SATYAVIR SINGH RATHI versus STATE THR. C.B.I

24. In conclusion, we must hold that the appellants were liable to conviction under Sections 302/34 etc. of the IPC.

25. We now come to Mr. Sharan's connected argument with regard to the deemed acquittal theory of the appellants for the offence under Sections 302, 307 read with Section 34 of the IPC by the trial court. At this stage, we may recall that the trial court had framed a charge under Section 302/307 read with Section 120-B of the IPC and an alternative charge under Section 302/307 read with Section 34 of the IPC but without opining on the alternative charge, had convicted the appellants for the offence under Section 302/307 read with Section 120- B of the IPC. It has accordingly been contended that as the [2011) 6 S.C.R. A appellants had been deemed to have been acquitted of the charge of having the common intention of committing the murders and there was no appeal by the State against the deemed acquittal against under that charge, it was not open to the High Court to alter or modify the conviction. The learned B ASG has, however, pointed out that a contrary view had been expressed earlier in Lakhjit Singh's case (supra) and as a consequence of this apparent discordance, the matter had been. referred to a Bench of three Judges in Dalbir Singh's case (supra) which had over ruled the judgment in Sangaraboina c Sreenu's case (supra) and by implication over-ruled Lokendra Singh's case (supra) as well. He has further highlighted that the judgment in Dalbir Singh's case (supra) had been followed in Dinesh Seth's case (supra) but both these cases had not even been alluded to in Bimla Devi's case (supra). He has 0 accordingly pointed out that the very basis of Mr. Sharan's argument on the theory of deemed acquittal was lacking.

26. We have considered the arguments of the learned counsel very carefully. We must, at the outset, emphasize that the judgments referred to above and cited by Mr. Sharan are E largely on the basis that a charge for the offence of which the appellants had ultimately been acquitted, had not been framed and therefore, it was not possible to convict an accused in the absence of a charge. For example, in Sangaraboina Sreenu's case (supra) a judgment rendered in two paragraphs, this Court F held that only a charge under Section 302 had been framed against the accused, therefore, he could not be convicted under Section 306 of the IPC although the Court noticed that the offence under Section 306 was a comparatively minor offence, within the meaning of Section 220 of the Cr.P.C. It was also G noticed that the basic constituent of an offence under Section 302 was homicide whereas the offence under Section 306 was suicidal death and abetment thereof.

This judgment was followed in Lokendra Singh's case (supra) wherein a similar situation existed. It appears, however, that both these judgments H had over looked the judgment in Lakhjit Singh's case (supra) as in this case a Division Bench of this Court had held that a A conviction under Section 306 of the IPC could be recorded though a charge under Section 302 had been framed. In arriving at this conclusion, the Bench observed that the accused were on notice as to the allegations which would attract Section 306 of the IPC and as this section was a comparatively minor offence, conviction thereunder could be recorded. On account of this apparent discordance of opinion over the issue involved, the matter was referred to a Bench of three Judges in Dalbir Singh's case (supra). By this judgment, the opinion rendered in Sangarabonia Sreenu's case (supra) was over-ruled, as not c being correctly decided.

Ipso facto, we must assume that the decision in Lokender Singh's case (supra) must also be read as not correctly decided. The judgment in Dalbir Singh's (supra) has subsequently been followed in Dinesh Seth's case (supra). We must, therefore, record that the judgment rendered in Bimla Devi's case (supra) which does not take into account the last two cited cases, must be held to be per incuriam. Kishan Singh's and Lakhan Mahto's cases (supra) were cases where no charge had been framed for the offences under which the .· accused could be convicted whereas Thadi Narayana's case was on its own peculiar facts.

27. We find the situation herein to be quite different. We must notice that the charges had indeed been framed in the alternative and for cognate offences having similar ingredients as to the main allegation of murder. Section 386 of the Cr.P.C. refers to the power of the appellate court and the provision in so far relevant for our purpose is sub-clause (b) (ii) which empowers the appellate court to alter the finding while maintaining the sentence. It is significant that Section 120-B of the IPC is an offence and positive evidence on this score has to be produced for a successful prosecution whereas Section 34 does not constitute an offence and is only a rule of evidence and inferences on the evidence can be drawn, as held by this Court in Lachhman Singh & Ors. vs. The State AIR 1952 SC [2011] 6 S.G.R. A 167. We are, therefore, of the opinion that the question of deemed acqui.ttal in such a case where the substantive charge remains the same and a charge under Section 302/1208 and an alternative charge under section 302/34 of the IPC had been framed, there was nothing remiss in the High Court in modifying B the conviction to one under Section 302/307/34 of the IPC. It is also self evident that the accused were aware of all the circumstances against them. We must, therefore, reject Mr. Sharan's argument with regard to the deemed acquittal in the circumstances of the case. c

