to the intent of the appellant. He was fully aware of the case made by the prosecution and had full opportunity of rebutting the evidence given against him....”

30. Prosecution has examined Anchal Mehta as PW1, who has

specifically stated that on 1.2.2009 she was on duty in the aircraft.

When she was coming back to her seat, after checking, accused told

her that he is a DGCA Official. He would make report that the

passengers are moving in the aircraft while the aircraft is taxing.

She told him that they will get back to him after takeoff as the flight

was about to takeoff. She further deposed that when she was in aft i.e

back side galley of the plane, accused said that he was in Kandahar

hijacking and thereafter, he spoke about some infected needles and

Neha informed about the incident to the Lead and they informed the

cockpit crew. There was a slight disturbance and they landed at Delhi

and National Security Guard were around the plane.

As per statement of PW1 Anchal Mehta, she met accused

on board twice. First, when she was going back to her seat after

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checking and second time, she met accused in back side galley of the

plane. When she met accused for the first time on board on 1.2.2009,

while going back to her seat, after checking, the accused told her that

he is a DGCA official and he would report that the passengers are

moving in the aircraft while the aircraft is taxing and second time she

met the accused in the back side galley of the plane where Neha

Chhikara was talking with the accused and she heard accused

Jitender Mohla saying that he was in Kandhar hijacking and thereafter

he spoke about some infected needles and thereafter, Neha Chhikara

informed about the incident to the Lead cabin attendant Jyoti Chhetri,

who informed the cockpit crew.

The statement of PW1 Anchal Mehta of her conversation

with the accused on board and her over hearing the conversation of

accused with Neha Chhikara, is direct evidence against the accused in

the present case and same is relevant under Section 3 of Indian

Evidence Act.

31. In the cabin, at the time of the incident four cabin

attendants, 160 passengers and accused were on board. The incident

is stated to be communicated by the complainant Neha Chhikara to

the Lead cabin attendant PW3 Jyoti Chhetri. In her evidence PW 3

Jyoti Chhetri has stated that the communication communicated to her

through Neha Chhikara was communicated to the cockpit crew i.e

PW4 Captain Amit Singh pilot in command in presence of co-pilot

Punit Prasad on 1.2.2009, while the aircraft was in air, near Delhi.

Consequently, pilot requested for priority landing by using discrete

frequency and the communication between the cabin crew and the

pilot was overheard simultaneously by PW35 Malkeet Singh, Radar

Controller ATC Delhi, who reduced down the same into writing in his

log book Ex PW35/A and PW30 Ripun Borah Executive ATC.

What has happened in the flight No. 6E334 on 1.2.2009, is

within the chain of duration of two hours in the air, while coming

from Goa to Delhi. In the present case the chain of the circumstances

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of the incident is so well connected, interdependent i.e the accused

intimidated to Neha Chhikare and Anchal Mehta and they

communicated the said intimidation to the cockpit crew and

consequently, the cockpit crew sought priority landing from the ATC

Delhi and ATC Delhi overheard some conversation between the pilot

and the cabin crew and the said information was reduced down into

writing by the ATC personnels in the log book which is Ex PW35/A ,

and is the relevant fact which goes against the accused.

Therefore, the statement of PW1 Anchal Mehta is

corroborated with the log book entry Ex PW35/A and statement of

PW35 Malkeet Singh wherein it is stated that

“the pilot in command requested for priority landing and

security personnels to attend the aircraft”,

by using the discrete frequency and ATC personnels PW35 Malkeet

Singh and PW30 Ripun Borah

“overheard the conversation of suspected hijack”

therefore, the flight which departed from Goa to Delhi, was not

normal.

32. PW4 Amit Singh Pilot in command, after receiving the

information from the Lead cabin attendant Jyoti Chhetri, that

“there is a DGCA person on board and he is objecting to a

passenger who had moved from his seat and sat on the

overwing seat further that the DGCA person is objecting to

the portable electronic device sign not been put on during

turbulence ; that the person who was claiming to be from

DGCA, is now saying that he is a Sky Marshal and he has pins

and infected needles which can put a person to sleep ; that the

said person is now saying that there is a threat to the aircraft

and there are hijackers on the board and further that the

person claims that he has a weapon and he knows how to kill

and if the crew will assist him in the hijacking,”

contacted ATC and asked for discrete frequency, which was allowed

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to him. He further clarified during the cross-examination that in case

of hijacking captain will activate the transponder code 7500, but in

case of unlawful interference it may depend on the severity, which

indicates that the flight No. 6E334 from Goa to Delhi on 1.2.2009 was

not normal. Asking for the discrete frequency, by the pilot in

command, to the ATC, itself pinpoints that what was required to

maintain zero tolerance in the aircraft, during the flight on board, was

not in existence. The passengers are suppose to maintain required

standard behaviour while on board and if any part of the system fails

to maintain the required standards, the situation of insecurity qua the

passengers as well as aircraft arises.

