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The Aguiar Commission Report on the Extra Judicial Executions by the Bombay Police
Alarmed at the growing number of police encounters in Mumbai, in which invariably dreaded armed gangsters were killed by police without the latter getting injured, two civil rights bodies: the Committee for the Protection of Democratic Rights (CPDR) and the People's Union of Civil Liberties (PUCL) petitioned the High Court for an inquiry into these encounters last year. The Samajwadi party also filed a petition asking for an inquiry into the killing of a criminal Javed Fawda, who they claimed was actually a peanut vendor called Abu Sayama. The High Court took up the 3 petitions jointly and finding prima facie evidence of a disturbing pattern in the encounters, ordered an inquiry into 2 of them: the killing of Javed Fawda and that of Sada Pawle and Vijay Tandel, in August and September 97 respectively. The inquiry was carried out by Judge A S Aguiar, principal judge of the Bombay Sessions Court. It was held in February-March 98. The Samajwadi Party presented Abu Sayama's sister Rubina as its main witness, and the CPDR presented four eye-witnesses to the killing of Sada Pawle and Vijay Tandel. Three of them, Sada's immediate family, turned hostile, while one, a family friend, stood his ground. Advocates P A Sebastian, Lalit Chari and Majeed Memon appeared for the petitioners, while Srikant Bhat and Harshad Ponda appeared for the police.The National Human Rights Commission intervened, and was represented by Advocate P M Pradhan and Advocate Misar. Judge Aguiar presented his report to the High Court in July. It was made public on September 28. He found the encounters to be fake. One of them may never have taken place, he said; while in the other, the victims did not appear to have been armed.

The Aguiar Commission Report


IN THE HIGH COURT OF SESSIONS FOR GREATER BOMBAY ENQUIRY N0. 1 OF 1998 (CRIMINAL WRIT PETITION N0. 1032 OF 1997) WITH ENQUIRY N0. 2 OF 1998 (CRIMINAL WRIT PETITION N0. 1146 OF 1997) AND (CRIMINAL WRIT PETITION N0. 1064 OF 1997) INDEX FINDINGS I. PRELIMINARIES. 3-30 II. CASE OF MISTAKEN IDENTITY. III. DEATH OF ABU SAYAMA @ JAVED ABU TALIB SHAIKH. IV. DEATH OF SADA PAWALE AND VIJAY TANDEL. Pg. No. 1-A. 3-74 75-129 129-223

F I N D I N GS I. CASE OF MISTAKEN IDENTITY: There is no substance in the Petitioners case that the police have killed Abu Sayama @ Javed Abu Talib Shaikh, mistaking him for some other notorious gangster called Javed Fawda. There is no case of mistaken identity. II. DEATH OF ABU SAYAMA @ JAVED ABU TALIS SHAIKH: The deceased Javed Fawda @ Abu Sayama @ Javed Abu Talib Shaikh, was not killed in the encounter as claimed by the police. It is doubtful whether any such encounter took place. III. DEATH OF SADA PAWALE AND VIJAY TANDEL: The encounter in which Sada Pawale and Vijay Tandel were killed, cannot be said to be a genuine encounter. Principal & Sessions Judge, Gr. Bombay 15.7.1998.

IN THE COURT OF SESSIONS FOR GREATER BOMBAY. ENQUIRY NO.1 OF 1998 (CRIMINAL WRIT PETITION N0. 1032 OF 1997)

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l. Abu Asim Azmi ) 2. Smt. Shaila Satpute. ) 3. Waqarunnisa Ansari. ) ... Petitioners. V/s. State of Maharashtra. ) R. H. Mendonca ) Commissioner of Police, ) Mumbai ) 3. Vasant Raghunath Dhobale, ) Inspector of Police, ) Crime Branch, C.I.D.) ... Respondents. WITH ENQUIRY N0.2 OF 1998. (CRIMINAL WRIT PETITION N0. 1146 OF 1997). l. Peoples Union for Civil Liberties. ) 2. Shri Yogesh Vadilal Kamdar ) ... Petitioners. V/s.

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(CRIMINAL WRIT PETITION N0. 1146 OF 1997). l. Peoples Union for Civil Liberties. ) 2. Shri Yogesh Vadilal Kamdar ) ... Petitioners. V/s. The State of Maharashtra. ) The Director General of Police, Maharashtra, Mumbai. ) The Commissioner of Police, Mumbai. ) Coroner of Mumbai. ) 5. The National Human Rights Commission, New Delhi-110 001 ) AND CRIMINAL WRIT PETITION N0. 1064 OF 1997. The Committee for the Protection of Democratic Rights, Mumbai 400 005. ) ... Petitioners. V/s. The Government of Maharashtra ) The Director General of Police, Maharashtra, Mumbai. ) 3. The Commissioner of Police, Mumbai. ) ... Respondents. Coram: His Honour The Principal and Sessions Judge, Shri A.S.Aguiar. Date: 15th July 1998. Shri A.Majeed Memon with Shri S.G.Abbas Kazmi for

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-3 the Petitioner in Writ Petition No.1032 of 1997. Shri Srikant Bhatt - Special Public Prosecutor with Shri S.Golkar for Respondent Nos.l, 2 and 3 in Writ Petition No. 1032 of 1997: Shri Lalit Chari with Miss Z. Cooper and Shri F. M. Saldanha for the Petitioners in Writ Petition No.1146 of 1997. Shri H.H.Ponda with Ms.Usha Kejriwal - Special Public Prosecutor for Respondent Nos.l to 4, in Writ Petition No.1146 of 1997. Shri P.M.Pradhan with Shri H.G.Misar for Respondent No.5 in Writ Petition No.1146 of 1997. Shri P.A.Sebastian with Miss Adenwalla for the Petitioners in Writ Petition No.1064 of 1997. Shri H.H.Ponda with Ms.Usha Kejriwal - Special Public Prosecutor for Respondent Nos.l to 3 in Writ Petition No.1064 of 1997. PRELIMINARIES : The enquiry is held pursuant to the directions of the Honble High Court (Coram: A. P. Shah & J. A. Patil, JJ. ) in order a dated l0th December 1997, directing the Principal Judge, City ,Civil and Sessions Court to hold an enquiry into the death of Abu Sayama Javed Talib Shaikh in police encounter on 28thAugust 1997 and also the identity of the deceased Abu Sayama @ Javed Talib Shaikh, who is alleged to have been killed on a mistaken identity as Javed Fawda, and in the deaths of Sada Pawale and Vijay Tandel killed in the encounter on 26.9.1997 and also, to find out whether the encounters in which the above persons died, were genuine, or stage-managed encounters. By the said order, the Honble High Court directed the Principal and Sessions Judge to record evidence of relevant witnesses and to submit report within three months from the date of receipt of the Writ. The Honble High Court also directed that copies of the relevant Writ Petitions and Affidavits along with the enclosed/annexed documents and Affidavits be forwarded to the Sessions Judge who is required to examine the deponents of such Affidavits as well as the concerned officers. By the said order, the Honble High Court clarified that the Petitioners-Organisations will be entitled to be heard in the enquiry to be conducted by the Sessions Judge. By the said order, the Respondents were directed to file in the Honble High Court all the original papers pertaining to the encounter deaths of the said three persons within two days and the Registrar, High Court, was directed to forward the same to the Sessions Judge along with a copy of the said order and other relevant papers in a sealed cover. By the said order, the Honble High Court directed the Sessions Judge to send notice to the Petitioners as well as the Respondents. 2. The Learned Registrar, High Court, by his Letter dated 23rd/29th December 1997, bearing No. R.1611/204/97 forwarded to this Court the original papers which were delivered to him by the Addl. Public Prosecutor, High Court in two sealed envelopes marked as C. R. No.363 of 1997, ( M. R. A. Marg Police Station) and C.R.No.268 of 1997 (Tilak Nagar Police Station). On receipt of the said letter from the Registrar of the Honble High Court along with the papers as stated above, this Court issued notice dated 9.1.1998 to the Petitioners and the Respondents including the Human Rights Commission to present themselves before the Court The notice was made returnable on 16.1.1998. The notice was duly served on the parties. On the said date i.e. 16.1.1998, the Petitioners in Criminal Writ Petition No.1032 of 1997, were present with their Advocate Mr. Majeed Memon. Respondent No.3, API Dhobale was personally present Respondent Nos. l and 2; namely, the State of Maharashtra and the Commissioner of Police respectively were not represented. The Petitioners in Writ Petition No.1146 of 1997 were represented by Advocate Lalit Chari while the Petitioners in Writ Petition No.1064 of 1997 were represented by Advocate Mr. P. A. Sebastian. The Registrar Mr. U. D. Waghmare of the Coroners Court was present. None appeared for the State and none appeared for N. H. R. C. though served. A fax message dated 14.1.1998 received from N. H. R. C. Respondent No.5 was received, requesting for copies of the Writ Petition. 3. At the said hearing it was agreed that the Court may commence examining deponents who have filed Affidavits in the Writ Petitions in the High Court and for the said purpose, the Registrar (Sessions) was directed to call for the original proceedings filed in the Honble High Court. It was decided that the enquiry be split in two parts as the enquiry pertained to two separate incidents of police encounters - (i)the incident dated 28.8.1997 pertaining to the death of Abu Sayama @ Javed Talib Shaikh in which the identity of the person shot in the encounter is also in question, the said incident is the subject matter of Enquiry No.l. The incident pertaining to the death in police encounter on 26.9.1997 of Sada Pawale and Vijay Tandel is the subject matter of Enquiry No.2. The proceedings on both the dates were held in the chambers of the Principal/ Sessions Judge. Since none represented the State and the police, the Chief Public Prosecutor, Mr. Paranjpe, was required to remain present. He, however stated that he had no instructions and prayed for time. Learned Advocate for the respective parties stated that they would decide the witnesses whom they would examine and would submit a list of such witnesses. The enquiry was adjourned to 23.1.1998 with directions to the respective parties to keep their witnesses present. Advocate Sebastian for the Petitioners in Writ Petition No.1064 of 1997 and Advocate Chari for the Petitioners in Writ Petition No.1146 of 1997, pointed out that no Affidavits of witnesses have been filed by the Petitioners in the said Writ Petitions, Adv. Sebastian further pointed out that since the encounter on 26.9.1997 had taken place in public view in the middle of the road in broad daylight, it is possible that there are some eye-witnesses who would want to depose about the incident in which Sada Pawale and Vijay Tandel were killed. He therefore prayed that notice be issued in the press informing the public of the said enquiry requiring witnesses to come forward and depose before the Court. This Court did not accede to the request However, liberty was granted to the Petitioners to move the Honble High Court for necessary orders/directions

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middle of the road in broad daylight, it is possible that there are some eye-witnesses who would want to depose about the incident in which Sada Pawale and Vijay Tandel were killed. He therefore prayed that notice be issued in the press informing the public of the said enquiry requiring witnesses to come forward and depose before the Court. This Court did not accede to the request However, liberty was granted to the Petitioners to move the Honble High Court for necessary orders/directions for public notice in the newspapers. The enquiry was thereupon adjourned to 23.1.1998. 4. On the said date, Advocate Mr. Majeed Memon appeared for the Petitioners in Writ Petition No.1032 of 1997 while Advocate Mr. Srikant Bhatt appeared for Respondents Nos.l, 2 and 3 in the said Writ Petition No.1032 of 1997. Advocate Mr. Bhatt submitted copy of notification dated 25.1.1998 appointing him Special Public Prosecutor in the enquiry on behalf of the State of Maharashtra. In Writ Petition No.1146 of 1997, the Petitioners were represented by Advocate Mr. Lalit Chari while Advocate Mr. Sebastian appeared for the Petitioners in Writ Petition No.1064 of 1997 and Advocate Mr. Raje for the Respondents in Writ Petition Nos.1146 of 1997 and 1064 of 1997. Advocate I Mr. Raje stated that he represented all the three Respondents, viz. the State of Maharashtra, Commissioner of Police and the Director General of Police and produced a copy of the letter appointing him Special Public Prosecutor in Writ Petition Nos.1064/97 and 1146/97 on behalf of the State of Maharashtra. He however stated that his appearance was restricted only to the Respondents in Criminal Writ Petition Nos. 1146/97 and 1064/97 i.e. Enquiry No.2/98. None was present on behalf of the N. H. R. C. How ever, Registrar of the N. H. R. C. had earlier telephoned the Court stating that the N. H. R. C. had applied to the Honble High Court for copies of the Writ Petitions, praying that the enquiry be adjourned to enable the N.H.A.C. to appoint Counsel to represent N.H.R.C. at the enquiry. Advocate Mr. Sebastian on behalf of the C.P.D.R. in Writ Petition No.1146/97 stated that he had applied to the Honble High Court for directions regarding issue of public notice in the newspapers. However, since the Bench which passed the order dated 10.12.1997 was not sitting, he prayed that the matter be adjourned. Advocates Mr. Raje and Mr. Bhatt for the Respondents stated that the Notification appointing them as Public Prosecutors was received by them only the previous evening. They therefore applied for three weeks time to study their briefs. They further prayed for time to move the High Court for clarification in connection with the order dated 10.12.1997 passed by the Honble High Court Advocate Mr. Majeed Memon on behalf of the Petitioners in Writ Petition No.1032/97, stated that he had kept his witnesses, namely the persons whose Affidavits were filed in the Honble High Court present However, since there was some controversy whether the witnesses of the Respondents or the Petitioners were to be examined first, I directed the Petitioners in Enquiry No.l/98 to examine the witnesses on the next date and adjourned the enquiry to 6.2.1998. A letter dated 3.9.1997 addressed to the Chief Justice was received from the wife of the deceased Meenakshi Tandel, a copy of which was forwarded to this Court and was taken on record. Similarly, letter dated 30.9.1997 addressed to N. H. R. C. was also taken on record. Registrar (Sessions) was directed to issue summonses to Meenakshi Tandel and Hausabai Tawade. 5. On 6.2.1998, Advocate Mr. Memon appeared for the Petitioners in Writ Petition No.1032/97 while Advocate Mr. P. A. Sebastian appeared for the Petitioners in Writ Petition No.1064/97. The Respondents in all the three Writ Petitions were represented. (Advocate Mr.S. Bhatt in Writ Petition No. 1032/97 and Advocate Mr. Raje in Writ Petition Nos.1064/97 and 1146/97 were also present). Registrar Mr. R.S. Jain from the N. H. R. C. was also present along with Advocate Mr. Pradhan and Advocate Mr. Misar for N.H.R.C. Advocate Pradhan with Advocate Misar for N. H. R. C. prayed that the Respondents-N. H. R. C. be allowed to intervene in the present enquiry No. 1/98 although N. H. R. C. was not a party to the Writ Petition No.1032/97. The application was allowed. Similarly, Advocate Mr. Sebastian for the Petitioners in Writ Petition No. 1064/97 prayed that although the C. P. D. R. was not a party to the Writ Petition No.1032/97, the C.P.D.R. be allowed to intervene in Enquiry No.l/98 as the death of Abu Sayama Javed Talib Shaikh was allegedly a death in fake encounter. The application was granted. Advocate Mr. S. Bhatt on behalf of the Respondents filed an application being Misc.Appln.No.3/98 requiring this Court to lay down the procedure for conducting the enquiry. For reasons recorded separately, the application was rejected. Advocate Mr. S. Bhatt also filed application being Misc. Appln. No.4/98 requiring the Court to first examine Abu Azmi the Petitioner No. l in Writ Petition No.1032/97. The said application was rejected. 6. The points that arise for consideration in the said Enquiry No.1/98 were discussed, settled and framed. The same are marked as Ex.5. Advocate Mr. Majeed Memon for the Petitioners stated that his witness, Rubina wife of Javed was present and was ready to depose before the Court. However, Advocate Bhatt prayed for time to move the Hon ble High Court for clarifying the procedure, which application was rejected. Advocates Mr. Raje for the Respondents and Mr. Sebastian for the Petitioners in Writ Petition Nos.1064/97 and 1146/97 stated that the application made to the Honble High Court for issuing public notice in the newspapers inviting witnesses to depose before this Court was adjourned to 16.2.1998. In view thereof, the witness summonses directed to be issued to the witnesses was stayed and Misc. Appln. No. I /98 was disposed off. On the said date, since the witness on behalf of the Petitioners in Writ Petition No.1032/97 viz. Rubina wife of Sayed Javed (PW 1 ) who claimed to be the sister of the deceased Abu Sayama @ Javed Talib Shaikh was present, she was examined and thereafter, partly cross examined by Advocate for the Respondents, Mr. Bhatt and the matter was adjourned to 9.2.1998. The matter thereafter continued from day to day and evidence of witnesses was recorded. On 18.2.1998, Advocate for the respective parties stated that the High Court had passed certain orders in connection with the further progress of the enquiry. However, copy of the said order was not received and hence the matter was adjourned. The said order of the Honble High Court dated 17.2.1998 was received by this court on 19.2.1998. By the said order dated 17.2.1998, the time for submitting the report of this Court was extended by one month. By the said order, the Hon ble High Court clarified that the enquiry was an informal enquiry. It was further clarified that the statements made by the police officers in the said enquiry was not to be used against them in any other proceedings including a possible criminal prosecution against them. 7. By the said order, the Court however directed that the questions to whether the examination of Abu Asim Azrni and the other Petitioners is necessary or not, is to be decided by the Sessions Judge. Regarding the enquiry into the death of Sada Pawale and Vijay Tandel, the court recorded the statements made by Advocate Mr. Rane ; and Advocate Mr. Sebastian that they would give a list of witnesses whom they proposed to examinee and also file their Affidavits within two weeks from the said date and the Sessions Judge was directed to give reasonable time to the other side in order to prepare for cross examination. By the said order, by consent of all the parties, the Honble High Court-was pleased to adjourn the enquiry to

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Pawale and Vijay Tandel, the court recorded the statements made by Advocate Mr. Rane ; and Advocate Mr. Sebastian that they would give a list of witnesses whom they proposed to examinee and also file their Affidavits within two weeks from the said date and the Sessions Judge was directed to give reasonable time to the other side in order to prepare for cross examination. By the said order, by consent of all the parties, the Honble High Court-was pleased to adjourn the enquiry to 2.3.1998. 8 On 2.3.1998, this Court heard the arguments by learned Advocates for the respective parties on the point of examining the Petitioner Abu Asim Azmi and reserved orders on the said application till 27.3.1998,on which date this Court rejected the application for examining Petitioner Abu Asim Azmi. On 1231998, Learned Advocates for the Petitioners Mr. Majeed Memon, filed application Ex.l6, praying that the Respondents be directed to examine Respondent No.2, Commissioner of Police, Mr. Mendonca and Respondent No.3, API Dhobale. On 1731998, Advocate Mr.Memon for the Petitioners inquire whether the Respondents would be examining API Dhobale and the Commissioner of Police, Mr.Mendonca, as prayed for in the application Ex.l6. Advocate Bhatt stated that he would be examining API Dhobale but he will not examine the Commissioner of Police. In view of this statement, Advocate Memon did not press for examining the Commissioner of Police and hence application Ex.l6 was disposed off. On 18.3.1998, two see packets containing papers in C.R.No.360/97 of M.R.A.Marg Police Station and C.R.No.368/97 of Tilak Nagar Police stn. were opened in the Court and inspection was taken. On 20.3.1998, an application Ex.l9 was made by Advocate Majeed Memon for viewing and taking on record, video-recorded item "Khabar Khoj" recorded and televised by Mumbai Mail In Mumbai T.V.channel. said . The application which was opposed by Advocate Bhatt for the respondents was rejected. 9. On 27.3.1998,Advocate Memon for the Petitioners stated that witness John Fernandes was not available and therefore did not desire to examine him. Advocate for the Respondent Mr. Srikant Bhatt stated that the Respondent did not insist on the said witness John Fernandes being examined and with that statement evidence in Enquiry No.1/98 was closed. In this enquiry, three witnesses were examined on be of the Petitioners and seven witnesses on behalf of the Respondents. The Petitioners witnesses are Rubina Banu @ Javed (PW 1), the sister of the deceased Abu Sayama Javed Talib Shaikh who filed a xerox copy receipt of the missing persons complaint (Ex.A-1) given to her by the police and the ration card Ex.A and who took charge of the dead body of her brother Abu Sayama Javed Talib Shaikh from the J.J.Morgue. Nanu Machhan Khan (PW Z) and Anwarkhan Mehboob Khan (PW 3) a painter, were examined in support of the Petitioners contention that the deceased Abu Sayama was a peanut vendor and that they along with Abu Sayama were plying their trade outside the Bandra Railway Station. 11. The Respondents have examined seven witnesses. Laxman Shankar Ekilwale (RW 1) is the police constable bearing badge No.25713 who was on remand duty on 1.9.1997 at the Killa Court when the accused in the Gulshan Kumar murder case were produced before the Magistrate. P.C.No.25713 (RW 1) has stated that out of the six accused, two of them namely, Javed Wahid Khan Javed Kaliya and Rafiq Ansari were in his custody and were produced by him before the Magistrate. P.C.No.25713 (RW 1) has emphatically denied that any lady approached the accused Javed Kaliya in his presence in the Court or that any lady approached him while the two accused were in his custody in the compound or building of the Esplanade Court. He further stated that at no time the two accused who were in his custody were separated from him. ,Bandu Bhau Bhosale (RW 2) is the Police Sub-Inspector attached to Bandra Police Station who has recorded the Missing Persons Complaint lodged by Rubina (PW 1) and made the entry in the Missing Persons Diary Ex.J-1 and also the entry in the station diary Ex.H-1. Vijay Harishchandra Kelvekar (RW 3) is the medical officer attached to the Coroners Court J. J. hospital, Mumbai, who has proved the memorandum of the post mortem examination Ex.O held at the J.J.Morgue on 28.8.1997 in respect of the dead body of Javed Fawda (Body No.3469/22). Sudhakar Haribhau Ramteke (RW 4) the Asst. Chemical Analyser was examined as the Ballistics Expert in connection with the firearms used in the said encounter. Netaji Ramchandra Tambvekar (RW 5) the Senior Police Inspector attached to Matunga Police Station and Vasant Raghunath Dhobale (RW 7) Addl.Police Inspector attached to C.I.U.D.C.B.C.I.D., have deposed about the encounter in which the deceased was killed on the night of 27th/28th August 1997 at Sprott Road, Ballard Pier and also about the events, preparatory and subsequent to the encounter. API Dhobale (RW 7) is the police officer who allegedly shot the deceased in the said incident. Rampyara Gopinath Rajbhar (RW 6) is the Police Sub Inspector attached to Shivaji Park Police Station who has deposed about the arrest of Javed Talib Shaikh along with one Maharaja Mandiran Pillai on 27.11.1996 at Antop Hill in C.R.No.339/96 registered by the Shivaji Park Police Station. 12. After the evidence was recorded in Enquiry No.1/98 pertaining to the encounter at Sprott Road, Ballard Pier, in which Abu Sayama Javed Talib Shaikh was killed, evidence was recorded in respect of the second incident which took place on 25.9.1998 at Rajawadi junction, Ghatkopar (East), in which the alleged sharp-shooter of the Arun Gawli gang, Sada Pawale and Vijay Tandel were killed. So far as this incident is concerned, no Affidavits are filed in support of the Writ Petitions filed in the High Court, viz. Writ Petition Nos.1064/97 and 1146/97. However, Affidavits-in-reply and supplementary Affidavits have been filed by the Commissioner of Police Mr.R.Mendonca as well as the Director General of Police Mr.A.S.Inamdar and API V.R.Dhobale in the High Court Writ Petition. Before the enquiry commenced, the sister of Sada Pawale, Hausabai Tawade and his sister-in-law Anita 19 Pawale, had sent letters to the N.H.R.C. and Chief Justice, copies of which were sent to this Court. Before Enquiry No.2/98 commenced Advocate Sebastian on behalf of the Petitioners also filed Affidavits of Hausabai Tawade, Anita Pawale and Anand Pawale on 2.3.1998 before this Court. The Affidavit of Baldev Singh dated 3.3.1998, was filed on 3.3.1998. 13. At the start of the enquiry, Advocate Chari for P.U.C stated that the P.U.C.L. does not desire to examine any witness on its behalf and the P.U.C.L. will restrict itself to cross examining the witnesses produced by the Respondents-police. On 30.3.1998, Advocate Sebastian for the C.P.D.R. stated that none of his witnesses were available on that day and alleged that the witnesses had been kept back a prevented from coming to the Court. He further alleged that in all probability, the 4 witnesses whom he proposed to examine had been approached or instructed by the police and that he therefore expected them to turn hostile. Advocate Sebastian prayed that non-bailable warrants be issued again the said witnesses. Advocate Ponda for the Respondents refuted the allegation made by Advocate Sebastian and state that the police were not in a position to produce the said witnesses. He however, had no objection to the Court issuing non-bailable warrants to the four witnesses proposed to be examined by the P petitioners. 14. At that stage, Advocate Sarogi came to Court and stated that he appeared on behalf of the witnesses Hausabai Tawade and Anita Pawale and tendered Affidavit dated 27.3.1998 on behalf of the said witnesses. He stated that the witnesses are ready to come to the Court and that they have now by their Affidavit dated 27.3.1998, retracted their statements made in the earlier Affidavits dated 2.3.1998. On being asked to produce the witnesses, Advocate Sarogi immediately sent for the two witnesses, viz. Hausabai Tawade and Anita Pawale and in a short while, the said witnesses stepped into the Court. Since the other two witnesses, viz. Anand Pawale and Baldev Singh were not present, bailable warrants were directed to be issued. The first witness Smt.Hausabai Gundu Tawade (PW 1) was put in the box but within a short while,Advocate Sebastian declared her hostile and permission was granted to him to cross examined the said witness. However, in view of these developments and fresh Affidavits filed by the witnesses,