28. The learned counsel for the appellants have also argued on the failure of the court in putting all relevant questions to them when their statements under Section 313 of the Cr.P.C. had been recorded. Mr. Sharan has also given us a list of 15 questions which ought to have been put to the ACP as they D represented the crux of the prosecution story. It has been submitted that on account of this neglect on the part of the court the appellants had suffered deep prejudice in formulating their defence. Reliance has been placed on Hate Singh Bhagat Singh, Vikramjit Singh and Ranvir Yadav's cases (supra). It E has however been pointed out by the learned ASG that the 15 questions referred to were largely inferences drawn by the courts and relatable to the evidence on record, and the inferences were not required to be put to an accused. He has further submitted even assuming that there had been some F omission that by itself would not a fortiori result in the exclusion of evidence from consideration but it had to be shown further by the defence that prejudice had been suffered by the accused on that account inasmuch that they could claim that they did not have notice of the allegations against them. In this connection, G the learned ASG has placed reliance on Shivaji Sahebrao Bobde vs. State of Maharashtra AIR 1973 SC 2622 and Santosh Kumar Singh and Shobit Chamar's cases (supra).

29. Undoubtedly, the importance of a statement under Section 313 of the Cr.P.C. in so far as the accused is SATYAVIR SINGH RATHI v. STATE THR. C.8.1. [HARJIT SINGH BEDI, J.] concerned, can hardly be minimized. This statutory provision is based on the rules of natural justice for an accused must be made aware of the circumstances being put against him so that he can give a proper explanation and to meet that case. In Hate Singh's case (supra) it was observed that: "the statements of an accused person recorded under Ss.208,209 and 342 are among the most important matters to be considered at a trial. It has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerfut and impressive weapon of defence in the hands of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in Indian to take the place of what in England and in America he would be free to state in his own way in the witness-box. They have to be received in evidence and treated as evidence and be duly considered at the trial. This means that they must be treated like any other piece of evidence coming from the mouth of a witness and matters in favour of the accused must be viewed with as much deference and given as much weigh as matters which tell against him. Nay more. Because of the presumption of innocence in his favour even when he is not in a position to prove the truth of his story, his version should be accepted if it is reasonable. and accords with probabilities unless the prosecution can prove beyond reasonable doubt that it is false. We feel that this fundamental approach has been ignored in this case."

30. It must be highlighted that the judgment in this case was rendered in the background that in the absence of any provision in law to enable an accused to give his part of the A story in court, the statement under Section 342 (now 313) was of the utmost important. The aforesaid observations have now been somewhat whittled down in the light of the fact that Section 315 of the Cr.P.C. now makes an accused a competent witness in his defence. In Vikramjit Singh's case B (supra), this Court again dwelt on the importance of the 313 statement but we see from the judgment that it was primarily based on an overall appreciation of the evidence and the acquittal was not confined only to the fact that the statement of the accused had been defectively recorded. In Ranvir Yadav's c case (supra) this Court has undoubtedly obs.erved that even after the incorporation of Section 315 in the Cr.P.C., the position remains the same ..

(in so far as the statements under Section 313 are concerned} but we find that the judgment was one of acquittal by the Trial Court and a reversal by the High Court and 0 this was a factor which had weighed with this Court while rendering its judgment. In any case the latest position in law appears to be that prejudice must be shown by an accused before it can be held that he was entitled to acquittal over a defective and perfunctory statement under Section 313. In E Shivaji's case (supra), a judgment rendered by three Hon'ble Judges, it has been observed in paragraph 16 as under: "It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of an evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Cr.P.C., the omission has not been shown to have caused prejudice C to the accused."