33. The accused is identified by the cabin crew members,

cockpit crew members as well as the passenger witnesses, who were

examined on behalf of the prosecution and also by the boarding pass

Ex PW17/C. The accused has not pleaded in his defence that he was

not on board i.e flight No. 6E334 from Goa to Delhi on 1.2.2009.

34. The statement of the passenger witnesses though, not

consistent on every point, but their statement cannot be overlooked

merely on the ground that it is not consistent among the statement of

the passenger witnesses because the passengers were sitting on their

respective seats and accused was going to another passenger seat

and was giving instructions to them and was claiming that he is a

DGCA official, Sky Marshal and God father of Aviation, is not the

normal behaviour to maintain the required standards while on board.

35. Accused Jitender Mohla during his statement under

Section 313 Cr.P.C has stated as under :

“When the plane was taxing for take off, while the seat belt signs were on, two to three passengers ran from the rear and occupied the overwing exit row seats. I objected to the same and told the cabin attendant that such a movement in the aircraft when the plane was taxing and when the seat belt signs were on, is not permissible and is against the safety of the passengers. The cabin attendant ignored me

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and to stress the importance what I was saying, I said I was a DGCA Official and I shall report to the authorities for the lapse on the part of the cabin crew. Beyond this, nothing happened during the flight. The flight was normal and it landed on its scheduled time. This case was manipulated against me by the cabin attendant feeling insecure and scared of losing her job. When I said I was a DGCA Official, it was said with the basic sole intention of making the cabin attendant follow the safety rules and not to ignore them. To cover the lapses on the part of the cabin attendant, the Indigo airlines in connivance with the cabin attendant slapped this false case against me.”

36. During the course of arguments, accused has taken the

defence that the accused was perturbed on the inefficiency of the

cabin attendant to maintain the discipline in the cabin as it was

endangering the safety and security of the aircraft and the

passengers, accused had no option but to say that he is a DGCA

officer in good faith.

However, the accused has not preferred to examine

himself as defence witness under Section 315 Cr.P.C.

37. The presumption under Section 10 of Suppressions of

unlawful Act against the Safety of Civil Aviation Act 1982 is as under:

“10. Protection of Action taken in good faith--(1) No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of the provisions of this Act.”

38. The question whether the Act committed by the accused

on board comes within the well definition of good faith depends, on,

whether a reasonable man has a belief by chain of probable reasoning

leading to conclusion or inference about nature of the thing. Two

ingredients i.e “knowledge” and “reason to believe” has to be taken

from the various circumstances of the incident. The reference could

be made to judgment in case titled as Joti Parshad Vs. State of

Haryana, AIR 1993 SC 1167 in which Hon'ble Supreme Court of

India has defined Section 26 IPC reason to believe as under :.

“...A person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need

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not necessarily be capable of absolute conviction or inference ; but is is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e “knowledge” and “reason to believe” have to be deduced from various circumstances in the case.”

39. The good faith under the IPC is defined different than the

General Clause Act. The IPC regards honesty as immaterial and the

gravamen of the term good faith is presence of care and caution. The

burden of proving good faith for the protection of the person making

it, is on the accused. The reference could be made in case title as

Harbhajan Singh Vs. State of Punjab AIR 1966 SC 97 wherein

the Hon'ble Supreme Court has held :

...“Thus it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay down any rigid rule or test. It would be a question to be considered on the facts and circumstances of each case what is the nature of the imputation made; under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation; did he made any enquiry before he made it; are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true? These and other considerations would be relevant in deciding the plea of good faith made by an accused persons who claims the benefit of the Ninth Exception...

...The element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced by the definition of the Penal Code; and we are governed by the definition prescribed by S. 52 of that Code. So, in considering the question as to whether the appellant acted in good faith in publishing his impugned statement, we have to enqire whether he acted with due care and attention. There is no doubt that the mere plea that the accused believed that what he stated was true by itself, will not sustain his case of good faith under the Ninth Exception. Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role. If it appears that before making the statement the accused did not show due care and attention, that would defeat his plea of good faith...”

Further reference could be made in case S.K Sundaram

AIR 2001 Supreme Court 2374.

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40. The contention of Ld. Defence counsel that there is delay

in lodging of the FIR and copy of the FIR was not sent to area

Magistrate does not seems to be correct.

The present FIR was registered after reducing down the

oral statement Ex PW45/A of the complainant Neha Chhikara into

writing by PW45 SHO Inspector Raj Kumar of PS IGI Airport. The

SHO Inspector Raj Kumar, who was at the IGI Airport itself, came to

know about the incident after meeting with SI Atma Singh and Ct.

Rakesh, who handed over DD No. 30 Ex PW17/A to SHO Inspector Raj

Kumar, at the arrival hall of IGI airport. After receiving DD No. 30,

Ex PW17/A, on his instructions, statement of Neha Chhikara Ex PW

45/A was recorded inside the airport and on the basis of statement of

Neha Chhikara FIR Ex PW 43/B was registered at 12.20 am.

