in the court of sh. virender bhat, a.s.j ...online.wsj.com/public/resources/documents/rehman.pdfin...

IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA COURTS, NEW DELHI.

SC No. 24/10.

Unique Case ID No.02405R1310232005.

State Vs. 1. Saqib Rehman @ Masood,S/o Sh. MahmoodurRehman,R/o Lal Nagar Colony, Chanapora,P.S. Sadar, District Badgaon,Srinagar,Kashmir.

2. Bashir Ahmed Shah @ Basir,S/o Sh. Gautam Mohammad Shah,R/o Village Nagabai Trai, P.S. Trai,District Pulwama Kashmir,Presently residing at :C/o Maharashtra Wani, Dalgate Colony,P.S. Gagribai, Srinagar.

3. Nazir Ahmed Sofi @ Doctor Nazir,S/o Sh. Mohd. Jabbar Sofi,R/o H.No.24, Old Barzula Colony,P.S. Sadar, Sadar District,Srinagar,Kashmir.

SC No.24/10. of 112

4. Hazi Gulam Moinuddin Dar @ Zahid,S/o Sh. Gulam Rasool Dar,R/o Village Putrigam, P.S. Rajpora,District Pulwama,Kashmir.

5. Abdul Majid Bhat,S/o Sh. Wali Mohd. Bhat,R/o Village & Post Zewan, P.S. Pantha Chowk,District Srinagar, J&K.

6. Abdul Qayoom Khan,S/o Late Sh. Ali Mohd. Khan,R/o H. No.242, Yarwari Lal Nagar,Chanpora, Srinagar, J&K.

7. Birender Kumar Singh,S/o Sh. Kailash Singh,R/o /o Awadesh Sinha, Poorvi Lohanipur,P.S. Kadam Kuan, Patna, Bihar.

Permanent Resident of Village Kumhala,P.S. Charpokari, District Bhojpur, Bihar.

Date of Institution : 30.8.2005.

SC No.24/10. of 112

FIR No. 146 dated 02.7.2005.U/s. 307/353/186/489(c)/482/120B/34 IPC &25/27 Arms Act & 3/5 Explosives Act.P.S. : Kapasahera.

Date of reserving judgment/Order : 18.1.2011.

Date of pronouncement : 02.2.2011.

JUDGMENT

1. The aforesaid seven accused have been branded as

Kashmiri terrorists by the police and have been chargesheeted for

various offences under Indian Penal Code, Explosive Substance Act

and Arms Act. Accused Birender Kumar Singh and Abdul Qayoom

Khan are out on bail, whereas the other five accused are languishing in

jail since the date of alleged incident i.e. 02.7.05. However, the

contention of these accused is that they were apprehended by the

police much before 02.7.05 and were kept in illegal custody and were

shown to have arrested on 02.7.05 after fabricating an imaginary

incident. According to them, they are totally innocent and no

occurrence at all took place on 02.7.05 and they have not committed

any of the offences for which they have been chargesheeted.

2. Whether or not, the accused are innocent would be seen

SC No.24/10. of 112

as this judgment goes on but I would like to remind myself here that

claim of innocence is the constitutional right of the accused. It is a

golden rule of the criminal jurisprudence of the country that an

accused is presumed to be innocent unless he either admits his guilt or

is proved to be the guilty by the prosecution.

3. Now the prosecution story first.

In June, 2005, SI Ravinder Kumar Tyagi was posted in

the office of Special Staff, South West District, Delhi. On 27.6.2005 a

secret informer provided to him information that two Kashmiri's

Masood & Zahid, who have been involved in terrorist activities earlier

also, have made their base in Delhi and have been staying in Delhi in

the past about one or 1½ months and are about to strike in Delhi,

Gurgaon and other satellite towns of Delhi. This information was

recorded as DD No.6 dated 27.6.05 in the office of Special Staff. SI

Ravinder Tyagi apprised his senior officers about such secret

information and asked the informer to develop the information further.

Thereafter, nothing happens for a few days. On 01.7.05 at 10.30 p.m.,

the same secret informer again came to the office of Special Staff and

informed SI Ravinder Kumar Tyagi that the Kashmiri terrorists

Masood & Zahid, alongwith their two associates, are about to come to

SC No.24/10. of 112

Delhi at 12.30 a.m. (approx.) from Gurgaon in a blue Tata Indica Car

bearing No.HR26S0440. A large number of arms and ammunition

is in their possession and they can be apprehended, if trap is laid. This

information is recorded as DD No.12 dated 01.7.05. SI Ravinder

Tyagi brought this information to the notice of his senior officers and

also formed a raiding party consisting of SI Raj Kumar, ASI Charan

Singh, ASI Nirakar Sharma, HC Raj Kumar, HC Ombir Singh, Ct.

Surender Singh, Ct. Vinay, Ct. Dinesh Kumar, Ct. Raja Ram, Ct.

Zaffar Khan, Ct. Kishan, Ct. Sanjay Singh, Ct. Rohtash, Ct. Santraj

and Ct. (Driver) Suresh, which set out for the task in two vehicles, a

Gypsy and Swaraj Mazda.

4. The raiding party laid a trap on Gurgaon Delhi Road near

NH8 & Rajokri Crossing at about 11.30 p.m. At about 12.45 a.m.

Blue colour Tata Indica Car No.HR26S0440 was seen coming from

Gurgaon Road. On being signalled to stop, it sped towards Delhi and

took turn towards Samalkha Village on account of traffic diversion.

Police chased the said car and was made to stop near Randhawa Farm

House with the help of Police Gypsy which had overtaken it. The

other police vehicle Swaraj Mazda blocked the Tata Indica car from

behind. Accused Saqib Rehman @ Masood, who was sitting on the

SC No.24/10. of 112

front seat of the car immediately came out and fired two rounds on the

police party with his pistol. SI Ravinder Tyagi fired one round in

return from his service pistol. He and Ct. Vinay snatched away the

pistol from the hand of Saqib Rehman. Accused Nazir Ahmed Sofi @

Doctor, who was on the driver's seat of the Tata Indica vehicle was

exhorting Saqib Rehman to shoot at police party but was overpowered

by ASI Nirakar Sharma. Accused Gulam Moinuddin Dar sitting on the

back seat of the Tata Indica vehicle tried to remove pin of the

handgrenade, which he was holding in his right hand but was

overpowered by Ct. Surender Singh, who also removed the

handgrenade from his hands. The fourth person accused Bashir

Ahmed Shah @ Basir was exhorting Gulam Moinuddin Dar to hurl

the handgrenade upon the police but was overpowered by HC Raj

Kumar.

5. SI Ravinder Tyagi checked the pistol recovered from

Saqib Rehman and found four live rounds of 7.62 bore loaded in the

magazine and one live round in the pistol chamber. The same were

unloaded. Two catridges fired by Saqib Rehman @ Masood on the

police party were found lying on the ground and taken into possession.

On the personal search of Nazir Ahmed Sofi, 12 live catridges of 7.62

SC No.24/10. of 112

bore were recovered having been kept in a polythene bag. HC Raj

Kumar conducted personal search of Bashir Ahmed Shah and

recovered 35 bullets of AK47 assault rifle kept in a yellow colour

polythene bag, from the right pocket of his pant.

6. Thereafter, SI Ravinder Tyagi prepared a rukka and sent

it to the P.S. Kapasahera through Ct. Surender Singh for registration

of a FIR. The rukka was sent at 4.15 a.m. on 02.7.05 and the FIR No.

146/05 was accordingly registered at 4.33 a.m. U/s.307/186/353/34

IPC, Section 3 & 5 Explosives Act and Sections 25, 27, 54/59 Arms

Act against the aforesaid four persons. Thereupon, SI Mahender

Singh alongwith Ct. Surender Singh of P.S. Kapasahera reached the

spot and conducted further investigation. SI Mahender Singh

inspected the crime scene and prepared a site plan. He searched the

Tata Indica vehicle and found a briefcase containing an Army Combat

Uniform and fake currency of Rs.50,000/. From the personal search

of Gulam Moinuddin Dar @ Zahid, a sketch of Palam Air Force

Station was recovered by SI Mohinder Singh from his left pant pocket.

He interrogated the four accused and arrested them. Their written

disclosure statements were recorded by SI Mahender Singh, who also

recorded the statements of other witnesses U/s.161 Cr.PC.

SC No.24/10. of 112

7. It is alleged in the chargesheet that during their

interrogation, the aforesaid four accused disclosed that they are

working as per the directions of ISI agency and also gave information

about their associates in J&K and the arms/ammunition kept by them

in J&K.

8. During investigations, it was revealed that the four

accused had been staying in Hotel Baba Continental, Saraswati Marg,

Karol Bagh, Delhi. A team lead by ASI Charan Singh alongwith

accused Saqib Rehman and Gulam Moinuddin Dar was sent to

Srinagar and another team lead by SI Mahender Singh alongwith

accused Bashir Ahmed Shah and Nazir Ahmed Sofi was sent to Patna,

Bihar, for arrest of coaccused and recovery of arms/ammunition etc.

The team lead by ASI Charan Singh arrested accused Abdul Qayoom

Khan on 07.7.05 and recovered fake currency notes of Rs.5,000/ from

his possession. One AK47 Assault Rifle, 2 magazines, 130 live

catridges, 2 handgrenades & 3 UBGL grenades were recovered at the

instance of accused Saqib Rehman. Ten UBGL grenades alongwith

one wireless set No.144057 were recovered at the instance of Gulam

Moinuddin Dar. Another accused Abdul Majid Bhat was also

SC No.24/10. of 112

apprehended on 11.7.05 by ASI Charan Singh from Paharganj, New

Delhi, Opposite Railway Station and recovered 3 detonators from his

travel bag. During further investigations, a part of the amount

received by this group from their mentors in ISI of Pakistan, was

recovered at the instance of Saqib Rehman from bank accounts in

Srinagar and Delhi. The amount of Rs.4.5 lacs was found deposited

by accused Saqib Rehman in his father's A/c No.13043 in J&K Bank,

Connaught Place, Delhi, on 11.5.05 and on 16.5.05 a sum of Rs.

50,000/ had been deposited in the same account. A further sum of

Rs.50,000/ had been deposited in A/c No.11052 of Mahmoodur

Rehman, the father of Saqib Rehman, in J&K Bank, Srinagar, on

17.5.05. Sh. MahmoodurRehman had the knowledge about the

deposit of aforesaid sum by his son Saqib Rehman in his bank

accounts and also withdrew an amount of Rs. One lac from J&K

Bank, Srinagar, on 04.7.05 i.e. after the arrest of Saqib Rehman. ASI

Charan Singh tried to trace him but did not find him.

9. On 19.8.05, SI Mahender Singh alongwith other staff

again left for Patna to arrest accused Birender Kumar Singh. He was

arrested on 21.8.05 with the help of police officials from P.S. Gandhi

Maidan, Patna. Birender Kumar Singh was formally arrested in this

SC No.24/10. of 112

case on 22.8.05 and fake currency in the sum of Rs.82,000/ was

recovered at his instance from Patna. His associate Mohd. Wahid, R/o

Samastipur, Bihar, could not be apprehended for want of complete

details.

10. During further investigations by SI Mahender Singh, it

was revealed the HR26S0440 was not the real registration number of

the Tata Indica vehicle of the accused but a false one. Its actual

registration number was HR51M6358 and the same was registered at

Faridabad, Haryana, in the name of one Azad Singh Yadav and the

said vehicle was wanted in case FIR No.527/03, U/s.406 IPC, P.S.

Pandav Nagar, Delhi. The car was sold to Saqib Rehman by one

Surender, who could not be apprehended. Recovery of the vehicle

was conveyed to the concerned police station.

11. It is further alleged that during investigations, it was

revealed that accused Saqib Rehman @ Masood has been involved in

other criminal cases in J&K.

12. The arms and ammunition seized from the accused by the

police was sent for examination to FSL, Rohini, Delhi, by SI

SC No.24/10. of 112

Mahender Singh. The fake currency recovered from the group was

sent to Govt. Press, Nasik, for opinion. The permission to

explode/destroy the grenades was sought from the concerned court.

The sanction for prosecution of the accused under relevant provisions

of Arms Act as well as Explosive Substance Act was also sought.

13. After the conclusion of the investigation of the case, as

aforesaid, Charge Sheet was laid before the Court against the accused

for the offence U/s. 307/353/186/489(c)/482/120B/34 IPC & 25/27

Arms Act & 3/5 Explosives Act.

14. Charges were framed against all the accused on 20.5.06

as follows :

Against accused Abdul Mazid Bhat :

“that on 11.7.2005 at about 8.10 pm at Railway

Station, New Delhi, Pahar Ganj, Delhi within the

jurisdiction of PS Kapashera, you were found in

possession of three detonators with lead, an explosive

substance which were under your control and was not for

a lawful object and thereby committed an offence

punishable u/s 5 of Explosive Substance Act and within

SC No.24/10. of 112

my cognizance.”

Against accused Saqib Rehman @ Masood :

“that on 2.7.2005 at about 12.55 am (night) at Main

road near Randhawa Farm House, Samalakha Road, New

Delhi within the jurisdiction of PS Kapashera, you were

found in possession of a pistol and four live cartridges of

7.62 bore without any valid licence or permit and you had

fired the shots in commission of offence punishable u/s

307 IPC and on 8.7.2005 you got recovered one AK47

riffle, two magazine, 130 live cartridges, two hand

grenades and 3 UBGL grenades from your house Lal

Nagar Colony, Chanpura, Sri Nagar and thereby

committed an offence punishable u/s 25/27/54/59 of Arms

Act and within my cognizance.”

Against accused Nazir Ahmed Sofi @ Dr. Nazir :



Delhi within the jurisdiction of PS Kapashera, you were

found in possession of 12 live cartridges of 7.62 bore

SC No.24/10. of 112

without any valid licence or permit and thereby

committed an offence punishable u/s 25/54/59 of Arms

Act and within my cognizance.”

Against accused Basir Ahmed Sofi @ Basir :

“that on 2.7.2005, at about 12.55 am (night) at

Main road near Randhawa Farm House, Samalakha Road,

New Delhi within the jurisdiction of PS Kapashera, you

were found in possession of 35 live cartridges of AK 47

assault riffle without any valid licence or permit and

thereby committed an offence punishable u/s 25/54/59 of

Arms Act and within my cognizance.”

Further Charge framed against accused Saqib

Rehman @ Masood, Basir Ahmed Shah @ Basir, Nazir

Ahemd Sofi @ Dr. Nazir and Hazi Gulam Muhiddin Dar

@ Zahid is as under:



Delhi, within the jurisdiction of PS Kapashera, you all in

furtherance of common intention voluntarily obstructedSI

SC No.24/10. of 112

Ravinder Kumar Tyagi, SI Raj Kumar, ASI Charan

Singh, ASI Nirakar Sharma, HC Raj Kumar, HC Ombir

Singh, Constable Surender Singh, Const. Vinay Kumar,

Const. Dinesh Kumar, Const. Raja Ram, Const. Zaffar

Khan, Const. Kishan Kumar, const. Sanjay Singh, Const.

Rohtash and Const. Sant Raj of Special Staff, South West

District, public servants in discharge of their public

function and thereby committed an offence punishable

u/s 186 r/w Section 34 IPC and within my cognizance.

Secondly, on the above date, time and place you all

in furtherance to you common intention used criminal

force to SI Ravinder Kumar Tyagi and his team, the

public servants namely police officials of Delhi Police in

execution of their duties as such public servants or with

intend to prevent or deter such public servants from

exercising their duties or in consequence of anything done

or attempted to be done by police officers in lawful

discharge of their duties as such public servants and

thereby committed an offence punishable u/s 353 IPC

read with Section 34 IPC and within my cognizance.

