The Lucknow Bench of the Allahabad High Court has held 43 policemen guilty of culpable homicide not amounting to murder in an alleged encounter, which took place at Pilibhit in 1991, in which 10 Sikhs were killed by the Uttar Pradesh police, branding them as Khalistan Liberation Front terrorists.
The Division Bench of Justice Ramesh Sinha and Justice Saroj Yadav passed this order on Thursday, while hearing a Criminal Appeal filed by Devendra Pandey and others.
Forty-seven accused were tried by the Special Judge, CBI, Additional District Judge, Lucknow in Criminal Case under Sections 120-B, 302, 364, 365, 218, 117 IPC, Police Station CBI/SIC, New Delhi.
The case of the prosecution is that 10 young Sikhs, who were eliminated by the police personnel/convicts in encounter, were not terrorists but they along with others (total 25-26 persons) had gone as pilgrims for paying obeisance in Huzur Sahib, Patna Sahib and Nanded from a bus on June 29, 1991.
On July 12, 1991, at about 10-11 am, when they were returning from pilgrimage and reached the ‘Kachla Ghat’ falling within the jurisdiction of police station Kotwali Soron, district Etah, the armed police personnel (convicts/ appellants) intercepted the bus and de-boarded 11 Sikhs.
The policemen boarded them in a sky blue police bus. After that, some police personnel got into the passenger’s bus and kept the bus moving around throughout the day and left this bus at a Gurudwara in Pilibhit in the night.
In the meanwhile, 11 Sikh youths, who were deboarded from the bus, were divided into three parts and in the intervening night of 12/13.07.1991, they were killed by the police personnel /appellants in the night itself and after that further action showing the encounter with the terrorists, FIRs in connection with the encounter in police station Neoria, Police Station Bilsanda and Police Station Puranpur were registered.
The aforesaid police personnel/appellants had admitted the facts that they eliminated/killed ten Sikh terrorists in encounter in the incident that took place in the intervening night of 12/13.7.1991 in Dhamelakuan forest falling in the jurisdiction of Neoria; Phagunaighat falling in the jurisdiction of police station Bilsanda; and Pattabojhi forest falling in the jurisdiction of police station Puranpur, in district Pilibhit.
Their case was that there was vigilance report to the effect that hardcore terrorists of ‘Khalistan Liberation Front’ were in adjoining areas and they might have committed heinous crimes like murder, loot, land grabbing etc. and have created panic in the public.
In this regard, ambush was laid by the police personnel including appellants as well as members of C.R.P.F & S.P.F on the date of the incident i.e in the intervening night of 12/13.07.1991 in three different places in district Pilibhit i.e Dhamelakuan forest falling in the jurisdiction of Neuria; Phagunaighat falling in the jurisdiction of police station Bilsanda; and Pattabojhi forest falling in the jurisdiction of police station Puranpur, in district Pilibhit.
During the course of ambush, 5-6 Sikh terrorists appeared in Dhamelkuan forest and challenged the police team, upon which in retaliation, four Sikh terrorists were eliminated in Dhamelkuan forest by the police party, whereas in Phagunaighat forest, 4-5 Sikh terrorists appeared and challenged the police party, whereby in retaliation and in selfdefense, three Sikh terrorists were killed and in Pattabojhi forest area of police station Puranpur, two Sikh terrorists were killed.
The Court considered the evidence of Smt Swarnjeet Kaur shows that she along with her husband Harminder Singh alias Minta (deceased) were boarded in the bus from Nanakmatta on 29.06.1991 for darshan of Nanakmatta, Patna Sahib, Huzur Sahib and other places and returned on 12.07.1991.
According to her, when they were returning on 12.07.1991, the police stopped their bus near the barrier of a big river’s bridge and after that several police personnel boarded on their bus and deboarded 10-11 young Sikhs and only 2-3 old persons, children and women were left in the bus. After that some police personnel boarded on the bus and some police personnel boarded 10-11 young Sikhs in police bus. Thereafter, the police personnel kept moving their bus here and there and in the evening, rest of the passengers were left in Pilibhit Gurudwara. In the night, she stayed in the Gurudwara and in the next morning, through a Sewadar, she sent a telegram to her father-in-law, upon which her father-in-law came from Punjab and when she was brought by her father-in-law to home, then, her father-in-law told her that her husband was killed by the police.