The matter in hand, of the SHO, Inspector Raj Kumar of

IGI Airport, was, of hijacking of the aircraft in which the aircraft and

the life of the passengers on board was under threat therefore, there

was no occasion of false implication, in absence of any enmity.

After the registration of the FIR, the copy of the same was

sent to the Ld. ACMM, in compliance of Section 157 Cr.P.C and same

was received by him at 10.00 am on 2.2.2009. Reliance could be

placed on judgment in case Mohammad Mian Vs. State of Uttar

Pradesh AIR 2011 Supreme Court 397 wherein Hon'ble

Supreme Court has held as under :

“...There are several parameters by which the spontaneity of a FIR and the prosecution's story as to the time at which it had been lodged has to be adjudged, and one of the primary factors is the time of the delivery of the special report to the Magistrate, as it is expected that he being unconnected in any manner with the investigation or the prosecution would be an independent person to endorse as to the time that a copy of the FIR had been received by him...”

41. The contention of Ld. Defence counsel that GD Extract

should have been FIR in the present case is also not convincing.

The Section 154 Cr.P.C says that every information

relating to the commission of cognizable offence, if given orally to an

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officer in charge of a police station, shall be reduced into writing by

him or under his directions, and be read over to the informant.

Further Section 155 (4) Cr.P.C relates, where a case

relates to two or more offences of at least one is cognizable, the case

shall be deemed to be cognizable case, notwithstanding that the other

offences are non cognizable. Reliance could be placed on judgment in

case title as State of Orissa Vs. Sharat Chander Sahu & Anr.

1996 (6) SC 435.

The GD Extract is Ex PW32/A received by Inspector H.K

Rai, Incharge CISF, Operation Control Room, Palam Airport Domestic

from ATC on 1.2.2009 at 8.08 pm pertaining to receiving of report of

hijacking threat and he immediately informed all concern, including

the senior officers and NSG.

In the present case, the GD Extract is simply a cryptic

telephonic message given by the ATC to all security concern at IGI

Airport. The purpose of cryptic telephonic message is to alert the

security concerns at the IGI Airport where the Indigo aircraft No.

6E334 was to be given secure landing, in presence of hijack threat as

perceived by the ATC Delhi. Mere receiving of cryptic telephonic

message, just two hours earlier to the recording of the statement of

complainant Neha Chhikara Ex PW45/A, does not make GD Extract

Ex PW32/A an FIR of the present case. The cryptic message sent by

the ATC, was for all the concern, for alertness for the purpose of

security and not for registration of the FIR. The statement of

complainant Neha Chhikara was rightly registered as the FIR, in the

present case. The reliance could be made on judgment in case

Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi)

AIR 2010 Supreme Court 2352, wherein Hon'ble Supreme Court

has observed as under :

“...the cryptic telephonic messages not giving the particulars of the offence or accused are bereft of any details made to the police only for the purpose of getting the police at the scene of offence and not for the purpose of registering FIR....

....It has also been held in a number of judgments by this

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Court that merely because the information given on phone was prior in time could not mean that the same could be treated as the First Information Report, as understood under the Code. This view has been reiterated in Ramesh Baburao Devaskar and others Vs. State of Maharashtra (2007) 13 SCC 501; (AIR 2007 SC (Supp) 1606; 2007 AIR SCW 6475), that a cryptic message given on telephone by somebody who odes not disclose his identity may not satisfy the requirement of Section 154 of the Code of Criminal Procedure.

In view of the above discussion, the three telephonic messages received b the police around 2.25 am on 30.4.1999 did not constitute the FIR under Section 154 of the Code and the statement of Shyan Munshi PW-2 was rightly registered as the FIR...”

42. The contention of Ld. Defence counsel that initially, the

FIR was registered under Section 336/506 IPC and both the section

were bailable and the accused was illegally detained, from 2.2.2009

to 16.2.2009, by the SHO Inspector Raj Kumar, is also not convincing.

Section 156(2) Cr.P.C prohibits raising question of

investigation done by police officer, not being empowered to

investigate the offence. Reliance could be placed on judgment in case

Sashikant Rajguru Vs. State, Crl. M.C 390/2009 dated

17.3.2010 and H.N Rishbud Vs. State of Delhi AIR 1955 SC 196

wherein the Hon'ble Court has observed as under :

“...A defect and illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr.P.C as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance..”

In the present case, FIR Ex PW 43/B was registered on

2.2.2009 at 12.20 am. On the same date, SHO Inspector Raj Kumar

produced the accused before the court of Ld. ACMM, Dwarka Court

for judicial remand vide application Ex PW45/D. In the said

application, SHO Inspector Raj Kumar disclosed that the offence

committed by the accused is under Section 3(1) (d) of Suppression of

Unlawful Act Against the safety of Civil Aviation Act, which is

reproduced as under :-

“Accused has intimidated all the passengers and threatened the crew members to hijack the Aircraft. The Act of

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accused attracts ingredient of 3 (1) (d) The Suppression of Unlawful Acts Against Safety of Civil Aviation Act 1982 and as per the notification under this case IO of BCAS is empowered to investigate in the offence.”