Thirdly, that on the above mentioned date, time and

SC No.24/10. of 112

place, you all in furtherance of your common intention

fired two founds aiming at SI Ravinder Kumar Tyagi and

tried to throw hand grenade on police party with such

intention or knowledge and under such circumstances that

by that act you had caused the death of SI Ravinder

Kumar Tyagi and Police party you would have guilty of

murder and thereby committed an offence punishable u/s

307 read with Section 34 IPC and within my cognizance. '

Fourthly, that on the above mentioned date, time

and place, you all in furtherance of your common

intention used false property mark an army combat

uniform to denote that the army uniform belong to you

and that such marking was done with an intention to

defraud and thereby committed an offence punishable u/s

482 IPC read with Section 34 IPC and within my

cognizance.

Fifthly, that on the above mentioned date, time and

place, you all were found in possession of four counterfeit

currency notes five packets of rupees 100 denomination

(Rs. 50,000/) knowing or having reasons to believe that

the same to be forged or counterfeit and intending to use

SC No.24/10. of 112

them as genuine and thereby committed an offence

punishable u/s 489 (C) IPC and within my cognizance.

Sixthly, that on the above mentioned date, time and

place, you all were found in possession of hand grenade

an explosive substance and you had attempted to cause

explosion by trying to throw it on police party with intend

to endanger life or property or to cause serious injury and

at that time the explosive substance i.e. hand grenade was

under your control and thereby committed an offence


my cognizance.

Seventhly, on the above said date, time and place,

you all were found in possession of hand grenade, an

explosive substance and on 8.7.2005 you Saqib Rehman

@ Masood got recovered one AK47 assault riffle, two

magazine and 130 live cartridges, two hand grenade and 3

UBGL grenade, an explosive substance from your house

at Lal Nagar Colony, Chanpura, Sri Nagar and you Hazi

Gulam Mohammad Dar also got recovered 10 UGBL

grenade, an explosive substance and one wireless set from

your house Village Putrigam, District Pulwama, Kashmir

SC No.24/10. of 112

on 8.7.2005 and the possession of explosives was not for

a lawful object and thereby committed an offence


my cognizance.”

Charge framed against accused Birender Kumar Singh :

“that on 22.8.2005 at your house Purvi Lohanipur,

PS Kundan, Patna, Bihar, you got recovered 164

counterfeit currency notes of Rs. 500/ denomination (Rs.

82,000/) knowing or having reason to believe that the

same to be forged or counterfeit and intending to use

them as genuine and thereby committed an offence

punishable u/s 489 (C) IPC and within my cognizance.”

Against accused Abdul Qayum Khan Khan :

“that on 7.7.2005, at H. No.242, Yarwari,Lal

Nagar, Chanpura, Srinagar, you got recovered 10 counter

feit currency notes of Rs. 500/ denomination (Rs. 5000/)

knowing or having reason to believe that the same to be

forged or counter feit and intending to use them as

genuine and thereby committed an offence punishable u/s

SC No.24/10. of 112

489 (C) IPC and within my cognizance.”

15. The prosecution examined 32 witnesses in all to prove the

Charges against the accused. It also tendered in evidence the FSL

report dated 17.1.06 as Ex.PZ1 and two reports received from Govt.

Press, Nasik, both dated 13.8.05 as Ex.PZ2 and Ex.PZ3.

16. The accused Saqib Rehman, Bashir Ahmed Shah, Nazir

Ahmed Sofi and Gulam Moinuddin Dar in their statement U/s.313

Cr.PC have termed the alleged encounter dated 02.7.05 a fake one and

have denied having been in possession of the Tata Indica vehicle

(Blue colour) at any point of time. All the accused have also denied

recovery of any sort of incriminating material from their search or at

their instance. Accused Saqib Rehman had denied that he stayed in

Hotel Baba Continental voluntarily as a guest or associate of Gulam

Moinuddin Dar. According to him, he was kept in illegal detention by

Delhi Police since 23.6.05 and his signatures were taken on blank

papers by SI Charan Singh. According to him, accused Abdul

Qayoom Khan was arrested from his house in Srinagar on 06.7.05 and

accused Abdul Majid Bhat also was arrested in Srinagar and was

brought to Delhi alongwith them on 10.7.05. According to him, he has

SC No.24/10. of 112

been implicated falsely in this case at the instance of certain criminal

elements, whom he had got apprehended in a fake currency racket and

arms/ammunition case in Srinagar. He gave information about the

racket to DCP Devender Singh, who mischievously released the

culprits without booking them.

17. Similarly, accused Haji Gulam Moinuddin Dar in his

statement U/s.313 Cr.PC has denied that he had taken any room on

rent in Hotel Baba Continental on 02.7.05. However, he admits that

he was staying in this Hotel in the month of April, 2005 and June,

2005. He also stated that no encounter at all took place on the night

intervening between 01.7.05 and 02.7.05 as alleged by the prosecution

and further stated that he also was under illegal custody of Delhi

Police since 16.6.05. He further stated that no recovery was effected

from any of the accused or at their instance and he was made to sign

certain blank papers after tutoring him and he did not know what had

been written on those papers. He further stated that accused Abdul

Qayoom was brought to police station Sadar, Srinagar, J&K, on

06.7.2005 where he alongwith other accused were already present. He

denied having been made any disclosure statement. According to him,

he was involved in anti militancy operations in Kashmir Valley and

SC No.24/10. of 112

was instrumental in surrender of various militants before the police.

One Major Shama of Army Intelligence wanted him to get the

militants surrendered before him, which he refused to do as he

doubted the integrity of Major Sharma. Major Sharma remained

posted in Kashmir for about six years and thereafter was transferred to

Delhi as Lt. Colonel. In order to seek revenge from this accused,

Major Sharma got him implicated in this case falsely in collusion with

SI Ravinder Tyagi.

18. Similarly, is the stand of accused Bashir Ahmed Shah in

his statement U/s.313 Cr.PC. He also claimed to have been in illegal

custody of police since 16.6.05 when he was taken into custody by SI

Ravinder Tyagi. According to this accused also, the story of

encounter dated 02.7.05 is totally false and fabricated. He denied that

any recovery was effected from any of the accused or at his instance

and further stated that his signatures were taken on blank papers after

torturing him in illegal custody. He further stated that he has been

doing business with accused Gulam Moinuddin Dar in Kashmir and

they were dealing in Guleanar Royal Tea. He states that Gulam

Moinuddin Dar has some enmity with Major Sharma and were falsely

implicated in this case on account of that enmity.

SC No.24/10. of 112

19. Accused Nazir Ahmed Sofi has also denied that any

encounter had taken place between them and Delhi Police on the night

intervening between 01.7.05 and 02.7.05. He also denied that he was

arrested on 02.7.05. According to him, he was arrested on 20.6.05

when he landed at Delhi Airport in a Jet Airways flight from Srinagar

alongwith his friends Shafat Ahmed and Mukhtar Ahmed and they

had come to see a patient, who was admitted in AIIMS, which patient

was related to one Farooq Ahmed, who was in custody of Delhi Police

at that time. He was apprehended at the airport itself and kept in

custody. Farooq Ahmed, Mukhtar Ahmed and Shafat Ahmed were let

off after taking money from them, but he was implicated falsely in this

case.

20. As per examination of accused Birender Kumar Singh

U/s.313 Cr.PC no recovery at all was effected at his instance and he

has been implicated falsely in this case as he had a quarrel with some

police officials in his native village Bihar, who got him involved in

this case in order to take revenge from him.

21. Accused Abdul Mazid Bhat has stated that he was

SC No.24/10. of 112

arrested in Srinagar on 08.7.05 and brought to Delhi on 10.7.2005. He

denied that any recovery of incriminating material was effected from

him or at his instance. He has also denied that any railway ticket was

recovered from him from his personal search. According to him, he

was having only Rs.800/ to Rs.900/ in his pocket and a mobile phone

when he was apprehended and both of these were taken from him in

Srinagar itself. He also claims to have been involved in anti militancy

operations under DGP Gopal Sharma. He was also given a PSO by

the J&K Government. One Major Sharma was posted in Kashmir at

that time wanted his sources to work for him, but this accused did not

oblige him. DGP Gopal Sharma tried to persuade him to work for

him, but he refused to do so. Thus, Major Sharma bore a grudge

against this accused and, therefore, got him implicated falsely in this

case after being transferred to Delhi.

22. Accused Abdul Qayoom in his statement U/s.313 Cr.PC

has stated that he was arrested on 06.7.05 in Srinagar. He states that

he does not know father of accused Saqib Rehman, but only knows

accused Saqib Rehman, who is his first door neighbour. According to

him, some property dealing was going on between him and accused

Saqib Rehman, pursuant to that deal, he paid a certain sum of money

SC No.24/10. of 112

to accused Saqib Rehman. He also stated that Abdul Mazid Bhat was

brought from Kashmir alongwith him in the same vehicle. He denied

the recovery of any incriminating material was effected from him.

23. On behalf of the accused, Haji Gulam Moinuddin Dar

entered the witness box as DW1. I shall refer to his testimony in

detail in later part of the judgment. The accused also summoned and

examined Sh. Rajesh Kumar Chaudhary, Sr. Manager (Legal), Zee

News Limited as DW2, but his testimony is not worth consideration as

he did not prove anything either in favour of or against the accused.

24. I have heard the Ld. APP for State and the Ld. Defence

Counsels Sh. Navin Gaur, Sh. S.N. Thakur and Sh. M.K. Singh. All

of them took me through voluminous evidence recorded in the case

and the documents referred to and proved by various witnesses

produced by the prosecution as well as by defence witness DW1.

According to Ld. APP, all the Charges against the accused stand fully

established and they are liable to be convicted for the same. However,

Ld. Defence Counsels have submitted that the prosecution has failed

to prove the Charges against the accused and the accused are,

therefore, liable to be acquitted.

SC No.24/10. of 112

25. The case of the prosecution starts with recording of DD

No.6 dated 26.6.05 (Ex.PW12/A) in the office of Special Staff, South

West District, Delhi, on the basis of information received by SI

Ravinder Kumar Tyagi to the effect that two Kashmiries namely

SaqiburRehman @ Masood and Gulam Moinuddin Dar @ Zahid,

who have been involved in the terrorists activities earlier also, have

made their base in Delhi for the past of one and a half months and

were about to strike in Delhi, Gurgaon and other satellite towns of

Delhi. SI Ravinder Tyagi has testified for the prosecution as PW12.

In his testimony before the Court, he has deposed that he advised the

informer to develop the information further. It is quite astonishing

and intriguing that he did not pass on such valuable information

regarding alleged Kashmiri terrorists to his senior officers or to

intelligent agencies like IB and RAW. He kept quite and simply

advised the secret informer to develop the information further.

26. It is shocking and unbelievable that when the country is

engulfed in terrorism from Kashmir to Kanyakumari, a police officer

getting certain leads about the Kashmiri terrorists would remain silent

and idle. Admittedly, this police officer SI Ravinder Tyagi did not do

SC No.24/10. of 112

anything till 01.07.05 night. What, if the terrorists, about whom he

had been informed by his informer, would have struck by that time

and wreaked havoc in and around Delhi. This leads me to only two

conclusions, either there was no such information or the SI Ravinder

Tyagi did not act deliberately for certain ulterior and motivated

reasons.

27. As per his deposition, the secret informer approached him

again on 01.7.05 in his office and informed him that Zahid and

Masood alongwith two other associates were coming to Delhi from

Gurgaon in a Tata Indica Car bearing No.HR26S0440 blue colour

alongwith illegal arms and ammunition. He recorded this information

as DD No.12 (Ex.PW12/B). According to him, he brought this

information to the notice of senior officers and on their directions, he

formed a raiding party. This is what this witness PW12, the author of

D.D. No.12 has stated in his examinationinchief. He contradicts

himself in his cross examination on this point. In the cross

examination dated 23.05.09 at pages 3 & 4, this witness deposes that

he had developed the secret information himself through technical

surveillance as well as through other secret informer/sources.

However, it is worthwhile to note that there is no record regarding the

SC No.24/10. of 112

steps taken by this PW12 to develop the information either in any of

the DD's or in the Case Diary. He even did not explain in the Court as

to what kind of technical surveillance did he do and with the help of

what technical equipment. At page 4 of the aforesaid cross

examination, he states that the informer provided to him only the code

name of terrorists on 27.06.05 as Masood and Zahid. Then how could

he get to know the real identity of the alleged terrorists? According o

him, again by technical surveillance. What kind of technical

surveillance, he fails to explain.

28. He then goes on to say that he checked the veracity of the

secret information from Central Intelligence Agencies through his

senior officers. Though there is no record about the same, yet no

senior officer has come to depose about the said verification. Which

central intelligence agency was contacted and what reply was received

from it regarding the terrorists, has neither been recorded anywhere

nor disclosed in Court. At the same time, this PW12 deposed in the

same cross examination at page 4 that he did not check the

antecedents of the persons named in the secret information from J&K

as he was not having complete details. Thus, he contradicts himself.

Earlier he stated that he decoded the names of terrorists by technical

SC No.24/10. of 112

surveillance but now says he did not have complete details regarding

these persons given by any central intelligence agency to his senior

officers. Hence it still remains a mystery as to who developed the

secret information further in order to get the complete details about

the alleged terrorists and how? Was it the secret informer or SI

Ravinder Tyagi or his senior officers? It also remains a mystery as to

why there is no record of the same. It is recorded in DD dated

26.06.05 (Ex.PW12/A) that the terrorists are going to strike in Delhi

and its satellite towns, which include Gurgaon, Faridabad, Noida,

Sonepat etc. PW12 fairly admits in his cross examination that he did

not inform the police officers or the State intelligence agencies of

Haryana or U.P. but fails to give any specific reason for the same.

29. Further testimony of this witness in his cross examination

shakes the prosecution case as well as the veracity of this witness

terribly. It is recorded in DD dated 01.07.05 (Ex.PW12/B) proved by

this witness that the secret informer told him that the two terrorists are

about to reach Delhi from Gurgaon alongwith their two more

associates and huge haul of arms/ammunition in a blue colour Tata

Indica vehicle bearing registration No.HR26S0440. It is said that

truth cannot be hidden too long and it has to come out. Similarly, this

SC No.24/10. of 112

witness could not suppress the truth any more and revealed the same

in his cross examination dated 23.5.09 at page 4 saying that the secret

informer did not tell him about the type of vehicle being used by the

terrorists despite his asking as he was not aware of the same. He

further deposes that the secret informer did not tell him about the

nature & type of arms being carried by the terrorists as he was not

aware of the same.

30. To my mind, the whole prosecution case gets demolished

by the aforesaid deposition of its star witness PW12 SI Ravinder

Tyagi itself. This witness has himself revealed the falsehood of the

contents of DD No.12 (Ex.PW12/B) on which the case of the

prosecution is founded. It is the case of the prosecution that the

raiding party was formed to nab the terrorists, who would be coming

from Gurgaon to Delhi in a blue colour Tata Indica car

No.HR26S0440. Then wherefrom did the police and more

particularly this PW12 came to know about the details of the car to be

used by the terrorists? No answer is coming forth from any of the

witnesses examined by prosecution. It is again a mystery. It seems

that there are more and more mystries in this case then the secret

information itself received by this PW12.