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and in a short while, the said witnesses stepped into the Court. Since the other two witnesses, viz. Anand Pawale and Baldev Singh were not present, bailable warrants were directed to be issued. The first witness Smt.Hausabai Gundu Tawade (PW 1) was put in the box but within a short while,Advocate Sebastian declared her hostile and permission was granted to him to cross examined the said witness. However, in view of these developments and fresh Affidavits filed by the witnesses, on the application of Advocate Sebastian, the matter was adjourned for cross examination to 31.3.1998 on which date the witness pleaded in the Court that she could not continue to bear the questioning. She wept and asked to be pardoned for making the earlier Affidavit and further stated that she was not in a position to face the cross examination, and this Court after taking physical and mental state of the witness into consideration, directed Advocate Sebastian not to continue the cross examination and to just put his case to the witness. (See Notes of Evidence, PW/4) At the conclusion of her cross examination, Hausabai Tawade (PW 1) pleaded that her brother and sister-in-law should not be harassed by the police. (See foot-note in Notes of Evidence at PW1/Sl. On the same day, Advocate Sarogi stated that he now appeared for all the four witnesses. He further stated that the witnesses required police protection as they were being pressurised from all sides and that they are being prevented from coming to the Court. He was directed to file a written application. Thereafter, Anita Anand Pawale (PW 2) was examined by Advocate Sebastian for the C.P.D.R. who declared the witness hostile and was granted permission to cross examine the witness. 15. On the next date i.e. 1.4.1998, Advocate Sarogi for the witness stated that the witness did not wish to make any written application for police protection. However, Advocate Sebastian for the C.P.D.R. stated that in view of the statement recorded yesterday by Hansabai Tawade (PW 1) that her sister-in-law Anita Anand Pawale and brother Anand Pawale, should not be harassed by the police, the Court should grant police protection to the said witness. However, in view of the fact that the evidence of Hausabai Tawade (PW 1) and Anita Pawale (PW 2) was almost completed and they would therefore not be required to attend the Court again, the said witnesses agreed that they would not require police protection. On the said date, Advocate Sarogi tendered the Affidavit: dated 31.3.1998 of Anand Pawale (PW 3) and Baldevsingh Jaswantsingh Panesar (PW 4) retracting the earlier Affidavits. The next witness Anand Bhimrao Pawale (PW 3) who stepped in the witness box was declared hostile and cross examined with the permission of the Court. for permission to permit Ms.Priyanka Kakodkar, a journalist from the Times of India to file an Affidavit confirming what was stated in the Report in the Times of India, titled "Police Killed Sada Pawale in Fake Encounter, alleges his sister". He further prayed that she may be summoned to depose before the Court. Advocate Ponda prayed for time to file a written reply. Advocate Sarogi on behalf of the four witnesses filed an application praying for police protection of the four witnesses alleging that according to him the four witnesses had been kidnapped from their residence. The said application was summarily rejected. Since the fourth witness, Shri Baldevsingh Jaswantsingh Panesar who had been issued a bailable warrant was not present, a non-bailable warrant came to be issued against him, returnable on 3.4.1998. 17. On 3.4.1998, PI Sawant from Tilak Nagar Police Station stated that the non-bailable warrant issued against Baldevsingh Jaswantsingh Panesar, could not be issued as he was not available at his last known address. Time for executing the said warrant was extended upto 30.4.1998. Thereafter, on account of some intervening holidays, the enquiry was adjourned to 13.4.1998 on which day, the said witness Baldevsingh Jaswantsingh Panesar, was present in the Court and Advocate Shri Sarogi after conferring with the witness, prayed that the instructing Advocate Shri Shirdhonkar be discharged. Accordingly, Advocate Shirdhonkar was discharged. On the said date, PI Sawant of Tilak Nagar Police Station stated that non-bailable warrant could not be executed as Balwantsingh was not available at his residence as well as at his place of work. As the witness was present non-bailable warrant was directed to be cancelled. The said witness Baldevsingh Jaswantsingh Panesar, however prayed that he be granted police protection at his residence as well as during his journey to and from the Court as he apprehended danger, to his life. PI Sawant of Tilak Nagar Police Station was directed to provide the necessary protection to the witness till his deposition was completed in the Court. On the next date i.e. 15.4.1998, the examination-in-chief of Balwantsingh Jaswantsingh Panesar (PW 4) was commenced and completed. On 21.4.1998, Advocate Sebastian for the Petitioners stated that he did not press the application for examination of Ms.Priyanka Kakodkar, journalist with the Times of India, who had filed a report dated 24.10.1997.. The Petitioners were however granted liberty to file the Affidavit of Ms.Priyanka Kakodkar in the Court. It must be pointed out that till date, the same has not been filed. 18. As stated earlier, the Petitioners had proposed to examine four witnesses, namely, Hausabai Tawade, Anita Pawale, Anand Bhimrao Pawale and Baldevsingh Jaswantsingh who had filed Affidavits before this Court. However, in view of the subsequent Affidavits retracting their earlier Affidavits, the witnesses except Baldevsingh Jaswantsingh Panesar, were declared hostile and allowed to be cross examined. So far as the Respondents are concerned, they, have examined six witnesses, namely, Avinash Bhalchandra Sawant (RW 1), Satish Ganpat Mayekar (RW 2), Hemant Rajaram Desai (RW 3) and police constable No.t642 Arun Dada Jadhav (RW 4). Al1 the aforesaid policemen were involved in the encounter at the junction of Rajawadi Road and M.G.Road in which Sada Pawale and Vijay Tandel were killed. The other witnesses examined are Advocate Sarogi (RW 5) in connection with the instructions received by him from the witnesses Hausabai Tawade (PW 1) and others, for filing their Affidavits as well as for filing their subsequent Affidavits which were retracted. Ashok Bhausaheb Kamble (RW 6) was examined in connection with the application for the post of fire officer with the Bombay Fire Brigade by Baldevsingh Jaswantsingh Panesar (PW 4). 19. After the witnesses were examined, oral submissions were made on behalf of the Petitioners and Respondents in both Enquiry No.1 and Enquiry No.2 and they were directed to file written submissions on behalf of their respective clients, which they have done. They are on record as Ex.l7 to Ex.20 in Enquiry No. and as Ex.20 in Enquiry No. 2 and as Ex. 23,24 to Ex. 26,27 in enquiry no. 1 SCOPE OF ENQUIRY: 20. As stated earlier, this enquiry is being conducted as per the directions of the Hon'ble High Court order dated 10.12.1997. By the said order, the Learned Judges have set out the scope of enquiry and the exact points for determination. The said order came to be passed by the Hon'ble High Court in the above Writ Petitions. In view of the averments contained therein, namely, that during the last couple of years, many incidents have taken place which have been described as "encounters" by the police authorities. It is the contention of the Petitioners that they are not genuine encounters but they are executions by the police authorities, without following the due process of law. It is further contended that the police version of the encounter invariably says that the "police received a tip off" that a certain dreaded criminal would come to a specific place for some work of his own and hence the police laid a trap for his arrest. As expected the criminal arrived at the scene and the police called him by his name and asks him to surrender but he refuses to surrender. On the contrary, he opens fire. It is further stated that the so-called criminal had the most modern and lethal weapon, such as Ak-47 or AK-56 and that he opens fire on the police. It is further stated that the police have only indigenously made weapons which could not match the weapons of the criminals. Despite the same, the police did not suffer any casualties. However, the so-called dreaded criminal died on the spot. It is further pointed out that according to the Petitioners, the police picked up certain people who they thought were criminals and shot them dead in cold blood. It is admitted that it is possible that some of the persons who were shot dead were criminals while some others were innocent. The Petitioners have highlighted the case of Abu Sayama Javed in order to show that an innocent Youth became a victim of the encounter stage-managed by the police. The Petitioners have alleged that there is a general pattern in 11 the reports which had appeared in the newspaper in respect of all the encounters as

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criminals and shot them dead in cold blood. It is admitted that it is possible that some of the persons who were shot dead were criminals while some others were innocent. The Petitioners have highlighted the case of Abu Sayama Javed in order to show that an innocent Youth became a victim of the encounter stage-managed by the police. The Petitioners have alleged that there is a general pattern in 11 the reports which had appeared in the newspaper in respect of all the encounters as given by the police themselves and reproduced by the media. The Petitioners submit that the encounters are fake encounters and that in every encounter, the criminals sought to be arrested, dies. It is further pointed out that all the persons who were fired upon by the police were not hit below the naval, but on other parts of the body and that no person survives before he is taken to the hospital. It is alleged that the encounters have grossly violated the right of life guaranteed by Article 21 of the Constitution, and in view thereof, the Court has directed that the present enquiry into these incidents be held. 21. By order dated 17.2.1998, the Hon'ble High Court laid down certain parameters for holding the enquiry such as clarifying that the enquiry was only an informal enquiry, intended to facilitate the decision on the aforesaid writ petitions pending before the Hon'ble High Court and that the statements made by the police officers in the enquiry, shall not be used against them in any other proceedings, Civil or Criminal and that the Petitioners will file their Affidavits within two weeks and reasonable time ought to be given to the other side to prepare their case. 22. This enquiry was conducted, keeping in view the guidelines contained in the orders of the Honble High Court dated 10.12.1997 and 17.2.1998 and this Court is required by the Honble High Court to submit its report and findings on the issues set out by the Honble High Court by its order dated 10.12.1997. ENQUIRY N0.1: 23. Keeping in view the directions of the Honble High Court contained in its order dated 10.12.1997 and by consent of Learned Advocates for the respective parties, this Court has split the enquiry into two parts, being Enquiry No.1/98 and EnquiryNo.2/98 and framed points for determination in Enquiry No.1/98 as follows: (1) Whether the person killed in the encounter on 28.8.1997 viz. Abu Sayama Javed s/o Abu Talib Shaikh is the notorious gangster known as "Javed Fawda" as claimed by the police? (2) Whether the encounter on 28.8.1997, in which the alleged gangster "Javed Fawda" was killed, was a fake or genuine encounter? II. CASE OF MISTAKEN IDENTITY JAVED FAWDA .- AN ENIGMA . 24. A case of mistaken identity arises when one person is mistaken for another. This necessarily pre-supposes the existence of at least two persons. One person may be mistaken for another due to several factors such as similarity in looks, physical characteristics or peculiarities, voice, gait, name, etc. or a combination of these factors. 25. It is the case of the Petitioners in Writ Petition No.1032/97 that Abu Sayama Javed Talib Shaikh, an innocent peanut vendor, was killed by the police in cold blood, mistaking him to be the notorious gangster called Javed Fawda. On the other hand, the police say that the person who was killed in the police encounter at Sprott Road, Ballard Pier, was indeed the notorious gangster known as Javed Fawda and there is no case of mistaken identity. 26. From the above contrary positions, the following propositions arise: i) Whether Abu Sayama Javed Abu Talib Shaikh, the innocent peanut vendor and the alleged notorious gangster known to the police as Javed Fawda, are two different persons or one and the same person? (ii) Whether Abu Sayama Javed Abu Talib Shaikh was an innocent peanut vendor? (iii) Whether the person whom the police referred to Javed Fawda was a notorious gangster/criminal? (iv) Whether Abu Sayama Javed Abu Talib Shaikh, the brother of Rubina (PW.l) killed by the police in the encounter, is the same person known to the Police as Javed Fawda, the notorious gangster? 27. A case of mistaken identity could arise only if it is established that Abu Sayama Javed Abu Talib Shaikh and Javed Fawda, are two separate and distinct persons. About the existence of Abu Sayama Javed Abu Talib Shaikh, there is no However, serious doubts have arisen about the existence of Javed Fawda as a person, distinct from Abu Sayama Javed Abu Talib Shaikh. According to the Petitioners, Javed Fawda is a distinct person from Abu Sayama Abu Sayama was never known as Javed Fawda. Since the two persons according to the Petitioners are separate persons, the possibility of one being mistaken for the other, cannot be ruled out. On the other hand, the police maintain that Abu Sayama Javed Talib Shaikh, is none other than the notorious gangster whom they know as Javed Fawda. In other words, there is only one person known as Abu Sayama Javed Abu Talib Shaikh @ Javed Fawda and hence there is no question of a case of mistaken identity having arisen. 28. In view of the above, it is necessary to find out if the names Abu Sayama Javed Abu Talib Shaikh and Javed Fawda refer to two or three distinct persons or to one and the same person. The following discussion on the various aspects on the question of mistaken identity that emerge from the evidence of the witnesses examined by the Petitioners as well as the Respondents, will enable us to answer this question. ABU SAYAMA @JAVED ABU TALIB SHAIKH @ JAVED FAWDA: 29. According to the Petitioners, Abu Sayama Javed Abu Talib Shaikh, who admittedly was killed in an encounter with the police on the night of 26.8.1997 at Sprott Road, Ballard Pier, is not the notorious gangster Javed Fawda. He is an innocent person. He was earning his livelihood by selling peanuts at the Bandra Railway Station, Bandra (West). According to Rubina (PW 1) who claims to be the sister of the deceased, Abu Sayama was 18 years of age at the time of his death. Abu Sayama was picked up by the police from outside the-mosque near the Bandra Railway Station, Bandra -(West). where he had gone for namaz on 26.8.1997. According to Rubina (PW 1), she was informed by a boy who came and told her: "Deedi, tumare Bhai Ko Char Police Pakad Ke Le Gaye." Rubina (PW 1) claims that she immediately rushed to the Bandra Police Station and from there to the Crime Branch which is just behind the Bandra Police Station and made enquiries but was told that her brother was not there and to make enquiries at other Police Stations. Rubina (PW 1) further claims that thereafter she made enquiries at the Santacruz, Vile Parle, Andheri, Goregaon and other Police Stations but her brother was not at these police stations. Rubina (PW 1) claims that the next day again she went to the Bandra Police Station and was

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Police Station and from there to the Crime Branch which is just behind the Bandra Police Station and made enquiries but was told that her brother was not there and to make enquiries at other Police Stations. Rubina (PW 1) further claims that thereafter she made enquiries at the Santacruz, Vile Parle, Andheri, Goregaon and other Police Stations but her brother was not at these police stations. Rubina (PW 1) claims that the next day again she went to the Bandra Police Station and was again informed that her brother was not there and was told to look for him at some other place. Again on the next day, i.e. the third day, she went to the Bandra Police Station and begged the concerned police officer to record her complaint. Rubina says "I touched his feet and pleaded with him to record my complaint of my missing brother", and it appears that the officer recorded the said missing persons complaint in the station diary as well as in the missing persons diary. The same are on record as Ex.H-1 and Ex.J-1. Rubina (PW 1) further claims that for eight days thereafter, she made enquiries at all the police stations which she had visited earlier and only on the eighth day, she went to the Killa Court. (However, she corrected herself and said that she went to Killa Court on the 1st). WHATS IN A NAME : 30. The question might otherwise be dismissed as mere rhetoric, but not in the present case, because thereupon hangs the answer to another vexed question, namely, whether the names Abu Sayama, Javed Abu Talib Shaikh and Javed Fawda, refer to one person or to different persons. 31. Throughout her examination-in-chief, Rubina (PW 1) has referred to her brother as Abu Sayama. Rubina (PW 1) claims that after much persuasion, the Bandra police recorded the missing persons complaint Ex.H-1 on 28.8.1997. A perusal of the missing persons complaint Ex.H-1 and the diary entry Ex.J-1, shows that Rubina (PW 1) has given the name of her missing brother as Javed Talib Shaikh. Nowhere in the missing complaint, has the name Abu Sayama been used. However, in her evidence, Rubina (PW 1) has throughout referred to her deceased brother only as Abu Sayama and not Javed Abu Talib Shaikh. It is only in cross examination that Rubina (PW 1) has reluctantly admitted that her deceased brother was affectionately referred to as "Javed". The absence of the name "Abu Sayama" in the missing persons complaint Ex.H-1 and the diary entry Ex.J-1 and the failure on the part of Rubina (PW 1) to refer to her deceased brother as "Javed Talib Shaikh" in her evidence is perplexing. Are they the names of Rubina's two brothers or do the two names refer to only one brother who was aged 18 years at the time of the incident or is there an attempt to obfuscate the issue? 32. It is an admitted position that Rubina's brother ,Javed Abu Talib Shaikh was arrested by the Shivaji Park Police Station in C.R.No.339/96 on a charge of attempt to murder. Nowhere in the police papers in the said C.R., does the name Abu Sayama appear. ln fact, in his statement recorded in the said C.R., the accused named Abu Talib Shaikh has given the name of his brother as Abu Sayama and sister as Rubina. 33. According to the police, the fingerprints of Javed Abu Talib Shaikh arrested in C.R.No.339/96 of Shivaji Park Police Station, tally with the fingerprints of the deceased obtained by the M.R.A.Marg Police Station after the incident. The deceased according to the police was known as "Javed Fawda". The opinion of the fingerprint expert is annexed to the petition and has not been challenged either by the Petitioners or the Respondents. 34. The body of the deceased referred to by the police as Javed Fawda was claimed by Rubina (PW 1) as the sister. Rubina (PW 1) alleges that she was forced to refer to her brother as Javed Fawda while claiming the body and was told that unless she referred to the body as that of Javed Fawda, the same would not be handed over to her. There is therefore no dispute, and it is established beyond doubt, that the body claimed by Rubina (PW 1) was that of her brother Abu Talib Shaikh, who was arrested by Shivaji Park Police Station in C.R.No.339/96 on a charge of attempt to murder. Rubina (PW 1) in her cross examination at PW1/6 has admitted that her brother was arrested by Shivaji Park Police Station in a case of murder or attempt to murder. 35. The absence of the name Abu Sayama in the entire police papers in C.R.No.339/96 of Shivaji Park Police Station and the fact that the accused in the. said C.R.has signed his name on the vakalatnama and the two bail bonds Ex.C and Ex.D, as "Javed", indicates that Abu Sayama is not the alias of Javed Abu Talib Shaikh and therefore, the name Abu Sayama could possibly be the name of another brother of Rubina (PW 1). This is also the suggestion and possible explanation given by Learned Advocates for the Respondents. Rubina (PW 1) has referred to the official name of the deceased as Abu Sayama and she has also admitted in the cross examination that he was called "Javed" out of love and affection. This would indicate that Abu Sayama was the official name of her brother. However, the ration card shows that one Abu Sayama is the son of Mohammed Sabir and Rubina (PW 1) is also shown as the daughter of Mohammed Sabir on the ration card. The name Mohammed Sabir was not given as the name of the father of the deceased either in the Missing Persons Complaint registered at the Bandra Police Station or in the C.R.No.339/96 registered at the Shivaji Park Police Station. Further the ration card gives the age of Abu Sayama in 1993 as 20 years. Rubinas elder brother Mohammed Sabir is shown as 26 years of age. Another brother Jahabas is shown as 25 years of age and lastly another brother by name Abu Gaffar is shown as 15 years of age. The ration card thus indicates that Abu Sayama and Rubina (PW 1) are the children of Mohammed Sabir and not Abu Talib.36. Further in the ration card, the name of Abu Talib aged 65 years, appears as the brother of Mohammed Sabir, the ration card holder. No other relation of Abu Talib has been shown in the ration card. On 23.1.1998, the names of Abu Talib Shaikh as the brother of Moammed Sabir, Jahabas, and Abu Gaffar as sons of Abu Talib, Samshad as daughter-in-law and Abu Ashwad as the grand-daughter of Mohammed Shabir have been added in the ration card. It is contended by Learned Advocate for the Respondents that the ration card nowhere mentions the name "Javed". Therefore, it is quite possible that the person known as "Javed" was not residing at the Bandra address as alleged by Rubina (PW 1). 37. From a perusal of the rationcard, it is clear that no person by name of Javed or Javed Abu Talib Shaikh is referred to therein and therefore Javed Abu Talib Shaikh whose body was claimed by Rubina (PW 1) from the J.J.Morgue could not address at Bandra. This would also explain why Rubina (PW 1) approached the police and the J.J.Morgue for claiming the body of her brother with the ration card giving the name of her deceased brother as Abu Sayama. It also explains the refusal of the police to hand over the body on the basis of the ration card since the name "Javed" did not appear anywhere in the ration card. 39. The allegation of Rubina (PW 1) that the police refused to hand over the body to her unless she referred to her deceased brother as "Javed Fawda", would indicate that the police only knew the deceased by name of Javed Fawda and not be any other name and it is ultimately admitted by Rubina (PW t) that the body was handed over to her only after she identified it as the body of her brother Javed Fawda. It is an admitted position that the body of the deceased was claimed by Rubina (PW 1) as that of her brother. It is also the case of the police that the body of the person whom they claimed to be that of Javed Fawda, is that of Abu Talib Shaikh who was arrested in C.R.No.339/96 of Shivaji Park Police Station. Of course, the police came to know of this fact only after the body was claimed by Rubina (PW 1) on 2.9.1997 as deposed to by API Dhobale (RW 7) at RW7/23 (para 15). In the

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It is an admitted position that the body of the deceased was claimed by Rubina (PW 1) as that of her brother. It is also the case of the police that the body of the person whom they claimed to be that of Javed Fawda, is that of Abu Talib Shaikh who was arrested in C.R.No.339/96 of Shivaji Park Police Station. Of course, the police came to know of this fact only after the body was claimed by Rubina (PW 1) on 2.9.1997 as deposed to by API Dhobale (RW 7) at RW7/23 (para 15). In the proceedings of Sessions Case No.366/97 (C.R:No.339/96), the name Javed Fawda does not appear but it is admitted by Rubina (PW 1)that her brother Javed Abu Talib Shaikh was arrested in the said C.R.of Shivaji Park Police Station. The bail bonds Ex.C and D in the said C.R.No.339J96, are signed by one Javed. That the person who was shot in the police encounter and known to the police as Javed Fawda, is Javed Abu Talib Shaikh, who was arrested in C.R.No.339/96 of Shivaji Park Police Station, is also based on the identity of the fingerprints of Javed Abu Talib Shaikh in C.R.No.339/96 and the fingerprints taken from the dead body by the M.R.A.Marg Police Station, with whom the F.I.R. was lodged about the encounter. 41. There is therefore no dispute that the deceased was known as Javed Abu Talib Shaikh and that Javed Abu Talib Shaikh was killed in the encounter. The body claimed and taken for the last rites by Rubina (PW 1) was that of Javed Abu Talib Shaikh. The contention of the Petitioners that the body claimed was that of Abu Sayama, brother of Rubina (PW 1) is rebutted by the fact that the Missing Persons Complaint, nowhere refers to the missing person as Abu Sayama but as Javed Abu Talib Shaikh. The ration card shows that Abu Sayama and Rubina (PW 1) are the children of Mohammed Shabir and not Abu Talib. Therefore, Abu Talib Shaikh is not the alias of Abu Sayama. The age of the missing person; is given as 18 Years. However, according to the ration card, the age of Abu Sayama in1993, is shown as 20 years. Therefore at the time of the incident, Abu Sayama would be 24 years, and not 18 years as claimed by Rubina (PW 1). The C.R.No.339/96 of Shivaji Park Police Station nowhere refers to the name of Abu Sayama but of Javed Abu Talib Shaikh. Therefore, the person killed in the encounter could not be said to be Abu Sayama, the so-called innocent peanut vendor. BUCK-TOOTHED - FAWDA 42. We may again ask the question "What's in a Name?" more specifically in the name of "Javed Fawda". Much of the confusion arising in this case out of the charge of killing a wrong person, can be cleared if we analyse what the words "Javed Fawda", mean. Rubina (PW 1) has in the Missing Persons Complaint Ex.H-1, referred to her brother as Javed Abu Talib Shaikh. In her evidence before the Court, for reasons best known to her, Rubina (PW 1) has referred to her brother as "Abu Sayama". However, in her cross-examination, Rubina (PW1) has very reluctantly admitted that they affectionately referred to her brother as "Javed". The name "Javed" is a term of endearment or a pet name used by Muslims and those who are closely associated or related to a person would refer to him as "Javed". On the other hand, nick-names like "Fawda" are epithets that get attached to a person on account of peculiar physical traits or abnormalities. The near and dear ones would naturally not like to refer to him by such a disparaging name that highlights physical disability or abnormality. The name "Fawda" is used to describe a person with protruding teeth. It will thus be seen that the name "Javed Fawda" is an Enigma, a paradox, a combination of nick-name and pet name but is not the actual or official name of a person. API Dhobale (RW 7) has in his evidence at RW1/3 admitted that "Javed" is a common Muslim name and that: "...Javed Fawda means Javed with "protruding teeth". Javed Fawda is not a complete name as the surname and fathers name are missing... Advocate Memon for the Petitioners melodramatically asserted before the Court that there are several Javed Fawdas, that is 7 " Jade's with protruding teeth" in the city of Mumbai and even threw a challenge that he would produce half a dozen Javed Fawdas in the Court on the very next day, if required! The pet-nick name gets tagged on to a person over a period of time and in the process, the real or official name disappears due to non-use and the pet-nick name becomes the name by which the person is identified. Javed Fawda being only a pet-nick name, the person concerned, must therefore, have an official name, i.e. a name by which he was christened immediately after birth. 43. According to the police, Javed Fawda was a notorious gangster and his official name is Javed Abu Talib Shaikh, who was arrested in C.R.No.339/96 of Shivaji Park Police Station and whose body was claimed by Rubina (PW 1) as that of her brother. Thus, according to the police, there is no case of mistaken identity and that they have shot and killed the person who was a notorious gangster, namely, Javed Fawda alias Javed Abu Talib Shaikh. 44. The failure of Rubina (PW 1) to refer to her missing brother in Ex.H-1 and in her examination-in-chief, as "Fawda", can be understood as the reluctance of a loving sister to refer to her brother by a name that only draws contempt or ridicule. This is further high-lighted by the fact that she has, in the Missing Persons Complaint Ex.H-1, given the name of her missing brother as "Javed". She has in the cross-examination admitted that her brother was often ref erred to as "Javed" out of affection. It is therefore not understood why Rubina (PW 1) has throughout her examination-in-chief, failed to refer to her missing brother as "Javed" but used the name "Abu Sayama". Rubina (PW 1) has also in the cross examination, admitted that her brother Abu Sayama had protruding gums. In the light of the above discussion, it seems highly probable that Rubina's missing brother was called and known as "Javed Fawda". INNOCENTS BROAD OR CRIMINALS AT LARGE : 45. According to Rubina (PW 1), her missing brother was an innocent peanut vendor hawking at the Bandra Railway Station and at times doing carpentry jobs. Rubina (PW 1) has admitted that her missing brother was arrested by Shivaji Park Police Station in connection with an attempt to murder case. He was arrested in November 1996 and was in custody upto 30.1.1997 in connection with C.R.No.339/96 of Shivaji Park Police Station. Rubina (PW 1) has stated that her brother has signed his name in Urdu as Javed in the vakalatnama as well as in the bail bonds Ex.C and Ex.D. Rubina (PW 1) has also admitted that another brother Shahabaz @ Jahabas was arrested by Santacruz Police Station in C.R.No.ll4/92 for murder. 46. While maintaining that her brother was a peanut vendor, Rubina (PW 1) states that her brother used to do petty carpentry jobs in households - a very unlikely combination. If Abu Sayama was a skilled carpenter and not just a helper as claimed by Rubina (PW 1), it is only natural that Abu Sayama would have put his skill to better use to make a decent living as a skilled carpenter, rather than be content with earning "peanuts" by selling peanuts (shengdana). Apparently, Rubina (PW 1) was not aware about the real occupation of her brother and serious doubts therefore arise whether her brother was only a peanut vendor or even a skilled carpenter or, whether he was involved in some anti-social activities with gangsters. 47. Rubina (PW 1) has in her evidence, admitted that the Missing Persons Complaint was filed by her on 28.8.1997 that is two days after she learnt that her brother was taken by the police. The reason given by her for not filing the complaint on 26th August 1997 itself, when she learnt that her brother was picked up by the police, was that she thought that her brother was visiting friends. This would indicate that her so-called missing brother often left home without informing the family and that the family members, including Rubina (PW 1) were not aware of his actual activities. At Pg. l4 of her evidence, it has been suggested to Rubina (PW 1) that her brother stayed away from home for about 3 to 4 weeks at a time, which suggestion Rubina (PW 1) has not without reason denied. Rubina (PW 1) has also stated that while giving the Missing Persons Complaint, she gave the name of her brother but not his occupation and the havaldar did not ask her for her brothers occupation as the police knew that he was hawking peanuts. This would indicate that Rubina's brother was well known to the police. The Petitioners claim therefore that the deceased Javed Abu Talib Shaikh alias Abu Sayama was an