31. The judgment in Santosh Kumar Singh's case (supra) is to the same effect and is based on a large number of judgments of this court. o

32. It is clear from the record herein that the appellants, all police officers, had been represented by a battery of extremely competent counsel and in the course of the evidence, the entire prosecution story with regard to the circumstances including those of conspiracy and common intention had been brought out and the witnesses had been subjected to gruelling and detailed cross-examinations. It also bears reiteration that the incident has been admitted, although the defence has sought to say that it happened in different circumstances. It is also signally important that all the accused had filed their detailed written statements in the matter. All these facts become even more significant in the background that no objection had been raised with regard to the defective 313 statements in the trial court. In Shobhit Chamar's case (supra) this Court observed: "We have perused all these reported decisions relied upon by the learned advocates for the parties and we see no hesitation in concluding that the challenge to the conviction based on non-compliance of Section 313 Cr.P.C. first time in this appeal cannot be entertained unless the appellants demonstrate that the prejudice has been caused to them. In the present case, as indicated earlier, the prosecution strongly relied upon the ocular evidence of the eye witnesses and relevant questions with reference to this evidence were put to the appellants. If the evidence of these witnesses is found acceptable, the conviction can be sustained unless it is shown by the appellants that a prejudice has been caused to them. No such prejudice was demonstrated before us and, therefore, we are unable to accept the contention raised on behalf of the appellants." These observations proceed on the principle that if an objection as to the 313 statement is taken at the earliest stage, the court can make good the defect and record an additional statement as that would be in the interest of all but if the matter D is allowed to linger on and the objections are taken belatedly it would be a difficult situation for the prosecution as well as the accused.

In the case before us, as already indicated, the objection as to the defective 313 statements had not been raised in the trial court. We must assume therefore that no E prejudice had been felt by the appellants even assuming that some incriminating circumstances in the prosecution story had been left out. We also accept that most of the 15 questions that have been put before us by Mr. Sharan, are inferences drawn by the trial court on the evidence. The challenge on this aspect F made by the learned counsel for the appellants, is also repelled.

33. Mr. Sharan has also referred us to Section 140 of the Delhi Police Act, 1978 to contend that as the cognizance in the present matter had been taken more than three months from G the date of the incident, the prosecution itself was barred. Elaborating on this aspect, the learned counsel has submitted that the incident had happened on the 31st March 1997 and an incomplete charge-sheet had been filed within three months i.e. on the 13th June 1997 but cognizance in the matter had admittedly been taken beyond three months i.e. on the 10th July 1997. The learned counsel has, in support of this plea, relied on the judgment in Jamuna Singh and Prof. Sumer Chand's case (supra) to argue that the provisions of Section 140 of the Delhi Police Act had to be strictly applied, more particularly where the act complained of had been done in the discharge of official duty. The learned ASG has, however, submitted that the provisions of Section 140 of Delhi Police Act would be applicable only to offences referred to in the Act itself and found largely in Section 80 onwards and not to cases where the offence was linked to any other penal provision and that in any c case the police official involved had to show that the action taken by him had been taken under colour of duty:· Tue learned . . counsel has in this connection relied on N. Venugopa/, Narhar Rao, Atma Ram, Bhanuprasad Hariprasad Dave and on Professor Sumer Chand's cases (supra).

34. Before we examine the merits of this submission, we need to see what the. High Court has held on this aspect. The High court has observed that an incomplete charge• sheet had been filed within time inasmuch that the statements of the witnesses recorded under Section 161 of the Cr.P.C. had not been appended therewith and we quote : ,. "and the prosecuting agency had, therefore, taken adequate care in filing the charge-sheet well within time and could not, thus, have anticipated that the Court of the learned Chief Metropolitan Magistrate would have its own· problems in taking immediate cognizance of the offences on the charge-sheet within three months from the date of commission of the crimes, it could not have applied for a sanction for prosecution under Section 140 of the Act as it was not at all required in that situation. If the Court of learned Chief Metropolitan Magistrate had difficulty in taking cognizance of the offences for absence of the copies of statements under Section 161 Cr.P.C., it could have very well posted the case for a shorter "date before c (2011] 6 $.C.R. expiry of three months and could have required the CBI to make available the copies of required material for taking cognizance of the offences.

We are unabL to find from the proceedings recorded by the learned Chief Metropolitan Magistrate the reason as to why instead of requiring the CBI to produce the copies of required material within a day or two, such a longer date was fixed for according consideration for taking cognizance of the offences. Whatever be the reason for delay in taking cognizance of the offences in the facts and circumstances of the case, we are unable to accept the plea that any sanction under Section 140 of the Delhi Police Act was required to sustain the prosecution against the appellants, particularly when the charge-sheet had been filed in the Court well before the expiry of three months' period."