SC No.24/10. of 112

31. It is worthwhile to note here that original of both the

aforesaid DDs have not been produced before the Court. Only the

attested copy has been produced, which has been marked as

Ex.PW12/A and Ex.PW12/B. This creates doubt regarding the

authenticity of the DD's itself.

32. Since the case of the prosecution is totally founded upon

the secret information received by PW12, which has been recorded by

him in the shape of DD No.6 dated 27.6.05 and DD No.12 dated

01.7.05, in my opinion, it was necessary for the prosecution to

examine the so called secret informer, who provided such information

to SI Ravinder Tyagi, PW12. It is very difficult to rely upon such a

secret information and to nail the accused on the basis of the same, in

the absence of the testimony of the said secret informer, which needed

to be tested on the touchstone of the cross examination by the accused.

A secret information received by the police cannot be made the basis

of conviction of the accused unless and until the secret informer is

examined before the Court and subjected to cross examination by the

accused.

SC No.24/10. of 112

33. In the present case, in view of my observations herein

above, it is apparent that the secret information projected by SI

Ravinder Tyagi is absolutely fake and fabricated and no such

information at all has been received by him. If in fact, such kind of

secret information would have been received by SI Ravinder Tyagi, he

would have immediately passed on the same to the Central

Intelligence Agencies such as CBI, RAW etc. for the necessary action

on their behalf. He would not have remained silent for about five days

after receiving such information. He would have grilled this secret

informer about the source of his knowledge and information, and

above all, the secret informer would have examined as a prosecution

witness before the Court. Also there would not have been the

discrepancy between the contents of DDs and the deposition of their

author, PW12 before the Court as stated by me hereinabove.

34. In the examinationinchief, PW12 has stated that after

receipt of secret information on 01.7.05, which he recorded as DD No.

12 (Ex.PW12/B), he, on the directions of senior officers formed a

raiding party consisting of SI Raj Kumar, ASI Charan Singh, ASI

Nirakar, HC Raj Kumar, HC Ombir, Const. Dinesh, Const. Krishna,

Const. Rohtash, Const. Raja Ram, Const. Sanjay, Const. Surender,

SC No.24/10. of 112

Const. Sant Raj, Const. Vinay and Const. Zafar. Thus, the raiding

party consisted of 15 police officials including SI Ravinder Tyagi. He

does not disclose as to under the directions of which of the senior

officers, he formed the raiding party. No such direction in writing has

been produced on the record or proved by this witness. However, this

witness has testified in his cross examination that he formed the

raiding team for the apprehension of the terrorists as per advice of his

immediate senior officers i.e. ACP Sh. R.P. Meena and DCP Sh.

Deependra Pathak. It may be noted here that the raiding party was

formed in late hours of 01.7.05. The accused have proved reply dated

31.7.09 (Ex.DW1/1) sent to them by an Addl. DCP (P.I.O) South

West, New Delhi, to their application under Right to Information Act,

wherein it has been stated that Sh. Deependra Pathak was posted as

DCP South West, Delhi, from 23.6.04 to 27.6.05 and thereafter Sh.

Ravinder Yadav took the charge of DCP. This means that on 01.7.05

the DCP South West, Delhi, was Ravinder Yadav and not Sh.

Deependra Pathak, from whom PW12 alleges to have received

directions for the Constitution of the raiding party. ACP R.P. Meena

has been examined as PW22. He nowhere states in his examination

inchief that he was apprised about the secret information received by

SI Ravinder Tyagi on 01.7.05. He also does not say that he gave

SC No.24/10. of 112

directions for forming a raiding party to nab the terrorists. In his cross

examination, he specifically deposed that he came to know about the

circumstances and apprehensions of the accused as well as the

recoveries effected from them on 02.7.05. He has only proved the

filing the complaint U/s.195 Cr.PC dated 09.8.05 as Ex.PW22/A.

35. He further states that he did not issue any guidelines to SI

Ravinder Tyagi in this case. He tried to shield SI Ravinder Tygi by

saying that he has informed about the secret information wherein

accused were referred to as Kashmiri militants. He admits that under

such circumstances, intelligence agencies ought to have been informed

but were not informed. He also admitted that the DD entries recorded

in this case were neither shown to him nor produced before him.

Spilling further beans, he says that SI Ravinder Tyagi had conveyed to

him on 27.6.05 that accused SaqiburRehman, Gulam Moinuddin

Dar, Nazir Ahmed Shah and Bashir Ahmed Shah (Kashmir based

militants) are already in Delhi and planning to create terror at VVIP

places. Then says he was told so on 01.7.05.

36. This implies that SI Ravinder Tyagi was aware about the

names of the terrorists even before the so called encounter whereas the

SC No.24/10. of 112

secret informer had given the two names only as Masood and Zahid.

How can it be so? Only when the accused were known to him already

and he was conspiring to implicate them in a false criminal case. It

also becomes evident from following portion of the cross examination

of this PW22 :

“At the time, raiding party left the office of Special Staff,

I was at my house. SI Ravinder Tyagi had informed me at

10.30 p.m. that he is leaving for the raid at Kapasahera. I

do not remember whether he sent a messanger or

informed me on telephone. I discussed the manner, in

which the raid is to be conducted, and also gave

information. Volunteered : during day time itself, it was

discussed as to how raid is to be conducted and where it is

to be conducted. I cannot tell the time regarding

discussion of raid as it was an on going process.”

37. The aforesaid testimony of PW22 shows that the modus

operandi of the raid was discussed during the daytime whereas SI

Ravinder Tyagi received the secret information about the travel of

terrorists from Gurgaon to Delhi in the evening. It is, therefore,

SC No.24/10. of 112

apparent that the story about the receipt of secret information and

subsequent raid was in fact, scripted earlier in the day and that the

accused were already in the custody of Delhi Police. A plan was

being devised in the office of Special Staff to implicate the accused in

a serious offence.

38. DCP Ravinder Yadav, who took over charge from earlier

DCP Deependra Pathak, has not been examined as a prosecution

witness. Deposition of PW22 shows that he did not direct formation

of the raiding party. Then how and under whose directions, did SI

Ravinder Tyagi form the raiding party is not discernible from the

whole gamut of evidence on record. Thus, the prosecution has failed

to prove the formation of the raiding party itself.

39. Assuming that the secret information received by PW12

SI Ravinder Tyagi was true and genuine. The information received by

him on 01.7.05 was to the effect that two terrorists Zahid and Masood

alongwith two other associates are about to enter Delhi from Gurgaon

side alongwith arms and ammunition in a blue colour Tata Indica

vehicle bearing No.HR26S0440. It is to be noted that the raiding

party was formed pursuant to the aforesaid information to nab the so

SC No.24/10. of 112

called terrorists, but admittedly neither was Bomb Disposal Squad

informed about such information and asked to reach the particular

place nor was any member of Bomb Disposal Squad included in the

raiding party. As per the deposition of SI Ravinder Tyagi and other

witnesses, a trap was laid to nab these terrorists at Rajokri Red Light

on the Delhi Gurgaon Highway. This highway is not the only link

between Gurgaon and Delhi and there are about 3 or 4 other roads,

which link Gurgaon to Delhi. It has nowhere been explained by any

of the witnesses as to why the trap was laid on this main Delhi

Gurgaon Highway and not any other roads linking Gurgaon to Delhi.

There was no mention of any road to be taken by terrorists to reach

Delhi from Gurgaon in the secret information allegedly received by SI

Ravinder Tyagi. Therefore, it was logical and normal in these

circumstances to lay trap on all the roads connecting Gurgaon to

Delhi, but it appears that SI Ravinder Tyagi presaged that terrorists

would take only the main highway to reach Delhi from Gurgaon,

which thinking is quite illogical for the reason that the terrorists would

never take the main highway to reach Delhi from Gurgaon. This

removes one more brick or stone from the edifice sought to be raised

by the prosecution for the conviction of the accused.

SC No.24/10. of 112

In re. : the encounter with terrorists

40. Be that as it may, let me take it that the raiding party

consisting of 15 police officials was formed fairly and properly. The

raiding party proceeds to nab the two terrorists Masood and Zahid as

well as their two associates, who are about to enter Delhi from

Gurgaon. It is the case of the prosecution that in a fierce encounter

near Randhawa Farm, the four terrorists were nabbed alongwith

arms/ammunition. It is also the case of the prosecution that the

terrorists were coming in the blue colour Tata Indica car

No.HR26S0440, as informed by the secret informer and were

overpowered after a short chase. It is interesting to note what the

witnesses have deposed about the so called fierce encounter.

41. Out of the 15 members of the raiding party only 9 have

been examined by the prosecution as follows :

SI Ravinder Tyagi PW12

ASI Charan Singh PW13

ASI Nirakar PW6

HC Raj Kumar PW8

HC Ombir PW21

SC No.24/10. of 112

Ct. Raja Ram PW17

Ct. Sanjay PW23

Ct. Vinay PW16

Ct. Zafar PW15

42. PW12 has deposed that the raiding party left the office of

Special Staff in two government vehicles i.e. a gypsy and Swaraj

Mazda at 11 p.m. on 01.7.05. He further deposed that they tried to

include a public person in the raiding party near Shiv Murti on Delhi

Gurgaon Highway, but nobody was prepared to do so. They reached

near Rajokri Red Light at 11.30 p.m. and parked their vehicles there.

According to him, at 12.45 a.m. a blue colour Tata Indica car came

from the side of Gurgaon bearing registration No.HR26S0440 when

the car started coming near to them only then they could see the

number of the car. He signalled the car to stop, but the occupants of

the car did not stop the car. They started chasing the aforesaid Indica

car in their government vehicle and intercepted it after chasing it for

about two and a half kilometers near Randhawa Farm House. The

gypsy was put ahead of Indica Car and it was gheroaed by the Swaraj

Mazda vehicle. PW12 says that he was in the gypsy near the driver

and initially he got down from the gypsy, whereas other police

SC No.24/10. of 112

officers also got down one by one from the gypsy as well as Swaraj

Mazda. They introduced them as 'Police' and after hearing the word

'Police', one person, which was sitting on the left side of the driver in

the Tata Indica vehicle fired towards the police party. This witness

has further deposed that to save himself and the police party, he fired

one round from his service pistol in the air. Constable Surender also

fired one round in the air and they rushed towards the occupants of

Tata Indica car. This witness Ravinder Tyagi with the help of Const.

Vinay apprehended Saqib @ Masood. The person, who was sitting on

the dirver seat of the Tata Indica vehicle exhorted "Masood Bhai Goli

Chalao". The said person was thereafter apprehended by ASI Nirakar,

whose name as such revealed as Nazir Ahmed Sofi @ Doctor.

Thereafter, according to this witness, Hazi Gulam Moinuddin Dar and

Bashir Ahmed, the other two occupants of the Tata Indica vehilce

were also apprehended. He says that the names of these persons came

to be known after their apprehension. Haji Gulam Moinuddin Dar was

apprehended by Const. Surender and Bashir Ahmed Shah was

apprehended by HC Raj Kumar. He further has testified that when

Const. Surender was going to apprehend Haji Gulam Moinuddin Dar,

Bashir Ahmed Shah exhorted him saying that "Dar Bhai Handgrenade

Ka Pin Nikal Kar Police Par Phek Do".

SC No.24/10. of 112

43. In the cross examination, this witness PW12 has deposed

that barricades were available at the Chauraha, but they did not get

any opportunity to install barricades because of heavy traffic. He

states that they arranged pickets as per orders of the Commissioner of

Police. However, no such order has been placed on record. At

another place, in the cross examination, he states that only Const.

Ashok was in uniform and other members of the raiding party were in

civil clothes. The two drivers also a part of the raiding team and ten

members of the raiding party were having pistols. He states that they

had information that the terrorists were not having any big weapon

with them and therefore, they did not take any big weapon with us as 9

mm pistol was sufficient enough to intercept the terrorists because it is

a weapon of interception. However, DD No.12 nowhere mentioned

that the terrorists are not having any big weapon and this information

also later on turned to be untrue as allegedly the terrorists were found

having handgrenades and assault rifles in their possession, which

could not have been retaliated with the fire by 9 mm pistol. He

reiterates that the terrorists fired two shots towards the raiding party

but the bullet did not hit any member of the raiding party. This

witness has admitted at two places in cross examination i.e. on page 3

SC No.24/10. of 112

of cross examination on 08.7.08 and page 1 of the cross examination

dated 14.7.08 that the secret informer did not specifically disclose to

him about the specifications and the type of weapon in possession of

the terrorists. In the cross examination dated 23.5.09 he has stated

that they were wearing bulletproof jackets, but as the jackets were

very heavy weighing 15 to 20 kg., which was becoming unbearable

and therefore, he removed the bulletproof backet at about 12.30 a.m.

and kept the same in police vehicle, while admitting that the informer

had told him that the terrorists shall enter Delhi at about 12.30 a.m. It

is, therefore, not understandable as to how this witness, who was the

leader of the raiding party removed his bulletproof jacket just at the

time when the terrorists were expected to reach Delhi. He further

states that the police gypsy was parked on the left side of the road and

was facing towards Delhi, whereas Swaraj Mazda was parked behind

the gypsy at 90 degree angle to the gypsy on the road leading towards

Najafgarh and facing the Red Light. Thereafter, in the cross

examination dated 07.7.09, he states that he came to know that the

Indica Car with terrorists in it is approaching them at a distance of

about 60 to 70 yds. They identified the car first on the basis of its blue

colour and then on the basis of its registration number. He states that

the headlight of the car was on at that time. The Indica car was

SC No.24/10. of 112

approximately in the middle of the road. They could see the

registration number of the car, when it was about 30 yards away. He

further states that the colour of the car could be seen even when its

highlights were on as there were flood lights on the highway and its

number could be seen from the distance of 10 to 15 feet as they were

standing on the side and not directly in front of the car. In the same

cross examination, he goes on to say that they could not stop the

Indica Car with the barricades as there was another vehicle moving in

front of the India car and they had to allow the said vehicle to pass

through the barricades. The distance between the said vehicle i.e. the

truck and the Indica car was about 4 to 5 yds. He was not in a position

to tell approximate distance between their position and the position of

the truck on the road. He further states that he himself, Const. Vinay

and Const. Surender were present near the barricades. However, this

fact is not mentioned in the rukka. Now he says that Maruti Gypsy

was parked at a distance of about 8 to 10 ft. on Kucha road ahead of

the barricades towards Delhi side, whereas Swaraj Mazda vehicle was

parked before the barricades on the Kutcha road at a distance of about

20 to 25 ft. from the barricades.

44. In the cross examination dated 08.7.08 this witness has

SC No.24/10. of 112

stated that the speed of the Indica car was around about 60/70 kms.

per hour and they chased the car for about 2 21/2 kms. Now in the

cross examination dated 10.7.09, he states that the Indica Car was

approaching the barricades at a speed of 40 to 50 kms. per hour, but

on reaching near the barricades, the driver slowed down the vehicle

and its speed reached 20 kms per hours. Thereafter, the driver of the

car increased the speed. In the cross examination dated 28.8.09 he

states that the headlight of the truck, which was in front of the Tata

Indica vehicle were also on at that time. They had signalled the Indica

car to stop at Rajokri Red Light from a distance of 20 to 25 yds. after

they saw its number. The speed of the truck was 30 to 35 kms. per

hour. They had stopped the Indica car after overtaking it and by

switching on the indicator as well as by force by blocking its way.

The Indica car driver slightly increased the speed when they were

overtaking it, but they managed to overtake it and block its way with

their gypsy vehicle.