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been suggested to Rubina (PW 1) that her brother stayed away from home for about 3 to 4 weeks at a time, which suggestion Rubina (PW 1) has not without reason denied. Rubina (PW 1) has also stated that while giving the Missing Persons Complaint, she gave the name of her brother but not his occupation and the havaldar did not ask her for her brothers occupation as the police knew that he was hawking peanuts. This would indicate that Rubina's brother was well known to the police. The Petitioners claim therefore that the deceased Javed Abu Talib Shaikh alias Abu Sayama was an innocent peanut vendor, stands rebutted. JAVED FAWDA - BOGEY MAN? 48. The case of the police as disclosed in the evidence of API Dhobale (RW 7) and PI Tambavekar (RW S) is that Javed Fawda was a notorious gangster and therefore a terrifying person. It is alleged that he was a member of the dreaded Abu Salem gang and was wanted in the Gulshan Kumar murder case and in cars of several police stations, and that he was arrested by the Shivaji Park Police Station in C.R.No.339/96 in a case of attempt to murder. Admittedly, the dead body claimed by Rubina (PW 1) was that of her missing brother Javed Abu Talib Shaikh whom the police referred to as Javed Fawda. There is nothing to show that the M.R.A.Marg police within whose jurisdiction the encounter took place, were aware of the official name of Javed Fawda. It is not uncommon to find that members of a gang are often referred to by their outstanding physical traits, such as taklya, lambu, kaliya etc. as Javed Kaliya in the Gulshan Kumar Murder case in C.R.No.572/97 of DCB CID and Sessions Case No.15/98. It is the case of the police that Javed Fawda is a wanted accused in several cases. In fact it is the positive case of the police that Javed Fawda is an accused in the Gulshan Kumar murder case and the death of Javed Fawda occurred when the police fired at him in retaliation after Javed Fawda first fired at the police when the police had gone to arrest him at Sprott Road, Ballard Pier. However, a perusal of the charge-sheet and other papers in the Gulshan Kumar murder case, shows that the name "Javed Fawda" does riot appear in the charge-sheet. The name of one Javed only appears, i.e. as Javed Kaliya. According to the police, it is Javed Kaliya who during his interrogation by the police disclosed the involvement of Javed Fawda in the Gulshan Kumar murder case. The names "Javed Fawda", or "Abu Sayama" or "Abu Talib Shaikh" or "Abu Gaffar" do not appear in the charge-sheet. It is therefore obvious that Javed Fawda @ Abu Talib Shaikh Abu Sayama Abu Gaffar, is not an accused in the Gulshan Kumar murder case and therefore, was not part of the Abu Salem gang, that allegedly killed Gulshan Kumar. Learned Advocate Mr. Memon for the Petitioners in Writ Petition No.1032/97 has submitted that there is no evidence showing the involvement of Javed Fawda in the Gulshan Kumar murder case (S.C.No.l5/98). He has pointed out that from the charge-sheet filed in the said case, it is seen that accused Nos.1 to 13 are arrested while accused Nos.l4 to 26 are shown as absconding and accused No.27 has turned approver. The name of Javed Fawda nowhere appears in the said C.R. among the names of accused Nos.1 to 27 in the charge-sheet filed by the police. He has further argued that even the charge submitted by the police before the Court, the name of Javed Fawda, is nowhere seen and hence the charge-sheet and proceedings in the said C.R. rule out the possibility of Javed Fawda being an accused in the Gulshan Kumar murder case. 49. In fact API Dhobale (RW 7) has denied the suggestion that the operation of 28.8.1997 to arrest Javed Fawda was primarily due to his involvement in the Gulshan Kumar murder case. API Dhobale (RW 7) has submitted that Javed Fawda was required to be arrested in respect of crimes registered at Kurla, Dharavi, and Dadar. Even if the involvement of Javed Fawda in the Gulshan Kumar murder case is ruled out and his involvement in the other crimes not proved, it is beyond doubt that he was involved in the Shivaji Park Police Station attempt to murder case in C.R.No.339/96. Therefore it cannot be said that the person killed in the encounter on the night of 27th and 28th August 1997 whom the police referred to as "Javed Fawda" was just an innocent peanut vendor. 50. According to the Petitioners, the Javed Fawda who was required by the police for serious offences, was lodged in the Arthur Road prison and the killing of Abu Sayama is purely a case of mistaken identity. However, it is the case of the Respondents that one Javed Wahid Khan Javed Kaliya was arrested by Unit 10 of the D.C.B. C.I.D. on 16.8.1997 in C.R.No.421/97 u/s. 457, 380, and 347 I.P.C., of the Bhoiwada Police Station and in C.R.No.71/97 for D.C.B. C.I.D., Mumbai, better known as the Gulshan Kumar murder case. According to the police, the said Javed Wahid Khan Javed Kaliya (not Javed Fawda), is still in-judicial custody and that the said Javed Khan is an associate of Javed Fawda and belongs to the Abu Salem gang. 51. As can be seen from the charge-sheet and other papers in the Gulshan Kumar murder case, there is only one accused among the 27 accused having the name of Javed and that is accused No.1, Javed Kaliya. According to the police, it was Javed Kaliya during his interrogation on 21.8.1997, who gave the police information about the involvement of Javed Fawda in the Gulshan Kumar murder case. Advocate Memon for the Petitioners has vehemently argued that this piece of information/evidence brought out by the police in the evidence of PSI Tambavekar (RW S) and API Dhobale (RW 7) is not correct. According to the police, Javed Kaliya was arrested in the Gulshan Kumar murder case on 31.8.1997. Therefore, he could not have given the information on Javed Fawda on 29.8.1997. It is however, pointed out by the police that Javed Kaliya was in custody of the police from 16.8.1997 as he was arrested by the D.C.B. C.I.D. in a case of house-breaking. Hence the contention of Advocate Memon is without substance. 52. It is also the case of the Respondents-police, that they were not aware of the existence of any criminal by the name of Javed Fawda and his involvement in the murder of Gulshan Kumar and that they became aware of this only on or about 27th August 1997, when they received information from a source about the involvement of Javed Fawda. According to the police, this explains why Javed Fawdas name does not appear in the police records prior to 27th August 1997 in C.R.No.339/96 of Shivaji Park Police Station or the F.I.R. filed in the M.R.A.Marg Police Station, Nagpada Police Station C.R.No.491/97 or the F.I.R. of Dharavi Police Station C.R.No.683/97. Just because the name Javed Fawda does not appear in the proceedings in the above C.Rs., there is no reason to disbelieve the police when they say that they had definite information about the person whom they later on came to know as Javed Fawda being involved in several police cases. Javed Fawda therefore was no bogey raised by the police. THE MISSING, LINK - EX. H-1 AND EX.J-1: 53. According to the Petitioners, Abu Sayama who was killed by the police in a fake encounter, is not the notorious gangster Javed Fawda, but an innocent peanut vendor, who used to ply his trade near Bandra Railway Station and was picked up by the police after he was returning from namaz at the masjid at Bandra Railway Station on 26.8.1997. According to Rubina (PW 1),sister of the deceased and Nanu Machhan Khan (PW 2),Anwar Khan Mehboob Khan (PW 3) friends/acquaintances of the deceased, Abu Sayama was picked up by the police from near the Bandra Railway Station, after he was returning from namaz at the masjid near the Bandra Railway Station, It is however, pertinent to note that none of these witnesses personally saw Abu Sayama being picked up. Their evidence on the point, is mere hearsay. Rubina (PW 1) says that a Young boy came and told her: ".,.Deedi,Tumare Bhai Ko Char Police Pakad Ke Le Gaye..." Nanu Machhan Khan (PW 2) who sold footwear near the Bandra Railway Station, has stated that he last saw Abu Sayama, whom he used to refer to as "Javed" at his cart, on 25.8.1997 and about 7-8 days later, he learnt that Javed was taken away by the police and was missing thereafter and that he learnt of this from the discussion that took place at his place of work. On the other hand, Anwar Khan Mehboob Khan (PW 3), a painter, has stated that Abu Sayama Javed Fawda was with him

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Nanu Machhan Khan (PW 2) who sold footwear near the Bandra Railway Station, has stated that he last saw Abu Sayama, whom he used to refer to as "Javed" at his cart, on 25.8.1997 and about 7-8 days later, he learnt that Javed was taken away by the police and was missing thereafter and that he learnt of this from the discussion that took place at his place of work. On the other hand, Anwar Khan Mehboob Khan (PW 3), a painter, has stated that Abu Sayama Javed Fawda was with him for namaz at the masjid on 26.8.1997 at noon. He states as follows: "...Abu Sayama left little earlier as I took a minute or two for searching my footwear..." None of the witnesses have stated that any of them actually saw Abu Sayama being taken away by the police. The only person who has done so, is one John Fernandes who has in his Affidavit filed in the Writ Petition in the High Court, stated that he was present when the police took away Abu Sayama. However, the said John Fernandes, has for reasons best known to the Petitioners, not been examined. Advocate Memon had, after Nanu Machhan Khans evidence was completed, submitted that he had proposed to examine the said John Fernandes who had filed the Affidavit in the High Court Criminal Writ Petition. However, the said John Fernandes is not available at his last known address and is not now traceable. So much for the credibility of the Petitioners witnesses! Rubina (PW 1) states that after she was informed that her brother Abu Sayama was taken away by the police, she rushed to the Bandra Police Station and to the office of the Crime Branch situated behind the Bandra Police Station but was told by the police that her brother was not there. She then virtually launched a man-hunt and enlisted the help of the neighbours to trace her brother Abu Sayama at different police stations, but to not avail. On the 2nd day, i.e. 24.8.1997, she again went to the Bandra police station to make enquiries and she was again told that her brother was not there and to look for him somewhere else. On the 3rd day, i. e. 23. 8. 1 997, she again went to ,the police station and again got the same answer. Rubina (PW 1) claims that she then begged the concerned police officer to record a complaint of her missing brother and the police officer wrote something on a piece of paper and gave her the piece of paper (Ex.A-1 which is the number of the missing complaint. In her cross examination, Rubina (PW 1) at PW1/13, has admitted that the police havaldar recorded the complaint and description and other details given of her brother to the police. 55. From the above, it is seen that the missing complaint was lodged on the 3rd day i.e. 28.8.1997. It is not understood why the complaint could not be lodged on the 1st day itself, i.e. 26.8.1997, after Rubina (PW 1) had learnt that her brother was picked up by the police. Rubina (PW 1) has explained this by saying that she thought that her brother Abu Sayama had gone to visit his friends for 2-3 days. If this be so, then the conduct of a desperate sister looking for her brother at different police stations and launching a manhunt for him, is not understood. Moreover, as poignantly pointed out by Advocate Bhatt for the Petitioners, the complaint which ought to have been recorded, should have been a complaint of kidnapping and not a missing persons complaint. 56. From the missing complaint, it is seen that the name of the missing person given, is Javed Abu Talib Shaikh (male, 18 years, occupation: carpenter and description). It is pertinent to note that the name Abu Sayama nowhere appears in the missing complaint but the name Javed is mentioned. Rubina (PW 1) has in her cross examination, reluctantly admitted that they sometimes referred to her missing brother as Javed, out of affection. Nanu Machhan Khan (PW 2) and Anwar Khan Mehboob Khan (PW 3) companion-hawkers of the missing person, have also freely referred to the missing person as "Javed". It is also pertinent to note that the description of the missing person given in Ex.H-1 and Ex.J-1 is as follows: Height 56", slim build, fair complexion curly hair and teeth coming out (dath phudhe aalele ). Rubina (PW 1) in her cross examination, has denied that her brother had protruding teeth but admitted that his upper gums were protruding. 57. From the evidence of Rubina (PW 1) read with Ex.H-1 and Ex.J-1, it is clear that her brother was also known as "Javed". It is also established that her brother had protruding teeth or protruding gums. Therefore, it does not appear unreasonable to accept that Rubina's brother was also known as "Javed Fawda" and, as pointed out earlier, "Javed Fawda" is a pet/nick name and not the name he was christened at his birth. 58. According to Ex.H-1, the name of Rubinas missing brother is Javed Abu Talib Shaikh. Rubina, in her evidence in Court, has referred to her missing brother as "Abu Sayama" but admitted he was called "Javed" out of affection. Ex.H-1 gives the description of Javed Abu Talib Shaikh and his occupation as carpenter. However, in her evidence, Rubina (PW 1) says that she did not give the description of her brother to the havaldar while giving the Missing Persons Complaint. She further states she did not give the occupation of her brother, as the police knew that he was hawking peanuts (PW1/12). Rubina (PW1) would want us to believe that the police havaldar who recorded Ex.H-1 noted the description and occupation of her missing brother out of his own imagination It is however, pertinent to note that she admits that: "...I had given the name of my brother to the havaldar at the time of giving missing persons complaint. I gave his age. Thus, the name of her missing brother given in Ex.H-1, namely, Javed Abu Talib Shaikh, aged 18 years, is to be taken as the name and correct age of her brother. COMPLAINT (EX.H-1) MOTIVATED 59. While the name of Rubina's missing brother as Javed Abu Talib Shaikh is established and it seems highly probable that her missing brother was also known as "Javed Fawda", the fact of his missing from 26.8.1997 onwards, is far from established. If Rubina's brother was missing from (26.8.1997 , after being picked up by the police as claimed by Rubina and if Rubina (PW 1) learnt of the same on the 26th of August itself, it remains unexplained why the complaint Ex.H-1 was not filed on 26th August 1997 but on 28th August 1997. As stated earlier, the explanation given by Rubina (PW 1) for not filing Ex.H-1 earlier, is most unsatisfactory. The evidence of Rubina (PW 1), Nanu Machhan Khan (PW 2) and Anwar Khan Mehboob Khan (PW 3), examined by the Petitioners on the point of Abu Sayama being picked up by the police on 26.8.1997, is found unacceptable. The failure of the Petitioners to examine John Fernandes, who has filed an Affidavit in the Honble High Court Criminal Writ Petition station that he was present when Abu Sayama was picked up by three or four policemen from the Crime Branch, requires that an adverse inference be drawn against the Petitioners. There is therefore, no basis for us to accept that: (i) Abu Sayama was missing only from 26th August 1997 and not before or after 26th August 1997. (ii) that he was picked up or kidnapped by the police. The question that therefore arises, is whether Rubina (PW 1) had any reason or motive for filing Ex.H-1 only on 28.8.1997 and not before and for alleging that the police had kidnapped her brother. GENESIS OF THE CONTROVERSY 60. The answer to these questions may be found if we go into the genesis of the case and find out how and when the controversy of mistaken identity, in the first place, arose. The Petitioners allege that an innocent peanut vendor has been killed by the police under the mistaken impression that he was the notorious gangster Javed Fawda. Admittedly, Javed Abu Talib Shaikh @ Abu Sayama @ Javed Fawda, was killed a little after midnight of 27th/28th August 1997. Admittedly, the

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60. The answer to these questions may be found if we go into the genesis of the case and find out how and when the controversy of mistaken identity, in the first place, arose. The Petitioners allege that an innocent peanut vendor has been killed by the police under the mistaken impression that he was the notorious gangster Javed Fawda. Admittedly, Javed Abu Talib Shaikh @ Abu Sayama @ Javed Fawda, was killed a little after midnight of 27th/28th August 1997. Admittedly, the Missing Persons Complaint was filed by Rubina (PW 1) on 28th August 1997 at 12.05 p.m. that is in the afternoon. After the incident of shooting, API Dhobale (RW 7) and other policemen including, S.I. Tonpe, and S.I. Bhosle-Patil rushed the injured Javed Fawda to St.George Hospital where he was declared dead before admission. P.I. Devkar and S.I. Thorat of M.R.A. Marg Police Station came to St.George Hospital where API Dhobale narrated the incident to them and his statement was recorded. (F. I. R. dated 28. 8.1997 at 0. 50 hours). The spot panchanama was drawn at the scene of offence. The inquest panchanama was drawn of the body at the hospital and the body was sent for post-mortem examination. After the incident of shooting till the Missing Persons Complaint Ex.H-1, was lodged, there was sufficient time and ample opportunity for the information of the death of Javed Abu Talib Shaikh @ Javed Fawda to have leaked out and to have come to the ears of Rubina (PW 1) or the social workers in the locality who had been keenly monitoring the so-called encounters in which gangsters belonging to the minority community re allegedly being eliminated. John Fernandes has in his Affidavit dated 3rd September 1997, filed in the High Court in Writ Petition No.1032/97, stated: ...On 29.8.1997, I read a newspaper report in Sanj Jansatta that one Javed Phavda (Fawda) was killed in an encounter with M.R.A. Police Station..." Similarly, in the Affidavit dated 9.9.1997, Ex.A to the Writ Petition No.1032/97, John Fernandes has stated: "...on 29.8.97 it was published in SANDHYA JANSATTA that one Mr.Javed Fawda was encountered by MRA Police Station. I enquired about the same to MRA.Police Station but they refused to say that no any Javed has been encountered..." If the news of Javed Fawdas death in an encounter with the police, was published on 29.8.1997 as claimed by John Fernandes, it would mean that the information was on 28.8.98 itself available. In fact the news report of the encounter appeared in the Sanj Jansatta on 28.8.1997 itself. Therefore, the news was out on the evening of 28.8.1997 itself. In his Affidavit, Ex.A, filed in the Hon'ble High Court in Writ Petition No.1032/97, John Fernandes says that he lodged the missing complaint no.48J97 dated 28.8.1997. It is clear therefore that either John Fernandes had accompanied Rubina (PW 1) at the time of filing Ex.H-1 or had along with the others, instigated Rubina (PW 1) to do so after he learnt from the newspaper report of the death of Javed Fawda in the police encounter. Ex.H-l, it will be noted, is filed on 28.8.1997 at 12.25 p.m. If Rubina (PW 1) had been so anxious about her missing brothers whereabouts, she would not have gone to Bandra Police Station so late in the day to lodge the complaint. Moreover, as pointed out earlier, Rubina's failure to lodge the Missing Persons Complaint on 26th and 27th August 1997, is not understood. The explanation given by her for not filing the Missing Persons Complaint earlier, is found unacceptable. The reluctance and/or failure of the Petitioners to examine John Fernandes who has filed the Affidavit in the Hon'ble High Court is therefore not surprising. 61. The entire evidence of Rubina (PW 1) regarding efforts made by her to trace her missing brother after filing the Missing Persons Complaint Ex.H-1, till she was allowed, to enter the morgue after stating under compulsion that she was looking for her missing brother "Javed Fawda" appears contrived. If Rubina (PW 1) was not already aware of the death of her so-called missing brother then she would have been shocked when the police officer at Palton Road Police Station directed her to be taken to the. J. J. Morgue to identify her brother. Rubina (PW 1) did not show any signs of such shock or grief as would be expected of anyone who learns for the first time of the death of his/her near or dear one. In fact Rubina (PW 1) states: "...At the Morgue, I asked whether my , brother Abu Sayama was there in the Morgue . It was only after seeing her brothers dead body in the Morgue which she has alleged to have personally removed from the heap of other bodies, that she fainted. Since no shock or grief was felt by Rubina (PW 1) when she was directed to be taken to the Morgue, it appears probable that she was aware of his death prior to that day. The visits to the Morgue took place on 1.9.1997. From the above discussion, it seems unlikely that Ex.H-1 was filed on 28.8.1997 at 12.25 a.m. after news of the death of Rubina's brother became known to Rubina and the others. 62. Rubina (PW 1) claims that she kept enquiring at the Palton Road Police Station whether her brother Abu Sayama was there and she was told by the police officers at the Palton Road Police Station that if she gave the name"Abu Sayama" ;he would not find her brother, but if she gave the name as "Javed Fawda" they would take her to him. It appears unreasonable and highly improbable that Rubina (PW 1) would go looking for her brother giving his name as "Abu Sayama" when in fact on 28.8.1997, she had filed the Missing Persons Complaint giving his name as "Javed Abu Talib Shaikh". 63. The evidence regarding the police picking up Javed Fawda @ Javed Abu Talib Shaikh on 26.8.1997, is not satisfactory and unacceptable and the alleged visits of Rubina (PW 1) to the Bandra Police Station on 26th/27th August 1997, are doubtful. The only certainty is the lodging of the missing complaint on 28.8.1997 at 12.25 p.m. In view of the above, the news of Javed Fawda Javed Abu Talib Shaikhs death having, reached the ears of Rubina (PW 1) or John Fernandes before the afternoon of 28.8.1997, seems very probable and this explains why the Missing Person s Complaint was lodged on the afternoon of 28.8.1997 and not before. JAVED FAWDA OF, BEHRAMPADA 64. Rubina (PW 1) claims that after she lodged Ex.H-1, the Missing Persons Complaint, she continued to make enquiries about her missing brother for eight days and on the eighth day, she visited the Killa Court (Esplanade Court. However, she immediately corrects herself and states that she went to the Killa Court on 1.9.1997. She has further stated in her evidence that six accused persons were brought in burkhas to the Court. One of them was of the height of her brother Abu Sayama. After much persuasion, the police at her request uncovered the face of her brother. She states as under: "...The police then uncovered the face of that person but he was not my brother. That person was Javed Fawda. I told the police Ye Javed Fawda Hai Mera Bhai Kidar Hai. I know Javed Fawda. Some time back Javed Fawda of Behram Pada had damaged the eye of one person and there was a crowd there and some people said that he was Javed Fawda. I had seen him at that time...." The above evidence of Rubina (PW 1) is clearly an attempt by her to bring into picture some third person who she claims is the real Javed Fawda. This is with a view to dispel the allegation that her deceased brother was "Javed Fawda" and that Javed Fawda was a known criminal wanted in several cases, including the Gulshan Kumar murder case and that her missing brother was an innocent man. It must here be stated that the six persons produced in burkha in the Esplanade Court (Killa Court) are the accused in the Gulshan Kumar murder case (C.R.No.572/97). The evidence of Rubina (PW 1) on this aspect lacks credibility as she has admitted that she learnt about Javed Fawda because he had damaged the eye of some person at Behrampada, where a crowd had collected and where some people stated that the assailant was Javed Fawda. Even assuming that there is such a person residing at Behrampada known as Javed Fawda, that does not rule out the

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(Killa Court) are the accused in the Gulshan Kumar murder case (C.R.No.572/97). The evidence of Rubina (PW 1) on this aspect lacks credibility as she has admitted that she learnt about Javed Fawda because he had damaged the eye of some person at Behrampada, where a crowd had collected and where some people stated that the assailant was Javed Fawda. Even assuming that there is such a person residing at Behrampada known as Javed Fawda, that does not rule out the possibility nor the probability, that the deceased brother of Rubina too was known as "Javed Fawda". As dramatically pointed out by Advocate Memon for the Petitioners,there could be at least half a dozen persons in Mumbai known as "Javed Fawda"

THE MOTIVE : 65. The case of the Petitioners is that the deceased Abu Savama @ Javed Fawda @ Javed Abu Talib Shaikh, was killed in cold blood under the mistaken impression that he was the notorious gangster "Javed Fawda". It is suggested that the death of Javed Abu Talib Shaikh is a case of custodial death. It is pointed out that the C.Rs.of Nagpada, Dharavi, Dadar, and Kurla Police Stations show the accused as an unknown person and the description of the accused in the F.I.R. does not show any of the accused having protruding teeth. It is contended by the Respondents that Abu Sayama @ Javed Abu Talib Shaikh @ Javed, had protruding teeth. Rubina (PW 1) has emphatically denied that her brother had protruding teeth. She has also denied that her brother was known as "Javed Fawda". In the circumstances, it is not understood how the police could have mistaken Abu Sayama Javed Abu Talib Shaikh as the notorious gangster Javed Fawda, who obviously was buck-toothed. It is also not understood what motive the police or more specifically API Dhobale (RW 7) could have had for eliminating Abu Sayama alias Javed Abu Talib Shaikh, who according to the Petitioners was a poor peanut vendor. The Petitioners have not even attempted to show what possible motive or reason the police could have had to eliminate Javed Abu Talib Shaikh alias Abu Sayama alias Javed Fawda in such a cruel manner nor have the Petitioners attempted to show under what possible circumstances the police could have committed such an unpardonable blunder resulting in the cold-blooded murder of an innocent man. It is the positive case of the Petitioners that the person killed in the encounter was Abu Sayama alias Javed Abu Talib Shaikh and not Javed Fawda. However, the Petitioners have not even proved that Abu Sayama and Javed Abu Talib Shaikh are one and the same person. A discussion based on the ration card (Ex.A), produced by Rubina(PW 1), shows that Abu Sayama Javed Abu Talib Shaikh are two different brothers of Rubina, that Abu Sayama is the real brother and Javed Abu Talib Shaikh is the cousin brother of Rubina. The Petitioners have not even proved that Javed Abu Talib Shaih and Abu Sayama are innocent persons. Admittedly, Javed Abu Talib Shaikh was involved in C.R.No.339/96 of the Shivaji Park Police Station and also other C.Rs. The Petitioners have not even been able to establish the existence of any person other than the deceased known as Javed Fawda who was notorious gangster. POST-MORTEM : 66. The body that was sent for post-mortem examination to the J.J. Morgue had a name tag "Javed Fawda". The body was collected from the Morgue by Rubina (PW 1) and her relatives/friends as that of her brother Javed Fawda. As discussed earlier, the story put up by Rubina (PW 1) that she was compelled by the police to give the name of her missing brother Abu Sayama as "Javed Fawda" or else she would not be given the body, seems incredible. The body was lying in the Morgue, unclaimed since 28.8.1997 and the authorities would have been only too keen on disposing off the body by giving it to the near relatives, on the body being identified by the near relatives. The name of the body is immaterial. Therefore, there could be no question of the police compelling. Rubina (PW 1) to give a false name to the body in order to claim it. The body was taken from St. George Hospital directly to the JJ Morgue and identified by the police constable. The cause of death given in Ex.0 is death due to fire-arm injuries (unnatural). Therefore, the person shot in the encounter known to the police as "Javed Fawda" whose body was, claimed by Rubina (PW 1) as that of her brother is none other than Javed Abu Talib Shaikh, who was arrested by the Shivaji Park Police Station in C.R.No.339/96, for the offence of attempt to murder and whose fingerprints were Found to tally with that of the deceased known to the police as "Javed Fawda". THE SUMMING-UP (1) Javed Abu Talib Shaikh is not the alias of Abu Sayama or vice versa. Javed Abu Talib Shaikh and Abu Sayama probably are two different and distinct persons. (2) "Javed Fawda" is not the real or actual or official name of any person. It is a petnickname or a combination of both, projecting the persons physical abnormality; namely, protruding teeth. (3) Javed Abu Talib Shaikh was in all probability, known as Javed Fawda because of his protruding teeth or protruding upper gums. He was admittedly called "Javed". It is not established that there is any gangster known as "Javed Fawda" in existence other than the deceased Abu Sayama alias Javed Abu Talib Shaikh, who was Killed in the police encounter on the night of 27th/28th August 1997 and was known to the police as Javed Fawda (5) It is established that Javed Abu Talib Shaikh @ Javed Fawda had a criminal background. He was arrested in the Shivaji Park Police Station C.R.No.339/9b in a case of attempt to murder and was a wanted accused in C.Rs. of several other police station, such as Kurla, Dadar, Dharavi, Matunga and the D. C. B. C. I. D. , albeit as an unknown accused. (6) It is proved by a comparison of the fingerprints that Rubinas brother Javed Abu Talib Shaikh, arrested by the Shivaji Park Police Station in C. R. No. 339/96, is the same person whom the police knew as Javed Fawda and who was shot in the police encounter on the night of 27th/28th August 1997 and whose body was claimed by his sister Rubina (PW 1). FINDING 68. There is no substance in the Petitioners case that the police have killed Abu Sayama @ Javed Abu Talib Shaikh, mistaking him for some other notorious gangster called Javed Fawda. There is no case of mistaken identity. ENCOUNTER DEATHS: 69. The Honble High Court by order dated 10.12.1997, has directed an enquiry in the death of Abu Sayama Javed Abu Talib Shaikh in an encounter with the police on 28.8.1997 and of Sada Pawale and Vijay Tandel, in a police encounter on 26.9.1997. More explicitly, the Hon'ble High Court has directed this Court to find out whether the encounters in which the deceased were allegedly killed, are genuine or fake encounters.