Admittedly, PW45 SHO Inspector Raj Kumar was not

competent to investigate the case under Section 3(1)(d) of

Suppression of Unlawful Act Against the Safety of Civil Aviation Act

1982 and accused was sent to JC till 16.2.2009.

PW47 IO S.K Bhatnagar, Deputy Commissioner of Security

(CA) BCAS, on receiving the office order Ex PW45/DX2 of

empowerment to investigate the case and its notification Ex PW47/A

took over the investigation of the case on 11.2.2009 and after the

notification of the designation of the court Ex PW 47/B, he filed

application Ex PW47/C for interrogation of the accused and after the

interrogation, he filed his report Ex PW 47/D on 16.2.2009.

Thereafter, he made request and filed an application for arrest of the

accused vide letter Ex PW 47/E under Section 3(1) (d) of the

Suppression of Unlawful Acts Against the Safety of Civil Aviation Act

1982 and accused was accordingly arrested on 16.2.2009 vide arrest

memo Ex PW 47/F with permission of the court. After the completion

of the investigation, chargesheet Ex PW 47/H, against the accused

under Section 170,336,503 and 506 IPC and under Section 3(1) (d)

and 3(2) of Suppression of Unlawful Act Against the Safety of Civil

Aviation Act 1982 as amended and under Section 3(2) and 4 of Anti

Hijacking Act, 1982 as amended was filed through letter Ex PW47/J.

Admittedly, the accused was arrested under Section 3(1)

(d) of Suppression of Unlawful Act Against the Safety of Civil

Aviation Act 1982 on 16.2.2009 vide arrest memo Ex PW 47/F and he

was sent to JC under Section 3(1) (d) of Suppression of Unlawful Act

Against the Safety of Civil Aviation Act 1982 on 2.2.2009, after

mentioning in the application Ex PW 45/D that the offence committed

by the accused is under Section 3(1) (d) of Suppression of Unlawful

Act Against the Safety of Civil Aviation Act 1982 and consequently,

SC No. 8/2009 /90

the procedure of documents of arrest was not got executed between

2.2.2009 to 16.2.2009. In the present case, laps on the part of the

prosecution is in execution of arrest memo however, the offence

committed was already mentioned and was stated to the accused

in application Ex PW45/D dated 2.2.2009 i.e the offence committed by

the accused is under Section 3(1) (d) of Suppression of Unlawful Act

Against the Safety of Civil Aviation Act 1982. Reliance could be

placed on Judgment in case State Represented by Inspector of

Police and others Vs. N.M.T.Joy Immaculate (2004) 5 Supreme

Court Cases 729 wherein the Hon'ble Supreme Court has held as

under :

“..Above all, the learned Judge has committed a grave error in awarding a compensation of Rs. 1 lakh on the ground that the police personnel committed acts of obscene violation, teasing the respondent herein. The learned Judge has relied upon only on the basis of the affidavit filed in the case for coming to the conclusion and also on the basis of the assumption that the respondent was not involved in the incident which will forceclose the further enquiry ordered by the learned Judge in the matter. There is no justification for awarding compensation to a person who is facing prosecution for a serious offence like murder even before the trial has started...”

Since, the accused was already intimated that the offence

committed by him is under Section 3(1) (d) of Suppression of

Unlawful Act Against the Safety of Civil Aviation Act 1982 and later

chargesheet is also filed by the IO S.K Bhatnagar, under Section

170,336,503 and 506 IPC and under Section 3(1) (d) and 3(2) of


1982 as amended and under Section 3(2) and 4 of Anti Hijacking Act,

1982 as amended, there is no illegality found on the record. However,

faulty investigation cannot be made ground to acquit the accused

solely on the technical defect. The reliance could be made on the

judgment in case titled Ram Bali Vs. State of UP, AIR 2004

Supreme Court 2339 and Dhanaj Singh @ Shera & Ors. 2004 (3)

SCC 654 wherein the Hon'ble Supreme Court has held as under

“.... In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right

SC No. 8/2009 /90

in acquitting an accused person solely on account of the defect ; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective..”

43. The contention of Ld. Defence counsel that the prosecution

failed to prove sanction in the present case hence, the accused is

entitled for acquittal, is also not convincing.

The prosecution has examined Mr. S. Gauri Shanker Under

Secretary Government of India as PW 46 who has stated that file i.e

sanction file was examined at the Ministry level and he conveyed the

approval Ex PW 46/A of the Sanction. During the cross-examination,

he has clarified that they have examined all the material documents.