45. It is apparent that this witness was totally confused during

his aforesaid deposition, which was recorded at various dates. He has

contradicted himself on various material points. His deposition

appears to be concocted and far from being true. At one place, he

SC No.24/10. of 112

states that the car was visible to them at a distance of about 60 to 70

yds. and they first recognised the car by its blue colour and then by its

registration number, but at the same time, he deposed that there was a

truck moving in front of the car, which also had its headlights on. He

also states that the distance of Tata Indica vehicle and the truck was

just 4 to 5 yds. Therefore, it could not have been practically possible

for the raiding party to identify the car by its colour and its registration

number at a distance of 60 to 70 feet when a truck was moving ahead

of it at a distance of just 4 to 5 feet. At one place, he states that they

parked the gypsy on the left side of the road facing towards Delhi,

whereas Swaraj Mazda vehicle was parked behind the gypsy at a 90

degree angle to it, but at the same time, he deposed that the Maruti

Gypsy was parked at a distance of 8 to 10 feet on the kachha road

ahead of the barricades towards Delhi side where Swaraj Mazda

vehicle was parked before the barricades on the kachha road at a

distance of 20 to 25 feet from the barricades. It is also not

understandable, how they could signal the Tata Indica vehicle to stop

when it was following a truck just at a distance of 4 to 5 feet from it.

It is also highly improbable that four terrorists coming from Gurgaon

with arms and ammunitions including handgrenades and assault rifles

would surrender to police party so peacefully and without any blood

SC No.24/10. of 112

shed. It is also not possible that the Tata Indica vehicle being driven

at a fast speed may be around 50 kms. Per hour and leaving the police

party near the barricades at Rajokari red light could be taken over just

after 2½ kms. near Randhawa farm house. This witness himself says

that members of the raiding party had got down from the vehicle and

were standing on the road, waiting for the Tata Indica vehicle.

Therefore, it would have taken considerable time for them, after the

Tata Indica car passed before their eyes, to board the vehicle again, to

switch on the engine and to start chasing Tata Indica vehicle. This

witness has further deposed that accused Nazir Ahmed Sofi exhorted

the driver of the vehicle Saqib Rehman by saying “Masood Bhai Goli

Chalao” and accused Bashir Ahmed Shah also exhorted Haji Gulam

Moinuddin Dar saying that “Dar Bhai Handgrenade Ki Pin Nikal Kar

Police Par Phek Do”. As per the own contention of the prosecution,

all the four terrorists were Kashmiries. Therefore, it was convenient

for them to converse in their own native language i.e. Kashmiri before

the police party, so that the police party could not understand what

they are saying. I find it unbelievable that these terrorists were

exhorting each other in Hindi language to attack the police party. At

one place, this witness states that they did not get any opportunity to

install barricades because of heavy traffic, but at the same time, he

SC No.24/10. of 112

states that one vehicle was parked ahead of the barricades and other

was parked before the barricades, giving the impression that the

barricades were installed by them. He further deposed that they could

not stop the Tata Indica vehicle with the barricades as there was

another vehicle moving in front of the same and they had allowed the

said vehicle to pass through the barricades. This also gives an

impression that the barricades have been installed by them, which is

contrary to his earlier statement that they did not find any time to

install the barricades because of heavy traffic.

46. The other members of the raiding party, who have been

examined by the prosecution have also deposed contradictory to that

this witness PW12 has deposed. PW12 has testified that they have

erected barricades near the Rajokari red light in order to stop the Tata

Indica car coming with terrorists. However, PW6 ASI Nirakar and

PW8 HC Raj Kumar does not speak about the erection of barricades at

all in their testimony. PW6 in his cross examination dated 21.8.06 has

deposed that at that time widening of road and construction of Flyover

on NH8 was going on. He further deposed that the construction work

of the Flyover was going on near the Rajokari red light also. PW8

also deposed in his cross examination dated 17.7.06 that at that time,

SC No.24/10. of 112

there was hoardings and barricades at the Rajokari red light due to

construction of Flyover on NH8. In his cross examination dated

18.12.07 he stated that they had barricades material like sticks, but

they had taken this material for their own defence. In his cross

examination dated 07.3.08 he admitted that the Special Staff does not

have its own barricades, but they used the barricades left by the local

police at various places on NH8 to block the road for checking the

vehicles.

47. This witness (PW8) has further deposed that Tata Indica

vehicle was identified on the pointing out of secret informer. It is only

this witness, who mentions the presence of secret informer alongwith

them at the place of raid. Neither PW12 nor any other witness has

testified about the presence of secret informer on the spot.

48. PW13 ASI Charan Singh is also alleged to have been a

member of the raiding party, but interestingly, he does not say even a

word in his examinationinchief regarding the raid conducted on

01.7.05 in late hour near Rajokari red light. It is in cross examination

that he awoke from the slumber and states that when they reached the

spot i.e. Rajokari Mor, NH8 Crossing at 11.30 p.m., barricades were

SC No.24/10. of 112

already there. He states that the barricades were erected on the road

as per the directions of SI Ravinder Tyagi, who in his deposition has

stated that they did not find any time to erect the barricades.

49. Similarly, PW15 Const. Zafar did not testify about his

being a member of the raiding party. He has mentioned nothing about

what happened near the Rajokari red light during the course of raid in

the late hours of 01.7.05. On this aspect, PW16 has deposed in his

cross examination by saying that the barricades of P.S. Kapasahera

were already lying at the spot and they were used to do Nakabandi.

He also deposed that the barricades were placed in such a manner that

only the vehicle of which number was given, can be made to halt after

placing barricades in front of the same and not the other vehicles. He

admitted that there was heavy traffic on the highway at that time. In

cross examination dated 27.7.10 he states that there was only a single

barricade placed on the road, which was operated by himself and

Const. Surender. However, Const. Surender has not been examined at

all by the prosecution and testimony of this witness is totally contrary

to what others have stated about the same. None of the other members

of the raiding party have corroborated the version given by this

witness PW16.

SC No.24/10. of 112

50. PW17 HC Raja Ram has fairly admitted that his

statement U/s.161 Cr.PC was not recorded by the IO. However, he

deposed that he took part in the raiding party on 01.7.05, but has not

given the details of raid at all in his examinationinchief.

51. PW21 HC Ombir Singh and PW23 Const. Sanjay, who

are also stated to have been member of the raiding party, have not

deposed anything about the raid in their examinationinchief.

52. As per the deposition of PW12, they intercepted Tata

Indica vehicle by chasing it for 2½ kms. Near Randhawa Farm House.

They managed to stop the Indica Car after overtaking it and by

switching on the indicator as well as by blocking its way with their

gypsy vehicle. Contradictory statements have come in this regard also

from various prosecution witnesses. PW6 says in his cross

examination dated 07.12.07 that there was a distance of about 1 to 2

feet between Tata India car and the police gypsy when they both

stopped near Randhawa Farm House. The distance between Indica car

and Swaraj Mazda was also the same i.e. 1 to 2 feet. He further

deposed that the headlights of the gypsy was not falling on the car of

SC No.24/10. of 112

the accused persons and the lights of the car of the accused persons

was not falling on their gypsy as engine of the car had gone off as

soon as it stopped. According to him, the light of Swaraj Mazda

vehicle were on, but it did not reach Maruti gypsy vehicle. Thus, it is

seen that this witness contradicts himself also. If the distance between

the two vehicles is just 1 to 2 feet, it is quite obvious that the light

emanating from the headlights would definitely fall on the other

vehicle.

53. PW8 in his cross examination dated 06.7.07 goes on to

say that the distance between Maruti Gypsy and the car of the accused

persons was about 10 feet and the distance between the vehicle of

accused persons and Swaraj Mazda vehicle was about 15 feet. He

says that the lights of Swaraj Mazda vehicle were on and lights were

falling on Swaraj Mazda as well as on the car of the accused. He

further stated that when they rushed towards accused persons, the

lights of Swaraj Mazda vehicle went off as it was stationed. At

another place in the cross examination dated 18.12.07, he states that

there was a distance of 4 feet between their vehicle and Tata Indica

vehicle.

SC No.24/10. of 112

54. Interestingly, PW13 ASI Charan Singh, important

member of the raiding party, has not deposed even a single word

regarding the chase of the Tata Indica vehicle and overtaking it.

However, he has stated in his cross examination dated 25.2.10 that

they were behind Maruti Gypsy as well as Tata Indica vehicle when

they reached the spot, the Tata Indica vehicle was intercepted, police

official of the gypsy had already overpowered the occupants of the

Tata Indica car. This witness has, therefore, deposed in total

contradistinction to what PW12 had deposed.

55. If we visualize as to what happened near Randhawa Farm

House, soon after the Tata Indica vehicle was intercepted by the two

police vehicles, through the testimony of the members of the raiding

party, who has been examined as prosecution witness, it all seems to

be absolutely false and poorly conceived story. As mentioned herein

above, the witness says that the Tata Indica vehicle was intercepted in

such a way that it got sandwiched between police gypsy and Swaraj

Mazda vehicle. Soon thereafter, PW12 SI Ravinder Tyagi, got down

from the gypsy and other police officials also got down one by one

from both the vehicles, as per the testimony of PW12. According to

him, after they declared themselves to be police, persons sitting on the

SC No.24/10. of 112

left side of the driver in the Tata Indica vehicle fired towards the

police party, whereupon PW12 fired one round from his service pistol

in air in order to save himself, and thereafter Const. Surender fired

one round in the air. They thereafter immediately rushed towards the

occupants of the Tata Indica vehicle and overpowered them. It is very

difficult to imagine that one of the terrorists in the Tata Indica vehicle

opened fire upon the police party in the gypsy vehicle, which had

stopped in front of the Tata Indica vehicle, but the bullet neither hit

police gypsy nor any police official, even though the distance between

the two was not more than 3 feet or 4 feet. What is more amazing is

that after realising that terrorists are bent upon firing towards police

party, the PW12 and his staff did not try to hide behind the police

gypsy vehicle but straightaway headed towards the same alongwith

Const. Surender and overpowered the terrorists. Such kind of

imaginary bravery is only seen in Bollywood movies and not in real

situation as is being projected by the prosecution in this case. It is also

intriguing that despite the fact that Const. Surender was with PW12

Ravinder Tyagi in the first instance and he also fired one round in the

air, he has not been examined by the prosecution at all to confirm the

version given by PW12. Further, it astonished me a lot that why would

the terrorists, who are armed with weapon like A56 and with

SC No.24/10. of 112

handgrenades would surrender to the police without any stiff

resistance and without hurling a handgrenade or to on the police party.

56. PW6 in his cross examination dated 05.7.07 has stated

that after exhortation by Nazir Ahmed Sofi “Masood Bhai Goli Maar

Do”, nobody fired thereafter. PW8 in his cross examination dated

06.7.07 has, by saying that the police party had fired firstly in the air

two bullets, contradicted the version of PW12 and PW6 in this regard,

who had stated that first, terrorists fired on the police party and

thereafter SI Ravinder Tyagi and Const. Surender fired in the air.

This PW8 has also deposed in the same cross examination that after

they announced that they are police, accused persons did not fire,

which is highly unbelievable. Since the alleged terrorists were four in

number, the encounter should have been a fierce one lasting several

minutes and with injuries to one or more persons (either terrorists or

police personnel) as well as damage to any of the vehicles as the firing

would have been from close range. Nothing like this has happened

which shows that it is a totally imaginary or hypothetical story

conceived by the police to implicate the accused in a false case.

SC No.24/10. of 112

In re : vehicles i.e. Police Gypsy and Swaraj Mazda used by police to reach encounter spot

57. The police claim to have reached the encounter spot in

two government vehicles i.e. Police Gypsy DL1cg6431 and Swaraj

Mazda DL1LD1264. This claim is also falsified by the copies of

Log books of these two vehicles obtained by the accused under RTI

Act and proved as Ex.DW1/S. The entries in the Log book of Gypsy

vehicle on 01.7.05 show its travel on that day from P.P. Dhaula Kuan

to P.S. Najafgarh and back to P.P. Dhaula Kuan (Total 52 kms.). The

Log book further shows that this vehicle travelled 108 kms on 02.7.05

i.e. P.P. Dhaula Kuan to P.S. IGI Airport to P.S. Vasant Vihar to P.P.

Dhaula Kuan to Patiala House to P.P. Dhaula Kuan to P.S. Mayapuri

to P.P. Dhaula Kuan.

58. The Log book of Swaraj Mazda vehicle shows that it

travelled just 16 kms on 01.7.05 i.e. P.P. Dhaula Kuan to P.S. R.K.

Puram and back to P.P. Dhaula Kuan. These copies of the Log books

of the two vehicles have not been disputed by the prosecution.

Besides since the same have been furnished to the accused under RTI

Act, these cannot be doubted at all. As per the details mentioned in

these Log books, the two vehicles did not travel to the encounter site

SC No.24/10. of 112

at all on the night intervening between 01.7.05 and 02.7.05. The

places to which these two vehicles travelled on these two dates, as

noted hereinabove are other than the encounter site. This reinforces

the doubt against the genuineness of the encounter.

In re : Preparation of Rukka

59. As per the prosecution case and the testimony of various

PWs such as PW6, PW8 and PW12, ASI Nirakar sent Rukka

(Ex.PW12/A) at 4.12 a.m. to the P.S. Kapasahera through Const.

Surender for registration of FIR. PW12 has deposed that all the

writing work including preparation of Rukka was done by him while

sitting in the Govt. vehicle i.e. Maruti Gypsy, which had hard cop.

PW13 says that SI Rainder Tyagi (PW12) was preparing documents

while sitting in the Swaraj Mazda vehicle. PW8 contradicts both of

them by saying that paper work was done at a distance of 100 yards

away from the Randhawa Farm House. Had the said encounter been

genuine and the documents including rukka, in fact, prepared at the

spot, there would not have been such material contradictions in the

testimony of these witnesses regarding the manner, in which the

documents including rukka were prepared.

SC No.24/10. of 112

60. As mentioned earlier, SI Ravinder Kumar Tyagi was the

leader of the raiding team and everything was being done under his

directions. In his cross examination dated 09.4.08 he testifies as

under :

“First of all, I prepared the sketch of the pistol

Ex.PW12/C, recovered from accused Saqib Rehman @

Masood. Thereafter, the seizure memo of the same was

prepared. Thereafter, the seizure memo of cartridges

which were recovered from Nazir Ahmed Sofi was

prepared. Same is Ex.PW6/A. Thereafter, I prepared the

memo of cartridges recovered from accused Bashir.

Same is Ex.PW8/A. These are the same documents

which were prepared by me at the spot. I took about two

hours in preparing the aforesaid documents. These

documents were got prepared with the help of other

associates also. ASI Nirakar had prepared all the

abovesaid documents. I did not record the statement of

ASI Nirakar U/s.161 Cr.PC pertaining to the fact that the

aforesaid documents were prepared by him under my

supervision. I did not think it appropriate to mention this

fact in the memos. It is incorrect to suggest that I had

SC No.24/10. of 112

deliberately withheld this fact. After preparing the

aforesaid documents. I prepared the rukka and same is

Ex.PW12/DA. I did not record any case diary in this case

from the point of arrest of the accused persons as well as

the preparation of abovesaid recovery memos by ASI

Nirakar and the rukka. It is prima facie clear from these

documents that there is no description that these

documents were prepared by ASI Nirakar. Apparently, it

looks that these documents have been prepared by me. In

Ex.PW12/DA, it does not bear the testimony of “in the

hand of”. The rukka Ex.PW12/DA was drawn and

prepared by ASI Nirakar.”