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Shaikh in an encounter with the police on 28.8.1997 and of Sada Pawale and Vijay Tandel, in a police encounter on 26.9.1997. More explicitly, the Hon'ble High Court has directed this Court to find out whether the encounters in which the deceased were allegedly killed, are genuine or fake encounters. III. DEATH OF ABU SAYAMA @ JAVED ABU TALIB SHAIKH 70. According to the police, the notorious gangster Javed Fawda was killed when the police fired at him in self-defence at Sprott Road, Ballard Pier, where they had gone to arrest him, having prior information that the said Javed Fawda and his associates were likely to visit the spot for committing some crime. According to the Advocate for the Petitioners, Mr.Majeed Memon in Writ Petition No.1032/97, the police killed Abu Sayama Javed Abu Talib Shaikh, an innocent peanut vendor in cold blood, mistaking him for the notorious gangster Javed Fawda and that it was a case of custodial death. Advocate Pradhan for the N.H.R.C. has argued that from the attending circumstances, the only conclusion to be drawn is that there was no encounter as claimed by the police and that the deceased was shot at and killed by the police somewhere else. The case of the C.P.D.R. is reflected in the suggestion by its Advocate Sebastian to API Dhobale (RW 7) at RW7/28, which is as under: "Q... I put it to you that two associates of Javed Fawda brought him to the spot in the white Maruti car, according to a prearranged plan with the police and then dropped him from the car and you shot him dead?" 71. The case of the police regarding the encounter and the facts preparatory and subsequent thereto, is contained in the evidence of Senior P.I. Tambvekar (RW 5) and API Dhobale (RW 7) attached to the C.I.U., Mumbai. It is the case of the police that the Abu Salem gang was involved in the murder of Gulshan Kumar, (C.R.No.572/97) and the same was being investigated by the D.N.Nagar Police Station. However, the investigation was taken over by the Crime Branch within a couple of days from the date of incident and Unit No.7 of the, Crime Branch started investigating the case. Senior P.I. Tambvekar (RW 7) in charge of the C.I.U. initiated enquiries about the assailants or the gang involved in the case. A.C.P.Rao, superior of Sr.P.I.Tambvekar (RW 5) addressed a Memo to Sr.P.I. Tambvekar (RW S) mentioning that Javed Fawda, along with Rauf Raja, Wasim and Rashid, were involved in the Gulshan Kumar murder case. Sr.P.I.Tambvekar (RW 5) accordingly circulated the Memo (Ex.W) to the C.I.U. officers. A.C.P. Rao informed Sr.P.I. Tambvekar (RW 5) that one Javed Kaliya who was arrested by Unit 10 of Crime Branch, in some other case, had disclosed the names of the persons mentioned in the said Memo as associates of Javed Kaliya stating that they belonged to the Abu Salem gang. According to A.C.P. Rao, the said Javed Kaliya, further informed the police that these accused were also wanted by the Dharavi, Kurla and Nagpada Police Stations for serious offences. The description of two of the persons, namely, Javed Fawda and Wasim was given. Javed Fawda was described as of 20-22 years of age, slim build, fair complexioned and having protruding teeth. He was therefore nick-named Fawda. Wasim was described as being 28-30 years old, fair complexioned, long hair and having the habit of chewing pan parag. 72. On the evening of 27.8.1997, Sr.P.I.Tambvekar (RW 5) received information from a reliable source to the effect that on the night of 27th/28th August 1997, Javed Fawda along with 3 or 4 of his associates, would be visiting Sprott Road at Ballard Pier between 12.00 and 12.30 midnight, for the purpose of committing some offences and that they would be coming in a white Maruti car. The information also gave a description of Javed Fawda as fair complexioned, slim build, curly hair and having protruding teeth. Sr.P.I. Tambvekar (RW 5) discussed the information with A.C..P. Rao and D.C.P. Prasad who cautioned him (since the accused were members of a gang and were likely to be armed with weapons), to take adequate precautions. Subsequent thereto, Sr.P.I.Tambvekar (RW 5) along with two other officers, P.S.I.Tonpe and P.S.I. BhosalePatil, visited Sprott Road on a reconnaissance mission and, according to Sr.P.I.Tambvekar, on inspecting the site, the officers felt that it was quite likely that the, accused would come from the Grand Hotel side as the Customs House end of the road, was comparatively deserted and since rich persons and foreigners would be visiting Grand Hotel, it was apprehended that the suspects would be planning to kill some person at the hotel or there was going to be delivery of weaponry or smuggled goods near the Hotel. According to Sr.P.I.Tambvekar (RW S), keeping this in view, the police selected two spots. One spot selected, was near the petrol pump and the BEST sub-station on Sprott Road, as from there, the entire road right upto the Customs House could be seen. The other spot selected was on Karimbhoy Lane, opposite the petrol pump at the corner of Karimbhoy lane and Sprott Road. 73. Subsequently, at about 11 p.m. the police went to Sprott Road in two teams. One team consisting of Sr. P. I. Tambvekar (RW 5), A.P.I. Pote, P.S.I. Tonpe and one constable travelled by private car and the other consisting of A.P.I.Dhobale (RW 7), P.S.I. Bhosale-Patil, P.S.I.Kalekar and two constables, travelled by Ambassador car No.BLF 5084, Sr.P.I.Tambvekars team took up position at the corner of, Karimbhoy Lane and Sprott Road, facing the petrol pump, while A.P.I.Dhobale and his team took up position opposite the BEST bus stop facing the Customs House end. At about 12.15 a.m., a white Maruti car was seen coming along Sprott Road from the south side, i.e. Customs House side. The car halted in front of the BEST bus stop which was situated in front of Sapat Building. The Maruti car, according to A.P.I. Dhoble, had the registration number MH-04-1265. One person sitting next to the driver in the front seat was seen alighting from the car on the left side. That person walked a little further upto the front left side of the car. According to A.P.I.Dhobale, he immediately realised that that person was none other than Javed Fawda. API Dhobale (RW 7) and the other officers got down from the car and he and P.S.I.Bhosale-Patil proceeded towards the Maruti car. After taking 4-5 steps, A.P.I.Dhobale took out his revolver and pointing it at that person, gave a warning by shouting "Javed Bhagna Nahi". Immediately Javed Fawda turned towards A.P.I.Dhobale (RW 7), took out a weapon from his waist and fired one shot towards the police officers. According to A.P.I.Dhobale, sensing danger, he retaliated by firing in quick succession. In the meantime, Javed fired one more shot. Simultaneously, P.S.I.Bhosale-Patil fired from his service revolver towards Javed Fawda. At that time, the white Maruti car in which Javed Fawda and his associates had arrived, sped away from the scene, proceeding towards Grand Hotel side, i.e. towards the north. P.S.I.Talekar fired one shot in the direction of the escaping vehicle. Javed Fawda was seen lying on the road in an injured condition holding a pistol in his hand. A.P.I.Dhobale (RW 7) carefully removed the pistol from the hand of Javed Fawda. The pistol was a foreign make pistol having a Star mark. A.P.I.Dhobale (RW 7) unloaded it and found that it contained three bullets. A.P.I. Dhobale (RW 7) also claims that at that time, he realised that the windshield of his car was shattered when the bullet was fired by Javed Fawda. In the meantime, Sr.P.I.Tambvekar and his staff rushed to the spot where Fawda was lying. Sr.P.I.Tambvekar (RW 5) instructed his subordinates to remove Javed Fawda to the hospital. Accordingly, P.S.I.Tonpe rushed and brought the private car in which they traveled to the spot where Javed Fawda was lying. P.S.I.-Tonpe, A.P.I.Dhobale, P.S.I.Bhosale-Patil and two constables accompanied the injured in the car to the St.George Hospital. At the hospital, Javed Fawda was declared dead before admission. 74. This Court has come to the clear conclusion that there is no case of mistaken identity and that the person killed by the police in the alleged encounter and known to the police as Javed Fawda, was indeed Javed Abu Talib Shaikh alias Abu Sayama alias Javed Fawda. Therefore, the only question that remains for determination, is whether Javed Fawda @ Javed Abu Talib Shaikh @ Abu Sayama, was killed in an encounter as claimed by the police or whether the encounter was fake and stage-managed by the police. EX.W - MEMO FROM A.C.P.RAO :

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75. According to Sr.P.I.Tambvekar, the Memo (Ex.W), was issued by A.C.P. Rao to him, mentioning that Javed Fawda, Rauf

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and stage-managed by the police. EX.W - MEMO FROM A.C.P.RAO :

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75. According to Sr.P.I.Tambvekar, the Memo (Ex.W), was issued by A.C.P. Rao to him, mentioning that Javed Fawda, Rauf Raja, Wasim and Rashid, were involved in the Gulshan Kumar murder case (C. R. No. 572/97 ). The names of the said persons were allegedly disclosed to A.C.P.Rao by one Javed Kaliya, an accused in the Gulshan Kumar murder case and also an arrested accused in some other cases who claimed that they were his associates and that they all belonged to the Abu Salem gang. Sr. P. I. Tambvekar has stated that Ex. W refers to the involvement of Javed Fawda in the Gulshan Kumar murder case. The said Javed Kaliya also informed A.C.P.Rao that these associates of his were also wanted by Dharavi, Kurla and Nagpada Police Stations for serious offences. 76. The ostensible purpose of bringing the Memo (Ex.W) on record, is to show that "Javed Fawda" was a notorious gangster and hence the need to apprehend him. This was done in order to counter the Petitioners allegation that the person killed by the police in the encounter, was an innocent peanut vendor and not a dreaded gangster. 77. However, from the cross-examination of the police witnesses and the examination of the records such as charge-sheet etc., it is seen that besides Javed Kaliya, the alleged informant, no person by name of "Javed Fawda" or "Javed" is involved in the Gulshan Kumar case nor do the names "Abu Sayama" or "Javed Abu Talib Shaikh" find place in the Gulshan Kumar murder case, charge-sheet and other papers. Sr.P.I.Tambvekar (RW 5) has at RW5/26, admitted that the informant did not state that Javed Fawda was in , the Gulshan Kumar murder case, while A.P.I.Dhobale at RW7/17 has stated: "...I had not seen Javed Fawda at any time prior to the night of 27th and 28th August 1997. Till that time, I had no occasion to even see a photograph of Javed Fawda. Till the time of the encounter, I did not know the role played by Javed Fawda in Gulshan Kumar murder case...". To the question put to him in the cross-examination, namely: "Do you agree that the operation of 27.8.1997 to arrest Javed Fawda was primarily on account of his involvement in Gulshan Kumar murder case?" A.P.I.Dhobale answers: It is not correct to say that the arrest of Javed Fawda was primarily on account of Gulshan Kumar murder case as he was also required to be arrested in respect of the crimes registered in Kurla. Dharavi and Dadar Police Stations." At Pg.7/18, A.P.I.Dhobale (RW 7) says that: "...The Memo Ex.W was an important document as it was a guideline to arrest the accused involved in the Gulshan Kumar murder case..." After the incident. A.P.I.Dhobale lodged his F.I.R. with the M.R.A. Marg Police Station in C.R.No.360/97. In his cross examination at RW7/25, A.P.I. Dhobale admits that no mention is made of the Memo (Ex.W) in the said F.I.R. or in any of the Affidavits filed by him in the Honble High Court. 78. Lastly, A.P.I.Dhobale in answer to the question in cross-examination at RW7/26, namely: " After perusing the record of Gulshan Kumar murder case shown to you in the Court you still maintain that Javed Fawda was required to be arrested in Gulshan Kumar murder case?" A.P.I.Dhobale answers "I do not know". 79. The non-examination of A.C.P.Rao who allegedly issued the Memo (Ex.W) to P.I.Tambvekar requires an adverse inference to be drawn as the evidence of P.I.Tambvekar and A.P.I.Dhobale regarding the contents of the Memo (Ex.W) would be mere hearsay. The said Memo (Ex. W ) could at the most only have been used to corroborate the evidence of A.C.P.Rao regarding the information received by him if he were examined. 80. The purpose of the police in fixing the trap at Sprott Road was to arrest Javed Fawda and his associates who had allegedly killed Gulshan Kumar and who were involved in other C.Rs. The trap was fixed after the Memo Ex.W was received. However, the police case that the reason for wanting to arrest Javed Fawda, was his involvement in the Gulshan Kumar murder case, stands demolished by the admission in the cross-examination of Sr.P.I.Tambvekar and API Dhobale. No person known as Javed Fawda or Abu Sayama or Javed Abu Talib Shaikh is an accused in the Gulshan Kumar murder case. The Memo (Ex.W) stands out as a sore thumb - a crude attempt by the police to prove that the person whom they referred to as Javed Fawda was responsible for the killing of Gulshan Kumar, that he was a dangerous criminal or notorious gangster and therefore the police sought his arrest resulting in the encounter at Sprott Road. JAVED FAWDA A MUCH WANTED ACCUSED : 81. It is the case of the police that Javed Fawda, besides being involved in the Gulshan Kumar murder case, was wanted in C.Rs. of several other Police Stations, namely, Dharavi, Kurla and Nagpada Police Stations. Sr.P.I.Tambvekar (RW 5) has stated that he learnt from Javed Kaliya the accused in the Gulshan Kumar murder case that Javed Fawda and the others, namely, Rauf Raja, Rashid and Wasim were also wanted by Dharavi. Kurla and Nagpada Police Stations for serious offences. However, in his cross examination at RW5/15, he says that till 27.8.1997, he had received information of Javed Fawda being wanted by Dharavi, Kurla and Bandra Police Stations (not Nagpada Police Station). At RW5/25, Sr.P.I.Tambvekar states: ... I did not feel it necessary to go through the papers in crime registered at Dharavi Police Station, Dadar Police Station or Kurla Police Station in which Javed Fawda was said to be involved by the informants. I did not feel it necessary to do so for the purpose of obtaining his name or address. I have learnt later that these offences registered at Dharavi, Dadar and Kurla are registered against unknown persons..." At RW 5/26. P.I.Tambvekar (RW S) states: ...I do not know whether Javed Fawda was even alleged to be involved in C.R. registered by Kurla Police Station. After 27th August 1997, and even after the encounter, I did not feel it necessary to examine the records of those crimes in which Javed Fawda was alleged to be involved by the informant..." 82. A.P.I.Dhobales evidence regarding the involvement of Javed Fawda in the other C.Rs. is also based on what Sr.P.l.Tambvekar told him. At RW7/17, API Dhobale has stated: ...Besides the information obtained by me from Sr.PI Tambvekar about Javed Fawdas involvement in any other case, I had no information from my personal or other sources. I did not make any enquiry of my own about the role played by Javed

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Sr.P.l.Tambvekar told him. At RW7/17, API Dhobale has stated:

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...Besides the information obtained by me from Sr.PI Tambvekar about Javed Fawdas involvement in any other case, I had no information from my personal or other sources. I did not make any enquiry of my own about the role played by Javed Fawda in crime registered by Dharavi and Kurla Police Stations..." At RW7/19, A.P.I.Dhobale has stated: "...I have in my F.I.R. stated that Javed Fawda was involved in crimes registered at Dharavi, Kurla, Dadar and Matunga Police Stations and other Police Stations. I have not after filing the F.I.R. verified whether Javed Fawda was in any way involved in the cases registered at Dharavi, Dadar, Kurla and Matunga or any other Police Stations..." The cross-examination of A.P.I.Dhobale at RW7/22, shows that on 27.8.1997, he was informed that Javed Fawda was required to be arrested in the C.Rs. registered at Dadar, Kurla, Dharavi and Matunga Police Stations. However, on 4.11.1997, at the time of filing the Affidavit-in-Reply in the Writ Petition in the Honble High Court, after verification, he came to know that Javed Fawda was involved in Dharavi, Nagpada and D.C.B. C.I.D. (Gulshan Kumar murder case). When confronted with his above statement that the information about the involvement of Javed Fawda received by A.P.I.Dhobale on 27.8.1997 was not correct, A.P.I.Dhobale replies that he cannot say whether the information was correct or not. What is startling, is the admission of Sr.P.I.Tambvekar at RW5/26 that at that time he was not aware that Javed Fawda was arrested by the Shivaji Park Police Station in C.R.No.339/96 and that he came to know of this, only recently after his transfer from the C.I.U. Similarly, A..P.I. Dhobale (RW 7) at RW7/23 states that 2-3 days after 2.9.1997, he came to know that Javed Fawda was arrested in the Shivaji Park Police Station (C.R.No.339/96). 83. From the above discussion. it is seen that there is nothing to show that the police had any definite information about the involvement of Javed Fawda in the C.Rs.of different police stations. But what is most surprising is that so far as the C.R.registered at Shivaji Park Police Station is concerned, the police were not aware of the involvement of Javed Fawda in the said C.R. and came to know of it only after 28.8.1997. The reasons therefore for, hunting to arrest Javed Fawda (an alleged notorious gangster) are conspicuously absent and serious doubts arise whether the police did in fact go to Sprott Road to arrest Javed Fawda on the night of 28.8.1997 on account of his being a dangerous gangster and whether the encounter in which Javed Fawda was allegedly killed did in fact take place. RECONNAISANCE MISSION : 84. Sr.P.I.Tambvekar (RW 5) has stated that on the evening of 27.8.1997, he received information from a reliable source that on the night of 27th/28th August 1997, Javed Fawda along with three or four of his associates, was going to come to Sprott Road at Ballard Pier between 12.00 and 12.30 midnight for the purpose of committing an offence and that they would be coming in a white Maruti car. The information also gave the description of Javed Fawda as fair complexioned, slim build. curly hair and protruding teeth. 85. Sr.P.I.Tambvekar has stated that on receipt of the information, he contacted his superiors A.C.P.Rao and D.C.P.Prasad who instructed him to take adequate precaution since the accused were members of a gang and were likely to be armed with weapons. There upon Sr.P.I.Tambvekar returned to his office. along with P.S.I.Tonpe and P.S.I. Bhosale-Patil and went to Sprott Road for reconnaisance. After inspecting the site and studying the topography, they decided upon the place where they would keep a look-out. Sr.P.I.Tambvekar has further stated at RW5/8 that on inspecting the site, he felt that it was quite likely that the accused would come from the Grand Hotel side as the Customs House end of the road, was comparatively deserted. He further states that since rich persons and foreigners would be visiting Grand Hotel. it was expected that the suspects would be planning either to kill some persons from the hotel or there was going to be delivery of weaponry or smuggled goods near about the hotel. Keeping this in view, Sr.P.I.Tambvekar selected two spots for the look-out. One spot near the petrol pump B.E.S.T. bus station at Sprott Road as from there they could see the entire right side upto the Customs House. The other spot selected was on Karimbhoy lane, opposite the petrol pump at the corner of Karimbhoy lane and Sprott Road. 86. In his cross examination at RW5/21, Sr.P.I. Tambvekar has admitted that he had not made any entry or recorded anywhere in the C.I.U. of having acted upon the information or of having visited the spot for reconnaisance at 8 p.m. A.P.I. Dhobale (RW 7) at RW7/5 has corroborated Sr.P.I. Tambvekar and stated that Sr.P.I.Tambvekar explained the topography in detail to the officers. It is therefore surprising that Sr.P.I.Tambvekar made no record in any station diary or any entry of such an important movement of the police nor did he prepare any rough sketch of the spot showing the topography. It is difficult to understand how Sr.P.I.Tambvekar could have explained to the officers, the topography in detail and give instructions without any rough sketch. Sr.P.I.Tambvekar claims that he took officers, P.S.I. Tonpe and P.S.I.Bhosale-Patil with him for the reconnaisance mission. However, neither P.S.I.Tonpe nor P.I.Bhosale-Patil has been examined by the police. So we only have the word of Sr.P.I.Tambvekar, a very weak word indeed! Sr.P.I.Tambvekar has, in his evidence at R.,W.S/7 and R.W.5/8, given a detailed description of Sprott Road and of the areas adjoining it. He has also particularly noted that the road was sufficiently lit up by street lights as well as illumination from the buildings. However, such details of the topography are not difficult to give and any one visiting the spot, can give the same. It must be remembered that Sr.P.I.Tambvekar, is deposing in Court much after the alleged incident. In any event, there is nothing to show that in fact Sr.P.I.Tambvekar and the other officers did visit the spot for reconnaisance missing. 87. In the light of the above discussion, the alleged reconnaisance mission to Sprott Road, is a matter of conjecture.

GUN FIGHT AT SPROTT ROAD : The narrative of the encounter in which Javed Fawda was allegedly killed, is to be found in the evidence of Sr.P.I.Tambvekar and A.P.I.Dhobale. Sr.P.I.Tambvekar has stated that after the reconnaisance mission, he returned to his office where he prepared two teams, consisting of officers and staff. The two teams left the C.I.U. office at about 11 p.m. and proceeded in two cars to Sprott Road and took up positions as planned earlier. Sr.P.I.Tambvekar states that his team took up position at the corner of Karimbhoy lane and Sprott Road, facing the petrol pump while the second team of A.P.I.Dhobale and others took up position at Sprott Road near the B.E.S.T. bus station facing towards the Customs House. The two teams could see each other from their respective positions. 89. Similarly, A.P.I.Dhobale has stated that P.I.Tambvekar instructed them for the purpose of arrest of Javed Fawda, to form two teams and accordingly the two teams of officers were formed. One team consisted of Sr.P.I. Tambvekar. A.P.I. Pote and P.S.I.Tonpe and one constable. The other team consisted of A.P.I.Dhobale, P.S.I. Bhosale-Patil, P.S.I.Kalekar, two constables and one driver-constable. Sr.P.I.Tambvekar proceeded to Sprott Road in a private vehicle while A.P.I. Dhobale and his staff went in an ambassador car bearing No.BLF 5048. The two teams reached Sprott Road at about 11 p.m.

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two teams and accordingly the two teams of officers were formed. One team consisted of Sr.P.I. Tambvekar. A.P.I. Pote and P.S.I.Tonpe and one constable. The other team consisted of A.P.I.Dhobale, P.S.I. Bhosale-Patil, P.S.I.Kalekar, two constables and one driver-constable. Sr.P.I.Tambvekar proceeded to Sprott Road in a private vehicle while A.P.I. Dhobale and his staff went in an ambassador car bearing No.BLF 5048. The two teams reached Sprott Road at about 11 p.m. A.P.I.Dhobale parked the vehicle bearing No.BLF 5048 near the Exchange building on Sprott Road facing towards south, i.e. towards the Customs House side, while the other car was parked at Karimbhoy lane facing the petrol pump. A.P.I.Dhobale has stated that he instructed two constables from his team, to alight and take hiding positions near the petrol pump and to keep a watch on the vehicles passing on Sprott Road. A.P.I.Dhobale at RW7/6 has stated: "...At about 12.15 p.m. after midnight, we saw one white Maruti 800 car coming along Sprott Road from the southern side i.e. from the Customs House side. The car halted near the bus stop which is situated in front of Sapat building. On noticing the car, my officers and I became alert. I noted the number of the car to be MH-04-1265. I noticed one person sitting next to the driver on the front seat alighting from the car from the left side. That person walked a little further upto the front left side of the car. Immediately, I realised that he was none other than Javed Fawda..." A.P.I.Dhobale along with the other officers, got down from the car and he and P.S.I.Bhosale-Patil, proceeded towards the white Maruti car. A.P.I. Dhobale, after taking 4-5 steps took out his service revolver and pointing it towards that person, gave a warning shouting "Javed Bhagna Nahi". A.P.I.Dhobale has stated that Javed Fawda immediately turned around, took out a weapon from his waist and fired one shot towards him. Sensing danger, A.P.I.Dhobale retaliated by firing in quick succession. However, Javed managed to fire one more shot. At the same time, P.S.I.Bhosale-Patil also fired from his service revolver towards Javed Fawda. At that juncture, the white Maruti car in which Javed Fawda and his associates had come, started speeding away towards Grand Hotel side, i.e. towards the north. P.S.I.Kalekar fired one shot in the direction of the speeding car. After the car left, Javed Fawda was seen lying on the road, in an injured condition, holding a pistol in his hand. A.P.I.Dhobale carefully removed the pistol from his hand. It was a foreign make pistol with a Star maron it. A.P.I. Dhobale unloaded it and found it contained three bullets. It was also seen that the windshield of the Ambassador car was shattered due to a bullet fired by Fawda. At that time, Sr.P.I.Tambvekar also came to the spot and instructed A.P.l. Dhobale to remove Fawda to the hospital. S.I.Tonpi immediately brought the private car in which Sr.P.l.Tambvekar and his team were travelling and the injured Javed Fawda was put in the car and rushed to St.George hospital, P.S.I.Tonpi, P.S.I. Bhosale-Patil and two constables accompanied A.P.I.Dhobale in the car to St.George Hospital. Sr.P.I.Tambvekar claims that he rushed to the spot where Javed Fawda was lying in front of Sapat Building and he saw A.P.I.Dhobale take out the pistol from the right hand of the injured person. He further observed the injured from a close distance and found that the injured fitted the description of Javed Fawda which was given by A.C.P.Rao. Sr.P.I.Tambvekar states that A.P.I.Dhobale after taking the pistol from the injured, unloaded the pistol and took out three live cartridges from it. There was a Star symbol on the pistol. It was a 7.63 calibre pistol. Sr.P.I.Tambvekar (RW 5) further states that before A.P.I.Dhobale left with the injured Javed Fawda to the hospital. he learnt from A.P.I.Dhobale that the injured Javed Fawda fired two rounds from his pistol towards A.P.I.Dhobale and his party. This was immediately after A.P.I.Dhobale shouted "Javed Bhagna Nahi". He further states that A.P.I.Dhobale told him that he fired four rounds from his service revolver and P.S.I.Bhosale-Patil fired one round from his service revolver at Javed Fawda. Sr.P.I.Tambvekar states that P.S.I.Kalekar who was in A.P.I.Dhobales team, also fired one round from his service revolver at the speeding Maruti car. He further states that the Ambassador car in which A.P.I.Dhobale and his team were positioned, had its windshield broken. A.P.I.Dhobale (RW 7) has stated that he took out his service revolver and pointing it towards Javed Fawda, shouted a warning: "Javed Bhagna Nahi". Immediately, Javed Fawda turned towards him, took out a weapon, from his waist and fired one shot towards him. Sensing danger, A.P.I. Dhobale retaliated by firing in quick succession. Nevertheless Javed Fawda managed to fire one more shot. On this very crucial aspect of the incident. we only have the bare word of A.P.I.Dhobale. This version of the incident given by A.P.I.Dhobale must be seen as a plea of self defence, put up by A.P.I.Dhobale who could possibly be facing a charge of murder. There is no corroboration to this vital piece of evidence which could determine the outcome of the enquiry. According to the police the evidence of Sr.P.I.Tambvekar, corroborates A.P.I.Dhobales version. However. we find Sr.P.I.Tambvekar has deposed that when he reached the spot of the shoot-out, he learnt from Dhobale that the injured Fawda had fired two rounds from his pistol towards A.P.I. Dhobale and his party and that A.P.I.Dhobale told him that: "...thereafter he fired four rounds from his service revolver in the direction of the injured..." This piece of information allegedly received by Sr.P.I. Tambvekar, is mere hearsay and has no evidentiary value and cannot corroborate A.P.I.Dhobales version since the source of information is the assailant himself. 92. On the other hand, although admittedly there were other eye-witnesses,they have not been examined. P.S.I.Bhosale-Patil was with A.P.I.Dhobale when the alleged firing took place and A.P.I.Dhobale has admitted: "...Simultaneously, P.S.I.Bhosale-Patil fired from his service revolver towards Javed Fawda..." Surprisingly, P.S.I.Bhosale-Patil has not been examined. Similarly, A.P.I.Dhobale has stated: "... SI Kalekar fired one shot in the direction of the speeding Maruti car..." P.S.I.Kalekar was also with A.P.I.Dhobale at the time of the firing. Yet he has not been examined. 93. Although independent eye-witnesses who were party to the shoot-out, were present and were available, for some unexplained reasons,they have not been examined. The Respondents have made no attempt to explain why they have not examined these eye-witnesses nor have they shown nor attempted to show that these witnesses were not available. Possibly, the Respondents might have tried to explain that these eye-witnesses have not been examined as they were party to the shoot-out and would. if examined, be incriminating themselves. But even this would not be a satisfactory, explanation for not examining them, since the Honble High Court has by its order dated 17.2.1998 on the application of the Respondents themselves, clarified that the evidence recorded in this enquiry will not be used in any criminal proceedings or civil action that may be launched against the police officers. The non-examination of two important eye-witnesses by the Respondents would require this Court to draw an adverse inference. 94. Further, there is no unanimity in what A.P.I.Dhobale says about the firing and what Sr.P.l.Tambvekar claims A.P.I.Dhobale told him. According to Sr.P.I.Tambvekar, A.P.I.Dhobale told him that Javed Fawda fired two rounds from his pistol immediately after A.P.I.Dhobale shouted "Javed Bhagna Nahi" and that thereafter, A.P.I.Dhobale fired four rounds from his service revolver. However, A.P.I. Dhobale in his evidence at RW7/7 stated that after he shouted "Javed Bhagna Nahi", Javed Fawda turned towards him, whipped out the weapon from his waist and fired one shot towards A.P.I.Dhobale. Thereafter, he

