ARSHAD ALI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BOTH the bail applications have been filed u/S.439 of the Code by the accused petitioners who are police officers and who have been chargesheeted for the offence punishable u/Ss.120B r/w 302, 364, 346, 201 & 218 I.P.C. seeking post arrest bail pending trial and the case of the prosecution is that the deceased Dara Singh was killed on 23rd October, 2006 in a fake encounter by police officials of Special Operation Group (SOG) of which both the accused petitioners were active members. The accused petitioner Arshad Ali (A-13) at the relevant time was posted as Addl.S.P., SOG and accused petitioner Naresh Sharma (A-5) as Sub-Inspector of Police in SOG. The bail applications of both the petitioners were rejected by the ld.Sessions Judge, Jaipur District, Jaipur assigning detailed reasons vide orders dt.19th November, 2011 and 9th January, 2012 respectively.

(2.) THE case of the prosecution, as alleged, is that Dara Singh was killed in a fake encounter at the behest of Team of SOG, Rajasthan Police, Jaipur on 23rd October, 2006 and the case initially projected was that at 1:00 AM in the mid-night of 23rd October, 2006, the petitioner Arshad Ali, Addl.S.P. (A-13) received source information that Dara Singh along with his gang members duly armed with sophisticated weapons had come to Jaipur City to commit a serious offence and would leave for Ajmer before the sunrise, in response to which, the accused petitioner Arshad Ali, headed the SOG Team along with other co-accused consisting of eleven members in which the accused petitioner Naresh Sharma was also one of the member equipped with arms and ammunitions left SOG Police Station in a jeep at 2:30 AM in the night of 23rd October, 2006 and placed Nakabandi at 4:00 AM on Ajmer Road, near flyover of Kamla Nehru Nagar and started checking the vehicles, during which at 5:20 AM when Rajasthan Roadways bus going towards Udaipur from Jaipur on being checked two suspect passengers sitting on seat Nos.10 and 11 were asked to step down from the bus but sooner they alighted from the bus and opened firing at the SOG team while running away, to which the SOG team chased them by jeep as well as on foot for about 3 Kms and during cross firing, Dara Singh died in Rajendra Nagar Area, Police Station Mansarovar, Jaipur (which according to the complainant, wife of Dara Singh, was a fake encounter engineered at the behest of SOG team to which both the accused petitioners were members) while the other ran away and the information of the occurrence was given to the Police Control Room, Jaipur. On this information of Rajesh Choudhary (A-1), Inspector of Police, FIR No.396/2006 came to be registered at Police Station, Mansarovar, Jaipur for offence u/Ss.307, 332 and 353 I.P.C. and 3/25 of Arms Act and the investigation team prepared the site plan, examined the vehicle and took sample of blood soil and seized the shawl and other belongings to the deceased Dara Singh and his purse having bus ticket No.3309683 dt.23rd October, 2006 in the presence of independent witnesses and post mortem was conducted on the autopsy of deceased Dara Singh. However, as there was an allegation imputed regarding credibility of FIR No.396/2006, wife of Dara Singh Smt.Sushila filed a Criminal Complaint No.9/2006 before the ld.Judicial Magistrate which was sent to the police u/S.156(3) Cr.P.C. for submitting its report but that application came to be dismissed on being informed by S.H.O., Police Station Mansarovar, Jaipur about the complaint of Shishram (brother of deceased) being attached to FIR No.396/2006 vide order dt.15th May, 2007 and the matter finally travelled to the Apex Court at the behest of Smt.Sushila and in the S.L.P.(Criminal) No.3212/2008 the Apex Court passed order on 9th April, 2010 directing the C.B.I. to hold an investigation in respect of the offences alleged. Pursuant thereto, Case-RC No.2(S)/2010-SCU-V/SC-II/CBI/New Delhi was registered to investigate FIR No.396/2006 of Police Station Mansarovar, Jaipur on 23rd April, 2010. Thereafter, the C.B.I. took charge and conducted investigation in respect of the alleged offence and recorded statements of 296 witnesses and collected 247 voluminous documents and finally chargesheet came to be filed against sixteen accused persons in the court on 3rd June, 2011 including both the accused petitioners. It will be relevant to refer that against the accused petitioner Arshad Ali and other accused persons chargesheet came to be filed on 23rd April, 2011 and the accused petitioner Arshad Ali was declared absconder on 24th May, 2011 and he surrendered before the court on 9th November, 2011 and thereafter the case was committed to the court of Sessions and after hearing the parties, charge against the accused petitioner Arshad Ali came to be framed on 16th October, 2011 for offences punishable u/Ss.120-B r/w 302, 364, 346, 201, 218 & 193 I.P.C. Both the accused petitioners