61. It is utterly painful to note the aforesaid deposition of this

star witness of the prosecution and the leader of the raiding team. At

one place, he says, he prepared memos Ex.PW6/A and Ex.PW8/A but

at the same time adds that ASI Nirakar prepared all these documents.

Then he says that apparently it seems that these documents were

prepared by him and again adds that Rukka Ex.PW12/DA was drawn

and prepared by ASI Nirakar. A look at these three documents shows

that all of these have been prepared by SI Ravinder Tyagi and also

SC No.24/10. of 112

bear his signatures. It is difficult to believe that the leader of the

raiding party, who has prepared the Rukka does not remember that it

has been prepared by him and is so confused about the said fact. This

only shows that Rukka is a fabricated document and contains an

imaginary story.

In re : Arrival of IO SI Mahender Singh on spot

62. PW6, ASI Nirakar has stated in his cross examination that

SI Mahender Singh came to spot around 6 a.m. SI Mahender Singh

himself appearing as PW24 has deposed in his cross examination that

he left P.S. Kapasahera for the place of incident at 5.30 a.m. on

02.7.05, reached back P.S. Kapasahera at 10.45 a.m. but did not make

arrival DD entry, reached Hotel Baba Continental at 12 noon, left

from there at 1.30 p.m., went to Patiala House Court at about 3 p.m.,

from there took the accused to Safdarjung Hospital at about 5.30 p.m.,

reached back P.S. Kapasahera at about 9.30 p.m. or 10 p.m. when he

deposited entire case property recovered from spot as well as from

Hotel Baba Continental in the Malkhana. This whole story appears to

be totally fabricated and from being true in view of the records

maintained in the P.S. Kapasahera. The accused has proved a reply

dated 12.3.2010 received by them under RTI Act from Addl. DCP,

SC No.24/10. of 112

South West, New Delhi, at Ex.DW1/W, which shows that SI

Mahender Singh left the P.S. on 02.7.2010 at 6.35 a.m. and returned at

6.30 p.m. The departure entry has been shown as 7A and arrival entry

as 26A. The huge time difference implies that either the testimony of

PW24 is untrue or the DD entries are false, however, in both cases, the

prosecution story gets falsified.

In re : Site plan Ex. PW24/A

63. SI Mahender Singh has deposed in his examinationin

chief that at the instance of SI Ravinder Tyagi, he inspected the spot

and prepared the site plan Ex.PW24/A. It gives me intense pain to

note that the site plan is patently wrong. SI Mahender Singh has

admitted in his cross examination that the site plan may be wrong as

Randhawa Farm House has been shown on turning right from the

main road while coming for Gurgaon side, which is factually

incorrect. He has also shown the place in the site plan where

barricading had been done but admits that he did not see the place

where barricades were erected. He has prepared a rough site plan only

and admits that no scaled site plan was got prepared. There is no

explanation coming forth as to why was not scaled site plan of the site

of encounter got prepared when the whole case is based upon the so

SC No.24/10. of 112

called fierce encounter near Randhawa Farm House. It only makes it

evident that SI Mahender Singh did not visit the spot but prepared the

rough site plan on the basis of his imagination based upon the

dictation of SI Ravinder Tyagi. Definitely, a wrong site plan prepared

by the IO of the case makes the prosecution story only a figment of

imagination and unbelievable.

In re : recovery memos Ex.PW6/A and Ex.PW8/A

64. As per the testimony of PW6 and PW12, recovery memo

Ex.PW6/A was prepared in respect of recovery of 12 live cartridges of

7.62 bore in a transparent polythene bag from the personal search of

accused Nazir Ahmed Sofi. It is evident from the deposition of PW12

that these were recovered immediately after the apprehension of the

accused Nazir Ahmed Sofi and much before the registration of FIR.

In that case, the recovery memo should only mention the DD Number

on its top and not the FIR Number, whereas it mentions FIR No.

146/05 on its top, which, not only is surprising but also casts doubt on

the genuineness of the document. According to PW12, he prepared

these two recovery memos Ex.PW6/A and Ex.PW8/A (regarding

recovery of 35 cartridges of AK47 assault rifle from accused Bashir

Ahmed Shah). If that is so, then naturally, he would have signed these

SC No.24/10. of 112

two memos by the same pen and ink with which he wrote the same.

However, that is not the case here. Even a cursory look on these two

memos shows that pen and ink used in writing the same are markedly

different from the pen and ink with which these have been signed by

SI Ravinder Tyagi.

65. Further, it is shocking that the signatures of HC Raj

Kumar appear to have been fabricated on recovery memo Ex.PW8/A.

The signatures of this witness appear at point 'S1' on this document.

Though, he reiterated in his testimony before the Court that he has

signed the document Ex.PW8/A but could not say anything about the

signature at point 'S1' as the same is visibly different from his

admitted genuine signature on his deposition before the Court. It is

quite apparent that recovery memo Ex.PW8/A is not at all signed by

PW8 and same is a fabricated document. This document also bears

FIR No.146/05 at its top and not the DD Number, even though it had

been admittedly prepared before the registration of the FIR in this

case.

66. It may also be noted here that as per the FSL report filed

alongwith the supplementary Chargesheet, the 35 cartridges (Ex.A17

SC No.24/10. of 112

to Ex.A51) are of 7.62 bore which are used only in an SLR and not in

AK47 assault rifle. This is not a minor thing which can be ignored as

the police officers of the SI rank and conducting raid to nab dreaded

terrorists can't be believed to be ignorant about the size and nature of

bullets used in a SLR or AK47 assault rifle. These are major

contradictions and point towards the falsehood of the whole

proceedings.

In re : recovery of sketch of Palam Air Force Station

67. As per the case of prosecution a sketch of Palam Air

Force Station was recovered from the personal search of accused

Gulam Moinuddin Dar @ Zahid by SI Mahender Singh after his

arrival at the spot. SI Mahender Singh has reiterated the same in his

deposition as PW24. As noted earlier, PW24 reached the spot

allegedly around 6 a.m. and before that recoveries had been effected

by SI Ravinder Tyagi from the personal search of four occupants of

the Tata Indica Car including accused Gulam Moinuddin Dar. Then

how did this sketch could not be discovered by Ravinder Tyagi from

the personal search of accused Gulam Moinuddin Dar. Further, PW24

says that he recovered the sketch from the front pocket of the pant of

accused Gulam Moinuddin Dar. Then naturally, it should have been

SC No.24/10. of 112

folded two or three times before keeping it in the pocket. According

to this witness PW24, the sketch was double folded when it was taken

out from the pocket and its folded size was about 5 cm. X 3 cm. The

sketch has been proved as Ex.PM.

68. Patently, the sketch seems to have been planted upon the

accused. The same is on a ruled paper page of a register. Its

dimensions are 27 cms. X 17.5 cms. If it is folded longitudinally, its

size would be 13.5 cms. X 17.5 cms., which is much more than the

size mentioned by PW24. It is also apparent that it cannot fit into a

pant's pocket in double folded state. It has to be folded more than

twice to reduce it to such a size as to fit in the pant pocket. A look at

the sheet Ex.PM reveals that it has only one fold in the middle

longitudinally making it of the size 13.5 cms. X 17.5 cms. by which it

can never fit in the pant pocket without protruding out of it. Moreover,

it is matter of common knowledge that if a paper or handkerchief etc.

is kept in front pocket of pant, the same gets multiple folds when the

person wearing the pant sits down or folds his legs near hips. No such

folds can be seen on the sketch Ex.PM.

69. Be that as it may, it remains to be proved by the

SC No.24/10. of 112

prosecution that the handwriting on the said sketch is that of accused

Gulam Moinuddin Dar. No investigation has been conducted as to the

source from where did the accused get his sketch. No attempt has

been made to get the handwriting on it matched with that of the

accused. It is also admitted by PW24 in his cross examination that he

did not inform the authorities at the Palam Air Force Station about the

recovery of sketch to alert them about the threat to the station. What

about if a bomb or other explosive device had already been planted

there which could have triggered a big catastrophy. This shows either

the carelessness and in efficiency on the part of the IO or strengthens

the belief that the sketch has been deliberately planted upon the

accused. The latter seems to be more true in view of my foregoing

discussion.

In re : recovery of briefcase from Tata Indica Car

70. PW24 IO SI Mahender Singh, who reached the spot of

encounter in the morning of 02.7.05 at about 6 a.m. has deposed that

he searched the Indica car and found a grey colour briefcase on its

back shelf which was visible from the windshield from behind the car.

I wonder what SI Ravinder Tyagi and his raiding party was doing at

the spot till the arrival of SI Mahender Singh, when they could not see

SC No.24/10. of 112

the briefcase which was easily visible from the rear windshield of the

car. Is it that they became complacent after the recovery of catridges,

bullets, pistol, handgrenades etc. and completely forgot the car. What

if the car was full of explosives which could have burst at any

moment, killing all the members of the raiding party.

71. Further, it is evident from the testimony of PW24 that he

also did not make any honest and sincere effort to make any public

person witness to the recoveries made by him. He deposes in his cross

examination that he tried to have public witnesses but no such witness

was available at that time. In any opinion, that is not sufficient at all.

His further cross examination would reveal that he did not make any

attempt to contact any public witness. He admits that a petrol pump is

at a distance of 80 to 90 meters from the spot and the office of NSG is

located a distance of less than 100 meters from it. He also admits that

neither he went to these two places personally nor did he send any

Constable to call any public person from there to be the witness to the

recovery. A Hotel by the name Uppal Orchids is also situated at about

half a kilometer from this spot, as deposed by this witness himself, but

nobody was called from there also.

SC No.24/10. of 112

72. PW24 says that accused Gulam Moinuddin Dar told him

the lock code of the briefcase. But the same is not mentioned in any of

the disclosure statements of accused Gulam Moinuddin Dar.

73. This witness PW24, further testifies that after opening the

briefcase, he found one Army uniform and five packets of fake

currency notes of Rs.100/ denomination. According to him, accused

Gulam Moinuddin Dar told him that he purchased the uniform from

Gopi Nath Bazar, Delhi Cantt. He candidly admits that he did not

mention so in any of the statements recorded by him. He also did not

make any DD entry in this regard. Why? No explanation is coming

forward. PW24 has recorded the disclosure statement of accused Haji

Gulam Moinuddin Dar on 02.7.05 but nothing is mentioned in that

statement about the seizure of briefcase, the contents of the briefcase

and the source wherefrom he purchased the army uniform.

74. The police keeps quiet on this issue for about a week and

suddenly awakes from the slumber on 10.7.05 by recording third

disclosure statement of accused Gulam Moinuddin Dar disclosing that

he purchased the army uniform from M/s.South India Tailors, Gopi

Nath Bazar, Delhi Cantt. It is the case of prosecution that on the same

SC No.24/10. of 112

day, ASI Charan Singh alongwith some other staff went to Gopi Nath

Bazar in a government vehicle Swaraj Mazda bearing registration

No.DL1LD1264 to verify this disclosure. But interestingly, as per

the Log book of this vehicle for that day i.e. 10.7.05 (Ex.PW15/D1)

the said vehicle remained parked at the police station throughout the

day.

75. In this regard, Sardar Gurcharan Singh, who works in the

said shop, has been examined as PW1. His testimony clearly indicates

that he has been a stock witness for the police and he gave false

evidence at the behest of the police. He deposed in the examination

inchief that accused Gulam Moinuddin Dar, present in court,

purchased an Army Combat uniform from his shop for Rs.600/ or Rs.

650/ and also identified the same when shown to him in Court. He

also deposed that the said accused Gulam Moinuddin Dar again came

to his shop on 10th (he did not remember month & year) alongwith

police officers, obviously referring to date 10.7.05 when ASI Charan

Singh allegedly visited his shop alongwith the accused. However, in

the cross examination, he deposed that uniforms are made after

receiving the order and the measurements given by the person

concerned. At the same time says that uniform sold to accused Gulam

SC No.24/10. of 112

Moinuddin Dar was a readymade one. He further says that he does not

have a regular shop and carries on his business on pavement outside a

shop but did not tell the shop number. He admitted that police and

MCD authorities used to remove their goods for removing the

encroachment on the public land/pavement, several times his goods

were also removed by police/MCD officials, he does some jobs at the

asking of police and MCD officials in order to keep them happy as he

does not pay 'hafta' to them. At another place in cross examination, he

says that he was called to the police post Dhaula Kuan by the police

officials on 10th and accused Gulam Moinuddin Dar was present there.

76. It is quite apparent from the testimony of this witness that

he was called to police station on 10th July, 2005 by employing

coercion and made to sign certain documents there. He is certainly a

planted witness, who is used by police for their vested interests

whenever the occasion arises. I have no hesitation in discarding his

evidence in toto.

77. If, in fact, this witness had sold the army uniform to the

accused Gulam Moinuddin Dar, he would have been booked for

selling an Army uniform to an unidentified person illegally.

SC No.24/10. of 112

78. Thus, it is evident that the briefcase as well as its contents

have been planted by the police themselves and no such thing was

recovered from the accused. It is for this reason, SI Ravinder Tyagi

did not see the briefcase in the car during the whole night and the

disclosure statement of accused Gulam Moinuddin Dar in this regard

was recorded on 10.7.05, after seven days of his arrest, till the

contents of the briefcase were arranged and stock witness found.

In re : Tata Indica Car HR26S0440

79. The case of the prosecution is that the aforesaid car in

which the four so called terrorists were caught at Kapasahera

alongwith arms and ammunition belonged to one Sh. Azad Singh

Yadav, who had given the said car on rent to a person namely

Surender Kumar, who misappropriated the same. It is further case of

prosecution that the actual registration number of the said vehicle is

HR51M6358 and the same was wanted in case FIR No.527/03, U/s.

406 IPC, P.S. Pandav Nagar. It is also the case of prosecution that the

four accused apprehended in the encounter at Kapasahera has got the

said car from one Sakir Khan at Srinagar (J&K) and they brought the

same from Srinagar to Delhi. Azad Singh is said to have identified the

SC No.24/10. of 112

said Car by having a glance at it while passing in front of the P.S.

Kapasahera where the same was parked. When he came to the P.S., a

few days later, his statement U/s.161 Cr.PC was recorded and he also

handed over the photocopy of the RC of his Car bearing No.

HR51M6358 and copy of FIR No.527/03. The FIR No.527/03 has

been registered on 07.10.03.

80. It is evident from the record that Azad Singh Yadav

purchased the Tata Indica Car in May, 2003 and in the same month

gave the same to Surender Kumar on rent but he misappropriated the

same and did not return the same to Azad Singh. It is mentioned in

the statement of Azad Singh recorded U/s.161 Cr.PC. However, the

RC of the vehicle shows that it was registered at the Faridabad

Transport Authority on 08.7.03 in the name of Azad Singh. As per the

relevant rules, a vehicle is produced before the registering authority

for inspection at the time of its registration. When the car was got

misappropriated in the month of May, 2003, how could the same be

registered on 08.7.03. What was inspected by the registering authority

at that time and how the authority gave a registration number to the

vehicle. The original record of the authority was produced before the

police by Sh. Pratap Singh, Record Clerk.

SC No.24/10. of 112

81. This goes on to show that Azad Singh never gave the said

car to Surender and it was never misappropriated. The same remained

throughout in the custody of Azad Singh. He got the same registered

on 08.7.03 and thereafter made the same available to the police and

was planted upon the accused.