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told him. According to Sr.P.I.Tambvekar, A.P.I.Dhobale told him that Javed Fawda fired two rounds from his pistol immediately after A.P.I.Dhobale shouted "Javed Bhagna Nahi" and that thereafter, A.P.I.Dhobale fired four rounds from his service revolver. However, A.P.I. Dhobale in his evidence at RW7/7 stated that after he shouted "Javed Bhagna Nahi", Javed Fawda turned towards him, whipped out the weapon from his waist and fired one shot towards A.P.I.Dhobale. Thereafter, he retaliated by firing in quick succession. A.P.I.Dhobale does not say how many shots he fired. However, Sr.P.I.Tambvekar has given the specific number of four shots fired by A.P.I.Dhobale. 95. According to A.P.I.Dhobale, Javed Fawda fired the first shot and he retaliated by firing an unspecified number of shots in quick succession. In the meantime, Javed Fawda fired a second shot. Simultaneously, P.S.I.Bhosale-Patil fired a shot from his service revolver and P.S.I.Kalekar fired one shot towards the direction of the speeding car. Thus it appears that there were four guns blazing almost simultaneously. Yet Sr.P.I.Tambvekar makes no mention that he heard more than one gun being fired. There were two revolvers one pistol and one unspecified fire-arm involved in the firing. Yet, Sr.P.I.Tambvekar appears blissfully unaware of the other guns being fired. 96. Learned Advocates for the Respondents have urged this Court to accept the evidence of A.P.I.Dhobale and Sr.P.I. Tambvekar as proving the police case. It is contended that their evidence is straight-forward and genuine and that there are no contradictions in their versions,that they are senior police officers and hence there is no reason to reject their evidence. 97. It is contended that the evidence of Sr.P.I.Tambvekar corroborates the evidence of A.P.I.Dhobale who actually fired upon and killed Javed Fawda. However, truth has a nasty was of getting out. In this case, Sr.P.I.Tambvekar has bettered and improved upon the version of A.P.I.Dhobale by specifying the number of shots fired by A.P.I.Dhobale, namely, four shots, while A.P.I.Dhobale himself has stated that he fired in quick succession - apparently losing count of the number of shots fired! 98. In the absence of corroborative evidence which was easily available, if the police version of the incident is to be believed, A.P.I.Dhobales evidence is a poor defence of his case of having shot and killed Javed Fawda in self-defence or retaliation as he terms it! LAY YOUR PISTOL DOWN 99. "Lay your pistol down boy - a kid like you, ought not to be packing one". This is what A.P.I.Dhobale seems to be telling the 18 year old injured Javed Fawda when he went near Javed Fawda who was lying on the road in an injured condition and removed the pistol from his hand. It was a foreign make pistol having a Star mark. A.P.I.Dhobale has in his evidence at RW7/7, stated: "...At that time we noticed Javed Fawda lying on the road. I, S.I.Bhosale-Patil and one constable immediately rushed towards Javed Fawda. I saw him holding a pistol in his hand and that he was also injured. Since it was a pistol, I removed it from his hand carefully. It was a foreign make, Star mark pistol. -102 I carefully unloaded it and found it containing three bullets..." Sr.P.I.Tambvekar corroborates A.P.I.Dhobale when at RW5/9 he states: "...In the meantime we reached the spot where one injured person was lying near the bus stop which is in front of Sapat building. At that spot, A.P.I.Dhobale, P.S.I. Bhosale-Patil and one constable were standing near the injured. I saw A.P.I.Dhobale taking out the pistol from the right hand of the injured person. I observed the injured from close distance. He fitted the description of Javed Fawda which was given earlier by A.C.P.Rao. A.P.I.Dhobale after taking the pistol from the injured unloaded the pistol and took out three live cartridges from it. The pistol was "star" make pistol. There was a star symbol on it. It was 7.63 calibre pistol..." Again here Sr.P.I.Tambvekar has out done A.P.I.Dhobale by specifying that "it was a 7.63 calibre pistol". A.P.I.Dhobale has not specified the calibre of the pistol. Apparently, Sr.P.I.Tambvekar being a Senior Police Inspector, has more knowledge of guns and arms than A.P.I. Dhobale, whose interest in the use of fire-arms could be said to be practical rather than academic! 100. Further Sr.P.I.Tambvekar says that he saw A.P.I.Dhobale removing the pistol from Javed Fawdas right hand, while A.P.I.Dhobale himself does not specify in which hand Javed Fawda was holding the pistol. 101. It must also be pointed out that P.S.I.Bhosale-Patil who rushed along with A.P.I Dhobale to the spot where the injured Javed Fawda was lying, has not been examined. 102. It must further be pointed out that although A.P.I.Dhobale claims that he carefully removed the pistol from Javed Fawdas hands, no fingerprints from the pistol were taken or preserved or produced before the Court. 103. In his cross-examination at RW5/21, Sr.P.l.Tambvekar admits that: ...Before removing the pistol from right hand of Javed Fawda, no precaution was taken to preserve the fingerprints on the pistol..." It is surprising that Sr.P.I.Tambvekar being a Senior Police Officer did not think it necessary to instruct A.P.I.Dhobale to take precautionary steps to preserve the fingerprints. The mistake on the part of the Senior Police Officer is unpardonable. 104. It is also surprising that although it is alleged that Javed Fawda fired the first shot at the police, no policeman was injured or hit. A.P.I.Dhobale has in his cross-examination at RW7/25, admitted that none of the police personnel in both the teams received any injury. Going back to the evidence of A.P.I.Dhobale, we find that A.P.I.Dhobale cautiously started approaching Javed Fawda with a revolver in his hand pointing at Javed Fawda. Only after A.P.I.Dhobale shouted a warning "Javed Bhagna Nahi", that Javed turned around, whipped out the pistol from his waist and fired the first shot. A11 this despite the fact that A.P.I.Dhobale already had his pistol pointing at Javed Fawda and ready to fire. From the above discussion, it will be seen that serious doubts arise whether Javed Fawda fired the first shot at the police with his pistol of whether Javed Fawda at all fired at the police. It is also doubtful whether Javed Fawda was armed with a pistol or was carrying any arms at all. ARMS AND THE MAN : 105. The evidence of A.P.I.Dhobale and Sr.P.I.Tambvekar discloses that the police party that went to Sprott Road to effect the arrest of Javed Fawda were armed to the teeth. This, according to the police, was necessary as they were warned by their superiors that Javed Fawda was a member of the dreaded Abu Salem gang. According to A.P.I.Dhobale, Sr.P.I.Tambvekar told him that he had received instructions from his superior officers that since the accused Javed Fawda

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105. The evidence of A.P.I.Dhobale and Sr.P.I.Tambvekar discloses that the police party that went to Sprott Road to effect the arrest of Javed Fawda were armed to the teeth. This, according to the police, was necessary as they were warned by their superiors that Javed Fawda was a member of the dreaded Abu Salem gang. According to A.P.I.Dhobale, Sr.P.I.Tambvekar told him that he had received instructions from his superior officers that since the accused Javed Fawda belonged to the Abu Salem gang, they should take adequate precautions while effecting the arrest of Javed Fawda. Sr.P.I.Tambvekar has in his evidence at RW5/7 stated: "...A.C.P.Rao and D.C.P.Prasad, after discussing the matter, instructed me, since the accused were members of a gang and were likely to be armed with weapons, to take adequate precautions..." 106. The evidence of Sr.P.I.Tambvekar, to put it mildly, is a simple attempt at justifying the police action in arming themselves to the teeth, while going to Sprott Road, ostensibly seeking the arrest of Javed Fawda. SHATTERED WINDSHIELD : 107. We are told that the windshield of the Ambassador car in which .A.P.I.Dhobale and his team travelled to the spot, got damaged and shattered in the shoot-out by the bullet fired by Javed Fawda. Sr.P.I.Tambvekar who claims to have rushed to the spot where the injured was lying has stated: "...The Ambassador car in which A.P.I.Dhobale and his team were positioned, had its windshield broken..." A.P.I.Dhobale at RW7/6 has stated: "...At about 11 p.m. we reached the spot. We parked the government vehicle BLF 5048 near the Exchange building on Sprott Road. The car was facing towards south i.e. towards the Customs House. I and my team were in this car..." A.P.I.Dhobale at RW7/8 has stated: "...I immediately realised that the windshield of our car was shattered due to the bullet fired by Fawda..." A.P.I.Dhobale has further stated that when the bullet struck the Ambassador car, no one was in it. 108. A.P.I.Dhobale (RW 7) at RW7/10 has stated: "...The car with the shattered windshield was taken charge of by M.R.A.Marg Police Station under panchanama. I came to know that the vehicle was lying at the M.R.A. Marg Police Station for some time and thereafter taken to the Motor Transport section at Nagpada for repairs. The windshield was replaced and the vehicle is back in service" 109. Thus, all evidence; of the alleged involvement of the ambassador car, has been effectively destroyed and no record produced that the car was in fact used in the incident on that the windshield was replaced. The use of the Ambassador car in the alleged incident, is therefore doubtful,as not proved. THE CAR THAT GOT AWAY 110. According to the police at about 12.15 a.m. on 28.8.1997, while the two teams were lying in wait for Javed Fawda and his associates, one white Maruti 800 was, true to the information received, seen coming along Sprott Road from the Customs House side, that is from south to north. The car halted at the bus stop near Sapat building. A.P.I.Dhobale and his team were positioned in the Ambassador car on Sprott Road opposite Sapat building. The encounter then began with A.P.I.Dhobale shouting the warning: "Javed Bhagna Nahi". After the shooting began, the white Maruti 800 car sped away towards Grand Hotel, that is towards the north side. P.S.I.Kalekar allegedly fired one shot towards the speeding car. 111. At St.George Hospital where the injured Javed Fawda was taken and proclaimed dead before admission, P.S.I.Tonpi who had got the registration number of the speeding Maruti car, informed the police control room for its seizure. The registration number of the Maruti 800 car was MH-04-1265. 112. The above facts have been deposed to by Sr.P.I. Tambvekar and A.P.I.Dhobale. However, P.S.I.Tonpi who is alleged to have got the registration number of the white Maruti 800 which sped away and who allegedly informed the police control room to take steps for its seizure has not been examined nor has any documentary evidence, such as the station diary entry or the statement of P.S.I.Tonpi, been produced in Court. Sr.P.I.Tambvekar in his cross-examination has denied the suggestion that the registration number of the white Maruti 800 given by P.S.I.Tonpi, is an incomplete registration number. He however, does not deny the suggestion that the registration.No.MH-04-1265 could be that of a scooter and not that of a car. 113. Despite the knowledge that Javed Fawda and his associates would be coming in a white Maruti 800 car and despite the information allegedly given by P.S.I.Tonpi from St.George Hospital to the Control Room, the police have failed to seize the car. 114. Yet another important piece of evidence which could nave helped to establish the Respondents case has been lost, due to the carelessness and/or inefficiency of the police. DEAD MEN TELL N0 TALES : 115. Men may lie, but documents do not - unless they have been doctored. 116. The encounter with the police resulted in Javed Fawda suffering several gun shot injuries. Rubina (PW 1) who claimed the dead body has testified that she saw the naked body of her deceased brother in the morgue, having one bullet wound on his private part and two bullet wounds on his chest and another bullet injury on the right ear. Admittedly, A.P.I.Dhobale (RW 7) fired at least four shots at Javed Fawda P.M. AND C.A. REPORTS : 117. Vijay Harishchandra Kelvekar (RW 3) who along with Dr.U.S.Patil, performed the post-mortem examination and prepared the post-mortem notes, has stated that there were four bullet wounds on the dead body of Javed Fawda. There were three bullet entry wounds and one was a bullet exit wound. Dr.Kelvekar (RW 3) has opined: "...Death in this case was due to loss of blood from injuries to the vital parts of the body..." 118. Sudhakar Haribhau Ramteke (RW 4), the Asst.Chemical Analyser has given his finding that the two bullets sent by the police surgeon to the Chemical Analyser for examination were fired by two different .38 revolvers and that the shots were fired from a distance of less than 35 yards but beyond two feet. Ramteke (RW 4) has further stated:

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118. Sudhakar Haribhau Ramteke (RW 4), the Asst.Chemical Analyser has given his finding that the two bullets sent by the police surgeon to the Chemical Analyser for examination were fired by two different .38 revolvers and that the shots were fired from a distance of less than 35 yards but beyond two feet. Ramteke (RW 4) has further stated: "...There were four shot holes on the shirt which was examined in this case.Three shot holes were on the front side and one was on the rear side. As per the post mortem notes, the shot hole at the rear side of the shirt is the exit wound. The post-mortem notes indicate that the four shot holes were due to three shots fired. Since I have received only two empty bullets for examination, I cannot say whether the three entry shots on the shirt of the victim were from one, two or three .38 service revolvers. But from the two empty bullets which I examined I can say that there were two .38 revolvers used.......Since I did not see the third bullet I cannot say whether a third revolver was used or not..." 119. The above evidence establishes that at least three bullets from at least two different revolvers hit the body of Javed Fawda. The impact of one bullet was so fierce, that it penetrated the body through and through and exited from his back. THE SPOT PANCHANAMA: 120. Dr. Kelvekar who conducted the post-mortem examination, has opined that death was due to loss of blood from the injuries to the vital parts of the body. Obviously, after Javed Fawda was hit and was lying on the road, considerable amount of blood would have spurted out from the body. But strangely, the spot panchanama which according to the police was prepared a short time after the shoot-out, does not indicate that a pool of blood or even spots of blood were found at the scene of offence. 121. Again, Sr.P.I.Tambvekar and A.P.I.Dhobale claimed that they rushed the injured Javed Fawda in the private car used by Sr.P.I. Tambvekar and his team to the St.George Hospital. However, no blood stains were found in the private car. A.P.I. Dhobale has in his cross-examination stated: "...I did not notice any blood at the spot where the injured Javed Fawda had fallen. I did not notice any blood stains in the private car when the injured Javed Fawda was taken to the hospital..." 122. Although admittedly, eight bullets were fired in the encounter (four shots by A.P.I.Dhobale, two by Javed Fawda, one by P. S. I. Bhosale-Patil and one by P. S. I. Kalekar at the speeding car) only two empties were found at the spot but no empties were found in the Ambassador car whose windshield was allegedly shattered by a stray bullet. The panchanama mentions only two empties found at the spot but makes no mention of any empties being found in the Ambassador car. Sr.P.I.Tambvekar has stated in his evidence: . ". . . From the hospital, I informed my superiors on telephone about the incident. In the meantime, P.S.I. Thorat and P.I. Devkar from M.R.A. Marg Police Station reached the hospital. P.S.I. Thorat recorded the statement of A. P. I. Dhobale at the hospital. This statement was treated as F. I. R. and C. R. was registered. The staff of M. R. A. Marg Police Station took charge of the dead body under the inquest panchanama. Thereafter M. R. A. staff went to the scene of offence and drew the spot panchanama. A.P.I. Dhobale went along with them for drawing the spot panchanama..." A.P.I.Dhobale at RW7/9 stated: " ..I was asked to show the spot of the incident. I accompanied S.I.Thorat and PI Devkar to the spot. I showed them the place. They inspected the spot, thoroughly and drew the spot panchanama. They took charge of one pair of chappals and two empty cartridges from the spot. The vehicle which was damaged was also taken charge of..." A.P.I.Dhobale has further stated at RW7/10 (para 7) that: "..The car with shattered Windshield was taken charge of by M.R.A.Marg Police Station under panchanama..." However, it wil1 be seen that the panchanama has not been proved nor have the panchas been examined, nor has the officer who drew or recorded the panchanama, been examined. The contents of the spot panchanama are not proved and therefore the recovery of two empty cartridges from the spot of the incident or the damaged Ambassador car, remains doubtful. 123. Soon after the encounter which took place at about 00.50 hours, A.P.I. Dhobale allegedly lodged the F.I.R. at M.R.A.Marg Police Station at 00.50 hours and the offence was registered vide C.R.No.360/97. The name of the complainant is shown as A.P.I.Dhobale. The name and address of the accused is Javed Fawda and two or four associates. Apparently; the complaint (F.I.R.) was filed by A.P.I. Dhobale for the offence of attempt to murder (section 307 I.P.C.), since Javed ;Fawda first fired upon the police party after A.P.I. Dhobale called upon Javed Fawda to surrender. 124. It is the case of the Police that the entire exercise to arrest Javed Fawda and his associates, was initiated after A.C.P.Rao gave the Memo (Ex.W) to Sr.P.I.Tambvekar. However, surprisingly, Ex.W finds no place in the F.I.R. (C.R.No.360/97of M.R.A.Marg Police Station filed by A.P.I.Dhobale. It is also seen that detailed Affidavits were filed by A.P.I. Dhobale in the High Court Writ Petition No.1032/97 on 4.11.1997. However, no mention is made of Ex.W, in the said Affidavits. 125. It therefore appears probable that Ex.W was prepared much later to justify the encounter and this seems to be confirmed from the fact that the F.I.R. itself appears to be a got-up document. It is pertinent to note that no copy of the F.I.R. was sent to the Magistrate as required under sec.l57 of the Cr.P.C. till 26.11.1997, that is, after three months. A copy of this said F.I.R. came to be filed on 26.11.1997 only after an application was made by the Petitioners to the Magistrate to furnish them a copy of the F.I.R. The order of the Magistrate endorsed at the foot of the application reads: "No copy of the F. I. R. received. " 126. The F.I.R. mentions that the informant gave a description of Javed Fawda and that he was wanted in the C.Rs.of Dharavi, Kurla, and Matunga Police Stations etc. However, no mention is made in the F.I.R. of Javed Fawda being wanted in the Gulshan Kumar murder case. This seems strange since the Memo, Ex.W, makes specific mention of Javed Fawda being wanted in the Gulshan Kumar murder case. 127. Despite the injured Javed Fawda bleeding profusely no pool of blood or blood stains were found at the scene of offence. Despite several shots fired at the time of the shoot-out, only two bullet empties were allegedly recovered from the spot but no bullet empty recovered from the Ambassador car whose windshield was alleged shattered by a stray bullet. The absence of any mention of blood stains at the seen of offence or in the private car in which the injured Javed Fawda was taken to the hospital could mean that the panchanama was in fact not drawn at the alleged scene of offence. However, the scene of offence panchanama, the F.I.R.and Ex.W are documents drawn by and relied upon by the police themselves. The absence of any mention in the panchanama of a pool of blood or at least some blood stains being found at the scene of

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spot but no bullet empty recovered from the Ambassador car whose windshield was alleged shattered by a stray bullet. The absence of any mention of blood stains at the seen of offence or in the private car in which the injured Javed Fawda was taken to the hospital could mean that the panchanama was in fact not drawn at the alleged scene of offence. However, the scene of offence panchanama, the F.I.R.and Ex.W are documents drawn by and relied upon by the police themselves. The absence of any mention in the panchanama of a pool of blood or at least some blood stains being found at the scene of offence or of more empties that, to being found at the scene offence and the conspicuous absence of any mention of Ex.W in the F.I.R. creates serious doubts whether the encounter did in fact take place at Sprott Road as alleged by the police. TRIGGER-HAPPY COP: 128. As per the police version, as set out in the evidence of A.P.I. Dhobale and Sr.P.I.Tambvekar, the person primarily responsible for shooting and killing Javed Fawda is A.P.I.Dhobale. The cross-examination of A.P.I. Dhobale by the Learned ,Advocates for the Petitioners, exposes the mark background of A.P.I. Dhobale. From the cross-examination of A.P.I. Dhobale at RW7/11 and RW7/12, it is seen as follows: (i) that A.P.I. Dhobale was tried by the Bombay Sessions Court for the custodial death of one Abdu1 Gaffar Khan vide S.C.No.l87/97 and was convicted by the Trial Court vide order dated 18.2.1994. An appeal was filed by A.P.I. Dhobale in the Honble High Court and the Honble High Court was pleased to set aside the order. However an S.L.P. against the said order setting aside the conviction, has been admitted and is pending in the Supreme Court. (ii) After the order of the Trial Court, A.P.I. Dhobale was in custody for two days being Saturday and Sunday. He was also suspended from service from the first week of March 1994 till the third week of March 1994. Thereafter, he was dismissed from service. The dismissal continued till March 1996. A.P.I.Dhobale was reinstated in service on 20.3.1996 as A.P.I. and posted at Crime Branch, where he continues till today. (iii) A.P.I. Dhobale has admitted "my dismissal from service was departmental action taken pursuant to my conviction in S.C.No.l87/87. He further agrees that "the Judge has convicted me on the charge of custodial death." 129. In his cross-examination at para 9 of RW7/12, A.P.I. Dhobale has stated that: "...During my training period, I was taught how to handle fire-arms. During my training period we were taught when and in what circumstances, fire arms could be used. During service we received instructions by circular about use of fire-arms..." Further A.P.I.Dhoble has in cross- examination, admitted: -117 "...Police officers are duty bound to work within the framework of law....police officer has no power to punish. " However, at the same time he contradicts himself by saying: "....It will not be correct to say that firearms could be used only in emergency situation where no other option is available. It defends upon the situation..." I suppose A.P.I. Dhobale considers himself the best Judge of the situation. 130- In his cross examination by Advocate Misar for N. H. R.C. at RW7/30, A. P. I. Dhobale has admitted: " .Before this incident I was a member of three or four teams involved in such encounters, during my service. In those encounters I had occasion to open fire as a member of the team. Without reference to the record, I cannot say how may people were " injured or killed by my firing in the said encounters..." For A.P.I. Dhobale, encounter-killing it appears, is no big deal. It had become a routine affair, so much so that he lost track of the number of persons killed or injured by his firing! SITE INSPECTION 131. I have personally visited the site on 12.6.1998 in the presence of Learned Advocates for the respective parties. The situation at the spot is more or less what Sr.P.I.Tambvekar has stated in his evidence regarding the reconnaisance mission undertaken by him. At RW5/8, Sr.P.I.Tambvekar has stated: "...The road was sufficiently lit up by street lights as well as from illumination on the buildings. On inspecting the site, we felt that it was quite likely that the accused would come from the Grand Hotel side as the Customs House end of the road was comparatively deserted. Next to the Grand Hotel, there is a petrol pump. We expected rich persons and foreigners to be visiting Grand Hotel. We therefore thought that the suspects would either be planning to kill some person from the hotel or there was going to be delivery of weaponry or smuggled goods near about the hotel. Keeping this view, we selected two spots. One spot selected was near the petrol pump and BEST sub-station on Sprott Road as from there we could see the entire road right up to the Customs House. The other spot selected was on Karimbhoy lane opposite the petrol pump at the corner of Karimbhoy lane and Sprott Road..." 132. After personally visiting the site, I have recorded my observation in Memo (Ex. ). During the site inspection, Learned Advocate for the Petitioners, Shri Shrikant Bhatt, made it a point to show me the position of the illumination at the spot in front of Sapat building. There is a bus stop just in front of Sapat building. There is a street lamp on the eastern-side near the bus stop and another street lamp between Sapat building and Kaiser-E-Hind building on the northern side. The facade of Sapat building is illuminated by a number of flood lights fixed on the surface of the building. At the time of visit, there was bright sunshine and therefore it was not possible to observe how well the place would be lit at night, i.e. at 12 midnight. However, from the number of flood lights from the facade of the building and street lights at the side of the bus stop, it would appear that the place must have been sufficiently well lit at night. Obviously, since the place at the bus stop was so well lit, there would be no difficulty in identifying the suspects who would be visiting Sprott Road or near about the bus stop in front of Sapat building. 133. Sr.P.I.Tambvekar has, in his evidence stated that after his reconnaisance mission along with the officers S.I.Tonpi and S..I.Bhosale-Patil, they were of the opinion that the suspects would be coming from Grand Hotel side, i.e. from the northern side as the Customs House end of the road was comparatively deserted. P.I.Tambvekar and the other officers also were of the view that the suspects would either be planning to kill some person from the hotel or there was going to be delivery of weapons or smuggled goods near about the hotel and keeping this in view, the two teams took up their respective positions as stated by Sr.P.I.Tambvekar as well as A.P.I. Dhobale. 134. However, their expectations were belied.

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weapons or smuggled goods near about the hotel and keeping this in view, the two teams took up their respective positions as stated by Sr.P.I.Tambvekar as well as A.P.I. Dhobale. 134. However, their expectations were belied. A.P.I.Dhobale at RW7/6 has stated: "...At about 12.15 a.m. after midnight, we saw one white Maruti 800 car coming along Sprott Road from south side i.e. from Customs House side. The car halted near the BEST bus stop which is situated in front of Sapat building. On noticing the car my officers and I became alert. I noted the number of the car to be MH-04-1265. I noticed one person sitting next to the driver on the front seat alighting from the car from the left side. That person walked a little further upto the front left side of the car. Immediately, I realised that he was none other than Javed Fawda. . . " The question to be asked is if Javed Fawda and his accomplices were to commit some offence such as murder or delivery of arms or smuggled contraband goods, why did the white Maruti car stop near the bus stop at Sapat building. Admittedly, no person was standing near the bus stop. No person could be expected to be coming at the stop. No person could be expected to be coming by bus at that time of the night and alighting at the bus stop. It is not understood why the car stopped there and why Javed Fawda got out from the car and walked a little further to the left side of his car. No mention is made by either A.P.I. Dhobale or any other police officer that Javed Fawda got out from the car to meet anyone. No one was waiting at the bus stop. Therefore, could be the reason for Javed Fawda getting out from the at the bus stop and proceeding to the left front side of his car. It is not alleged that the car had failed and there Javed Fawda had got out to check the car. 135. A.P.I.Dhobale has stated that after he saw Javed Fawda getting out of the white Maruti car, he got out of car, took four to five steps and pointing his revolver at Javed Fawda, shouted the warning: "Javed Bhagna Nahi". It is not understood why A.P.I. Dhobale issued that warning, when according to A.P.I.Dhobale himself, Javed Fawda just got out of the car and took a few steps to the front left side of the car. A.P.I.Dhobale has not alleged that .Javed Fawda got out of the car and started running away. Therefore, it is not understood why A.P.I.Dhobale should have shouted "Javed Bhagna Nahi". 136. It must be remembered that the avowed purpose of the police party laying the trap at Sprott Road was to arrest Javed Fawda who along with his accomplices was expected to be committing some offence at or near the Grand Hotel. It is therefore not understood why A.P.I.Dhobale acted prematurely and proceeded to apprehend Javed Fawda in the manner stated by him in his evidence. The question of Javed Fawda committing any offence at the bus stop did not and could not arise. Admittedly, it was expected that the offence, if any, would be committed near about or roundabout Grand Hotel which is about 100 metres away from the spot in front of Sapat building. It is preposterous to suggest that any one would want to commit an offence at the spot which was so well illuminated. If some crime had to be committed, it would be under the cover of darkness and not in a well lit place. The entire area on Sprott Road is deserted after 8 p.m. as the buildings in that area are mainly occupied by offices which close by 6.00 or 7.00 p.m. and therefore the entire area would have been deserted at night and of course, there would be no witnesses available to prove or disprove the police case. The only reason it seems why the police have thought it fit to state that Javed Fawda got out from the car at such a well illuminated spot, is to impress upon the Court that the police have committed no mistake in identifying Javed Fawda by whose description was given earlier to the police by informants. 137. The entire story of Javed Fawda alighting at the bus stop in front of Sapat building and A. P. I. Dhobale identifying him, as Javed Fawda, resulting in the ensuing shooting and the escape of the white Maruti car in the direction of Grand Hotel towards the north, seems highly improbable. A RECAP: 138. To recapitulate, the first time news of the police encounter in which Javed Fawda was killed appeared in the newspaper "Sanj Jansatta" dated 28.8.1997. It appears that A.P.I.Dhobale gave an interview which was reported in the newspaper stating that Javed Fawda a notorious gangster of the Abu Salem gang was killed in the encounter. According to the Affidavit of John Fernandes, immediately after the said news item appeared, he along with Rubina (PW 1) went to the M.R.A.Marg Police Station to make enquiry about "Javed". The news of the killing of Javed Fawda in an alleged police encounter, was therefore for the first time, made official by the press interview given by A.P.I. Dhobale on the 28th itself, the report having appeared in the press on the evening of the same day. In fact it is the positive case of the police that Javed Fawda was killed in the encounter at Sprott Road on 27th/28th night while the police were trying to apprehend him. It was therefore for the police to have by cogent evidence established that the encounter did take place in the manner, at the time and place where the encounter is alleged to have taken place which the police have miserably failed to do. 139. The purpose for the police going to Sprott Road on the night at 27th/28th August 1997 was to arrest Javed Fawda and his associates who are alleged to be members of the dreaded Abu Salem gang and also wanted in.C.R.No.572/97 f or the murder of Gulshan Kumar as well as wanted in C.Rs.of several other police stations. The police claim that they were spurred into action after receipt of the Memo (Ex.W) from A.C.P.Rao which contained the information about Javed Fawda and his associates. The Memo (Ex.w) was issued by A.C.P. Rao after receipt of information from police sources and from the prime accused in the Gulshan Kumar murder case namely, Javed Kaliya. As we have seen earlier, Ex.w is a highly suspicious document. The information about the involvement of Javed Fawda in the Gulshan Kumar murder case has been proved to be wrong as no mention is made of any person by name of Javed Fawda or Abu Sayama or Javed Abu Talib Shaikh in the charge-sheet and other papers in the Gulshan Kumar murder case (C.R.No.572/97). Similarly, the information of the involvement of Javed Fawda in the C.Rs. of several other police stations is unsubstantiated. Admittedly, the police were not even aware prior to the encounter of the involvement of Javed Fawda in the Shivaji park attempt to murder case. There was therefore no reason for the police to have believed that Javed Fawda was such a dangerous criminal or gangster that his immediate arrest was called for. The so-called information from reliable sources of the expected visit of Javed Fawda and his associates at Sprott road on the night of 27th/28th August, in a white Maruti 800 to commit some crime is unsubstantiated. However assuming that the information was correct, since Javed Fawda as seen above, was not a known gangster or known dangerous criminal, there was no reason for the police to have gone SprottRoad on the night of 27th/28th August, to apprehend or arrest Javed Fawda armed to their teeth. 140. The alleged reconnaisance mission undertaken by Sr. P.I. Tambvekar and police officers, S.I Bhosale-Patil and Sr. P. I.Tambvekar S.I.Tonpi, is doubtful. We only have the bare word of Sr.P.I.Tambvekar. The officers who allegedly accompanied Sr.P.I.Tambvekar on the so-called mission, have not been examined although they were easily available. Similarly, the evidence pertaining to the actual encounter is far from satisfactory. Again here, we have only the bare word of A.P.I. Dhobale. The other eye-witnesses viz. P.S. I. Bhosale-Patil and P.S.I. Kalekar who were present along with A.P.I. Dhobale at the time of the alleged shooting have not been examined. . The evidence of Sr.P.I. Tambvekar is merely and cannot corroborate the evidence of A.P.I.Dhobhale. In fact the improvements in the version of the actua1 encounter in the evidence of Sr. P.I.Tambvekar, who admittedly was not an eye-witness, and was only repeating what A.P.I.Dhobale told him, is destructive of the evidence of A.P.I.Dhobale so far as the actual incident of shooting is concerned.