35. We are, however, not called upon to go into the correctness or otherwise of the observations of the High Court, as we intend giving our own opinion on this score.

36. Sub-Section (1) of Section 140 is reproduced below: "Bar to suits and prosecutions.- (1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of. Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence. (2) ……………………….. . (3) ………………………… "

37. This Section postulates that in order to take the shelter of the period of three months referred to therein the act done, or the wrong alleged to have been done by the police officer should be done under the colour of duty or authority or in excess of such duty or authority or was of the character aforesaid, and . in no other case. It must, therefore, be seen as to whether the act of the appellants could be said to be under the colour of duty and therefore, covered by Section 140 ibidem.

38. At the very outset, it must be made clear from the judgment of this Court in Jamuna Singh's case (supra) that the date of cognizance taken by a Magistrate would be the date for the institution of the criminal proceedings in a matter. The o facts given above show that the cognizance had been taken by the Magistrate beyond three months from the date of incident. The larger question, however, still arises as to whether the shelter of Section 140 of the Delhi Police Act could be claimed, in the facts of this case. We must, at the outset, reject the learned ASG's argument that Section 140 would be available to police officials only with respect to offences under the Delhi Police Act and not to other penal provisions, in the light of the judgment in Professor Sumer Chand's case (supra) which has been rendered after comparing the provisions of the Police Act, 1861 and Section 140 of the Delhi Police Act, 1978 and it has been held that the benefit of the latter provision would be available qua all penal statutes.

The expression 'colour of duty' must now be examined in the facts of this case. In Venugopal's case (supra), this Court held as under: "It is easy to see that if the act complained of is wholly justified by law, it would not amount to an offence at all in view of the provisions of S.79 of the Indian Penal Code. c Many cases may however arise wherein acting under the provisions of the Police Act or other law conferring powers on the police the police officer or some other person may go beyond what is strictly justified in law. Though Sec.79 of the Indian Penal Code will have no application to such cases, Sec.53 of the Police Act will apply. But Sec.53 applies to only a limited class of persons. So, it becomes the task of the Court, whenever any question whether this section applies or no~ arises to bestow particular care on its decision. In doing this it has to ascertain first what act is complained of and then to examine if there is any provision of the Police Act or other law conferring powers on the police under which it may be said to have been done or intended to be done. The Court has to remember in this connection that an act is not "under" a provision of law merely because the point of time at which it is done coincides with the point of time when some act is done in the exercise of the powers granted by the provision or ·in performance of the duty imposed by it. To be able to say that an act is done "under' a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation the act cannot be said to be done "under' the particular provision of law."

40. This judgment was followed in Narhar Rao's case F (supra). This Court, while dealing with the question as to whether the acceptance of a bribe by a police official with the object of weakening the prosecution case could be said under to be under 'colour of duty' or in excess of his duty, observed as under: "But unless there is a reasonable connection between the act complained of and the powers and duties of the office, it cannot be said that the act was done by the accused officer under the colour of his office. Applying this test to the present case, we are of the opinion that the alleged SATYAVIR SINGH RATHI v. STATE THR. C.8.1. [HARJIT SINGH BEDI, J.] acceptance of bribe by the respondent was not an act which could be said to have been done under the colour of his office or done in excess of his duty or authority within the meaning of S.161(1) of the Bombay Police Act. It follows, therefore, that the High Court was in error in holding that the prosecution of the respondent was barred because of the period of limitation prescribed under Sec.161 (1) of the Bombay Police Act. The view that we have expressed is borne out by the decision of this Court in State of Andhra Pradesh vs. N.Venugopal, AIR 1964 SC 33, in which the Court had construed the language of a similar provision c of S.53 of the Madras District Police Act (Act 24of1859). It was pointed out in that case that the effect of S.53 of that Act was that all prosecutions whether against a police officer or a person other than a police officer (i.e. a member of the Madras Fire Service, above the rank of a 0 fireman acting under S.42 of the Act) must be commenced within three months after the act complained of, if the act is one which has been done or intended to be done under any of the provisions of the Police Act. In that case, the accused police officers were charged under Ss.348 .and 331 of the Indian Penal Code for wrongly confining a suspect Arige Ramanua in the course of investigation ad causing him injuries. The accused were convicted by the Sessions Judge under Ss.348 and 331 of the Indian Penal Code but in appeal the Andhra Pradesh High Court held that the bar under 5.53 of the Police Act applied and the accused were entitled to an acquittal. It was, however, heid by this Court that the prosecution was not barred under 5.53 of the Police Act, for it cannot be said that the acts of beating a person suspected of a crime or confining him or sending him away in an injured condition by the police at a time when they were engaged in investigation are acts · done or intended to be done under the provisions of the Madras District Police Act or Criminal Procedure Code or any other law conferring powers on the police. The appeal was accordingly allowed by this Court and the acquittal of the respondent set aside." 4.