The accused at the time of framing of the charge did not

raise objection that the sanction has not been obtained. The PW46

S. Gauri Shanker, Under Secretary, Government of India has proved

the letter Ex PW 46/A by which the sanction is conveyed.

The accused has put suggestion during the cross-

examination to PW 46 S. Gauri Shanker, who has denied the

suggestion put by the accused that the mind of the sanctioning

authority was under pressure to accord sanction in this case, which is

reproduced as under:

“It is further incorrect to suggest that the mind of the sanctioning authority was under pressure to accord sanction in this case.”

Ex PW46/A is letter No.AV.13024/003/2009-SS dated

15.4.2009 of Government of India, Ministry of Civil Aviation, to the

Commissioner of Security, (CA) BCAS , Janpath Bhawan, New Delhi

for conveying the sanction of the Central Government for institution

prosecution under Section 170,336,503 and 506 IPC and under

Section 3(1) (d) and 3(2) of Suppression of Unlawful Act Against the

Safety of Civil Aviation Act 1982 as amended and under Section 3(2)

and 4 of Anti Hijacking Act, 1982 as amended, in case registered vide

FIR No. 5/2009, dated 2.2.2009 of PS Domestic Airport, IGI, New

Delhi.

SC No. 8/2009 /90

Letter Ex PW 46/A clarifies the approval of the sanction

accorded specifically under Section 170,336,503,506 IPC and under


Safety of Civil Aviation Act 1982 and under Section 3(2) and 4 of

Anti Hijacking Act, 1982, in FIR No. 5/2009, dated 2.2.2009 of PS

Domestic Airport, IGI. The suggestion put by the accused to PW 46 S.

Gauri Shanker is that the sanctioning authority was under pressure

to grant sanction therefore, the granting of the sanction against the

present accused under Section 170,336,503,506 IPC and under


Safety of Civil Aviation Act 1982 and under Section 3(2) and 4 of Anti

Hijacking Act, 1982 is not in dispute. The letter Ex PW46/A is an

official communication emanating from the Government of India to

Commissioner of Security (CA) BCAS. The presumption would

therefore arise that the sanction to which reference is made in the

document had infact been accorded. Further, since the

communication is an official one, the presumption would also arise

that the official act to which reference has been made that the letter

Ex PW 46/A was regularly performed. Therefore, I am of the opinion

that the letter of conveying the sanction Ex PW46/A on record prima

facie meets the requirements of Sanction 196-A of Criminal

Procedure. The reliance is placed on judgment in case Tulsi Ram

Vs. State of UP 1963 (Supp) (1) SCR 382 wherein the Hon'ble

Court has observed as under :

“...It is not his contention that there was no sanction at all but the gravamen of his complaint is that there is no proper proof of the fact that sanction was given by the authority concerned after considering all the relevant facts and by following the procedure as laid down in Article 166 of the Constitution...

...There would have been good deal of force in the argument of Ld. Counsel had Ex P-1560 not been placed on record. Though that document is not the original order made by the Governor or event its copy, it recites a fact and that fact is that the Governor has been pleased to grant sanction to the prosecution of the appellants for certain offences as required by Section 196-A of the Code of Criminal Procedure. The document is an official communication emanating from the Home Department and addressed to the District

SC No. 8/2009 /90

Magistrate at Kanpur. A presumption would, therefore, arise that sanction to which reference has been made in the document, had in fact been accorded. Further, since the communication is an official one, a presumption would also arise that the official act to which reference has been made in the document was regularly performed. In our opinion, therefore, the document placed on record prima facie meets the requirement of Sanction 196-A of the Code of Criminal Procedures and, therefore, it is not now open to the appellants to contend that there was no evidence of the grant of valid sanction. We, therefore, overrule the contention raised by Ld. Counsel...”

and further reliance could be made on judgment in case Feroz Deen

Vs. State of West Bengal, AIR 1960 SC 363 wherein the Hon'ble

court has held as under :

“...It is true that the sanction does not on the face of it refer to the facts constituting the offence. There is, however, ample evidence in this case, which we did not understand the learned Advocate for the appellants to challenge and which clearly establishes that the entire facts connected with the offence had been placed before the sanctioning authority and the sanction had been granted on a consideration of them. The Judicial committee in the case above-mentioned itself observed that the sanction would be good if it was proved by evidence that it has been granted after all necessary facts had been placed before the sanctioning authority though these facts might not have been stated on the face of the sanction itself. It therefore seems to us that the sanction in the present case is unobjectionable....”

44. The contention of Ld. Defence counsel that accused is

falsely implicated in the present case as there were sixteen suspects

on board and further the flight No. 6E334 from Goa to Delhi was

normal, which is evident from BCAS own letter Ex PW45/D/X/DY1, is

also not convincing.

