Hard To Accept Cops Couldn't Overpower Accused, "Shoot-Out" Could Be Avoided: Bombay HC While Hearing Badlapur 'Fake Encounter' Case

While hearing a plea by father of the Badlapur school sexual assault accused who died in an alleged "fake encounter" on Monday, the Bombay High Court orally said it is difficult to accept that the accused– who was not a "strong man", couldn't be overpowered by the police officials who were with him.

A division bench of Justice Revati Mohite Dere and Justice Prithviraj Chavan was hearing the petitioner father's plea who has among various reliefs sought an investigation into the matter as well as registration of FIR against the erring police officials.

During the hearing, the bench orally noted some lacunae in the initial probe by the Crime Branch, Thane Police and raised several questions regarding the probe, especially the forensic evidence at the site.

The bench orally noted that the police official who allegedly shot at the accused cannot say that he did not know how to react, considering he was an Assistant Police Inspector.

Justice Chavan, orally remarked, "So he (API) cannot say that he doesn't know how to react. He (API) must have the knowledge where to fire...The moment he pulled the first trigger the other cops in the vehicle could have easily overpowered him. He (deceased) wasn't a huge built up or strong man. This is very difficult to accept. This cannot be termed as an encounter". 

The court further stressed on the need of an "impartial probe" adding that while it was not doubting the police, however it wanted to get to the truth. It asked the police to "come clean so that there are no inferences drawn by the people." The deceased had been booked in a POCSO case for allegedly sexually assaulting two minor kindergarten girls in a school at Badlapur in Thane. 

Court asks questions on timeline, post mortem report, fingerprints

Meanwhile appearing for the State, Chief Public Prosecutor Hiten Venegavkar during the hearing said that the State CID was also probing the incident. "Two FIRs one is u/s 307 and one is an Accidental Death Report (ADR). Both are being probed by the CID," Venegavkar said. 

At this stage Justice Mohite-Dere asked Venegavkar about the timeline, noting that there was "nothing confidential" about it. 

On the court's query regarding the spot where the alleged incident took place and if it was isolated or not, Venegavkar said that the left side of the spot has a small town and it is surrounded by hills on the right side. He further said that the moment the incident took place both the deceased and the injured cop were shifted to Shivaji Hospital near Kalwa which was the closest hospital approximately 25 minutes away. 

The bench, thereafter, queried about the time when the body was sent for post-mortem, whether it was video graphed, the cause of death and about the injuries to the deceased and the to officer. 

To this Venegavkar said, "Body sent at 8 AM to JJ Hospital. Autopsy was video-graphed. Cause of death was bleeding. Bullet pierced one side of the head and exited from the other. Injury to the officer is also a pierced one". 

At this stage Justice Chavan enquired about the forensic probe, the weapon in question, whether it was loaded or not and whether the accused knew how to load the same. Venegavkar responded that there was a "scuffle" wherein the magazine came out, the weapon got loaded and was ready for shooting. 

To this Justice Chavan orally said, "Mr Venegavkar this is hard to believe like this. Prima facie this cannot be trusted. A layman cannot fire a pistol unlike a revolver which any tom, dick and harry can do. A weak man cannot load the pistol as it needs strength. Have you ever used a pistol? I have used it 100 times so I know this. Why to be so negligent and casual when you are escorting a man, who is accused of serious offences? What is the SOP? Was he handcuffed?"

Venegavkar said that the accused was initially handcuffed but when he asked for water he was unshackled. The court asked whether finger prints from the weapon–a pistol were taken, to which Venegavkar said that finger prints were done by the FSL.

Did Officers Not Know Where To Fire For Self Defence

At this stage the court orally asked, "You said the accused fired three bullets towards the police. Only one hit the cop what about the other 2? Ordinarily, for self defence we fire at the legs. Where would one usually fire for self defence? May be on the hand or the leg".

To this Venegavkar said that the officer concerned did not think of this and he "just reacted". 

To this the court orally asked if "one of the officers" were involved in any other encounter. Justice Chavan orally said, "Ask the officer about it. How can we believe that 4 officers present in the vehicle couldn't overpower a single man?"

However Venegavkar said that it was an on the spot reaction. The court further orally asked if the incident could have been avoided adding that the police are "trained". 

Perusing through the medical documents of the injured cop, the court asked if his "handwash" had been taken, asking the State to take the "Handwash of all the Officers".