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corroborate the evidence of A.P.I.Dhobhale. In fact the improvements in the version of the actua1 encounter in the evidence of Sr. P.I.Tambvekar, who admittedly was not an eye-witness, and was only repeating what A.P.I.Dhobale told him, is destructive of the evidence of A.P.I.Dhobale so far as the actual incident of shooting is concerned. 141. The alleged recovery of the pistol from the hand of injured Javed Fawda is also not prove A.P.I. Dhobale and Sr.P.I.Tambvekar have committed the unpardonable mistake of not taking steps to preserve the fingerprints on the pistol allegedly recovered from Javed Fawda. It is not proved that Javed Fawda had fired the pistol. The bullet allegedly fired by Javed Fawda which shattered the windshield of the Ambassador car has not been recovered although the bullet would have been easily found in the car itself if the bullet had in fact hit the windshield and shattered it. It is not the case of the police that the bullet hit the windshield and exited out of the car. All evidence of the alleged recovery of the Ambassador car under the panchanama has been effectively erased by the replacement of the windshield and the car being put to use without the said facts being documented. 142. The Maruti car in which Javed Fawda and his associates allegedly arrived at the scene was allowed to get away and altogether disappear from the scene and has remained untraced despite the police being forewarned that the suspects would be arriving in a white Maruti 800 car. 143. The arrival of the suspects on Sprott Road and halting in front of the bus stop in front of Sapat building which was well illuminated and not at the Grand Hotel where the offence was supposed to take place, improbabilises the police case. 144. The F.I.R. lodged by A.P.I. Dhobale after the alleged shooting and killing of Javed Fawda is also a highly suspicious document. No copy of the F.I.R. was sent to the Magistrate as required under sec. 157 of the Cr. P.C. until the expiry of three months and that too only after the Petitioners filed an application before the Magistrate for a copy of the F.I.R. 145. What is most damaging and destructive of the prosecution case is the admission by A.P.I. Dhobale of the absence of blood stains or pool or blood at the scene of offence where the injured and profusely bleeding Javed Fawda was lying and also the absence of blood in the car by which the injured, was taken to the St. George hospital. Even the scene of offence panchanama, makes no mention of blood stains at the spot or in the car. 146. Lastly, the previous history of A.P.I. Dhobale as brought out, in his cross-examination by Advocate Memon for the Petitioners, makes him out to be a trigger-happy cop and probabilises the Petitioners case that Javed Fawda was killed in cold blood by A.P.I.Dhobale. 147. The cumulative effect of all the above circumstances, is that the police has failed to establish that the deceased Javed Fawda was killed in an encounter at Sprott Road on 27th/28th August 1997 where the police had allegedly gone to arrest him and fired at him in self defence. The findings on the various aspects of the encounter-killing probabilises the Petitioners case that there was no encounter at all or that the deceased Javed Fawda was shot at and killed by the police somewhere else, probably in police custody. FINDING: 148. The deceased Javed Fawda @ Abu Savama @ Javed Abu Talib Shaikh, was not killed in the encounter as claimed by the police. It is doubtful whether any such encounter took place. - DEATH OF SADA PAWLE AND VIJAY TANDEL: 149. It is undisputed that Sada Pawale and Vijay Tandel were killed in the encounter with the police on 26.9.1997 at the junction of Rajawadi Road and M.G.Road, Ghatkopar. The encounter and consequent death of Sada Pawale and Vijay Tandel, is established by the evidence of the witnesses for the Petitioners and the Respondents. However, the Petitioners version of the actual encounter materially differs from that of the Respondents. According to the Petitioners, the police eliminated Sada Pawale and Vijay Tandel who were unarmed in a pre-planned, cool and calculated manner. According to the police, the dreaded gangsters Sada Pawale and Vijay Tandel who were armed with AK-56 and pistol respectively, were killed by the police acting in self-defence while effecting their arrest.

THE PETITIONERS CASE: The case of the Petitioners is set out in the Affidavits filed in this Court and the evidence of P.W.1, Hausabai sister of Sada Pawale, P.W.2, Anita Anand Pawale, sister-in-law of Sada Pawale and wife of Anand Bhimrao Pawale, P.W.3, Anand Bhimrao Pawale who is the brother of Sada Pawale and more particularly in the evidence of P.W.4, Baldevsingh Jaswantsingh Panesar, a colleague and friend of Anand Bhimrao Pawale. 151. According to Baldevsingh (PW. 4), on 6.9.1997, he had gone to Anand Pawales residence as Anand Pawale had asked him to accompany him and his relatives to Shirdi. At about 1.45 p.m. after having lunch, Anand and his relatives along with Baldevsingh set off for Shirdi in a Fiat car. Baldevsingh ( PW 4) was in the drivers seat as he was specifically asked to accompany them for the purpose of driving the car. Next to Baldevsingh, in the front seat was Anand and next to him was his wife, Anita Pawale. Anands sister Hausabai (PW 1 ) and the two relatives whom Anand had introduced to Baldev Singh as Ajay and Bhaskar, occupied the rear seat; (It must be pointed out here that subsequently Baldevsingh has identified Ajay as Sada Pawale and Bhaskar as Vijay Tandel). Since Anands residence was at Vidhyavihar Railway Quarters, it took them just two minutes to reach the junction of M.G. Road and Rajawadi junction. When they reached the junction, Baldevsingh (PW 4) stopped the car as the signal was red. Immediately, a white metallic grey Maruti 100 car came and stopped in front of their car across the Rajawadi Road. 5-6 persons alighted from the car. They were in civilian clothes. They were armed with revolvers and pistols. Each of them had two weapons one in each hand, and one of them was holding a sten gun. One of them peeped from the window on the left side of the car and then came around to the front of the car to the side where Baldevsingh was, i.e. the drivers seat, and peeped into the car and told the two guests who were seated in the rear seat to get down from the car. This was not a request but a demand in abusive language in Marathi. The person holding the sten gun pointed and rested the gun at the back of Baldev singhs neck and told him not to start the car. Anand Pawale who was sitting by the side of Baldevsingh made his wife to get down from the left side and then Anand himself got down from the car and went to the person who was peeping into the car from the side of Baldevsingh and fell at his feet and begged him not to shoot his brother and stated that his brother was ready to accompany them wherever they wanted to go. The said person kicked Anand in his abdomen but Anand still clung to the feet of that person. The said person then called his companion and asked them to remove Anand from the site by using foul and abusive, language in Marathi. There was total commotion. The assailants tried to force open the rear door of the car which was locked from inside and started banging on the car from all direction. Their attempts were resisted. They could not succeed in opening the rear door because they were prevented by the person sitting in the rear seat. However, the doors were ultimately opened and the occupants were puled out from the car. There was a scuffle and Anands sister hung on to Ajay (Sada Pawale) preventing him from being dragged further. All three occupants, in the rear seat were dragged near the

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which was locked from inside and started banging on the car from all direction. Their attempts were resisted. They could not succeed in opening the rear door because they were prevented by the person sitting in the rear seat. However, the doors were ultimately opened and the occupants were puled out from the car. There was a scuffle and Anands sister hung on to Ajay (Sada Pawale) preventing him from being dragged further. All three occupants, in the rear seat were dragged near the Maruti 1000 car. Bhaskar (Vijay Tandel) was separated from the other two. However, Anands sister still kept clinging on to Ajay (Sada Pawale) and all the while she kept shouting: "Mazya Bhavala Maru Naka" . Ajay and Bhaskar (i.e. Sada Pawale and Vijay Tandel) were shouting:"Amhi Kahich Karat Nahi Tari Pan Amhala Marat Ahet. Bagha, Bagha, Amhala Wachava". The person who was pointing the gun at Baldevsingh (Pw 4), told him to get out of the car and to wait outside the car. At that time, Baldevsingh saw Bhaskar (Vijay Tandel) standing a little away from him towards the right and shouting and Ajay and Anands sister Hausabai were still clinging to each other. Two or three persons kept pulling Ajay (Sada Pawale) to one side and two-three persons kept pulling Hausa in the other direction to separate them but could not. According to Baldevsingh, one of the persons who was pulling Hausa away, shouted: "Banchyot Hila Sodayala Sang, Nahi Tar Hilach Adhi Ghalto", Ajay then told Hausabai: "Tai Mala Sod, Yana Mala Marayacha Ahe Tar Maroo De". At that time, a shot was fired and Bhaskar (Vijay Tandel) was seen falling down with a bullet injury on the left side above the abdomen with his shirt torn and open in front. At that time Hausabai also fell down and the man who had peeped into the car shot Ajay on the head above the eyebrow from a distance of about 2-3" . One of the persons having a revolver or pistol, sat down on the road on the right hand side of Bhaskar (Vijay Tandel) who was lying flat on the road and coolly aimed at the skull of Bhaskar and fired from a distance of 2-3 feet. Someone again fired towards Ajay. In the meantime the entire traffic had come to a standstill. A wireless van arrived from the opposite direction and stopped at the spot. The person who first peeped into the car said "Kahi Nahi, Kahi Nahi, Amhi Pan Police Ahot". Since the traffic had come to a standstill, there were many vehicles at the spot and a lot of people had gathered there. It is estimated that about 200 people had gathered at the spot. According to Baldevsingh (PW 4 ), Ajay and Bhaskar ( i. e. Sada Pawale and Vijay Tandel ) , did not resist as they were unarmed. The driver of the wireless van was asked to take it out of the way and park the van near the tabela. The policemen who were in uniform, took out stretchers from the van and loaded the bodies onto the stretchers and put them in the wireless van. Baldevsingh was made to get out of his car and sit in the back seat of the Maruti 1000 car. There was one more person sitting in the back seat. There was a bag containing weapons on the floor of the car in which Baldevsingh (PW 4) was made to sit. After sometime, all the assailants who had come in the Maruti car, boarded the car which was driven to Tilak Nagar Police Station. THE REPONDENTS CASE 152. The case of the police is as set out in the evidence of the police officers, who were part of the police team involved in the encounter. They are P.S.I. Avinash Balchandra Sawant (RW1), P.S.I. Subhash Ganpat Mayekar (RW2) P.S.I. Hemant Rajaram Desai (RW 3) and P.C.No.1642, Arun Dada Jadhav ( PW 4 ). 153. All the said police officers have deposed to the facts pertaining to the incident and about the steps taken prepatory and subsequent to the incident. Since the incident itself is not disputed, we need not refer to the said facts. Suffice it to mention that the police teams went to the spot of incident to effect the arrest or Sada Pawale, the most dreaded gangster of the Arun Gawli gang pursuant to information received by A.P.I.Salaskar. Preliminary arrangements were made for the raid by A.P.I. Salaskar who led the police party in the said raid for the arrest of Sada Pawale. The police went to the said scene in two teams, in two cars, one car led by A.P.I. Salaskar and the other led by P.S.I. Mayekar. According to the said police witnesses, they reached the Rajawadi junction at Ghatkooar at about 12.15 noon and stopped their car about 100 metres away to the west from the electric pole No.NIC/O11 which is marked "A" on the sketch. As per instructions of, A.P.I. Salaskar, the constables took up positions in or about the area. The second car occupied by P.S.I Mayekar and others stopped about 8-10 feet behind the first car occupied by A.P.I. Salaskar, P.S.I.Sawant and others. Admittedly, all the officers were armed with weapons A.P.I. Salaskar and P.S.I. Hemant Desai had service revolvers, while P.S.I. Mayekar, P.S.I. Kadam and P.S.I. Sawant, had service pistol with them. P.S.I. Avinash Sawant (RW 1): 154. At about 2.10 p.m. a Fiat car registration No. MH-01-R-1778 was seen approaching from the Vidhya Vihar Side along Rajawadi Road No.7, moving from west to east. According to P.S.I.Sawant, when the car passed their vehicle, he noticed that the person in the drivers seat was Sada Pawale and besides him was another person. A.P.I. Salaskar took out his handkerchief and waved it signaling to the other members of the raiding party and A.P.I. Salaskar started his car and overtook the Fiat car from the left and obstructed the Fiat car by placing the Maruti 1000 across the road, in front of the Fiat before the junction. The two cars stopped at a distance of about 10 feet from each other. The right side of the Maruti car was facing the front of the Fiat car. According to the police officers, Sada Pawale got down from the Fiat car holding an AK-56 in his hand. P.S.I. Sawant got down from the left side and moved from the left side to the rear of the car and came to the left front side of the Fiat car. At that time Sada Pawale was standing near his car about 12 feet away, from the spot here P.S.I. Sawant was standing. At the same time, A.P.I. Salaskar and P.S.I. Desai got down, from the car. At that time the distance between Sada Pawale and A.P.I. Salaskar and P.S.I. Desai was about 10 feet. A.P.I. Salaskar called out to Sada Pawale and called upon him to surrender. At that point of time, Sada Pawale raised his AK-56 in defiance. On seeing this and apprehending imminent danger to the lives of A.P. I. Salaskar and P.S.I. Desai , P.S.I. Sawant fired at Sada Pawale. At the same time, Sada Pawale fired shot from his AK-56 in the direction of .A.P.I. and P.S.I. Desai. Simultaneously, A.P.I. Salaskar and. (Desai started firing at Sada Pawale from their weapons. P.S.I. Sawant claims that he fired three shots in rapid succession in a second or two and he saw Sada Pawale falling down in injured condition. At the time when Sada Pawale fell, P.S.I. Desai was about 5-6 feet away, from him. On seeing Sada Pawale fall, he (P.S.I.Sawant) rushed towards Sada Pawale. At that time, P.S.I. Kadam also came there and removed the AK-56 which was in the hands of Sada Pawale. P.S.I.Kadam removed the magazine from the AK-56. Eight (8) live cartridges were found in the magazine. One live cartridge was recovered from the chamber of the AK-56.P.S.I. Kadam informed P.S.I. Sawant and P.S.I. Desai and A.P.I. Salaskar that firing had also taken place on the other side of the car in which Vijay Tandel was injured and that Vijay Tandel was injured while firing at the police and that after Vijay Tandel fell down, he (P.S.I Kadam) removed the pistol from his hand. P.S.I. Sawant claims that P.S.I. Kadam showed them three live cartridges which he said he had recovered from the magazine of the pistol which was in hands of Vijay Tandel and also one live cartridge which was recovered from the chamber of the pistol. In the meanwhile, the police wireless van arrived. The traffic jam was cleared and P.S.I. Sawant along with constable Shinde took four injured persons namely, Sada Pawale, Vijay Tandel , P.S.I. Mayekar and constable Arun Jadhav, in the van to Rajawadi hospital. Sada Pawale and Vijay Tandel were declared dead before admission.

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persons namely, Sada Pawale, Vijay Tandel , P.S.I. Mayekar and constable Arun Jadhav, in the van to Rajawadi hospital. Sada Pawale and Vijay Tandel were declared dead before admission. P.S. I. Satish Ganpat Mayekar (RW 2 ) : 155. P.S.I. Mayekar ( RW 2 ) , the leader of the other team, has deposed that A.P.I. Salaskar called him along with the other officers and informed him that Sada Pawale, the main shooter of Arun Gawli gang was likely to come to the Rajawadi junction between 1 p.m. to 3 p.m. in a Fiat car, registration No.MH-01-R 1778. A.P.I. Salaskar instructed him to arrange for two Maruti private cars. Accordingly, he organised two Maruti 800 cars and they proceeded in two teams to the spot, namely, the junction of Rajawadi Road and M.G. Road. While A.P.I. Salaskar and his team proceeded in one Maruti car, he (Mayekar) and the others proceeded in the other Maruti car. P.S.I. Mayekar states that he parked his car about 8-10 feet behind A.P.I. Salaskar who parked his car about 100 metres away from the electric pole marked "A" on the sketch. At about 2.10 p.m. a white Fiat car passed b and A.P.I. Salaskar gave the signal by waving his handkerchief, started his car and overtook the Fiat car from the left side and intercepted it just a little before the junction of Rajawadi Road No.7 and M.G. Road. When the four occupants of A.P. I . Salaskars car got out from the car, the person who was travelling in the Fiat car got down from it, armed with AK-56. On seeing his face, PSI Mayekar recognised him as Sada Pawale,the dreaded gangster. Hence PSI Mayekar also opened the door of his car and got down.. When API Salaskar warned Sada Pawale to surrender, the person who was seated at the side of Sada Pawale also got down from the car with a pistol in his hand. P.S.I. Mayekar rushed between the Fiat car and his Maruti car to apprehend that person accompanied by P.S.I. Kadam and constable Arun Jadhav. While chasing that Person and while he was about 5-6 feet away from his car and that other person was about 8-10 feet away from him (PSI Mayekar), P.S.I. Mayekar asked that person to surrender and informed him that they were policemen. That person immediately turned around and fired. shot from his pistol towards them. At that time, the said person (Vijay Tandel ) was 8-10 feet away from PSI Mayekar and others and P.S.I. Mayekar received a bullet injury on his left upper arm. P.S.I. Mayekar and PSI Kadam started moving forward and fired towards Vijay Tandel who also kept firing at them. P.S.I. Mayekar states that he fired six rounds from his pistol within 2-3 seconds. Similarly, P.S.I. Kadam also fired towards Vijay Tandel. P.S.I. Mayekar states that he was at a distance of about 5-6 feet away from Vijay Tandel when he last fired at him and after that Vijay Tandel fell down holding the pistol in his hand. As per his directions, P.S.I. Kadam removed the pistol from Vijay Tandels hand. Constable Arun Jadhav also received injuries on his palm on his left hand, only after he had fallen. Constable Shetty identified Vijay Tandel. P.S.I. Mayekar states that after he and Arun Jadhav were taken to the Rajawadi hospital by P.S.I. Sawant, he was given first aid and treated and allowed to go. Thereafter, he w ent to Nagpada police hospital where he was again bandaged, treated and asked to take rest. P.S.I Hemant Rajaram Desai (RW 3) 156. P.S.I. Desai ( RW 3 ) has deposed to all the act pertaining to the encounter as stated by P.S.I. Sawant (RW1) and P. S. I . Mayekar ( RW2 ) P. S. I . Desai travelled to the spot in the same car with A.P.I. Salaskar and was sitting just behind A.P.I. Salaskar in the car. An important fact mention by P.S.I. Hemant Desai but omitted by P.S.I. Sawant RW1, P.S.I. Mayekar RW2, is that when Sada Pawale got out of car, he was seen carrying an AK-56. The gun was pointing towards the ground. P.S.I. Desai claims that while that while firing he kept proceeding towards Sada Pawale. When he started firing,the distance between him and Sada Pawale was 10 feet and he had proceeded about 5 feet when he fired the last shot. P.S.I. Desai claims to have fired three shots towards Sada Pawale in one or two seconds and after he fired the last shot, Sada Pawale collapsed. P. C. Arun Judhav (RW 4 ) : 157. P.C.Jadhav (RW 4) has confirmed what P.S.I. Mayekar has stated in his evidence. He has also confirmed that on P.S.I. Mayekar shouting to the other person to surrender, that person (Vijay Tandel) turned around and fired towards them and P.S.I. Mayekar sustained a bullet wound on his left arm and he also received an injury on his left thumb. He has further stated that at Rajawadi hospital he and P.S.I. Mayekar were treated for their injuries. Thereafter they came to Nagpada Police Station where again they were treated for the injuries. 158. Thus it will be seen that the evidence of the above four police witnesses sets out the events, preparatory and subsequent to the encounter as well as the encounter itself in great detail and here seems to no contradiction or omission in their evidence which would require us to disbelieve them. However, there seems to be "small" improvement made by P.S.I. Desai (RW 3 ) who states that he said Sada Pawale carrying the AK-56 in his right hand - "The gun was pointing towards the ground" P.S.I. Sawant (RW1) and P.S.I.Mayekar (RW 2) have not been particular about describing in what position the gun was held when Sada Pawale got out of the car holding the AK56 in his hand. It is pertinent to note that P.S.I..Sawant (RW 1) has in his evidence stated that when A.P.I. Salaskar warned Sada Pawale to surrender, Sada Pawale raised his AK-56 in defiance and on seeing this, P.S.I. Sawant felt there was imminent danger to the lives of.A.P.I . Salaskar and P.S.I. Desai and therefore he fired on Sada Pawale. The question of raising the AK-56 in defiance, could arise only if it is held pointing downward. 159. As stated earlier, we have two versions of the actual encounter. On one hand, we have the Petitioners witnesses. all four of whom claim to have been present at the time of the incident and therefore, were eye-witnesses to what transpired at the scene of offence. Baldevsingh (PW 4) has given evidence in great detail about the incident. Baldevsingh (PW 4) also recounted and recalled the exact abusive words in Marathi used by the police officers during the encounter. On the other hand, we have the evidence of the three police officers and one constable who were also participants in the encounter and claim to be speaking from what they had personally seen NOSTILE AND PERJURED WITNESSES 160. Mr.Ponda, Learned Advocate for the Respondents, has contended that the evidence of P. S. I. Sawant (PW 1), P. S. I. Mayekar (PW2) and P.S.I.Desai (PW 3) clearly negates the presence of Hausabai (PW 1), Anita .(PW 2), Anand (PW 3) and Baldevsingh (PW 4) at the time of the incident. It is pointed out that the said witnesses who had filed Affidavits in this Court on 2nd/3rd March 1998, have by subsequent Affidavits, retracted their earlier Affidavits and denied having been present at the time of the incident. In fact Hausabai (PW 1), Anita (PW 2) and Anand (PW 3) in their later Affidavits claim that at the time of the incident, they were at Shirdi and not in Bombay and they have even on oath before this Court stated that they have not witnessed the incident. Therefore their earlier Affidavits have to be discarded. So far as Baldevsingh (PW 4) is concerned it is pointed out that he is the only witness who has deposed about the incident before this Court. However, it is pointed out that Baldevsingh (PW 4) admittedly has given two types of evidence by filing two Affidavits which are contradictory. In the first Affidavit dated 3.3.1998, he has stated that he was present at the time of the incident along with Hausabai (PW 1), Anita (P 2) and Anand Pawale (PW 3) and Sada Pawale and Vijay Tandel as they were all proceeding

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concerned it is pointed out that he is the only witness who has deposed about the incident before this Court. However, it is pointed out that Baldevsingh (PW 4) admittedly has given two types of evidence by filing two Affidavits which are contradictory. In the first Affidavit dated 3.3.1998, he has stated that he was present at the time of the incident along with Hausabai (PW 1), Anita (P 2) and Anand Pawale (PW 3) and Sada Pawale and Vijay Tandel as they were all proceeding together in the car to go to Shirdi. However, he has filed a second Affidavit dated 31.3.1998 retracting his earlier Affidavit. The Petitioners three eye-witnesses, Hausabai (Pw1), Anita (PW 2) and Anand (PW 3) who had stepped into the witness box had to be declared hostile as they did not support the Petitioners case and in view of the later Affidavits filed by them retracting their earlier Affidavits. On the other hand, Baldevsingh (PW 4), despite having retracted his earlier Affidavit, nevertheless stepped into the witness box and deposed in ,great detail about the incident in keeping with his earlier Affidavit. There is little doubt that after filing of their earlier Affidavits dated 2.3.1998, all the four witnesses were actually under some pressure. The behaviour of Hausabai (PW1) while in the witness box, indicated that she was in such a confused state of mind, that she just could not stand the cross-examination by Advocate Sebastian for the C.P.D.R. and Advocate Sebastian had to be directed to refrain from continuing with the cross-examination as it was apprehended that the witness might collapse in the box. The said witness had, at the conclusion of her cross-examination also mentioned that her brother Anand and his wife Anita (Pw2 and PW3) should not be pressurised. Of course the source of the pressure is not disclosed and not known however, the said witnesses, Hausabai (PW 1), Anita (PW 2) and Anand Pawales (PW3) have in their subsequent Affidavit retracting their earlier Affidavits, claiming that they were under pressure from their family members to file the earlier Affidavits as they could have thereby benefited monetarily and also taken revenge on A.P.I. Salaskar for having killed their brother Sada Pawale. However, Hausabai (PW1), Anita (PW2) and Anand(PW3) in their cross-examination have stated that they are not able to give the name of the family members who were pressurising them. It is submitted by Learned Advocate Sebastian for the C.P.D.R. that in fact Hausabai, Anita and Anand have no other relatives besides themselves, who could have pressurise them into filing the so-called false Affidavits. So far as Baldevsingh (Pw 4) is concerned, Learned Advocate for the Respondents has pointed out that Baldevsingh (PW 4) has given no reason for retracting the earlier Affidavit nor does Baldevsingh (PW 4) say in his examination-in-chief that he retracted his affidavit due to any pressure from the police. It is pointed out that it was only in the cross examination that he stated that he retracted his statement under pressure from the police. The source of pressure brought on the witness is therefore a matter of conjecture. So far as the second Affidavit filed by Baldevsingh (PW 4) is concerned, it is pointed out that he has in his Affidavit dated 31.3.1998, stated that he was not a witness to the incident but being a friend of Anand Pawale (PW 3) he had decided to help him. In the said Affidavit, Baldevsingh has stated that: I say that neither to any such encounter I am an eyewitness as I was on duty on that day..." Baldevsingh (PW 4) has in his evidence at PW4/12 stated: "...I filed Affidavit dated 31.3.1998 retracting the earlier Affidavit dated 3.3.1998. I retracted my earlier Affidavit after I came to know that Anand and his wife and sister had retracted their Affidavits. I was told by Anand to retract my Affidavit. I retracted my Affidavit since Anand told me that he as being pressurised to withdraw his Affidavit..." Learned Advocate for the Respondents has pointed out that the draft, Affidavit Ex. Z of Anand Pawale was checked and corrected by Baldevsingh. Major corrections in the said draft Affidavit of Anand Pawale which are shown as Ex. 16 in the said Affidavit, were made by Baldevsingh. It is further pointed out that the last eight lines in para 11of the said Affidavit Ex. Z of Anand Pawale, have not been deleted by Baldevsingh Which shows that he, Baldevsingh, had filed a false Affidavit. The said last eight lines reads as follows: ".. I say that my family members said that only our Affidavit will not have any weightage and if we could arrange for any one more witness. I say that as all of us had been instigated to support my brothers family by succeeding in getting claim. I asked my friend Baldev who is very close to me whether he could do the same what we are doing. I say that on asking the same he immediately replied to me that he is even ready for him and is ready to do whatever he says and hence, his Affidavit dated 3rd March 1998 was also obtained from him..." The failure of Baldevsingh who corrected the said draft of Anand to delete these last eight lines in para 11, shows that Baldevsingh filed his Affidavit at the instance of Anand Pawale, and therefore there was no question of the police pressurising him into filing the Affidavit dated 31.3.1998 retracting the earlier Affidavit dated 3.3.1998. It is pointed out that Baldevsingh (PW 4) also corrected his own Affidavit twice, viz. the draft Affidavit Ex.W and the final draft Affidavit Ex.AA and only thereafter he has signed the final Affidavit Ex.G. In para 5 of Ex. G Baldevsingh has categorically stated that: "... I say that neither to any such encounter I am an eye witness as I was on duty on that day. . . . " .I have no personal knowlege about any such encounter nor of the alleged high-handed action on the part of the police officers. I say that the averments made in my earlier Affidavit are based on the information made available to me by Mr. Anand Pawale and in disturbed mind. . . " Thus, it is contended by learned Advocate for the Respondents that Baldevsingh is a liar and his evidence cannot be relied upon. It is further contended that in view of the retraction of the earlier Affidavits and the failure of Hausabai (PW1), Anita (PW2) and Anand Pawale (PW 3) to support the Petitioners case, there is no evidence on record worth the name to believe the Petitioners version of the actual incident. 167. On the other hand. it is pointed out that the evidence of the police officers, is consistent, without any contradictions or omissions and that the said police officers are responsible officers in the police force and therefore there is no reason to disbelieve their version of the actual incident. BALDEVSINGH (PW 4) GRILLED : 163. Learned Advocate for the Respondents, Mr. Ponda has concentrated all his forensic skill in trying to demolish the evidence of Baldevsingh (PW 4) and has attacked his credibility as a witness. Advocate Ponda submits that the evidence of Baldevsingh (PW 4) cannot be believed as Baidesingh was in fact not present at the time of incident since he was, at the relevant time, on duty. Advocate Ponda has argued that Baldevsingh should not be believed for the following reasons: (a) Motive 169. Baldevsingh (PW 4) is closely connected with Sada Pawale and his family and therefore had a motive to give false evidence. It is pointed out that Baldevsingh (PW4 ) has in his evidence, admitted that he is a close friend and colleague of Anand Pawale ( PW 3 ) brother of Sada Pawale and that he had decided to support them in their claim against the police. Anand Bhimrao Pawale (PW 3) in para 10 of his Affidavit dated 31.3.1998, stated as under: "I say and submit that the story of being in Mumbai as an eye witness in the said incident, is in fact totally incorrect instigated story as I have stated hereinbove in detail. In reality, none of us i.e. my wife, my sister nor even my friend namely