82. It is also shocking to note the FIR No.527/03 U/s.406 IPC

has not been got registered by Azad Singh. In fact, same was lodge at

the behest of one Mrs. Sneh Lata Sukhija against Sh. S.K. Sharma for

misappropriation of her Maruti Esteem Car No.DL7CC6679. The

FIR No.527/03, P.S. Pandav Nagar, does not relate to any Tata Indica

Car. Therefore, it turns out to be an imagination of the mind of SI

Mahender Singh only that the Tata Indica Car allegedly seized during

raid was the subject matter of FIR No.527/03. The DCP (East) also

informed the accused in reply to a query in this regard under RTI Act

that Tata Indica Car bearing registration No.HR51M6358 is not

wanted in FIR no.527/03, P.S. Pandav Nagar.

83. Azad Singh Yadav appearing at PW3 also states in his

examinationinchief that he has never lodged an FIR in connection

SC No.24/10. of 112

with the theft or misappropriation of his car, which is involved in this

case. He has not produced any document to show that he gave the

said car on rent to any Surender.

84. PW24 SI Mahender Singh has also deposed in his cross

examination that complaint pursuant to which FIR No.527/03

registered in P.S. Pandav Nagar was filed by Ms. Sneh Lata Sukhija

and the same was in respect of Maruti Esteem and not in respect of

Tata Indica. He further admits that he did not examine Smt. Sneh Lata

nor did he try to trace out her and that Sneh Lata was not a relative of

Azad Singh Yadav. This is also manifest that Tata Indica Car belongs

to Sh. Azad Singh Yadav was neither stolen nor misappropriated by

Surender.

85. A General Power of Attorney dated 23.8.04 has been

filed on record by the prosecution (though not proved) as per which

Sh. Azad Singh Yadav allegedly sold aforesaid Tata Indica vehicle

bearing No.HR26S0440 to one Masood Ahmed Shah, son of Sh. M.

Rehman Shah, resident of Srinagar. The power of attorney is

notorised one, typed on two stamp papers of Rs.10/ each, which has

been purchased from a stamp vendor at Asaf Ali Road, Delhi. It bears

SC No.24/10. of 112

the signature of Sh. Azad Singh as the executant and does not bear the

signature of attorney at all. One Pradeep Kumar and Sonu Dabas are

shown to have witnessed the execution of this GPA. PW24 SI

Mahender Singh has stated in his cross examination that he did not

make any investigation about Masood Rehman and candidly admitted

that he cannot give any reason as to why no efforts were made to trace

out Masood Rehman, in whose favour the said GPA was. He also

admitted that he did not try to verify the contents of GPA, he did not

collect any stamp paper of Rs.10/ available in the market in the year

2004 so as to compare it with the stamp paper on which the GPA is

written, he did not make any attempt to ascertain whether stamp

paper, on which the GPA is typed is genuine or not and whether or not

notarial stamp affixed on the GPA was genuine, he also did not try to

interrogate the stamp vendor from whom the stamp papers are

allegedly to have been purchased or the typist, who typed the same.

He states that he tried to trace the witness Pradeep Kumar and Sonu

Dabas, but their addresses were found to be wrong. However, at the

same time, he states that he did not record the statement of anybody in

this regard nor he mentioned so in the Case Diary.

86. At other place in the cross examination, which was

SC No.24/10. of 112

conducted on 27.9.2010 SI Mahender Singh has admitted the

suggestion that he did not find any document in the Tata Indica

vehicle showing that it was purchased, rented or stolen by accused

SaqiburRehman.

87. It is also the case of the prosecution that the four accused

have been staying in Hotel Baba Continental, Karol Bagh, for quite

some time before they were caught with arms and ammunition in the

raid near Kapasahera border. However, PW24 SI Mahender Singh has

himself admitted in his cross examination that no person from Baba

Continental made the statement that the accused persons parked the

car in the hotel premises or used to travel in the Tata Indica Car. Had

the car been, in fact, got by accused in Srinagar and brought to Delhi,

they would have definitely parked the same in the parking of Hotel

Baba Continental, where they were allegedly staying and the hotel

staff would have seen them using he said car. Moreover, the said car

was not handed over to the concerned police station within the

jurisdiction of which, case regarding its theft and misappropriation

had been going on but was permitted to be released on Superdari vide

order dated 29.9.05 by Sh. Virender Kumar, Ld. M.M., New Delhi.

Perusal of the said order reveals that the police did not even bother to

SC No.24/10. of 112

appear and contest the application for Superdari submitted by Azad

Singh Yadav. It was obligatory upon IO SI Mahender Singh to appear

before the Ld. Magistrate to apprise him that the car was used in the

commission of a henious crime and is needed in the proceedings of

this case.

88. It is amply clear from the aforesaid discussion that Tata

Indica Car was planted and merely used as a tool to falsely implicate

the accused persons in this case.

In Re. : Recovery of mobile phones from the accused during the raid.

89. A mobile phone each is alleged to have been recovered

from accused SaqiburRehman and from Gulam Moinuddin Dar,

which they were using to converse with their associates for the

commission of crime. PW24 SI Mahender Singh has admitted in his

cross examination that he did not inquire even from accused Saqibur

Rehman or Gulam Moinuddin Dar about the SIM number of their

mobile phones. He also admitted that he did not collect the phone call

details made from each mobile phone or the location of their Towers,

SC No.24/10. of 112

he did not verify the phone calls made from these mobile phones as he

did not deem it necessary despite the accused persons being labelled

as terrorists. The explanation given by this witness is that he did not

deem it necessary to collect the phone call details as the accused

persons had disclosed the names of their associates in their disclosure

statements. The explanation is, however, totally unworthy of reliance

as it was the duty of the Investigating Officer to collect the phone call

details of the mobile phones to ascertain the correctness or otherwise,

of the disclosure statements made by the accused. Apparently, no

investigation has been made in this regard for the reason that the

mobile phones also have been planted.

In Re. : Deposit of recovered articles in Malkhana

90. PW24 IO SI Mahender Singh has deposed in his cross

examination that he left the spot of raid on 02.7.05 at 10.30 a.m. and

reached back police station Kapasahera at 10.45 a.m., but he did not

make any arrival entry as investigation was under progress.

Obviously, he was having alongwith him all the material allegedly

recovered from the accused including the cartridges, pistols, bullets

etc. etc. He does not deposit this material in the Malkhana. This is

SC No.24/10. of 112

apparent from the statement of PW25 HC Suresh Kumar, who was

working as a Munshi to MHC(M) HC Ravinder of P.S. Kapasahera on

02.7.2005. He has proved photocopy of the relevant pages of the store

room register as Ex.PW25/A, which though does not bear the time, on

which the seized articles were deposited therein, but reveal that certain

seizure articles have been deposited by SI Ravinder Singh, who was

not the IO of the case and who had entrusted all the seized articles to

SI Mahender Singh and, therefore, could not have deposited the same

in the Malkhana. Further, the articles/goods seized in Hotel Baba

Continental from the rooms of the accused later in the day have been

shown to have been deposited first and the articles allegedly recovered

from the spot of raid have been shown to have been deposited

subsequently. Strangely, the MHC(M) has not been examined and in

his place Munshi has been examined, who has stated in his cross

examination that none of the pullindas was deposited with him and he

only made entries. He further deposed that he did not know the time

when he made the entries. He further stated that the entries in

Register No.19 are verified by SHO, but in the present case, there are

no remarks of the SHO having been verified the entries. Even no

explanation has been put forward by the prosecution for not

examining MHC(M) HC Ravinder of P.S. Kapasahera. Apparently,

SC No.24/10. of 112

this has been done to cover up the planted recoveries which at no

point of time were deposited in the Malkhana.

In re:Press Conference held on 02.7.05 at the office of Special Staff, Dhaula Kuan.

91. It was submitted by the Ld. Defence Counsels that the

accused were kept in the office of Special Staff, Dhaula Kuan

throughout the night intervening between 01.7.05 and 02.7.05 and at

11 a.m. On 02.7.05, a press conference was arranged wherein the

accused were shown with the planted material and it was represented

to the media that in a fierce encounter, Kashmiri terrorists have been

apprehended alongwith arms and ammunition. A copy of the

newspaper 'Jansatta' (Hindi Edition) dated 03.7.05 showing the

photograph of all the accused alongwith allegedly seized material has

been proved on record as Ex.PW12/DX.

92. Replying to questions in this regard, PW12 SI Ravinder

Tyagi has said in his cross examination dated 03.10.09 that he does

not know if he had produced accused persons before Media in a press

conference on 02.7.05 at 10.30 a.m. He admitted that the newspaper

reporting Ex.PW12/DX pertains to press conference held on 02.7.05

SC No.24/10. of 112

wherein his photograph appears at point A alongwith accused persons.

93. As per the deposition of PW24 SI Mahender Singh, he

took the accused alongwith him from the encounter site to P.S.

Kapasahera at 10.45 a.m. And from there he reached Hotel Baba

Continental, Karol Bagh, at 12 noon, left from there at 1.30 p.m. for

the Patiala House Courts. In his cross examination, he firmly denied

that any press conference was held after the arrest of accused on

02.7.05 between 10.30 a.m. to 11 a.m. at Police Headquarter, ITO. He

says that photograph of the accused appearing in Ex.PW12/DX must

have been taken at the time of taking their fingerprints.

94. PW22 ACP R.P. Meena has deposed that press

conference regarding the arrest of four accused was held by DCP but

did not recollect the place where it was held. He did not admit or

deny that he took part in press conference held at Police Headquarter

on 02.7.05 between 10.30 a.m. and 11 a.m., which is a vague

statement.

95. From the deposition of PW12 and PW22, it is manifest

that the accused were produced before the media soon after their

SC No.24/10. of 112

alleged arrest on 02.7.05 at about 10.30 a.m. in Police Headquarter,

ITO, alongwith alleged seized material. This belies the deposition of

PW24 that he left encounter spot alongwith accused on 10.45 a.m. and

reached Hotel Baba Continental at 12 noon. The ignorance of PW24

about the press conference shows that he was made a puppet I.O. later

on and the pivotal role in whole proceedings dated 02.7.05 was played

by SI Ravinder Tyagi.

In re : Hotel Baba Continental, Karol Bagh

96. It is the case of the prosecution that the accused Gulam

Moinuddin Dar and SaqiburRehman were staying in Hotel Baba

Continental for a long period before they were allegedly arrested in

raid on 02.7.05 near Kapasahera Border alongwith their two other

associates Bashir Ahmed Shah and Nazir Ahmed Sofi. Though, as

admitted by PW24 in his cross examination that he did not record any

disclosure statement of accused in this regard, still SI Charan Singh

(PW12) and SI Mahender Singh (PW24) went to the said Hotel

alongwith the four accused for further investigation on 02.7.05 itself

during the day.

97. PW13 says in his examinationinchief says that from the

SC No.24/10. of 112

Manager of the Hotel Ajay Tomar, they came to know that room nos.

102 and 206 were occupied by these four accused, these two rooms

were got opened and one suitcase containing clothes and daily use

items belong to accused Bashir Ahmed Shah were recovered from

room no.206, one suitcase make VIP and one raxine bag containing

clothes and daily use items of Gulam Moinuddin Dar from same room

and another rexine bag containing clothes and daily use items of

SaqiburRehman from room no.102 were recovered and seized vide

memos Ex.PW13/A, Ex.PW13/B and Ex.PW13/C respectively.

98. As per seizure memo Ex.PW13/A following articles were

found in the suitcase belonging to Bashir Ahmed Shah recovered from

Room No.206:

1. One small Bag having metal coins, total value Rs.632/ &

Four Nepal coins.

2. One Shaving Kit Bag.

3. Two Magzines.

4. One Mobile Phone Charger.

5. One Mobile Phone Cover Black.

6. Some pairs of daily use wearing apparels etc.

SC No.24/10. of 112

99. However, when the said suitcase was opened in Court

during the deposition of this witness, much more was taken out from it

such as some old clothes, one phone charger make Nokia, one small

Mehroon colour raxine bag, one ear phone cum speaker, one mobile

phone cover, one belt buckle, one small lock with two keys, four small

soap cakes, one match box, one magazine Competition Success

Review (CSR) May, 2005, four small booklets of CSR, one CD of

Movie Munna Bhai MBBS, one invoice dated 14.05.2005 of two air

tickets air Sahara in the name of Mr. Shah/BR and Mrs.

Nazneen/Reyaz from Banglore to Delhi dated 14.05.2005 with

corresponding receipts, one pamphlet of Doctor Batra in the name of

G.M Dar, one more pamphlet of Doctor Batra in the name of G.M Dar

and envelope, one pamphlet of Akbar Travels with something written

in pen, many restaurants bills, one Doctor Batra's Care therapy

booklet, one carbon copy of registration form of Doctor Batra in the

name of G.M. Dar, one envelope containing some medicines and one

newspaper advertisement of Doctor Batra and other papers of Doctor

Batra's clinic with one receipt dated 16.06.2005 in patient name Mr.

Dar GM and one paper bag, one small stapler and one Reebok pouch

containing coins amounting to Rs.632 and four Nepalese coins.

SC No.24/10. of 112

100. Similarly, according to seizure memo Ex.PW13/B

following items were found in suitcase and raxine bag of Gulam

Moinuddin Dar :

1. Four Shaving Kits.

2. Two Powder boxes.

3. Three pairs of shoes.

4. One pair of Chappals.

5. One small black colour bag.

6. One mobile phone's box containing one Mobile Phonemake Nokia Model No.6670 with Mobile Phone withMobile Charger with Computer Lead.

7. Two Flutes.

8. Two pair of daily wearing apparels.

101. However, when these were opened in Court during the

testimony of this witness, these were found containing three pairs of

shoes, three plastic pouches containing daily use items, two powder

boxes, one handkerchief box, one cardbox of Nokia phone containing

a Nokia phone6670 with its accessories and bill dated 3.5.2005, some

clothes, some negatives and some papers such as visiting cards,

platform ticket of New Delhi Railway Station, one air Sahara Booklet,

SC No.24/10. of 112

one colour plus tag with something written on it, one Nokia1100

phone bill in the name of G M Dar, one Sanjeevan Hospital Casualty

slip in the name of GM Dar dated 23.9.2004, two letters written to the

Under Secretary, Election Commission on the letterhead of Haji

Moinuddin Dar dated 20.10.2004 and 28.10.2004, one booklet of Pore

Clingers, one carbon copy along with two photocopies of a complaint

to Mandir Marg PS regarding missing of one mobile phone dated

19.9.2004, negatives kept in a envelope Tulsiyan Colour Lab, Patna, a

notice issued by Under Secretary, Election Commission dated

24.8.2004 and some old clothes in the main chamber. In the one side

pocket there is a black colour small raxine bag which contains some

papers viz pamphlets of Nokia, jet Airway, Berkowits, an IDEA

booklet with its cover, some visiting cards, some tissues etc of jet

airways, one receipt of RBS Travels in the name of Bashir Ahmed

dated 10.4.2005, one receipt of Berkowit in the name of J M Dar,

some hand written slips, one receipt executed by one Inder Singh

dated 10.11.2003 of Rs.1,50,000/, one receipt of J & K Board for

specified Wakf properties, a pamphlet of NYTE Medicine, three

tablets of Cetamol, one bank receipt dated 15.6.2005 of J& K Bank

in token of issuance of bank draft of Rs.20,000/, one appointment

letter in the name of Ghulam Moinuddin Dar as Election Agent dated

SC No.24/10. of 112

29.4.2004 and one computer Bar Code, a currency note of Rs.500/

and one booklet of Nokia1100 phone, a phone bill of the same phone

dated 9.4.2005, four tablets Lomotil and one air ticket counterfoil of

Jet Airways flight dated 4.4.2005 from Sri Nagar to Jammu in name of

SHAH/BA MR and one tag and cash receipt of Red Tape/Wings

shoes.