On forensic report of weapon, Preservation of CCTV footage

With respect to the court's query on CCTV footages, Venegavkar said that private and government buildings around the spot have been intimated to preserve the CCTV footages. 

The court further asked the State to get a forensic report on whether the weapon was shot at the accused from a distance or a point blank range. It also asked about where did the bullet pierce the deceased. 

The court thereafter said, "Mr Venegavkar we need an impartial probe in this incident even if there are cops involved. We aren't doubting anything but we only want to know the truth. That's it. Was any FIR lodged on the complaint of the father?"

After the court was told that no FIR was lodged on the father's complaint, it orally asked the state to lodge the FIR noting that during cross complaints FIRs are lodged from both the sides. 

On the court's query Venegavkar said that the Weapons had been forwarded to FSL. 

At this stage the petitioner's counsel said that the State had filed the chargesheet in the POCSO case (pertaining to the sexual assault of minor school children) a day prior to the incident in which the deceased died. He said, "They wanted to save the main culprits of the POCSO case. The family wants to bury the deceased but they aren't getting land for the same". 

The court then orally said to Venegavkar, "We are going to record that you have taken the hand wash. If tomorrow, you say no, we will take your officers to the task".

On post mortem report 

Taking note of the post mortem the bench orally noted that apart from the entry and exit injury there were "multiple abrasions" on his person. It further orally noted that from the post mortem report it appeared that the "bullet was shot from point blank range". 

Asking the state to submit copies of the documents, the bench orally said, "You will have to examine the life of these abrasions also? Therefore, an FIR must be lodged.Did the deceased handled any firearm earlier ? Because if you say that he pulled the safety latch, it appears so". 

To this Venegavkar said that the deceased did not pull the safety latch, adding that the latch "got popped during the scuffle" and that the deceased had not handled any firearm earlier. The bench further  orally asked the State to "preserve the CCTV footages" right from the time the deceased came out of his barrack (in the jail), sat in the vehicle, went to court and till upto Shivaji Hospital, where he was declared dead.

The high court while dictating its order asked Venegavkar to also "preserve the CCTV footage of the deceased's parents", who had earlier submitted before the bench, that they met him a few hours before he was shot. It also called for collection of Call Data Records (CDRs) and also the Driver–an ex-serviceman, who drove the vehicle.

The court further noted from the record that an officer could not lift the finger print as it was lying in blood. It asked the State why the officer could not follow the procedure for lifting finger prints which had been laid down. 

The court also orally remarked on the absence of the State CID officers in the hearing. After it was told that the probe was transferred yesterday and the papers would be handed over today, the court orally said, "How much time does it take to hand over papers? Both the Police and also the State CID officers could have been present. In the Badlapur POCSO case you immediately handed over the papers. Why not in this case? How will you collect the Handwash then?"

Adjourning the matter to October 3, the court before parting said that it wasn't even "remotely suspecting" the police's activities, however it wanted to know the truth, asking the authorities to "come clean".  

Father alleges Fake Encounter Case, Seeks FIR Registration

During the hearing the petitioner's counsel referred to a "Press Note" issued by the Badlapur Police regarding the alleged fake encounter. He said, "My case is that this is a fake encounter case. My prayers are to order probe in the murder, registration of FIR against the erring officers and to preserve the CCTV footages of Taloja prison and the vicinity near the spot where the incident took place".

The counsel said that on the date of incident, the deceased had interacted with his parents and was asking as to when he would get bail. "My case is that he was not in a mental state to commit anything as claimed by the police that he snatched the pistol and shot at the officers," the counsel added.

The counsel further contended that the father had met his son just a few hours before the alleged "fake encounter", adding that the deceased's "mannerisms" did not indicate any intent to escape. In fact, the deceased had asked his parents for Rs 500, so that he can avail canteen services, the counsel added.

"He was not in a state to escape or had any physical capacity to snatch the pistol from an officer. My client's say that his son is killed in view of the forthcoming elections," he said.

Reading the father's letter written to the authorities, the counsel said, "Law mandates that whenever there is an encounter which is alleged to be fake, an FIR needs to be registered. We do have an alternate remedy to approach JMFC (Judicial Magistrate First Class) for registering an FIR but that court will not have extraordinary powers like this court to order an SIT".

He further submitted that the father's complaint is still pending with the Police, it was not being entertained and no FIR had been registered yet.

"Why courts and us are here? The police and the Home Minister are doing such justice. It will encourage police to commit such crimes and it will affect the society at large," he contended.