The letter Ex PW45/D/X/DY1 dated 1.2.2009 of Sh. B.S

Tiwari, RDCOS (BCAS) to Commissioner of Security Civil Aviation

BCAS, is information letter regarding landing of the aircraft No.6E334

at Delhi Airport, without any loss and taking of the aircraft at the

isolated bay due to unruly behaviour of three passengers (1) Jitender

Mohla, (2) Hardeep Anand and (3) Sameer Uppal. The source of

information given is simply informative information and not specific

and this information is sent before the registration of the FIR and

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prior to the investigation taken place. The FIR is registered on

2.2.2009 at 12.20 am, which is Ex PW43/B.

So far the false implication of accused in present case is

concerned, it is completely ruled out as all the eye witnesses to the

incident have identified the accused on board at the time of the

incident and also through boarding pass Ex PW17/C. Further the

accused has taken the defence that as he was perturbed due to the

inefficiency of the crew members, he told them that he is a DGCA

official and he will make report against them.

45. Ld. defence counsel has further contended that the

prosecution failed to prove intention and motive behind the alleged

incident, as such, accused deserves acquittal in the present case, is

also not convincing as intention is a state of mind and cannot be

proved by precised direct evidence. It can only be detected or

inferred from the other factors. Some of the relevant consideration

may be nature of weapon used, the relevance of place where the

incident has taken place, the nature of the injuries and the

circumstances in which the incident has taken place.

In the present case, the incident was taken place on board

in flight No. 6E334 while the aircraft was in air on 1.2.2009 and PW1

Anchal Mehta has identified the accused while coming back after

checking her responsibility and stated that accused told her that he is

a DGCA official and he would make report that the passengers are

moving in the aircraft while the aircraft is taxing. She contacted to

Neha Chhikara and she heard accused was saying that he was in the

Kandhar hijacking and thereafter, he spoke something about infected

needles. She further stated that there was slight disturbance and

Neha informed Lead about this incident and they informed cockpit

crew about the same.

During the cross-examination, she has clarified that the

passengers were very restless. Neha Chhikara was very upset about

SC No. 8/2009 /90

the things said by Mr. Mohla to her so she went to forward and Neha

Gogia was sent to the aft because she was feeling bad seeing Ms.

Neha Chhikara she went forward. Mr. Mohla came to the aft galley

and showed her a pen and asked her what is this, she replied this is a

pen and the accused told what if someone kills using that pen. This

fact she had not told to the police also because this was nothing to do

with the flight but personally it scared her in the flight. The same is

reproduced as under :

“Mr. Mohla came to the aft galley showed me a pen and asked me what is this. I replied this is a pen and he said what if someone kills using this pen. This fact, I had not told to the police also because this has nothing to do with the flight but personally it scared me in the flight.”

The fact that he was on board and in the air and still he

intimidated the deceased Neha Chhikare and Anchal Mehta and

intimidated by saying that he is a DGCA official and would make

report against the cabin crew members that the passengers are

moving in the aircraft and he was involved in Kandhar hijacking and

terrified crew members by showing pen to be needle, shows that he

had prerequisite culpable intention. Even if, it is presumed, that he

has no such intention it must be attributed that he is possessing such

knowledge that he was on board in Indigo flight No. 6E334 along

with 160 passengers and his act would endanger the safety of the

passengers as well as the aircraft in flight. The reliance could be

placed on judgment in case titled Mrs. Rupan Deol Bajaj & Anr. Vs.

Kanwar Pal Singh Gill & Anr. 1996 AIR 309 wherein Hon'ble

Supreme Court has held as under :

“.. It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being state of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case....

... The sequence of events which we have detailed earlier indicates that the slapping was the finale to the earlier overtures of Mr. Gill, which considered together, persuade us to hold that he had the requisite culpable intention. Even if we had presumed that he has

SC No. 8/2009 /90

no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society – as the names and designations of the people given in the FIR indicate. While on this point we may also mention that there is nothing in the FIR to indicate, even remotely, that the indecent act was committed by Mr. Gill, accidentally or by mistake or it was a slip. For the reason aforesaid, it must also be said that, - apart from the offence under Section 354 IPC – an offence under Section 509 IPC has been made out on the allegations contained in the FIR as the words used and gestures made by Mr. Gill were intended to insult the modesty of Mrs. Bajaj...”

So far the motive is concerned, it is not always capable

of precise proof, if proved, may only lend additional support to

strengthen the probability of commission of the offence by the person

accused but the absence of proof does not ipso facto warrant an

acquittal, because the motive lies locked in the heart to the man and it

is difficult to know it. Reliance is placed on judgment in case title

Meharban and others Vs. State of M.P, (1996) 10 SCC 615

wherein Hon'ble Supreme Court of India has observed as under :

“...The motive lies locked in the heart of a man and so, it becomes difficult to know the same. Failure to bring on record any evidence regarding motive does not, however, weaken a prosecution case though existence of the same may strengthened the same...”

Conclusion

As discussed above, it is proved on record that accused

Jitender Mohla was on board on 1.2.2009 in Indigo flight 6E334 from

Goa to Delhi. The offence committed is on board in flight No. 6E334

from Goa to Delhi between chock off at 15:12 hours from Goa and

chocks on at IGI Airport, New Delhi at 17:13 hours.