102. Seizure memo Ex.PW13/C shows that following articles

were recovered from the raxine bag belonging to SaqiburRehman

and recovered from room no.102 :

1. One Telephone Diary.

2. One black polythene containing Cosmetics items.

3. Some pairs of wearing apparels.

4. One Shaving Kit.

103. However, when the same was opened during the cross

examination of this witness in court, it was found containing one red

colour pouch(shaving kit), four magazines i.e. two “Nepal Travel

Trade Reporters” , one “BOSS” in flight magazine and one “Casino

Times” magazine(printed from Kathmandu), some photographs of

SC No.24/10. of 112

accused Saquib Rehman kept in a photo Album of Citi Top Colour

Lab Pvt Ltd, Kathmandu, Nepal, one brochure of Hundai Electronics

with some pamphlets, one black pen, one black polythene containing

goggles in black colour case and some cosmetics, one planner diary

2004, one photograph kept in an envelope, one Alisha spiral note

book, large number of STD phone booth receipts some of which are

from Nepal to India, four ATM withdrawal slips, one of Nepal

Investment bank, one of HDFC bank and two of SCT Network ATM,

some visiting cards, many hand written slips/papers, one currency

note of Rs.100 denomination cut into half in a pyramid shape, one

small wooden like beads mala and some old clothes.

104. This shows that these seizure memos do not reflect the

true state of things and the contents of these are imaginary. This gives

us the vivid glimpse of the investigation carried out in this case was

totally manipulated and motivated.

105. Now, does mere recovery of the aforesaid bags from the

Hotel establish that all the accused were staying in the said Hotel?

This witness PW13 has deposed in his cross examination that SI

Mahender Singh did not request any other guest or employee of Hotel

SC No.24/10. of 112

to join the investigation. He admits that they did not collect any bills

regarding eatables, telephone calls, room rent etc. from the hotel,

which would have shown that these accused, in fact, stayed in the

Hotel. He also admits that the accused were not asked to try the

clothes found in the bags to find whether those belonged to them.

106. Regarding the recovery of aforesaid suitcase and bags

from room nos.206 & 102 of the Hotel, PW24 has reiterated in his

examinationinchief, what PW13 had said.

107. Sh. Ajay Tomar, the owner of the Hotel has been

examined as PW2. In his examinationinchief, he states that accused

Gulam Moinuddin Dar came to his Hotel on 04.4.05 and stayed in

room no.302, he came again on 15.4.05 and stayed in room no.204

alongwith three other persons namely Nazir, Masood and Zahid. On

02.7.05 police officer again brought all the four persons to hotel. He

stated that he can identify all those four persons but could only

identify accused Gulam Moinuddin Dar by putting his hand on him.

He identified accused Abdul Majid Bhat as Nazir Ahmed Sofi and

further stated that he cannot identify the other two pesons on account

of lapse of time. He proved the relevant pages of the Hotel registr as

SC No.24/10. of 112

Ex.PW2/A, Ex.PW2/B and Ex.PW2/C.

108. Perusal of the documents Ex.PW2/B and Ex.PW2/C

reveal that accused Gulam Moinuddin Dar had booked room no.206 in

this hotel on 14.6.05. It does not mention name of any other person.

It also reveals that room no.102 was booked by one Gazi Ahmed Mir

on the same day i.e. 14.6.05.

109. It becomes apparent from the deposition of PW2 and

documents Ex.PW2/B and Ex.PW2/C that only accused Gulam

Moinuddin Dar was staying in this hotel in room no.206. Then how

and why was room no.102 raided by police is not discernible. It is not

clear from the testimony of PW2 that till when did accused Gulam

Moinuddin Dar stay in the Hotel. Ex.PW2/B shows duration of stay

as one day in column no.10 but no date of departure is mentioned in

column no.14.

110. PW24 has testified in his cross examination dated

30.8.2010 in this regard as under :

“I do not remember whether the room no.102, at Baba

SC No.24/10. of 112

Continental, Karol Bagh, from where goods of accused

Saqib Rehman and Nazir Ahmed were recovered, was

taken by Gazi Ahmed Mir. The witness has been shown

the extract of the register alleged to be taken into

possession from Baba Continental, but the witness says

that he cannot say as to whose signature appear against

entry at Room No.102. I cannot say whether the signature

are one of the accused or not. I had not verified from the

Hotel authorities or the Manager as to whose signature

appear regarding hiring of Room No.102. Volunteered :

as per the statement of the Manager, Saqib Rehman and

Nazir Ahmed were also staying in the said room. I had

not made any inquiry as to under what capacity these two

accused persons were residing in the said room. I had not

made any inquiry as to who had made the booking of the

said room. I had not made any inquiry as to the name of

the person, under whose name the room was booked. I

had not taken any action against the Manager or the

owner of the hotel for not filling the due particulars in the

register to be maintained in accordance with rules and

regulations. It is correct that it is mandatory for a hotel to

SC No.24/10. of 112

mention the name and address of the person, in whose

name the room is booked and even to keep a photocopy of

the identification of the said person after verifying it from

the original. I had not sent the entries in the hotel register

to FSL to ascertain as to whether or not it bears the

signature of any of the accused. It is correct that at entry

at Srl. No.567 of Ex.PW2/B and Ex.PW2/C i.e. extract of

register of Hotel Baba Continental, Gazi Ahmed Mir, son

of M. Ramzan Mir, book room no.102, on 14.6.2005. It is

correct that the date on which said person left is not

mentioned, though the signature regarding departure are

there. It is correct that time of arrival of Gazi Ahmed Mir

is not mentioned in the register, which is so mentioned in

the other entries. As per the statement of the Manager,

the accused persons used to visit the hotel on daily basis.

They had visited the hotel also on 1.7.2005. I do not

know at what time, Hotel Baba Continental was visited by

the accused persons. I have no knowledge whether the

hotel owner made any complaint with P.S. Karol Bagh

that his guests are missing. I have also no knowledge as

to who had made the payment of the hotel bill or to what

SC No.24/10. of 112

extent. I have not made any inquiry in this regard from

the hotel. Hotel Manager did not tell me that there is any

due from the persons, who had made the bookings. I had

not collected the bills regarding room service. I do not

have any knowledge that at the time of room service, the

bill is got signed from the occupant. No bill signed by

Saqib Rehman or Nazir Ahmed was ever seized. I had

not obtained the copy of the payment register nor have

collected any sort of bills.

I had not made any inquiry regarding hiring

of taxi service by the accused persons from the hotel. I

had not collected the details of phone call made from the

rooms, where accused persons were allegedly staying. I

had not obtained the copy of the guest register or the

particulars of the guest, who used to come to meet the

accused persons.”

111. Evidently no investigation has been carried out regarding

Gazi Ahmed Mir, in whose name room no.102 was booked, who

stayed in that room and for how many days and what was his real

identity, if any at all. Why was room no.102 opened and how were

SC No.24/10. of 112

the goods of accused SaqiburRehman recovered from there is not

understandable. Neither did the PW2 produce nor did the police seize

any bills regards foods, room rent etc., which may show that all the

four accused stayed in this Hotel till 01.7.05.

112. This only lends credibility to the version of these four

accused that they were apprehended alongwith Gazi Ahmed Mir and

kept in illegal custody in the Hotel since 16.6.05.

In Re. : Recoveries effected and arrest made in Kashmir

113. The next destination of the police was Kashmir as

according to its story, accused had disclosed that they would get their

associates arrested in Kashmir and would also get various types of

arms and ammunition recovered from there hide outs in Kashmir.

Investigation carried out in Kashmir were pursuant to the belief and

assumption that the four accused Gulam Moinuddin Dar, Saqibur

Rehman, Nazir Ahmed Shah and Bashir Ahmed Shah were terrorists

and had been apprehended alongwith arms and ammunition in a raid

near Kapasahera border. Since in view of the foregoing paragraphs of

this judgment, it gets established that no raid at all was conducted by

the Delhi Police, neither the four accused were apprehended in any

SC No.24/10. of 112

such raid near Kapasahera border nor was any material like arms and

ammunition recovered from them and the whole story regarding such

raid is absolutely false and fabricated, the necessary corollary should

be that investigation in Kashmir were also farce and moonshine.

Investigations were conducted in Kashmir just in order to plant more

incriminating material upon the accused and to make the theory of

raid watertight but alas! the police has here also failed in its attempt

as is reflected by the deposition of various witnesses, who had gone to

Kashmir.

114. According to the prosecution case, investigation of this

case regarding Kashmir part were handed over to PW13 ASI Charan

Singh on 03.7.05 and he interrogated accused SaqiburRehman and

Haji Gulam Moinuddin Dar, recorded their disclosure statements

Ex.PW13/D1 and Ex.PW13/D2. In pursuance to the said disclosure

statements, he alongwith SI Ravinder Tyagi, HC Ombir and Const.

Zafar Khan as well as other staff left for Srinagar in two private hired

vehicles. They reached Srinagar on 04.7.05 in the evening at about

6/7 p.m. and stayed in Hotel International. As per the disclosure

statement Ex.PW13/D1 Haji Gulam Moinuddin Dar is alleged to have

disclosed that he had been sending secret information to ISI agency of

SC No.24/10. of 112

Pakistan alongwith his two associates Mustaq Ahmed Bhat son of late

Sh. Abdul Gani Bhat, resident of Zewan, Pantha Chowk, Srinagar,

and Abdul Mazid Bhat, son of Sh. Wali Mohd. Bhat, resident of

Zewan, Pantha Chowk, Srinagar, and the arms recovered from him

were given to him by these two persons after receiving the same from

ISI agency of Pakistan. He has also alleged to have disclosed that

aforesaid Mustaq Ahmed Bhat and Abdul Mazid Bhat belong to Al

Umar Group and all of them together are working for ISI agency of

Pakistan.

115. I find the aforesaid disclosure of Haji Gulam Moinuddin

Dar quite a revealing one, which would have provided leads to the

Central Intelligence Agencies like CBI and RAW in nabbing the ISI

agents working in Kashmir and other parts of India. I fail to

understand why ASI Charan Singh did not realise the value and

importance of the aforesaid disclosure statement of accused Haji

Gulam Moinuddin Dar, so far as the security and integrity of our

country India is concerned. It is not understandable why he did not

pass on this information to CBI and RAW for further action at their

end. Since that has not been done, only logical conclusion could be

drawn is that the disclosure statement in whole is false and fabricated.

SC No.24/10. of 112

116. Accused SaqiburRehman is alleged to have disclosed in

his disclosure statement Ex.PW13/D2 that one Abdul Qayoom, who is

employed as Deputy Director in Horticulture Department, J&K,

Srinagar, is also working alongwith them for ISI agency of Pakistan.

117. So, ASI Charan Singh and his party reached Kashmir on

04.7.05 to apprehend Mustaq Ahmed Bhat, Abdul Mazid Bhat and

Abdul Qayoom. ASI Charan Singh (PW13) has stated in his

examinationinchief that on 05.7.05 they made search for Adbul

Qayoom and other accused persons, but they could not be traced on

that day, they deputed informer for tracing these two persons and

ultimately, Abdul Qayoom was arrested from his house No.242, Yaar

Wali Colony, Srinagar, on 07.7.05 at the instance of Saqibur

Rehman. When asked in his cross examination as to what they were

doing on 05.7.05 and 06.7.05, PW13 answered that they did not do

anything else except whatever stated by him in his examinationin

chief. He further stated that during the day time on 06.7.05 they had

checked the house of Abdul Qayoom, but he was not found there. He

also stated that they did not take help of local police prior to 06.7.05

and they did not make any entry at P.S. Sadar, Srinagar, on any day

SC No.24/10. of 112

during their stay in Srinagar.

118. Neither PW13 nor PW12 ASI Ravinder Tyagi has

explained as to why Abdul Qayoom was not arrested from his office

when they had the official address and his designation with them as

disclosed by SaqiburRehman in his disclosure statement. Some fake

currency is alleged to have been recovered at the instance of Abdul

Qayoom, but again there is no public witness to such recovery. When

asked reason for the same, PW13 in his cross examination states that

one or two persons from the locality were requested to join the search

and seizure, but they did not join due to language problem. He also

admits that he did not mention this fact in the Case Diary. He admits

that accused SaqiburRehman and Haji Gulam Moinuddin Dar were

Kashmiries and were conversant with Kashmiri language and states

that they did not request these two accused to converse with

inhabitants of the locality in Kashmiri language to request them to join

the proceedings. This raises serious doubt regarding genuineness of

the recovery made at the instance of Abdul Qayoom. It may also be

noted that PW13 has deposed in his cross examination that SHO, P.S.

Sadar, had directed one Constable to accompany them to raid the

house of Abdul Qayoom. Therefore, that Constable could have been

SC No.24/10. of 112

made a witness to the recoveries effected in the house of Abdul

Qayoom. But interestingly, instead of that police Constable from P.S.

Sadar, ASI Charan singh chose his own staff i.e. Const. Zafar to

remain a witness to the seizure memo.

119. About 10 UBGLs and some assault rifles are stated to

have been recovered from the house of accused SaqiburRehman in

Srinagar on 08.7.05. PW13 has admitted in his cross examination that

the house of accused SaqiburRehman is at a walking distance from

the house of Abdul Qayoom. Both are situated in different lane of the

same locality. So, when the police reached the house of Abdul

Qayoom on 06.7.05 and 07.7.05, in his search, he would have

definitely alerted the family members of accused SaqiburRehman

and they would have concealed the arms and ammunitions stored in

the house. It is for the reason that as per the prosecution case itself,

accused SaqiburRehman and Abdul Qayoom were associates of each

other working for ISI agency of Pakistan. However, as per the police

theory, when raid was conducted on the house of SaqiburRehman on

08.7.05, arms and ammunitions were found there and recovered. I

find same logically and practically false and impossible. It may also

be noted here that PW15 Const. Zafar Khan has stated that no efforts

SC No.24/10. of 112

were made on 07.7.05 to associate neighbours of accused Abdul

Qayoom in the investigation. He has deposed that the disclosure

statement of Abdul Qayoom Ex.PW13/H was recorded at his house on

07.7.05 whereas PW13 states that the same was recorded after his

arrest in the hired vehicles parked outside the police station Sadar,

Srinagar. These are the material contradictions in the deposition of

the two witnesses, which go on to demolish the prosecution case in

this regard.

120. It seems that whatever has been done in Kashmir has

been kept heavily guarded secret by Delhi Police. It was incumbent

upon the police party led by ASI Charan Singh to inform their

counterparts in J&K police about the purpose of their arrival and

associate the local police in the raid. I wounder why that has not been

done. The answer to the same is that in fact, no recoveries were

effected in Kashmir and same have been planted later on and for these

reasons, local police was not associated in the investigation in the

Kashmir.

121. The another fact remains that nothing was discovered by

the police party in Kashmir in respect of Mustaq Ahmed Bhat and

SC No.24/10. of 112

Abdul Mazid Bhat and they had to return empty handed in this regard.