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Anand Bhimrao Pawale (PW 3) in para 10 of his Affidavit dated 31.3.1998, stated as under: "I say and submit that the story of being in Mumbai as an eye witness in the said incident, is in fact totally incorrect instigated story as I have stated hereinbove in detail. In reality, none of us i.e. my wife, my sister nor even my friend namely Mr. Baldevsingh was never every present when the incident took place. I say that as I have stated hereinbove that I along with my wife and sister had been to Shirdi, therefore, the question of remaining present on that day in Mumbai never arose when the encounter took place. I say that I and Mr. Ba1devSingh are very close friends and before leaving for Shirdi I asked my friend Mr. Baldevsingh whether he wants to accompany for Shirdi for Saibaba Darshan, but he refused to come along due to his other appointment and duty. " Reference is also made to the Affidavit dated 31.3.1998 (Ex.G) filed by Baldevsingh (PW 4). Para 3 reads as follows: ". .I say that I was informed after someday from 26th September 1997, by my colleague Mr.Anand Pawale that as per the information received by him, his brother Mr. Sada Pawale has been killed by the high handed action on the part of the police officers. I say that I was further intimated that some social organisations have come forward to take revenge of the death of Mr. Sada Pawale and at the same time by taking some action before the Court of law, the family of Sada Pawale would also benefit monetarily and hence out of sympathy for the said family I decided to support them. I say that it could also be seen that by created the wrong picture a sympathy was gained by the family members of Sada Pawale, whereby I have been instigated to support them by signing on the documents of their own desire. . . " At Page 34 of his evidence, Baldevsingh (PW 4) has stated as follows: "...I filed Affidavit dated 31.3.1998, retracting the earlier Affidavit of 3rd March 1 998. I retracted my ear1ier Affidavit after I came to know that Anand, his wife and sister had retracted their Affidavits. I was told by Anand to retract my Affidavit, I retracted my Affidavit since Anand told me that he was being pressurised to withdraw his Affidavit " Learned Advocate for the Respondents, have pointed out that Baldevsingh (PW4) in his examination-in-chief does not say that he retracted his earlier Affidavit because he was pressurised by the police. On the contrary, he says that he retracted his earlier Affidavit after he came to know that Anand, his wife and sister had retracted their Affidavits. This, according to Advocate Ponda, is false for the simple reason that Anand ( PW 3 ) and Baldevsingh (PW 4 ) retracted their Affidavits together and the same is admitted by him in the cross-examination. Moreover, he has stated that he was told by Anand Pawale (PW 3) to retract his Affidavit. 170. It is submitted that Baldevsingh (PW 4) had voluntarily retracted the earlier Affidavit and hence the story given by him in the subsequent Affidavit, cannot be brushed aside lightly. The later Affidavit of Baldevsingh retracting the earlier Affidavit, completely destroys the claim of Baldevsingh that he was present at the time of the incident, and also furnishes the motive to falsely come forward to depose as a witness on behalf of the Petitioners. Baldevsingh (PW 4) not eye witness. 171. . It is contended that Baldevsingh (PW 4) was not present at the time of the incident as he was on duty on that day. 172. It is pointed out that there are a nmcer or documents and circumstances to support this claim of the Respondents Hausabai (PW 1) in her evidence and in her Affidavit marked Ex.U, has negatived the claim or Baldevsingh. The evidence of Anita Pawale (Pw 2) at Pw2/1 I reads, as under : . "....Baldevsingh is a friend of my husband. I know that Baldevsingh was not present at the time of the incident when Sada Pawale ,was shot dead as Baldevsingh had told us when we were leaving for Shirdi that he would not accompany us to Shirdi as he was to attend duty. I am personally aware that he had attended duty on that day. When we returned home on the same day from Shirdi, there was some discussion about the death of Sada Pawale and at that time I learnt that Baldevsingh had attended his duty on that day..." 173. It is further pointed out that the Affidavit of Baldevsingh (PW 4), Ex.G, coupled with his evidence at Pages 36, 37, 39 to 40 and 46 to 50, along with the documents such as the muster roll and E.F.R.receipts, go to show that Baldevsingh (PW 4) was not at the site at the relevant time but was attending duty. Baldevsingh (PW 4) in his evidence claimed that he was compelled by the police to sign the muster roll on 26th and 27th Sept.l997 and to prepare the S.F.Rs However, he has admitted that he had ample opportunity to complain to his superiors or to take the help of the railway police to prevent him being pressurised, but . not do so. rtoreover, in his Affidavit. Ex. 10 A there is no mention about any threat; or any compulsion. It is contended that this clearly shows that these documents reflect the correct state of affairs and that at the relevant time. Baldevsingh (PW 4) was attending duty and was not present the site as claimed by him. It is the evidence of Baldevsing.(PW 4) that.although he was not on duty on 26th and 27tn September 1997, he was made to sign the muster for 26th and 27th September 1997, under pressure and threats from P. S. I. Desai. however, it is the contention of Learned Advocate for the Respondents, that Baldevsingh (Pw 4)is made of sterner stuff and he would not be deterred by such threats from doing or not doing anything that he did not want to do. the question therefore, of Baldevsingh (PW 4) signing the muster roll under pressure or preparing the E.F.R., did not arise. 174. It is submitted that once it is accepted that Baldevsingh (PW 4) would not buckle under any sort of pressure. then his subsequent Affidavits Ex.AA, Ex.W and Ex.G, are of great importance. It is contended that the .Affidavits clearly show that Baldevsingh ( Pw 4 ) is a man who is capable of filing false Affidavits and become a false witness for the sake of his friend. It is further pointed cut that as mentioned in the said Affidavits as well as the Affidavits of Anand Pawale (Ex.Z and Ex.J), it is clear that Baldevsingh has become a false witness, solely with a view to help his friend and thereby see to it that the family of Sada Pawale is monetarily benefited. Baldevsingh a forger of documents . 175. It is further pointed out that Baldevsingh (PW 4) is a man who cannot be trusted as he is capable for forging documents. It is pointed out that in his application for getting a job in Bombay Fire Brigade, the Applicant Baldevsingh had submitted a certificate of passing the B.Sc. . from the Bombay University and to meet the requirements of the advertisement, he deleted the subjects of Physics and Drugs and Dyes as the Applied Component froth certificate and substituted instead the word Chemistry as the major subject and Electronics Instrumentation as the applied component. After the word Bachelor of Science, the word Chemistry was added in the certificate. In order to prove that the B.Sc. certificate was altered and forged by Baldevsingh to meet the requirements of the advertisement of the job for Fire Officer of the Bombay Fire Brigade the Respondents have examined one Ashok Bhausaheb Kamble (Rw 6) A.sst.Divisional Officer, Mumbai Fire Brigade. The said Kamble (RW 6) has deposed that the educational qualification for the post of Asst.Station officer at the relevant time 1992, was Graduate in Science with Chemistry subject . Kamble (RW 6) has stated that he himself scrutinised the documents mentioned in the scrutiny slip and that he verified the mark list annexed to the application Pg.l3 (Ex.lO) and since the certificate complied with the requirement of educational qualification, namely, Chemistry being the principal subject and having passed in the second class he tick marked at Sr.No.7 in the scrutiny slip and :signed at the bottom of the scrutiny slip.

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1992, was Graduate in Science with Chemistry subject . Kamble (RW 6) has stated that he himself scrutinised the documents mentioned in the scrutiny slip and that he verified the mark list annexed to the application Pg.l3 (Ex.lO) and since the certificate complied with the requirement of educational qualification, namely, Chemistry being the principal subject and having passed in the second class he tick marked at Sr.No.7 in the scrutiny slip and :signed at the bottom of the scrutiny slip. The said documents are at Ex.CC (Colly). It is submitted that from these documents andthe evidence of Kamble (RW 6), it is clear that Baldevsingh had produced the mark list after forging the same. It is submitted that here is a man who would not bother about the consequences and forge the documents and commit offences for the sake of getting a job. It is further pointed out that in connection with his attending his duty or 26th and 27th September 1997, he has kept on signing the and is also capable of forging the muster E.x. C falsely which are produced in the Court as Ex.E(Colly ( d ) No license to drive : 176. Furthermore, it is pointed out that on his own admission, Baidevsingn ( PW 4 ) has even committed an offence under the Motor Vehicles Act, in as much as, he claims that he drove the Fiat car in which Sada Pawale and the others travelled to Shirdi, without a driving license although was specifically asked to accompany them for the purpose act driving. the car and that he did so despite the fact that he did not have any licence for driving. (e) Baldevsinghs connection with Sada Pawale : 177. According to his examination in chief, Baldevsingh ,(PW 4) has given the impression that Sada Pawale was a total.stranger to him and that he had never seen him before. He has named the two persons who accompanied Anand and family to Shirdi as Ajay and Bhaskar, when in fact, he knew Ajay to be Sada Pawale. The cross examination at PW4/30 reads as follows: "...It is correct to say that after I came to know Anand in 1995, I also came to know and became close to his family members. It is true that I attended the marriage of Anands sister Yashoda on 19.3.1995 at Adampur, Tahsil, Gargoti, Kolhapur, and I stayed there at that time for two days. (Shown six photographs taken at the time of the marriage ceremony of Yashoda Anands sister). These are the photographs. (Photograph taken on record and marked Ex. K Colly). (Shown photograph marked Ex.K Colly). Person in the photograph wearing the turban is myself. (Shown photographs marked Ex.K2, K3 and K4). do not know whether the person with the heard in the photographs is Sada Pawle (Ajay). I do not remember seeing the said person with the beard at the marriage of Yashoda. It is not true that I was introduced to Sada Pawale from the time I came to know Anands family and that said Sada Pawale and met him at the time of the marriage ceremony of Yashoda. It is correct that on 19.6.1997, the marriage of Anand to Anita took place. I attended that marriage. (Shown photograph at the time of marriage of Anand Anita). I am in the photograph which was taken at the time. (Photograph is taken on record and marked Ex. L) The cross examination at PW4/32 reads as follows: "...It is true that sometime ;in JuIy August 1997, I had gone to the family house of Pawales at Kolhapur. It is true that I used to visit Dagdi chawl prior to this date with Anand. Sada Pawale used to reside at Dagdi chawl. It is not true that I knew Sada Pawale I came to know Anands family and that Sada Pawale and met him at the time of the marriage ceremony of Yashoda. It is correct that on 19.6.1997, the marriage of Anand to Anita took place. I attended that marriage. (Shown photograph at the time of marriage of Anand Anita). I am in the photograph which was taken at the time. (Photograph is taken on record and marked Ex . L). . . .. The cross J examination at PW4/32 reads as follows: "...It is true that sometime in July August 1997, I had gone to the family house of Pawale at Kolhapur. It is true that I used to visit Dagdi chawl prior to this date with Anand Sada Pawale used to reside at Dagdi chawl. It is not true that I knew Sada Pawale very well when I heard Hausabai and Anand say Mazya Bhavala Soda I did not hear them taking the name of Sada. I am aware Anand has a brother named Nivrutti. It is not true that my statement that I came to know Ajay was Sada Pawale after hearing Hausabai and Anand say Mazya Bhavala Sada is false..." The cross examination at Pg.66, PW4/42 reads as follows: "...(Shown photographs Ex.K Colly more particularly Ex. K1 , K2 and K3). I cannot say that whether the bearded person three photographs was one of the occupants of the car going to Shirdi..." 178. It is submitted by Learned advocate for the Respondents that from the cross examination of Baldevsingh (PW 4) it is clear that he did not want to admit that he knew Sada Pawale .Since Sada Pawale was present at the time .., his sisters marriage as seen in the photographs (Ex,K Colly ) it is difficult to believe that Baldevsingh (Pw 4) who also attended the wedding and stayed at the Pawale house at Kolhapur for two days, would not know who Sada Pawale was, further, Baldevsingh (FW 4) has admitted that the child whom he is seen carrying in the photograph taken at the time of Sada Pawales brothers marriage, is the child Sada Pawale. This clearly establishes that Baldevsingh was clearly connected with Anand Pawale and Sada Pawales family members. He knew Sada Pawale, but did not want to admit the same. In Defence of Baldevsingh (Pw 4) 179. In defence of Baldevsingh (PW 4); Advocate Sebastian was committed for the Petitioners has argued that no forgery Baldevsingh of the B.Sc.certificate issued by the Bombay University submitted along with the application for the post of Asst.Station Officer in the Bombay Fire Brigade. It is pointed out that the advertisement published in the Times or India dated 17.10.1992, stated that the application should be accompanied by two attested copies certifying the age, qualifications and caste. The original certificate need not be attached but that should be produced at the time of interview. It is pointed out that Baldevsingh was interviewed by the Bombay Fire Brigade when he produced the original certificate. If he had not produced the original certificate. the Bombay Fire Brigade would not have interviewed him. It was a condition precedent for the interviewed that the candidate should produce the original certificate. The very fact that the Bombay Fire Brigade selected him as Asst.Station 0fficer, conclusively prove that he showed the original certificate to the interviewers. So the argument that he forged the certificate, does not stand this scrutiny of reason and rationality. It is further pointed out that the verification form shows that the application made by Baldevsingh for the post of Asst.Station Officer was complete. Baldevsingh has clearly stated in his evidence that the application was accepted. which means that the application made by him was complete in all respects as required in the advertisement in the Times of India dated 17.10.1992, namely, that the application should be accompanied by two attested copies of the certificates certifying the age, caste, qualifications etc. It further means that the application form had a certified copy of his degree certificate annexed. From the documents produced by the Bombay Fire Brigade before this Court (Ex.M Colly), the true copy of the certificate is not annexed. This would lead us to two possible conclusions:

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copy of his degree certificate annexed. From the documents produced by the Bombay Fire Brigade before this Court (Ex.M Colly), the true copy of the certificate is not annexed. This would lead us to two possible conclusions: (i ) that Baldevsingh had attached a true copy of his degree certificate but the Bombay Fire Brigade had removed it from the documents before producing them in this Court : (ii) The second possible conclusion is that Baldevsingh had not attached the true copy of his degree certificate and inspite of that the Bombay Fire Brigade has recorded that his application is complete and accepted it and interviewed and selected him for the post. Thus, if any irregularity has been committed the same has been committed by the Bombay Fire Brigade and not by Baldevsingh who cannot be held responsible for the irregularities committed by the Bombay Fire Brigade. 180. Fromthe cross examination of Baldevsingh (PW 4) can also be seen, that Baldevsingh has denied that the alterations in ink in the said certificate were made by him. If the certificate as produced before the Court was produced before the interview committee of the Bombay Fire Brigade the application would have been rejected as the certificate would have shown the subject of Chemistry and therefore application of Baldevsingh would have been disqualified .But the fact that is application was considered, would mean that all the documentation was complete and the fact that he was selected, would mean that he was found considerably qualified for the said post. Since the certificate has now been produced before this Court with the alteration allegedly made by Baldevsingh( PW 4 ) and since Baldevsingh has denied that the alteration are in his handwriting, the possibility that a certified copy of the certificate has been altered by someone else, is not ruled out. In view of the above, the entire exercise of Learned Advocate for the Respondents to prove that Baldevsingh is a forger and is capable of doing unlawful and illegal acts, has been brought to nought. 181. In connection with the pretence put up Baldevsingh about his not knowing Sada Pawale, it is pointed out by Learned Advocate Sebastian for the Petitioners,that the same is based on the six photographs (Ex.K Colly) which were taken at the time of the marriage of Anand Pawale (PW 8). In the said photographs. Baldevsingh is seen along with Sada Pawale and others. Hence the presumption is that Baldevsingh (PW 4) knew Sada Pawale even before the incident on 26th September 1997. However, Advocate Sebastian for the C.F.D.R. has argued that it is likely that Baldevsingh (PW 4) had met Sada Pawale before but he has not aware chat he was Sada Pawale the dreaded gangster of the Arun Gawli gang, as he was moving about under an assumed name and that is why even the police did not recognise Sada Pawale while he was moving about under an assumed name and therefore took no ,action against him earlier. 182. I am afraid I cannot agree with the submissions made by Learned Advocate Sebastian in defence of Baldevsinghs pretence at not knowing Sada Pawale. It is admitted that Baldevsingh was close to Anand Pawale and his family members Baldevsingh has attended Anand Pawales marriage and Anand Pawales sisters marriage at Kolhapur. He has lived with them, and mixed freely with them as a member of their family. It is therefore difficult to believe that he was not aware of Sada Pawale and of his nexus with the underworld. Baldevsingh has in his subsequent Affidavit dated 27.3.1998, admitted that he had visited Sada Pawale at Dagdi chawl on certain days. After the incident. When the body of ,Sada Pawale was taken to Dagdi chawl, Baldevsingh had admitted that he had visited Sada Pawale. Baldevsingh in his evidence pretended that he did not know Sada Pawale and that the person whom Anand introduced to him as .Ajay was Sada Pawale. It was only when he was confronted with the photograph wherein he is seen carrying a child whom Baldevsing admits to be the child of Sada Pawale, Baldevsingh bluff is called. having mingled with and wined and dined with Sada Pawale, it is difficult to believe that Baldevsingh did not recognise Sada Pawale when he met him at the house of Anand who was proceeding to Shirdi. It is also difficult to believe that Anand Pawale would have introduced Sada Pawle to Baldevsingh as Ajay. In fact, the question of introducing Sada Pawale to Baldevsingh, did not and could not have arisen as Sada Pawale was known to Baldevsingh. 183. Regarding Baldevsinghs presence at the time of the ,incident, Hausabai (PW 1), Anita Pawale (Pw 2) and Anand Pawale (PW 3)have filed further Affidavits retracting their earlier Affidavits and Learned Advocate for the Respondents has exploited their subsequent Affidavits to prove that Baldevsingh had attended duty on the day of the incident i.e. 26.9.1997, and had not accompanied them to Shirdi. It is pointed out by Learned Advocate for the Respondents, that Hausabai (PW 1) and Anita Pawale (PW 2) have stated that the along with their brother had gone to Shirdi. Therefore, the question of them remaining present at the time of the incident did not arise and therefore, the story given in the earlier Affidavits is incorrect. The said witnesses have stated that Baldevsingh was not present at the time of the incident because he was on duty. Anita (PW 2 ) states that Baldevsingh himself had told her that he would be proceeding on duty. However, the said witnesses cannot say from their personal knowledge that Baldevsingh was not present at the time of the incident since they themselves claim that they were not present at the time of the incident. Their statements on the face of it, are based on the information received by them from Baldevsingh himself. Learned Advocate for the Respondents, Mr.Ponda, has quoted from the Affidavit of the said witnesses Hausabai (PW 1 ), Anita (PW 2) and Anand Pawale (PW 3), to show that Baldevsingh (PW 4) did not ,accompany them to Shirdi, that Baldevsingh was in fact attending his duty on the day of the incident and that Baldevsingh had filed his earlier Affidavit, only with a view. to helping them get monetary compensation as he was very close and friendly with Anand Pawale (Pw 3) and his family members. 184. Learned Advocate for the Respondents has contended that the said witnesses Hausabai (PW 1), Anita Pawale (PW 2) and Anand Pawale (PW 3), having retracted their earlier Affidavits and having proved hostile to the Petitioners case, their evidence is of no use to the Petitioners and in fact completely belies the Petitioners case of the four witnesses having been present at the time of the incident. If the evidence and Affidavits of the said three witnesses cannot be of any use to the Petitioners, their evidence and Affidavits also cannot be of any help to the Respondents. for the reason that their second Affidavits merely retracts the earlier Affidavits and denies all the statements made in the earlier Affidavits and the statements . made in the second Affidavits are proved to be false. The cross examination of the witnesses Hausabai (PW (P l 1), Anita (PW 2) and Anand (PW 3), shows that their statements in the second Affidavit, are false and on the face of it, cannot be accepted. The witnesses are not able to give the slightest details of their visit to Shirdi. They were not able to state how they travelled to Shirdi, where they stayed, what time they reached there and what time they set off from Shirdi. In fact they were not able to give any details whatsoever how they travelled to Shirdi and what they did at Shirdi. Furthermore, they claim that they came to know of the death of Sada Pawale while at. Shirdi, sometime in the evening. The witnesses were not able to give details of the newspaper which gave them the information and at what time they saw the newspaper report. Since the incident took place at about 2.15 .p.m. it is difficult to believe that any afternoon newspaper could have carried the news of the encounter. Moreover, most of the afternoon newspapers are published and brought out before noon. Even assuming that some afternoon newspaper had carried the report about the encounter and death of Sada Pawale, it is difficult to comprehend how the newspaper could have reached Shirdi which is at a distance of about six hours from Mumbai. The cross examination has also brought but the falsity of several other statements made by the witnesses Hausabai (PW l) Anita (PW 2) and Anand (PW 3) in their later Affidavits. The entire story put up by Hausabai (PW 1), Anita (PW 2)and Anand Pawale (PW 3), in their subsequent Affidavits is proved to be false. As stated earlier, and admitted by the Witnesses themselves, they were under tremendous pressure when they filed their first Affidavit. It is therefore, not difficult to believe that they were under greater pressure when he filed the subsequent Affidavits retracting their earlier Affidavits. the behaviour of Hausabai (PW t) who nearly fainted in the witness box and of Anita Pawale (PW2) whose examination in chief and cross

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Pawale (PW 3), in their subsequent Affidavits is proved to be false. As stated earlier, and admitted by the Witnesses themselves, they were under tremendous pressure when they filed their first Affidavit. It is therefore, not difficult to believe that they were under greater pressure when he filed the subsequent Affidavits retracting their earlier Affidavits. the behaviour of Hausabai (PW t) who nearly fainted in the witness box and of Anita Pawale (PW2) whose examination in chief and cross examination belie her position as a nurse and a person of some understanding and the complete amnesia of Anand Pawale (PW 3) regarding their to .Shirdi, are all indicators pointing to the fact that the said witnesses,. while deposing before the Court,were under some kind of pressure. 185. Of course, since Hausabai (PW t), Anita (PW 2) and Anand Pawale (PW 3) have retracted their earlier Affidavits and have proved hostile to the Petitioners case, the only thing left for the Respondents to do, was to demolish the evidence of Baldevsingh (PW 4) and Learned Advocate Ponda the Respondents, has spared no pains and used all the forensic skills at his command in trying to demolish the credibility of witness Baldevsingh (PW 4) and has askedthis Court to discard the entire evidence of Ba1devsingh (PW 4) as that of an unreliable witness who is ready to tell lies. In his written submissions at Pages 46 and 47, Advocate Ponda has pointed out the instances where Baldevsingh (PW 4) has been bluffing and telling lies, namely: Sada Pawale not known his pretence of not knowing that the two relatives, introduced to him by Anand as Ajay and Bhaskar were Sada Pawale and Vijay Tandel. Ownership of Fiat car not known: and his denial of knowledge of who arranged for the Fiat car to go to Shirdi. Advocate Ponda points out to the cross examination of Baldevsingh (PW 4) who at Pg.24, PW4/2 of his evidence has stated : "...After lunch we all came down and boarded the car and left for Shirdi. I did not know who arranged the car...It is seen from the cross examination of Baldevsing (PW 4)that this statement is false. At Pw 4/31, Baldevsingh comes out with the story that he and Anand (PW 3) went to one Vicky at Sindhuwadi and brought the car. Therefore, the contradictions brought out in his evidence show that he is not a reliable witness. No driving licence (iii) Again in the evidence at PW4/2 of his examination chief, Baldevsingh has stated as follows: ...I was driving the car. I was called for that purpose only..." However, in his cross examination at PW4/31, Baldevsingh (PW 4) admitted that he did not have any licence for driving. If the purpose for which Baldevsingh was called was for driving, the least that could have been expected from him was that he ought to have had a driving licence which he himself admitted that he did not have. Travelling to Shirdi on a full stomach : (iv) At PW4/32, Baldevsingh (PW 4) has stated: " .It is true that before we set off for Shirdi, we had a full meal of non vegetarian food and the incident took place within about 15 minutes thereafter. All of us including Sada and Vijay Tandel had the meal..." It is submitted that if this was so, then the stomachs of Sada Pawale and Vijay Tandel ought to have been containing undigested food. However, the post mortem notes in respect of Sada Pawale and Vijay Tandel showed the contents of the food to be semi solid and semi digested and therefore, it is clear that Sada Pawale and Vijay Tandel, did not have a full meal of non vegetarian food just 25 minutes before the incident. Advocate Ponda has referred to several authorities on medical jurisprudence proving his point that if the food taken in was non vegetarian food, it would take at least 2 3 hours to become semi digested. In view of the above infirmities in the evidence of Baldevsingh (Pw 4), Advocate Ponda has submitted that the evidence of Baldevsingh ought to be rejected as that of a liar. 187. Advocate Ponda has succeeded in pointing and proving some of the false statements made by Baldevsingh. Baldevsinghs pretence of not knowing Ajay and Bhaskar, the two persons who were introduced to him by Anand (PW 3) as his relatives, has been exposed in the cross examination of Baldevsingh, by Advocate Ponda. The defence of Baldevsingh Advocate Sebastian on this aspect, has been found to be to tally unacceptable. Similarly, the contradictions in his evidence have brought out the falsity of Baldevsinghs statement that "he did not know whose car was arranged". Baldevsingh in his cross examination has admitted that. Anand (PW 3) had gone to Vicky at Sindhuwadi and brought the car. 188.However, it must be pointed out that although Baldevsingh (PW 4) has been proved to be a liar, so far these two points are concerned, nevertheless it will be seen that there was some reason for Baldevsingh (PW 4) pretending that he did not know Sada Pawale when he met him at Anands place before leaving for Shirdi and for not stating that the , car belonged to Sada Pawales wife. The reason appears to that Baldevsingh (PW 4) wanted to distance himself from Sada Pawale and therefore tried to disassociate himself from eve angle that would indicate that Sada Pawale was known to him like a close family friend. 189. The third so called lie about Baldevsingh (PW 4) not having a driving licence despite the fact that he was asked to accompany the party to Shirdi, specifically for the purpose of driving, does not prove that he is a car. On contrary, it shows that he has been frank enough in admitting this fact. It may be that by driving the car without a licence, he was committing some offences but his admission not having a driving licence, does not amount to telling a lie. On the contrary, it indicates that the witness admits the truth despite the fact that such an admission could get him into difficulty. 190. Lastly regarding the so called false statement Baldevsingh (PW 4) that they all had non vegetarian meal before leaving for Shirdi. it must be stated that Advocate Ponda has not succeeded in proving that Baldevsingh statement is a lie. Advocate Ponda has referred to the 171 post mortem notes to show the state of the contents in the stomach of Sada Pawale and Vijay, Tandel at the time of the incident. Basing his arguments on authorities on medical jurisprudence according to which the state of food in the stomach within 15 minutes of the intake cannot be semi digested foot, Advocate Ponda has argued that Baldevsingh was telling a lie since the post mortem notes show semi digested food in the stomach of Sada Pawale and Vijay Tandel. While relying upon the post mortem notes to prove the state of contents of the stomach of both Sada Pawale and Vijay. Tandel at the time of the incident. Advocate Pondas first submission in a different context is that the post mortem notes cannot be looked into. At Page 75 of his written submission. Advocate Ponda argues "as far as the post mortem notes are concerned, they are not at all proved. No doctor has been examined to prove them." It is submitted that since the Petitioners have come out with certain allegations, they were duty bound to prove and ought to have proved the contents of the post mortem notes produced by the doctor. Having said so, if the post mortem notes cannot be looked into as contended by Advocate Ponda for reviewing upon the nature of injuries, then they cannot also be looked into for disproving Baldevsinghs statement that Sada Pawale and /Vijay Tandel. had a full meal, 15 minutes before the incident and that therefore, Baldevsingh was lying and was not present at the time of the incident.