On the board, every person has to maintain certain

standards of behaviour as per the norms laid down by ICAO and

DGCA and India is one of the signatory State to the Montreal

Convention. Any breach of rule would result into the endangering the

aircraft as well as passengers on board. Therefore, what is required

is zero tolerance on board.

SC No. 8/2009 /90

As per statement of PW1 Anchal Mehta, the accused

Jitender Mohla impersonated himself to be a DGCA official and

intimidated that he would prepare report against the crew members

and further stated that he was involved in Kandhar hijacking episode

and he is having some infected needles. PW1 Anchal Mehta has

clarified during the cross-examination that what was his spoken

behaviour was in the form of intimidation as she has stated that “Mr.

Mohla came to the aft galley showed me a pen and asked me what is

this. I replied this is a pen and he said what if someone kills using

this pen. This fact, I had not told to the police also because this has

nothing to do with the flight but personally it scared me in the flight. ”

PW1 Anchal Mehta is the witness to the incident and her

statement is direct. She is an independent witness and has got no

enmity against the accused as she has seen the accused for the first

time on the board and there is no interest of false implication to the

accused, on her part. The another witness to the incident is the

complainant Neha Chhikara, who died before her examination in the

court and her statement before the police is Ex PW45/A which is basis

of the FIR Ex PW 43/B, however, it is not a substantive evidence but it

does not weakens the prosecution case, rather gives strength to the

prosecution version.

The communication of the incident was communicated by

deceased Neha Chhikara to the Lead Cabin attendant Jyoti Chhetri,

who communicated the same to the cockpit crew members i.e

Captain Amit Singh and co-pilot Punit Prasad. The Captain Amit

Singh PW4, on the basis of the information received in the cockpit,

requested for discrete frequency from the ATC Delhi and finally

succeeded in landing the aircraft at IGI Airport, New Delhi in security

cordon. While, the Indigo flight No. 6E334 came down within the

range of ATC Delhi, the ATC Delhi overheard the conversation

between the cabin crew and the cockpit crew, regarding the situation

on the board, and, in the meanwhile, pilot in command PW4 Amit

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Singh succeeded in taking discrete frequency from the ATC and

informed the situation on the board.

The said situation has been proved by the prosecution by

the oral statement of PW4 Amit Singh and Punit Prasad PW5 and log

book entry Ex PW 35/A, which shows that situation on the board was

otherwise than normal. The log Entry Ex PW35/A is reproduced as

under : -

“1132 (UTC) 1GO 334 VAGO – VIDP reported unruly passenger on board and requested priority and security personnels to attend the acft. Infd all concerned.

1139 (UTC) IGO 334 requested discrete frequency and was released to 119.3 mhz in cood with WSO. All concerned informed. (Cockpit conversation regarding suspected hijack was overheard on 124.55).

1101 (UTC) Took over watch. 1225 (UTC) Handed over watch.”

The duration of the flight was of two hours and the

evidence coming from the eye witness PW1 Anchal Mehta as well as

the passenger witnesses and the cabin crew members suggests that

the behaviour of the accused on board was not normal as required on

the board.

The chain of circumstances i.e making communication to

the Lead regarding the incident by Neha Chhikara and further her

communication to pilot in command Amit Singh in cockpit and the

cockpit crew communicating the situation to ATC Delhi and ATC Delhi

permitting the parking of Indigo flight 6E334 at isolated bay, also

indicates that the flight was not normal, as defence claimed.

What is claimed by the accused in defence and under

Section 313 Cr.P.C, is that the act done by him is in good faith and

situation was normal, which does not seems to be correct, as good

faith in General Clause Act is not applicable to either on board or on

the intimidation under the IPC. The onus lies on the defence to

prove the same. The accused did not prefer himself to examine under

Section 315 Cr.P.C, to dispel the charges of the prosecution.

SC No. 8/2009 /90

The intimidation intimidated to Neha Chhikara and Anchal

Mehta by accused that he is a DGCA official and would make report

against the cabin crew members that the passengers are moving in

the aircraft and he was involved in Kandhar hijacking and terrified

crew members by showing pen to be needle, shows that he had

prerequisite culpable intention. Even if, it is presumed, that he has no

such intention it must be attributed that he is possessing such

knowledge that he was on board in Indigo flight No. 6E334 along

with 160 passengers and his terrifying act against the cabin crew

members would endanger the safety of the passengers as well as the

aircraft in flight. The reliance could be placed on judgment in case

Hari Singh Vs. State in Crl. A. No. 598/2001 decided on

29.3.2011 by Hon'ble High Court of Delhi. Thus, I accordingly,

convict the accused Jitender Mohla under Section 3(1) (d) of


1982 and under Section 336/506/170 IPC only. Since, nothing was

found in the possession of the accused at the time of his arrest and

there is no evidence on record to show that the accused entered into

the cockpit, the prosecution case under Section 3(2) and 4 under Anti

Hijacking Act 1982, fails.