Both these judgments were followed in Atma Ram's case (supra) where the question was as to whether the action 8 of a Police Officer in beating and confining a person suspected of having stolen goods in his possession could be said to be under colour of duty. It was held as under: "The provisions of Ss.161 and 163 of the Criminal Procedure Code emphasize the fact that a police officer is prohibited from beating or confining persons with a view to induce them to make statements. In view of the statutory prohibition it cannot, possibly, be said that the acts, complained of. in this case, are acts done by the respondents under the colour of their duty or authority. In our opinion, there is no connection, in this case between the acts complained of and the office of the respondents and the duties and obligations imposed on them by law. On the other hand, the alleged acts fall completely outside the scope of the duties of the respondents and they are not entitled, therefore, to the mantle of protection conferred by S. 161 (1) of the Bombay Police Act."

42. Similar views have been expressed in Bhanuprasad Hariprasad Dave's case (supra) wherein the allegations F against the police officer was of taking advantage of his position and attempting to coerce a person to give him a bribe. The plea of colour of duty was negatived by this Court and it was observed as under: "All that can be said in the present case is that the first appellant a police officer, taking advantage of his position as a police officer and availing himself of the opportunity afforded by the letter Madhukanta handed over to him, coerced Ramanlal to pay illegal gratification to him. This cannot be said to have been done under colour of duty. The charge against the second appellant is that he aided the first appellant in his illegal activity."

43. These judgments have been considered by this Court in Professor Sumer Chand's case (supra) which has been relied upon by both sides. In this case, Professor Sumer Chand and several others were brought to trial initiated on a first information report but were acquitted by the trial court. Professor Sumer Chand thereupon filed a suit against the Investigating officer and other police officials for malicious prosecution claiming Rs.3 Lacs as damages. This Court held that the prosecution had been initiated on the basis of a First Information Report and it was the duty of a Police Officer to investigate the matter and to file a charge-sheet, if necessary, and that there was a discernible connection oetween the act complained of by the appellant and the powers and duties of the Police Officer. Th'is Court endorsed.the opinion of the High Court that the act of the Police Officer complained offell within .D the description of 'colour of duty'. • · · 44. In the light of the facts that have been found by· us above, it cannot, by any stretch of imagination, be claimed by anybody that a case of murder would fall within the expression 'colour of duty'. We find absolutely no connection between the act of the appellants and the allegations against them. Section 140 of the Delhi Police Act would; therefore; have absolutely no relevance in this case and Mr. Sharan's argument based thereon must, therefore, be repelled.

45. The learned Counsel has also raised an argument that the sanction under Section 197 of the Cr.P.C. had been mechanically given and did not indicate any application of mind on the part of the Lt. Governor. It has accordingly been prayed that the entire prosecution was vitiated on this score. Reliance has been placed by Mr. Sharan for this argument on Ameerjan's case (su.era). This argument has been controverted by the learned ASG who has pointed out that a bare reading of the sanction order as well as the evidence of PW-48 C.B. Verma, the concerned Deputy Secretary in the Delhi Government who A had forwarded the file to the Lt. Governor, revealed that all material relevant for according the sanction had been given to the Lt. Governor. The learned ASG has placed reliance on S.B.Saha's case (supra) as well as on Ameerjan's case above- referred.