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The Court observed that,
From the aforesaid, it is quite apparent that the prosecution has failed to prove the facts that the police personnel had kidnapped or abducted 10-11 Sikh persons and after that by making criminal conspiracy with common intention, bifurcated them in three groups and killed them at three separate places i.e Neoria, Bilsanda and Pooranpur.
Thus, from the consideration in totality of circumstances and the evidence in the case, this Court is not inclined to accept that the prosecution had established the fact that the appellants committed criminal conspiracy in the kidnapping, abduction and murder of ten Sikh youths, hence conviction and sentence of appellants under Sections 302/120- B, 364/120-B, 365/120-B, 218/120-B, 117/120-B IPC are not at all just and proper.
The Court noted that,
The case of the appellants was that they killed ten terrorists persons as they eliminated them in self defense because when they saw the terrorists came out from the forest area, then, they challenged them and all of a sudden, the terrorists opened fire and in retaliation and in self-defense, the appellants had opened fire and in that way, ten terrorists persons were killed in the firing.
The claim of the appellants that they killed ten terrorists persons in self-defense does not corroborate with the medical evidence as from perusal of the ante-mortem injuries of four deceased persons out of ten deceased persons killed in the forest area of Phagunai Ghat within the jurisdiction of Police Station Bilsanda, District Pilibhit, it transpires that apart from injuries of fire arm, lacerated and abrasion wounds as well as amputation were found on the body of the four deceased persons. The appellants have failed to explain/prove the lacerated wounds, abrasions and amputation caused on the body of the deceased.
The Court said that it is not the duty of the police officers to kill the accused merely because he/she is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial.
From the aforesaid, the Court opined that the case of the appellants would be covered by Exception 3 to Section 300 of the IPC, which provides that culpable homicide is not murder if the offender, being a public servant, or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him. by law, and causes death by doing an act which he, in good faith, things to be lawful and necessary for the due discharge of his duty as a public servant without ill-will towards the person whose death he has caused.
“The prosecution has shown criminal antecedents of four to six deceased who were involved in various terrorist activities in Punjab and they in order to promote the Liberation of Khalistan were also operating in the tarai region of district Pilibhit and nearby areas, were eliminated in police encounters by the appellants who have also admitted this fact in their statements under Section 313 of the CrPC before the trial Court. They participated in the three respective police teams which shot dead ten Sikh terrorists within the jurisdiction of three police stations Neoria, Bilsanda and Puranpur.
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The act of the appellants in eliminating the terrorists who were involved in various criminal cases of murder, loot, TADA activities as has been demonstrated from the criminal antecedents of some of the deceased, namely, Baljit Singh alias Pappu, Jaswant Singh, Harminder Singh alias Minta, Surjan Singh alias Bittu, Lakhvinder Singh but the appellants have failed to lead any defence against the other deceased whether they were also involved in terrorist activities with the four to six deceased and it was only argued by the appellants Counsel that other deceased who were shot in encounter were the companions of the four deceased, hence they were also killed in encounter but this contention of the Counsel for the appellants is not at all acceptable as act of the appellants cannot be justified to kill innocent persons along with some terrorist taking them to be also terrorists.
In the case, there was no ill-will between the appellants and the deceased persons. The appellants were public servants and their object was the advancement of public justice. No doubt, appellants exceeded the powers given to them by law, and they caused the death of the deceased by doing an act which they, in good faith, believed to be lawful and necessary for the due discharge of their duty. In such circumstances, the offence that was committed by the appellants, was culpable homicide not amounting to murder punishable under Section 304 of IPC. Thus, we are of the view that the appellants should have been convicted under Section 304 Part-I IPC instead of Section 302 IPC”, the Court further observed while allowing the appeals.
“The conviction and sentence of the appellants under Sections 302/120-B, 364/120-B, 365/120-B, 218/120-B, 117/120-B IPC by means of the impugned judgment and order dated 04.04.2016 passed by the trial Court are hereby set-aside. However, the Court convicts the appellants under Section 304 Part I of the Indian Penal Code and sentences them to seven years’ rigorous imprisonment along with fine of Rs 10,000/-, which this Court considers adequate in the circumstances of the case. In default of payment of fine of Rs 10,000/-, appellants shall undergo additional imprisonment of three months”
-the Court ordered.