Announced in open courton 25.10.2012.

(I.S Mehta) Judge, Designated Court

Dwarka Courts/New Delhi

SC No. 8/2009 /90

IN THE COURT OF SHRI I.S.MEHTA, DISTRICT JUDGE & ADDITIONAL SESSIONS JUDGE, INCHARGE SOUTH WEST DISTRICT, NEW DELHI

Session Case No: 8/2009Date of Institution : 16.2.2009Date of Decision : 25.10.2012

State Vs. Jitender MohlaS/o Sh. Ashok KumarR/o 662, Air Force Naval Officers Enclave, Plot No. 11, Sector-7,Dwarka, New Delhi.

FIR NO : 5/2009PS : IGI Airport (Domestic)U/S 3 (1) (d) of Suppression of unlawful Act against Safety of Civil Aviation Act 1982 and 506/336/170 IPC.

For State : Sh. Vishnu Saran, Ld. Designated PP.For Accused : Ms. Kamna Vohra, Adv. Ld. Defence counsel.

ORDER ON SENTENCE

1. Ld. Defence counsel Ms. Kamna Vohra has submitted that

convict Jitender Mohla is 45 years old and belongs to a respectable

family. He is son of a retired Air Force Commodore. He is never

implicated accused in any other case. There is no case against him.

He has clean antecedents. He is a qualified Chartered Accountant

and was practicing Chartered Accountant before he was arrested in

the present case. He is in JC since his arrest on 2.2.2009. He is

married. His mother is suffering from Cancer and his father is a heart

patient. He is the only son. There is nobody in in his family to look

after his old parents and prays that lenient view be taken.

SC No. 8/2009 /90

2. On the other hand, Sh. Vishnu Saran, Ld. Designated PP

has submitted that accused is being convicted under Section 3(1) (d)

of Suppression of Unlawful Act against Safety of Civil Aviation Act

1982 and the said Act was enacted on the basis of the Montreal

Convention, to which, India is one of the signatory State. The

minimum punishment is already given in the special Act and the

convict be sentenced as per the Act.

3. The punishment given under the Suppression of Unlawful

Act Against Safety of Civil Aviation Act 1982, in violation of Section

3(1) (d), is as under :

“ Shall be punished with imprisonment for life and shall also be liable to fine.”

4. The dominant purpose in construing a statute is to

ascertain the intention of the Parliament. One of the well recognized

canons of construction is that the legislature speaks its mind by use of

correct expression and unless there is any ambiguity in the language

of the provision the Court should adopt literal construction if it does

not lead to an absurdity. The Act, the Suppression of Unlawful Act

against Safety of Civil Aviation Act 1982 (66 of 1982) was passed by

Parliament of India to give effect to the Montreal Convention and

better teeth to curve the offences on board. India is one of the

signatory State to Montreal Convention.

5. The language of the Act 3 (1) (d) of Suppression of

Unlawful Act Against Safety of Civil Aviation Act 1982 is very clear

and does not require any external aid to its construction. The plain

language of the Section shows that the convict is to be awarded life

imprisonment and is also liable to fine. The reference could be made

to judgment in case title Lt. Col. Prithi Pal Singh Bedi Etc Vs.

Union of India & Ors. Decided by Hon'ble Supreme Court of

India on 25.8.1982 and Amrinder Singh Vs. Union of India

SC No. 8/2009 /90

(Uoi) And Anr. Decided by Hon'ble Rajasthan High Court on

14.12.1992.

6. Accordingly, the convict Jitender Mohla S/o Sh. Ashok

Kumar is sentenced to “imprisonment for life” and fine of Rs. 5,000/-

(five thousand) and in default of payment of fine, he shall undergo

further SI for six months, under Section 3 (1) (d) of Suppression of

Unlawful Act Against Safety of Civil Aviation Act 1982.

The convict Jitender Mohla is further sentenced to R.I for

two years and fine of Rs. 1000/- (one thousand) and in default of

payment of fine, he shall undergo further S.I for one month, under

Section 506 IPC.

The convict is further sentenced to R.I for two years and

fine of Rs. 1000/- (one thousand) and in default of payment of fine, he

shall undergo further S.I for one month, under Section 170 IPC.

The convict is further sentenced to R.I for one month

under Section 336 IPC.

All the sentences shall run concurrently.

7. The period already undergone by the convict, during the

investigation and trial, shall be set off under Section 428 Cr.P.C.

Copy of the judgment and order on sentence be supplied

to the convict free of cost.

File be consigned to Record Room.

Announced in open courton 30.10.2012.

(I.S Mehta)

Judge, Designated Court Dwarka Courts/New Delhi

SC No. 8/2009 /90

aircraft hijacking case delhi court judgement_jitender mohla

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