46. We have considered this argument very carefully in the light of the evidence on record. We first go to the evidence of PW-48 C.B. Verma. He deposed that a request had been received from the CBI for according sanction for the prosecution C of the appellants along with the investigation report and a draft of the sanction order. He further stated that on receipt of the aforesaid documents the matter had been referred first to the Law Department of the Delhi Administration and then forwarded to the Home Department and then to the Chief I Secretary and finally, the entire file had been put up before the D Lt. Governor who had granted the sanction for the prosecution of the ten officials. It is true that certain other material which was not yet available with the CBI at that stage could not obviously have been forwarded to the Lt. Governor, but we see from the various documents on record that even on the documents, as E laid, adequate material for the sanction was available to the Lt.

Governor. We have perused the sanction order dated 1 Oth of October 2001 and we find it to be extremely comprehensive as all the facts and circumstances of the case had been spelt out in the 16 pages that the sanction order runs into. In F Ameerjan's case (supra) which was a prosecution under the Prevention of Corruption Act (and sanction under Section 19 thereof was called for), this Court observed that though the sanction order could not be construed in a pedantic manner but the purpose for which such an order was required had to be G borne in mind and ordinarily the sanctioning authority was the best person to judge as to whether the public servant should receive the protection of Section 19 or not and for that purpose the entire record containing the materials collected against an accused should be placed before the sanctioning authority and H in the event that the order of sanction did not indicate a proper application of mind as to the materials placed before the sanctioning authority, the same could be produced even before the Court.

Admittedly, in the present case only the investigation report and the draft sanction order had been put before the Lt. Governor but we find from a reading of the former that it refers to the entire evidence collected in the matter, leaving the Lt. Governor with no option but to grant sanction. In S.B. Saha's case (supra), this Court was dealing primarily with the question as to whether sanction under Section 197 of the Cr.P.C. was required where a Customs Officer had misappropriated the goods that he had seized and put them to his own use. While c dealing with this submission, it was also observed as under: "Thus, the material brought on the record up to the stage when the question of want of sanction was raised by the appellants, contained a clear allegation against the appellants about the commission of an offence under D Section 409, Indian P~nal Code. To elaborate, it was substantially alleged that the appellants had seized the goods and were holding them in trust in the discharge of their official duty, for being dealt with or disposed of in accordance with law, but in dishonest breach of that trust, they criminally misappropriated or converted those goods. Whether this allegation or charge is true or false, is not to be gone into at this stage. In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged."

47. As already indicated above, the Lt. Governor had enough relevant material before him when he had accorded sanction on the 10th October 2001. .

48. We now come to the other appeals in which some additional arguments have been raised. In Criminal Appeal No. 2476/2009 of Head Constable Mahavir Singh, Mr. Lalit has argued that 15 persons in all had constituted the police party A and 10 persons had been sent up for trial including ACP Rathi and Inspector Anil Kumar and five others, three of them armed who had not fired any shot, and two other who had not been armed, had not been prosecuted and as Head Constable Mahavir Singh had also not fired at the car, his case fell B amongst the five and he was, therefore, entitled to be treated in a like manner. In addition, it has been submitted that Head Constable Mahavir Singh did not share the common intention with the other nine accused. Mr. Lalit has also referred us to question No.53 put to the Head Constable by which the c circumstances pertaining to the actual incident had been put to him and he had answered as under: "I was behind the entire team. Then the team was left with no option but to return fire in self defence and to save members of the public as a large crowd had started gathering suddenly on hearing the faring from inside the car. Some members of our team returned fire. As I was behind and a little away from the car, I held back my fire. But on seeing a ~rowd gathering and to prevent the members of general public from coming close to the car, I fired one shot in the air. In the meanwhile I heard Constable Subhash Chand scream that he had been hurt. Then the firing was ordered to be stopped. Within moments a PCR Gypsy also arrived. Then the efforts were made to take the injured out and send them to hospital. In the meanwhile press photographers, police of the PS C.P. and Sr. officers also arrived."

49. He has found support for his arguments from the Panchnama Ex. B-67/2 prepared by P.Kailasham, Executive G Engineer, CBI on the 11th April, 1997 on the observations of three Shri Ohri, DSP and Sri Sree Deep. It has accordingly been argued by Mr. Lalit that the defence taken by Head Constable Mahavir Singh that he had fired to keep the crowd away was clear from the record and as the incident had happened in a very busy locality i.e. the outer circle of Connai.Jght Place, a crowd had undoubtedly collected. He has further pointed out that the story that a bullet fired by Head Constable Mahavir Singh from his 7.62 mm AK-47 rifle at Jagjit Singh had been disJ:>elieved by the High Court and the falsity of the prosecution story was, thus, clearly spelt out.