are facing trial and it is informed to this court that as per the calendar of 254 witnesses, 50 witnesses have been examined and out of 50, 10 of such of prosecution witnesses are members of Police Force and four of them viz., PW-8 Ram Kishore, Head Constable; PW-27 Babulal, Head Constable; PW-34 Tejpal, Head Constable; and PW-48 Ashok Bishnoi, Sub-Inspector of Police have not stuck to their statements recorded u/S.161 Cr.P.C. However, they have not been declared hostile by the ld.Trial Judge but effectively according to the case of prosecution they are nothing more than hostile witnesses. At the same time one of the accused Vijay Kumar Choudhary (A-12), who was also very effectively involved with SOG Officials in the alleged encounter and was a member of criminal conspiracy, has been later on murdered and the Bail Application No.4275/2012 of A.Ponnuchami, who was the then S.P., SOG and who too is facing trial along with present accused petitioners, has been rejected by the coordinate Bench of this court by a detailed order dt.27th April, 2012. Against the accused petitioner Arshad Ali, who was posted as Addl.S.P., SOG during the relevant period in the year 2006, after investigation conducted by C.B.I., it was established that he was using Telephone No.9829200195 and the call detail records were verified from the document No.D-108 and as per the chargesheet, he was one of the active participant in the criminal conspiracy plotted to eliminate the deceased Dara Singh and the accused petitioner Arshad Ali was made field In-Charge to manage and execute killing of Dara Singh by senior officials of SOG. It was also alleged in the chargesheet that on the direction of the accused petitioner Arshad Ali (A-13), a team of SOG Officials consisting of other accused persons including accused petitioner Naresh Sharma in order to search Dara Singh visited Sikar, Rajgarh and Churu areas on several dates and on the direction of the accused petitioner Arshad Ali, a team of SOG officials including Naresh Sharma and other accused persons visited in front of Kelgiri Hospital, Jaipur and Vijay Kumar Chaudhary (A-12) was detained by SOG Officials in the night of 19th October, 2006 at Jaipur and a cash of Rs.6,00,000/- was seized from him u/S.102 Cr.P.C. which was shared amongst accused persons including present accused petitioner Arshad Ali and accordingly Vijay Kumar Chaudhary (A-12) was shown released at 0310 Hrs on 20th October, 2006 by accused petitioner Naresh Sharma (A-5) whereas, in fact, his mobile location was in the area of SOG office till 1700 Hrs on 20th October, 2006. After having been released by SOG, Vijay Kumar Chaudhary reached Fatehpur on 20th October, 2006 in the midnight. There is also an allegation in the chargesheet that accused petitioner Arshad Ali was also present near the place of encounter at least 0627 Hrs whereas he was not shown at the place of encounter in the records prepared by them. He has also intimated Police Control Room, Jaipur about the encounter from his mobile phone at 0629 Hrs.

(3.) AS regards accused petitioner Naresh Sharma, he was posted as Sub-Inspector of Police in SOG during the year 2006 and during investigation conducted by the CBI, it was found that the accused petitioner Naresh Sharma was using telephone No.9928322355, as established from the document No.D-129 and the call detail records of the same could be established from document No.D-124 and he was member of SOG Team which plotted criminal conspiracy to eliminate the deceased Dara Singh and the accused petitioner was made Field In-Charge by senior accused officials of SOG to manage and execute killing of Dara Singh and he too entered into the said criminal conspiracy along with other co-accused SOG Officials and put pressure on Vijay Kumar Choudhary who was one of the accused person to induce Dara Singh to come and contact Vijay Kumar Choudhary and in order to fulfill this objective, on the direction of accused petitioner Arshad Ali (A-13) a team of SOG Officials in which accused petitioner Naresh Sharma (A-5) detained Vijay Kumar Choudhary in the night of 19th October, 2006 at Jaipur and a cash of Rs.6,00,000/- was seized from him u/S.102 Cr.P.C. and in enquiry, this matter was handed over to the accused petitioner Naresh Sharma who shown Vijay Kumar Choudhary released on 20th October, 2006 at 0310 Hrs and in fact his mobile location was in the area of SOG Office till 1700 Hrs on 20th October, 2006 and on having been released by SOG, Vijay Kumar Choudhary (A-12) arrived at Fatehpur on 20th October, 2006 in the midnight and as per Vijay Kumar Choudhary (A-12), Dara Singh was handed over to SOG Team of which accused petitioners Arshad Ali and Naresh Sharma were also members who abducted Dara singh at about 0600 Hrs and took him to a secret place in village Lalwas, Amer, on the outskirts of Jaipur and which fall in Zone-2 of Cell ID located at Raghav Das Ki Dhani and Dara Singh was kept confined there.