Abdul Mazid Bhat is alleged to have been arrested later on from

Paharganj, New Delhi, opposite Railway Station on 11.7.05. Three

detonators are alleged to have been recovered from his travel bag. As

per testimony of PW13 a train ticket from Chakki Bank to New Delhi

and Rs.1,250/ was recovered from the personal search of Abdul

Mazid Bhat at the time of his arrest. The train ticket, which could

have established that accused Abdul Mazid Bhat had in fact, travelled

from Chakki Bank to New Delhi and was present in New Delhi at the

relevant time has neither been deposited in the Malkhana nor has been

produced by the police in Court, which raises a grave suspicion about

the manner, place and time of arrest of this accused Abdul Mazid

Bhat. Again no public person was made a witness to the arrest and

search of Abdul Majid Bhat despite the fact that he was arrested from

a crowded area like Paharganj, New Delhi. Even no efforts were made

to rope in any respectable person of the area for the said purpose.

122. Same can be said regarding 102 UBGL/handgrenades and

wireless set recovered from house of Gulam Moinuddin Dar in

Kashmir. It has been done without associating either any member of

J&K Police or any of the local respectable persons in the

SC No.24/10. of 112

investigation. PW13 has stated in his cross examination in this regard

that they reached the house of Gulam Moinuddin Dar on 08.7.05 at 1

p.m. and he alongwith Const. Zafar Khan alone entered the house, but

interestingly, all the recoveries effected from there have been proved

by PW12 SI Ravinder Tyagi in the Court. This speaks volume about

the nature of the raid and the recoveries effected thereupon. The fact

that accused Gulam Moinuddin Dar has not been booked under the

Customs Act and other relevant Statues for the possession of wireless

set also shows that the same has been planted and in fact, no such

recovery was effected from his house.

123. In this regard, it is useful to refer to the order dated

18.9.06 passed by Chief Judicial Magistrate, Bargam, Srinagar

(Ex.DW1/P1) passed on an application filed on behalf of the accused.

Before referring to the order, it may be noted that it was mandatory

for the police team led by SI Charan Singh to involve the local police

in the raid and make any member of the local police force as witness

of the raids and the recoveries. The result of the raid was to be

mentioned in the DDs entry in the local police station and local police

should have informed about the recoveries made at the instance of

accused persons. It may also be noted that as per the deposition of

SC No.24/10. of 112

PW13, as mentioned herein above, the SHO, P.S. Sadar, has verbally

directed a Constable to accompany the raiding party and earlier in an

order dated 07.7.05 of CJM, Badgam, also mentioned that the accused

are identified by certain police offices, who are identified by Const.

Aijaz Ahmed No.4353/S, which shows that Const. Aijaz Ahmed was a

witness to the arrest of Abdul Qayoom and seizure of material at his

instance but his signatures do not appear anywhere.

124. Now coming to the order dated 18.9.06, it has been

recorded therein that on the basis of a detailed report filed by P.S.

Sadar, that the police team from Delhi has neither conducted personal

search of accused persons nor recovered anything from them at their

instance during the period 05.7.05 to 07.7.05. It has also come on

record that on 08.7.05 all the three accused SaqiburRehman, Gulam

Moinuddin Dar and Abdul Qayoom were produced before CJM,

Badgam for transit remand. In this regard also, there is contradiction

between deposition of various witnesses as to the timings when the

accused were produced in the Court for remand and when the raids

were conducted on the house of accused Gulam Moinuddin Dar and

accused SaqiburRehman. It is also not understandable as to why

everything was done on the last date of stay in Srinagar, whereas

SC No.24/10. of 112

previous two dates i.e. 06.7.05 and 07.7.05 were wasted by doing

nothing. Be that as it may, there is no court order from any court of

Kashmir or any DD entry in any police station in Kashmir, which

may go to show that the team led by ASI Charan Singh conducted any

raid in Srinagar and recovered any material at the instance of the

accused.

In Re. : arrest of accused Birender

125. Accused Birender is also alleged to be one of the

associates of the other accused and an agent of ISI agency of Pakistan.

As per the testimony of PW24, SI Mahender Singh, he proceeded to

Patna in search of accused Birender and Vijay on 04.7.05. A look at

the disclosure statements of all the accused recorded on 02.7.05 does

show the name of either Birender or Vijay therein. So what prompted

PW24 to embark upon the trip to Patna on 04.7.05 and how he dreamt

about involvement of Birender and Vijay in present case is not

understandable. Why he chose the place of Patna only for his visit is

not discernible. According to PW24, they reached Patna on 05.7.05,

did not find either of the two persons Birender and Vijay and

thereafter returned to Delhi on 06.7.05. As per his testimony, he had

gone to Patna alongwith accused Nazir Ahmed Sofi and Bashir

SC No.24/10. of 112

Ahmed Shah.

126. As per deposition of PW24 SI Mahender Singh, he again

went to Patna on 20.8.05 and sought help from Sh. Siraj Khan, SHO,

P.S. Gandhi Maidan. He stayed there at Hotel Welcome Palace,

Bhattacharya Road, Patna. He further stated that SHO, Siraj Khan

informed him in the morning on 22.8.05 that accused Birender has

been apprehended He thereafter went to police station Gandhi

Maidan, where he found accused Birender present and formally

arrested him also, recorded his disclosure statement pursuant to which

fake currency of Rs.82,000/ (consisting of currency notes in the

denomination of Rs.500/) were recovered at the instance of this

accused Birender from the house of Avdhesh Sinha, Ilaqa Kadam

Kuan, from an almirah in the room. Thereafter, SI Mahender Singh

returned to Delhi on 23.8.05. He has also deposed that SI Arun

Mandal of P.S. Gandhi Maidan accompanied him at the time when

accused Birender led the police party to the place of recovery of fake

currency.

127. From the aforesaid deposition of this witness (PW24), it

is manifest that he did not apprehend accused Birender himself, but he

SC No.24/10. of 112

was allegedly apprehended by SHO, Siraj Khan, P.S. Gandhi Maidan,

Patna. No DD entry recorded in P.S. Gandhi Maidan in this regard

has been proved. SHO Siraj Khan has not been examined as a witness

by the prosecution to prove that he apprehended accused Birender. SI

Arun Mandal has not been produced by the prosecution despite

repeated opportunities to prove that the recoveries were effected at the

instance of accused Birender in his presence.

128. Therefore, it remains a mystery as to how SHO Siraj

Khan apprehended accused Birender when he neither had the full

particulars of that person nor his photograph. It cannot be believed

that there is only one person by the name Birender in the whole Patna.

What about Vijay, nothing has been deposed by this witness in his

whole testimony whether accused Vijay was apprehended and if not

why?

129. Again no public person has been made as a witness to the

alleged recovery of fake currency made at the instance of accused

Birender even the seizure memo does not bear the signature of SI

Arun Kumar Mandal as admitted by PW24 in his cross examination. I

also fail to understand why the owner of the house, from which the

SC No.24/10. of 112

fake currency has been recovered allegedly at the instance of accused

Birender has been allowed to go scot free and not impleaded in this

case. No explanation has been given by the police in this regard. All

these facts go to show that arrest of accused Birender was preplanned

and the fake currency has been planted upon him deliberately to

implead him in the present case falsely.

In Re. : diffusion/ destruction of 13 UBGL allegedly recovered from and at the instance of the accused

130. The prosecution case is that they recovered three

handgrenades from accused SaqiburRehman (one from his person at

the time of raid on 02.7.05 and two at his instance from his house at

Srinagar later on) and 13 UBGL handgrenades from Srinagar at the

instance of accused Gulam Moinuddin Dar. Thus, the total grenades/

UBGL recovered from and at the instance of the accused is 16.

131. On an application filed on behalf of the prosecution, this

Court vide order dated 29.10.05 permitted the police to send 15

grenades (2 Chinese handgrenades and 13 UBGL) to CGO Complex,

Lodhi Road, for chemical analysis. One handgrenade was preserved

for matching fingerprint upon the same with those of the accused, but

SC No.24/10. of 112

no such report has been filed on record till date.

132. Despite the fact that only 15 grenades were sent for

chemical analysis Lt. Col. S. Pandey (PW31) has submitted a report

about the chemical analysis and diffusion of 16 handgrenades. The

said report is Ex.PW31/C. This witness has admitted in his cross

examination that court order was necessary for them for diffusing and

destroying the explosive material sent to them and it was necessary to

see the court order before signing the opinion Ex.PW31/B. At any

place in the cross examination, he states that his report Ex.PW31/C is

based upon the report given to him by the Officer Commanding, BDU,

NSG. He also deposed that the Commanding Officer, BDU, NSG, is

of the same rank as of his own and he had to issue the certificate

Ex.PW31/C for the reason that BDU, NSG, is not authorised to

correspond with Delhi Police directly.

133. It is apparent that the aforesaid certificate Ex.PW31/C has

been manipulated from this witness PW31, who did not examine the

handgrenades/UBGL but issued the certificate just on the mere asking

of Commanding Officer, BDU, NSG. This is also manifest from the

deposition of PW30 ASI Dharam Singh, who deposed that he took a

SC No.24/10. of 112

sealed pullinda containing 13 handgrenades to NSG, Manesar vide RC

No.61/21 for the purpose of diffusing the same. It is not

understandable as to how PW31 says that 6 parcels containing 16

grenades/UBGL were received from Delhi Police when only 13

handgrenades/UBGL were allegedly recovered from and at the

instance of the accused.

In re. : Defence of the accused

134. Since the case put forward by the prosecution against

these accused has fallen flat and it has been established that the

encounter so projected by the police was an absolutely fake and stage

managed, the defence put forward by the accused that they are

innocent and have been framed up falsely in this case gains credence.

Even otherwise, it has been proved on record by DW1 Gulam

Moinuddin Dar (one of the accused) that he has been engaged in anti

militancy operations in J&K and has got more than 300 militants

surrendered in Kashmir valley. The other accused Bashir Ahmed Shah

was his friend and paid the price for the same. The third accused

SaqiburRehman also used to give valuable inputs to J&K police

about various anti social elements. The other accused were ordinary

citizens and no criminal or terrorism related background has been

SC No.24/10. of 112

proved in their case.

In re : Conclusion

135. Viewed from any angle, the encounter alleged to have

been taken place on the night intervening between 01.7.05 and

02.7.05, did not take place at all and an absolutely fake encounter has

been projected. The story of the encounter was carefully scripted in

the office of Special Staff, Delhi Police, Dhaula Kuan, by its main

author SI Ravinder Tyagi with the assistance of SI Nirakar, SI Charan

Singh and SI Mahender Singh. All these four police officers have

acted in advancement of their self interests in total disregard to the

demands of their solemn duty. These four police officers whose duty

was to protect and safeguard the citizens, have turned persecutors and

tormentors.

136. The aim of the investigating agency is to collect evidence

and not to create it. Its aim should be to discover the truth. It is not

only unethical but also illegal for an investigating agency to resort to

concoction, paddling, fabrication of evidence – all serious offences

under the law even to bring a known criminal to justice. Its

relevance in India is much felt as there are no defence investigators as

SC No.24/10. of 112

there are in various western countries. Hence the machinery of

criminal law is often used here as a handy weapon to wreak vengeance

on the enemy.

137. Fabrication of false encounter is not justified in any social

setup where the rule of law prevails even if the person, so

apprehended, is really a terrorist or otherwise, harmful to the society.

In India, a section of some overzealous, overambitious and

scrupulous police officers is seen, who seem to think that if a person is

really harmful to the society, there is no problem in creating some

evidence or supplying the missing link in the evidence to secure his

conviction. If fabrication of false evidence were to be justified

because of a laudable motive, the worst criminal on earth would

justify the worst crime on the ground of good motive.

138. In the present case, the prosecution has failed to produce

any evidence to show that the accused persons are in fact, terrorists

having links with the ISI Agency of Pakistan. No investigation has

been conducted in this regard by the Delhi Police. It has failed to

trace out the source of the arms/ammunition allegedly recovered from

and at the instance of the accused as also that of the fake currency

SC No.24/10. of 112

notes. No investigation has been carried out in Gurgaon from where

the accused allegedly came to Delhi alongwith arms/ammunition. The

secret information received by SI Ravinder Tyagi has turned out to be

absolutely concocted. So, where was the justification for the raid and

encounter.

139. See the plight of these seven accused, out of whom five

have been languishing in jail for about five and a half years now for

no fault of theirs. They are totally innocent and have been framed in

this case by the aforesaid four police officers in order to achieve their

personal gains and/or to settle petty personal scores, be that at the

behest of one Major Sharma, whose attempts to persuade accused

Gulam Moinuddin Dar to work for him in getting the militants

surrendered in Kashmir were spurned by him (Gulam Moinuddin Dar)

or to earn undue honours or awards for themselves. In today's

aspirational world of glitter, fine dining and mall culture, only money

and material matters. The values such as service to the nation,

integrity and honesty are becoming rare.

140. All the accused are liable to be acquitted and are hereby

acquitted honourably. I cannot resist reading out a prayer to these

SC No.24/10. of 112

accused which a Canadian Lady Judge read out to a prisoner, whom

she had to free after spending 26 years in prison. The prayer is :

Dear friends,

May the road rise to meet you,

May the wind be always at your back,

May the Sun shine warn on your face,

May the rain fall softly upon you,

May God hold you in the palm of

his hand, now and forever.

141. I go again back to the stage managing of the fake

encounter by the four police officials namely SI Ravinder Tyagi, SI

Nirakar, SI Charan Singh and SI Mahender Singh, as it is difficult to

take it out of mind. These four police officers have brought utter

shame and disrepute to the whole Delhi Police Force. In my opinion,

there cannot be any more serious or grave crime than a police officer

framing an innocent citizen in a false criminal case. Such tendency in

the police officers should not be viewed or dealt with lightly but needs

to be curbed with a stern hand. It is because of such brazen acts of a

few policemen that the general public is losing faith in the whole

SC No.24/10. of 112

police system. Such black sheep, who are out to defame and bring

into disrepute the whole police force, need to be identified from the

whole flock and taken to task.

142. I, therefore, direct the Commissioner of Police, Delhi, to

initiate appropriate enquiry against the four police officers SI

Ravinder Tyagi, SI Nirakar, SI Charan Singh and SI Mahender Singh

(who by now may have been promoted to the post Inspector) for the

misuse and abuse of their powers as a police officer, as detailed

hereinabove. The enquiry shall be completed within three months

from today, and report be submitted to this Court on the next date of

hearing.

143. The SHO, Police Station Kapasahera is also directed to

register FIR against the aforesaid four police officers U/s.167 IPC and

forward the same to the Addl. Commissioner of Police (South/West)

who shall conduct investigation which shall be completed within three

months from today and a report be submitted to this Court on the next

date of hearing. A copy of the FIR shall be sent to this Court within

one month from today.

SC No.24/10. of 112

144. A copy of this judgment be sent to the concerned

Magistrate dealing with the cases of police station Kapasahera with

directions to treat the same as a complaint against SI Ravinder Tyagi,

SI Nirakar, SI Charan Singh and SI Mahender Singh of Delhi Police

for offences punishable U/s.166, 193 and 195 IPC and to proceed with

the same as per law.

145. Before concluding, I would like to remind the whole

Delhi Police force about the disconcerting note sounded by Abraham

Lincolon :

If you once forfeit the confidence of our fellow citizens,

you can never regain their respect and esteem. It is true

that you can fool all the people some of the time and

some of the people all the time, but you cannot fool all

the people all the time.

Put up for reports to be filed by the Commissioner of

Police, Delhi, and Addl. Commissioner of Police (South/West), Delhi,

on 05.5.2011.

Announced in open (VIRENDER BHAT)Court on 02.2.2011. A.S.J. :Dwarka Courts

New Delhi.

SC No.24/10. of 112

in the court of sh. virender bhat, a.s.j ...online.wsj.com/public/resources/documents/rehman.pdfin...

Documents