50. We have considered the arguments advanced by the learned counsel. Admittedly, as per his own showing, Head Constable Mahavir Singh had used his service weapon and fired one shot therefrom. The prosecution story is that he had fired at the car whereas the defence is that he had fired the shot in the air to keep the crowd away. This argument is based C on a clear misconception and does not take into account the normal tendency of a person at a crime scene, (more particularly where indiscriminate gun fire had been resorted to) would be to run far and away. It appears that the crowd had collected only after the shooting had ceased. There is no D evidence whatsoever to show that any crowd had collected while the firing was going on or that a single shot had been fired after the volley of 34 shots. We have also perused the large number of photographs of the site and see that the crowd that had gathered after the shootin~, was perfectly disciplined and keeping a reasonable distance away from the Esteem car and the dead bodi.es lying around it. Admittedly also, there is absolutely no evidence with regard to the defence taken by Constable Mahavir Singh. An effort could have been made by the defence to elicit some information about the behaviour of the crowd from the policemen and the Statesman employees who had appeared as prosecution witnesses. Not a single question was, however, put to them on t~is aspect. We are therefore of the opinion that the story projected by him in his 313 statement is not supported by any evidence whatsoever. His case, therefore, cannot be distinguished from the other seven accused who had admittedly fired at the car.

51. We have already dealt with Mr. Balasubramaniam's arguments in the case of Inspector Anil Kumar who has filed Criminal Appeal No.2484/2009 while dealing with the question (2011] 6 S.C.R. A of common intention and the self-defence claimed by the appellant. No further discussion is, therefore, required in this appeal.

52. We finally take up Criminal Appeal Nos. 2477-2483 8 of 2009 in which the arguments have been made by Mr. Vineet Dhanda, Advocate. It is significant that these seven police officers had admitted firing into the vehicle but it is their case in their statements under Section 313 of the Cr.P.C. as also their written statements that they had done so only on the C direction of ACP Rathi, a superior officer. They have accordingly sought the benefit of Section 79 of the IPC which provided: "Act done by a person justified, or by mistake of fact believing himself justified, by law.-Nothing is an offence which is done by any person who is justified by law, or who . D by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it."

53. In the written submissions filed by Mr. Vineet Dhanda E long after the judgment had been reserved and beyond the time fixed by us for the fifing of the written submissions (which have nevertheless been taken on record) the stand taken is completely different and in accordance with that of Mr. Sharan and Mr. Lalit with regard to the defence claimed by the appellants. Mr. Dhanda has also filed a large number of F judgments on this aspect. These judgments had not been cited by the learned counsel at the time of hearing. We have however gone through the judgments and find nothing different therein from the judgments cited by the other learned counsel. We, therefore, deem it unnecessary to advert to them at this stage.

54. We have nevertheless examined the submissions with regard to Sections 76 to 79 of the IPC. We see absolutely no evidence that the firing had been resorted to by the seven appellants on the order of ACP Rathi as we have found that it H was pursuant to the common intention of all the accused that .he incident had happened. It is also relevant that the m;tatements made by these seven appellants are not admissible •n evidence against ACP Rathi, being a co-accused, in the light lf the judgment of this Court reported in Vijendrajit Ayodhya =>rasad Goel vs. State of Bombay AIR 1953 SC 247 and :S.P.Bhatnagar & Anr. vs. The State of Maharashtra AIR 1979 :SC 826. This Court in the former case has observed that a a;tatement under Section 342 of the Cr.P.C. {now Section 313) -:annot be regarded as evidence. The observations in the latter -~ase are equally pertinent wherein it has been held that a =:lefence taken by one accused cannot, in law, be treated as c m:tvidence against his co-accused. As already observed; Section 11315 of the Cr.P.C. now makes an accused a competent witness 111 his defence. Had the appellants in this set of appeals chosen mo come into the witness box to support their plea based on lhe orders of ACP · Rathi, a superior officer, and claimed the m>enefit of Section 79 of the IPC, something could be said in lheir behalf but in the face of no evidence the story projected .,y them cannot be believed.

55. On an overall view of the evidence in the case and in lhe light of the arguments raised by the learned counsel for the -iarties, we find no fault with the judgments of the trial court as ~ell as the High Court. We, accordingly, dismiss all these .ppeals. ~.P. Appeals dismissed.