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the post mortem notes produced by the doctor. Having said so, if the post mortem notes cannot be looked into as contended by Advocate Ponda for reviewing upon the nature of injuries, then they cannot also be looked into for disproving Baldevsinghs statement that Sada Pawale and /Vijay Tandel. had a full meal, 15 minutes before the incident and that therefore, Baldevsingh was lying and was not present at the time of the incident. Baldevsinghs sins of omission : 191. The rest of Advocate Pondas arguments from Pages 51 to 68, are devoted to pointing out to several statements in the evidence of Baldevsingh (PW 4), which do not find place in the earlier Affidavit filed by him dated 3.3.1998. Therefore, it is contended that his evidence should not be believed as being an afterthought and an improvement. 192. It must be remembered that this is not a trial and we are not bound by strict rules of evidence. The earlier Affidavits were filed to inform the Court in a general way about the incident. It obviously could not be a detailed Affidavits. It is only after this enquiry started that the petitioners got an opportunity to examine the witnesses. The omissions in the Affidavit, therefore, could not be treated as contradictions as long as the basic structure of the Petitioners case finds place in the Affidavits as it does the present Affidavit. The omission to mention details cannot amount to contradictions requiring this Court to completely discard the evidence of Baldevsingh. Furthermore, it must de remembered that Baldevsingh filed a second Affidavit dated 27th March 1998 (Ex.lO A) retracting the earlier Affidavit. If the Learned Advocate for the Respondents was bent upon finding out the truth of the matter, which is the sole purpose of this enquiry, then he ought to have tested the veracity of Baldevsinghs evidence when cross examining the witness with reference to his subsequent Affidavit also. Baldevsingh's sins of commission : 193. Despite the subsequent Affidavit dated 27th March 1998, retracting the earlier Affidavit, Baldevsingh had had the courage to step into the witness box and face the cross examination by Advocate Ponda for the Respondents. The petitioners witness Baldevsingh, has come out of the cross examination badly scratched and bruised and with his image tarnished but not damaged beyond repair. 194. The question which therefore arises, is what could have motivated Baldevsingh to step into the witness box as a witness for the Petitioners despite the close relatives of Sada Pawale namely, Hausabai (PW 1 ), Anita Pawale (PW 2) and Anand Pawale(PW 3) having retracted their .Affidavits and given evidence hostile to the Petitioners case. The Petitioners, it must be remembered, are Public Interest Bodies and cannot be said to be mere inter meddlers or busy bodies. They have nothing to offer the witness who has allowed himself to be subjected to much humiliation at the hands of the Cross examining lawyer when he could have very well chosen the easy way out and turned hostile to the Petitioners case like Hausabai (PW 1), Anita Pawale (PW 2) and Anand Pawale (PW3), the close relatives of the deceased Sada Pawale. 195. In my opinion, therefore the petitioners witness Baldevsingh (PW 4) cannot be completely discredited and has entire evidence cannot be discarded. Police witnesses officers : 196. On the other hand, it cannot be said that the Respondents witnesses, namely, P.S.I.Sawant (RW 1) P,S.I.Mayekar (RW 2), P.S.I.Hemant Desai (RW 3) and constable Jadhav (RW 4), all police personnel. are Knight errant in shining white armour. As pointed out earlier, it must not be forgotten that all four of them have actively participated in the encounter and could possibly be facing the murder rap and hence their evidence will have to be scrutinised closely as evidence of interested witnesses. It must also be remembered that all the four Respondent witnesses were members of the same team, involved in earlier encounters with alleged gangsters and in which the gangsters were killed in more or less the same manner as in the present case. 197.Since the entire evidence of the witnesses for the Petitioners as well as the witnesses for the Respondents cannot be taken as gospel truth, we will have to examine their evidence in the light of the attending circumstances and see whether the circumstances corroborate the testimony of the witnesses or derogate from or damage it beyond repair. 198. At this stage, it may again be pointed out and it is very important to keep in mind the fact that this is not a trial. There is no "case" of the Petitioners or the Respondents. The question of burden of proof lying on either party, therefore does not arise. The burden is upon all the parties concerned to adduce all possible material and to render all assistance necessary to enable the Court holding the enquiry to unravel the truth so that a fair and correct report can be made to the Hon'ble High Court. The Affidavits filed by Baldevsingh and his evidence before the Court ought to be appreciated in the light of the above discussion. TELL TALE INJURIES : 199. The post mortem notes and the Chemical Analysers report together throw light on the nature of the injuries sustained and the direction in which the shots were fired and the distance from which they were fired. However, Advocate Ponda for the Respondents has raised a preliminary objection that the post mortem notes are not at all proved as the doctor who performed the post mortem examination has not been examined. He has submitted that since the Petitioners have come out with certain allegations, they were duty bound to prove and ought to have proved the contents of the post mortem notes by examining the doctor. Therefore, his first ,submission is that the post mortem notes cannot be looked into. 200.FurtherAdvocate Ponda refers to the Maharashtra a Civil Medical Code (Supplement Chapter 13) 1988 at Page 11.para 13.5, which Lays down the precautions the medical officer is expected to take. (See Pages 75 and 76 of Advocate Pondas written submissions. It is submitted by Advocate Ponda that the post mortem notes do not show that the doctor had taken the necessary precautions and therefore, no reliance must be place on the findings mentioned in Column No.l7 of that post mortem notes. 201. It must be pointed out that Advocate Ponda does not allege that the doctor who conducted the post mortem examination did not take these precautions but only the post mortem notes do not show that he took the precautions. It therefore does not mean that the concerned medical officer did not take these precautions. Moreover, as stated earlier, it cannot be said that the burden of proving the post mortem notes is only upon the Petitioners. The Respondents are equally interested in using the post mortem notes to prove their case as set out in. the evidence of the police officers and the burden, if at all it can be so called, to prove the post mortem notes, was more so upon the Respondents. In fact, the State, being party Respondents to the Writ Petition ought to have taken the initiative in proving the documents of the State agencies like the post mortem notes. the C.A.reeort and the panchanama of the scene of offence.

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202. Admittedly, Advocate Ponda is aware or the fact that. this is an informal inquiry as has been clarified by the Hon'ble

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being party Respondents to the Writ Petition ought to have taken the initiative in proving the documents of the State agencies like the post mortem notes. the C.A.reeort and the panchanama of the scene of offence. 202. Admittedly, Advocate Ponda is aware or the fact that. this is an informal inquiry as has been clarified by the Hon'ble High Court by order dated 17.2.1998 and therefore. despite his preliminary objection to the use of the post mortem notes, he is not averse to making use of the contents or the post mortem notes in it suits is case which of course he is entitled to. 203. The injuries sustained by Sada Pawale and Vijay Tandel in the encounter are set out in great detail in the post mortem notes. According to the said post-mortem notes, Sada Pawale sustained 17 injuries while Vijay Tandel sustained 16 injuries. Co incidentally, injury No.2 in respect of both Sada Pawale and Vi jay Tandel, are of much importance.ln the case of Sada Pawale, injury No.2 which corresponds to exit wound No.9, is a fire arm wound which is as under: " Fire arm wound of entry over right eyebrow medial region one centimeter away from midline 0.8 c.m. diameter with 0.2 m. collar of abrasion with inverted margins. Tattooing surrounding the entry would about one and half c.m. diameter present, singeing of hair present. " Similarly, in respect of Vijay Tandel, the wound at Entry No 2 in column No:l7 of the post mortem notes is as under: " Fire arm wound of entry over left side of chest 4 c.m. away from midline in 2nd intercostal space 0.8 c.m. diameter with 0.2 c.m. abraded collar surrounding inferior medial aspect. Tattooing about one a half c.m. diameter surrounding the entry would present singeing of hair present margins inverted." 204. It is argued by Learned Advocate Ponda for the Respondents that both these injuries show tattooing but not scorching or blackening and therefore, it must be presumed that the shots were fired at a distance beyond the blackening range which is at a distance of about three feet and which according to Advocate Ponda is exactly the case of the Respondents. It is further pointed out by Advocate Penda that injury No.2 in respect of both Sada Pawale and Vijay Tandel, show singeing of hair but there is no mention of the nature of injury. If the range was scorching range,the skin would have been scorched or burnt. Moreover, subcutaneous tissues over an area of 2 3 inches around the wound of the entrance should be lacerated. Merely because of one finding viz.singeing of hair present, it cannot be concluded that the bullet was fired within the scorching range. 205. It is further pointed out by learned Advocate Ponda, that the shirt which Vijay Tandel was wearing at the time of the incident,has a corresponding shot hole to injury No.2 If the range was scorching or blackening, there would have been burning marks or at least blackening on the shirt itself at that spot and the same would have been found by the Chemical Analyser.The Chemical Analysers report and the shirt do not show such marks. Obviously therefore, the alleged finding of singeing of hair, vis a vis Vijay Tandel, cannot be accepted and in view there of,there is a great doubt about the finding of singeing of hair even in respect of Sada Pawale. Advocate Ponda has further argued that in the absence of any evidence on this aspect from the doctor who conducted the post mortem examination and in view of the fact that there is no scorching of he skin or blackening of the skin and the wound at the entrance is not lacerated as stated in the book Medical Jurisprudence and Toxicology by Modi and specially when the clothes covering that part are not burnt by flame and marks of blackening not seen, no importance whatsoever should be attached to a mere finding.of singeing of hair, to come to the conclusion that it was scorching range from which these two injuries were caused. On the contrary, mere finding of tattooing may at the most show that these two injuries may have been caused from the distance of about 3 4 feet from the muzzle. In the absence of various tests which are required to be performed, (as stated by Burrard at Page 61 in his book "The Identification of Firearms and Forensic Ballastics"), to find out the length of barrel of weapon ,the pressure and type of the powder used no definite opinion could be given about the range from ,which these wounds were caused. 206. Advocate Ponda has further pointed out that it would be difficult from the post mortem findings to come to a conclusion that the firing had taken place within a short range distance in respect of these two wounds. It is submitted that the fact that these wounds could have been caused from a distance of about 3 4 feet, is not ruled out the evidence on record. On the contrary, it is submitted that from the evidence of the concerned police officers, it . Will be seen that these two wounds could have been caused from a distance of about 3 4 feet. The medical evidence is therefore consistent with the evidence given by the Respondents witnesses (RW1 to RW 4): 207. On the other hand, it is pointed out that the evidence given by Baldevsingh (PW ) is not consistent With the medical evidence. It is submitted that if firing had taken place as claimed by Baldevsingh firstly, all injuries should have been caused within the tattooing range and wounds should have shown at least tattooing marks. Secondly the injuries which are caused as mentioned at Pg. 27 of Baldevsingh evidence described as subcutaneous tissues over an area of 2 3" round the wound entrance are lacerated and the surrounding skin is scorched and blanked by smoke and tattooing with unburnt grains of gunpowder of smokeless propellant powder. According to Advocate Ponda there is no such description of the wounds and only tattooing is mentioned in respect of the injuries at Sr. No.2 in both the cases and therefore, according to Advocate Ponda, the medical evidence negative the claim of Baldevsingh. 208. In support of his contentions Advocate Ponda has referred to certain authorities on what would be the tell tale marks on the injuries in relation to the range from which the bullets were fired. According to Modi and Parekh, close or short range injury No.2 above the right eyebrow of Sada Pawale or the short or close range injury to the left side chest of Vijay Tandel was caused by the firing by any of the police officers. Since the injury is not proved, the question of the medical evidence corroborating the evidence of the police officers, does not and cannot arise. On the other hand, the Petitioners witness Baldevsingh (PW 4) has unequivocally testified that injury No.2 above the right eyebrow of Sada Pawale (Ajay) was caused by a shot fired by one of the police officers from close range, that is at a distance of 2-3 inches. The medical evidence, namely, the post-mortem notes, corroborates the evidence of Baldevsingh (PW 4). Injury No.2 in respect of Sada Pawale, is described as a close shot injury. Advocate Ponda for the Respondents has criticised the evidence of Baldevsingh (PW 4) as that of a tutored witness. It is argued that since the medical evidence was available to the Petitioners, they have tutored Baldevsingh (PW 4) to give false evidence in such a manner that the same would appear to be corroborated by medical evidence. In answer to this, it may be stated that by the same token, it could be argued that the police officers, especially P.S.I. Mayekar (RW 2), have been tutored to give their evidence in such a manner as to have automatic corroboration from the medical evidence which was all the time available only with them that is till the Writ Petitions were filed in the Honble High Court. It will be particularly noted that P.S.I.Mayekar (RW 2) has made it a point to emphasise in his deposition at RW2/3 that: "...I was at a distance of about 5-6 feet away from that person when I last fired at him..." At RW2/9, P. S. I. Mayekar (RW 2 ) has stated: "...Tandel did not fall to the ground till the sixth shot was fired...When Tandel fell on the ground he was about two feet away from me..."

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"...Tandel did not fall to the ground till the sixth shot was fired...When Tandel fell on the ground he was about two feet away from me..." The above deposition of P.S.I. Mayekar (RW 2) is obviously with a view to show that the close range injury to the chest of Vijay Tandel was due to his firing. 219. P.S.I. Mayekars failure to note the injury on the forehead and back of the head of Vijay Tandel while they were being taken in the van to the hospital, appears to be deliberate so as not to afford any corroboration to the evidence of Baldevsingh (PW 4) who said that "the person coolly aimed and fired at the skull of Vijay Tandel". TATTOOING AND SINGEING OF HAIR: 220. According to the Petitioners, the tell-tale marks of tattooing and the presence of singeing of hair around the entry wounds, proves that the shots were fired at close range, that is at a distance of about 2-3 inches over the right eye-brow of Sada Pawale and at a distance of about 2-3 feet, on the chest of Vijay Tandel. This is as per the evidence of Baldevsingh (PW.4). However, Advocate Ponda has contested this claim and pointed out that since there is no scorching or blackening marks around the entry wounds, the shots that caused these injuries cannot be said to be fired at close range and in support he had referred to several authorities on Medical Jurisprudence. 221. Major Sir Gerald Burrads book on Identification of Firearms and Forensic Ballastics Second Edition, Pgs.59 and 60 reads as follows: "..Both scorching and blackening prove definitely that the shot was fired from very close quarters..." Again Burrad, in the same book, has at Pg.58, stated: "...With a service rifle scorching may occur upto 6 inches: and with a revolver or pistol upto 2-3 inches. So it can be assumed with absolute correctness that the presence of scorching is definite proof that the shot was fired from a range of but a very few inches..." Again Burrad in his book at Pg.59 writes: "B1ackening with a high powder rifle such as a service rifle can occur upto about 9 inches, and with a revolver or pistol upto about 6 inches." 222. Further Modi's Textbook of Medical Jurisprudence and Toxicology 21st Edition, Pg.268, reads as follows: "Blackening is found if a firearm like shotgun is discharged from a distance of not more than 3 feet and a revolver or pistol discharged within about 2 feet.....Scorching in the case of the latter firearm is observed within a few inches, while some evidence of scorching in the case of shotguns may be found even at 1 to 3 feet. . . . . " 223. Thus, from the two authorities on Medical jurisprudence cited by Advocate Ponda, it may be taken as correct that scorching may occur when the revolver or pistol is fired from a distance or about 2-3 inches while blackening place when the shot is fired from a revolver or pistol from a distance or 6 inches (according to Burrad) and not more than 2 feet (according to Modi ). 224. Injury No. 2 above the eyebrow of Sada Pawale was caused by a shot fired from the revolver/pistol from adistance or about 2-3 inches. Therefore, there ought to have been signs of both scorching and blackening. Sada Pawale injury above his eyebrow, according to Baldevsingh (PW 4) was caused by a shot fired at a distance of 2-3 inches. This is an approximate distance given by Baldevsingh. It is possible that the shot may have been fired from a distance, just a little beyond 3 inches, in which case, there would be no scorching. However, since the shot was fired from a distance of less than 6 inches, there ought to have been marks of blackening around the shot hole. The absence of blackening in the case of injury No.2 over the right eyebrow of Sada Pawale, requires to be explained. 225. The chest injury No.2 of Vijay Tandel has not been proved by the Respondents. Nobody has deposed in connection with this injury. Therefore, it is not known from what distance the shot which caused the chest injury was fired. However, even if it is assumed that one of the shots fired by P.S.I.Mayekar or P.S.I.Kadam caused the injury No.2 to Vijay Tandel, it is seen from the evidence of P.S.I.Mayekar that the closest that P.S.I.Mayekar and P.S.I.Kadam came to Vijay Tandel, was 5-6 feet. Therefore, the shot would have been fired from a distance of about 2 feet and hence there would be no tell-tale marks of scorching or blackening. The presence of tattooing indicates that the shot was fired from distance of beyond 2 feet. (Parekh's Medical Jurisprudence Page 275). 226. Learned Advocate Ponda for the Respondents has made much of the fact that the shot hole on the shirt worn by Vijay Tandel corresponding to injury No.2 on the chest of Vijay Tandel, does not have marks of burning or even blackening. It is argued that the Chemical Analysers report and the shirt do not bear out any such marks and therefore, the alleged finding of singeing of hair vis-a-vis the chest injury on Vijay Tandel, cannot be accepted. 227. It must again be pointed out that no one has deposed about the injury No.2 on the chest of Vijay Tandel and hence the same is not proved by anyone, including the Respondents. It is also seen that P. S. I. Mayekar (RW 2 ) or P. S. I . Kadam, could not have fired the shots that caused injury No.2 as they were not within the range of less than 2 feet and that explains why there were no scorching or blackening marks ,surrounding the injury No.2 on the chest of Vijay Tandel. Consequently, this also explains why the corresponding shot hole on the shirt worn by Vijay Tandel does not have marks of burning or blackening. 228. As stated earlier, the absence of blackening in respect of injury No.2 above the eyebrow of Sada Pawale, requires to be explained. The question is, who should explain it. Advocate Ponda for the Respondents, while on the one hand, relying on the post-mortem notes for certain purposes, has on the other, been insisting that the findings mentioned in the post-mortem notes cannot be taken as gospel truth and that it was for the Petitioners who are relying on the post-mortem notes to have examined the doctor who performed the post-mortem examination. He has submitted that in the absence of medical evidence and in view of the fact that there are no signs of scorching or blackening and the shirt of Vijay Tandel also not showing any signs of burning or blackening, no importance should be attached to the mere finding of singeing of hair, to come to the conclusion that the shots causing the said injuries, No.2 in both cases, were fired from within the scorching range. 229. In reply thereto, it must again be pointed out that it was as much in the interest of the Respondents as of the Petitioners to have got the post-mortem notes proved and the discrepancies explained by the medical officers. The failure of the Petitioners to explain the absence of blackening in respect of injury No.2 above the eyebrow of Sada Pawale, cannot be held against the Petitioners. Looking at the problem from a different angle, it is an admitted position that all the shots which hit Sada Pawale and Vijay Tandel were fired only by the police staff of the raiding party it is also established from the evidence of the police officers, that none of these came within the range close enough to Sada Pawale and Vijay Tandel to cause injury No.2. Both the injuries have marks of tattooing and singeing. The officer who came closest to Vijay Tandel, was P.S.I.

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Petitioners to explain the absence of blackening in respect of injury No.2 above the eyebrow of Sada Pawale, cannot be held against the Petitioners. Looking at the problem from a different angle, it is an admitted position that all the shots which hit Sada Pawale and Vijay Tandel were fired only by the police staff of the raiding party it is also established from the evidence of the police officers, that none of these came within the range close enough to Sada Pawale and Vijay Tandel to cause injury No.2. Both the injuries have marks of tattooing and singeing. The officer who came closest to Vijay Tandel, was P.S.I. Hemant Desai who was about 5-6 feet away from him when he last fired at him. Taking into account,the length of his arm out stretched with the revolver pointing, there would still be a distance of about 2 feet from the muzzle of his revolver and Vijay Tandel. That is a distance beyond the tattooing range. Therefore, it is for the police to explain how tattooing and singeing took place. 230. In conclusion, it must be held that on a general appreciation of the evidence on record, the medical evidenceappears to be more consistent with the evidence of Baldevsingh (PW 4) rather than that of the police officers and therefore, the Respondents cannot be said to have proved their version of the incident. A CHARMED LIFE : 231. According to Baldevsingh (PW 4), all the police officers were well armed with revolvers and pistols. In fact, the officers had two revolvers each and one of them had a sten gun. Baldevsingh (PW 4) has also stated that when he was put into the Maruti 1000 at the time of the incident, he saw a packet containing arms lying on the floor of the Maruti car. 232. P.S.I.Sawant (RW 1), P.S.I. Mayekar (RW 2) and P.S.I. Hemant Desai (RW 3) have also in their evidence, admitted that they were all armed. P.S.I. Sawant (RW 1) has stated at RW1/2 that: "...A11 the 5 officers armed themselves with weapons..." He has also stated that A.P.I. Salaskar and P.S.I.Hemant Desai (RW 3) carried service revolvers. P.S.I. Mayekar, (RW2) and P.S.I. Kadam and himself carried service pistols. All the officers armed themselves apparently because they were given permission for a raid by D.C.P. Parvir Singh and were instructed to arrest "the main shooter and most dreaded gangster of the Arun Gawli gang." 233. On the other hand, according to Baldevsingh (Pw 4), Sada Pawale and Vijay Tandel, were unarmed. However,the police witnesses are all unanimous that Sada Pawale was armed with a sophisticated weapon, namely, AK-56, while Vijay Tandel a. armed with a pistol. In fact it is the case of the Respondents that only when Sada Pawale raised the AK-56 in defiance, apprehending imminent danger to the lives of the police officers, A.P.I. Salaskar and P.S.I. Desai, did P.S.I. Sawant (RW 1 ) fire the first shot at the head on the left side of the temporal region of Sada Pawale and simultaneously, A.P.I. Salaskar and P.S.I. Hemant Desai also fired at Sada Pawale. Besides the police officers, no one else has deposed about.Sada Pawale having an AK-56 and Vijay Tandel being armed with a pistol. 234. Advocate Ponda has pointed out "one important fact", namely, that at the time of the panchanama of the scene of offence, various empties were taken charge of from the scene or offence. The panchanama was drawn within a short time after the incident, tallied with the weapon used. The CA report shows that empties Clinical Analyser s report that both Sada Pawale and Vijay Tandel, were armed with weapons and they fired from their respective weapons. 235.Needless to point out that the panchanama and the Chemical Analysers report have not been proved. Advocate Ponda for the Respondents, while vociferously insisting that the post-mortem notes cannot be looked into as the same was not proved and that the Petitioners could not rely on the same as it was their duty to have got it proved, very ,conveniently now wants to rely upon the scene of offence -Panchanama and the Chemical Analysers report although they are not proved and no attempt was made by the Respondents to get them proved by calling the relevant witnesses. 236. Clearly, the burden if it may be so called, lay more on the Respondents to prove the panchanama of the scene of offence drawn by the police and the Chemical Analysers report as they seek to rely on them to corroborate the evidence of the police witnesses. Moreover, the State being party-Respondents, cannot sit back as mere observers. It is as much obligated as the other parties in assisting the Court to arrive at the truth and therefore ought to have proved these documents which are prepared by the State agencies. Since the panchanama of the scene of offence and the Chemical Analyzers report are not proved, the Respondent cannot rely on them and therefore, the Respondents case that Sada Pawale and Vijay Tandel were armed with AK-56 and pistol respectively, remains unproved. 237. Furthermore, it will be seen that although Sada Pawale is alleged to have fired from his AK-56, none of the police officers suffered any injury on account of Sada Pawales firing. P.S.I.Sawant (RW 1) has in his evidence at RW1/3 and RW1/4, stated as follows: "At that time the distance between Sada Pawale and Salaskar and Desai was about 10 feet. A.P.I.Salaskar called out to Sada Pawale and warned him to surrender. Sada Pawale at that point raised his AK-56 in defiance. On seeing this I felt there was imminent danger to the lives of A.P.I. Salaskar and P.S.I. Desai. On seeing this, I fired on Sada Pawale. Simultaneously Sada Pawale fired shots from is AK-56 in the directions of A.P.I. Salaskar and P.S.I.Desai. Simultaneously I saw A.P.I. Salaskar and P.S.I. Desai firing at Sada Pawale from their weapons..." 238. It is amazing that despite Sada Pawale having fired from a sophisticated weapon, namely, an AK-56 which is capable of firing 600 rounds per minute and having an effective range of 300 metres, neither A.P.I.Salaskar nor P.S.I. Desai or any of the police officers, suffered any bullet injury. Although Sada Pawale fired at A.P.I. Salaskar and P.S.I.Desai simultaneously, when they fired at him, neither A.P.I.SaIskar nor P.S.I.Desai were injured although they were at such close quarters. P.S.I.Desai came to within 5-6 feet of Sada Pawale. The police officers must surely bear a charmed life 239, However, P.S.I. Mayekar (RW 2) and constable Jadhav (RW 4), have an "Achilles heel". P.S.I. Mayekar allegedly suffered a bullet injury on his Left upper arm and constable Jadhav received an injury on the palm of his left hand when , Vijay Tandel fired at them with his pistol. However, the alleged injuries are not proved. The cross-examination of P.S.I. Mayekar (RW 2) shows that the injuries were superficial. How the two policemen. could suffer such minor injuries when they were hit from a pistol, is not understood. Moreover, no attempt was made.to prove the injuries. 240. As stated earlier, the Respondents claim that certain empties were recovered from the scene of offence under panchanama and the same were sent to the Chemical Analyser for report (Ex.EE). According to the Chemical Analysers report (Ex.EE), the empties, Ex.4-A to Ex.4-E were fired from AK-56 and the empties, Ex.4-F to Ex.4-R were fired from 9 m.m. pistol (See Ex.2). However, as stated earlier, the scene of offence panchanama and the Chemical Analysers report are not proved. The alleged recovery of these empties from the scene of offence is doubtful and therefore, it cannot be taken as proved that Sada Pawale and Vijay Tandel were armed with AK-56 and pistol respectively. 241 It may also be observed that it is the case of the respondents that after Sada Pawale fell, P.S.I. Kadam came there and recovered the AK-56 which was in the hands of Sada Pawale. Earlier after Vijay Tandel was shot and fell down, P.S.I. Kadam had removed the pistol from the hands of Vijay Tandel. It is pertinent to note that P.S.I. Kadam who played , such an

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241 It may also be observed that it is the case of the respondents that after Sada Pawale fell, P.S.I. Kadam came there and recovered the AK-56 which was in the hands of Sada Pawale. Earlier after Vijay Tandel was shot and fell down, P.S.I. Kadam had removed the pistol from the hands of Vijay Tandel. It is pertinent to note that P.S.I. Kadam who played , such an important role in the incident, has not been examined. Moreover an unpardonable blunder has been committed by the police officers in not taking precautions for preserving the fingerprints and obtaining finger impressions of Sada Pawale and Vijay Tandel from the AK-56 and the pistol respectively so as to tally them with the fingerprints of Sada Pawale and Vijay Tandel. 242. Lastly, it is pertinent to note that admittedly, practically all the police officers along with A.P.I. Salaskar were involved in similar encounters with alleged members of the underworld in which the gangsters got killed by injuries sustained by them on the vital parts of their bodies, while the police officers and staff suffered no casualties except minor injuries, and all this, despite the fact that the dreaded gangsters were well equipped and well armed. Surely, these police officers must bear a charmed life! 243. The case of the Respondents that Sada Pawale and Vijay Tandel were armed with AK-56 and pistols respectively, is not only not proved but also seems highly improbable. MORE IMPROBABILITIES (.i ) Unnatural reactions: 244. The correctness of the rough sketch Ex.O, prepared by the police is not disputed. The position of the two Maruti fronties and the Fiat car has been fixed by the police themselves. Thus, from Ex.O, it is established that the Fiat car in which Sada Pawale and Vijay Tandel were travelling was boxed in from both sides. Since he was aware that he was being trapped, it is not understood why Sada Pawale who according to the police, was in the drivers seat, did not attempt to escape through the gap of over 10 feet between his Fiat car and the Maruti car placed across his path by API. Salaskar by swerving his car and driving northward along M.G. Road. The reaction or Sada Pawale, appears to be unnatural. Not only does he not attempt to escape in his Fiat car, although the opportunity was available, but he, recklessly steps out of the Fiat car despite the fact that he was trapped. If Sada Pawale was armed with the AK-56, as claimed by the police, the natural thing for him to have done was to have waited in the car with the AK-S6 ready to fire at the assailants behind the Fiat car and if he stepped out of his car, he would be shot behind his back by either of the two parties, depending in which direction he faced after he got out of the car. 245. On the other hand, the reaction of the police also appears unnatural. If they had seen Sada Pawale get out of the Fiat car with the AK-56 in his hand as claimed by the police, they would naturally not have got out of the car but would have used the car as a protective barrier. Furthermore P.S.I.Mayekars car was only 3 feet behind the Fiat car and Sada Pawale had his back towards P.S.I. Mayekar. P.S.I. Mayekar (RW 2) could have easily shot Sada Pawale the moment he saw Sada Pawale raising his AK-56 in defiance against A.P.I.Salaskar. It is not understood why P.S.I. Mayekar did not fired any shots at Sada Pawale. (ii) The first shot 246. The first shot of the encounter was that fired by P.S.I.Sawant (RW 1). The shot fired by P.S.I. Sawant hit Sada Pawale on the left temporal region (injury No.5). The bullet perforated the left temporal lobe of the brain, passed transversally to the right side, perforated the right lobe at the temporal region and came out at external injury No.7. This first shot fired by P.S.I. Sawant would have knocked Sada Pawale off balance and was by itself, sufficient to have caused his death. It must be remembered that at this point of time, Sada Pawale was directly facing A.P.I. Salaskar and P. S. I. Desai and not P. S. I. Sawant. P. S. I. Sawants first shot would therefore have taken Sada Pawale by surprise and in that split second, Sada Pawale would have been thrown off balance and probably dropped dead. It is therefore, difficult to believe that Sada Pawale would have in that split second reacted and fired from his AK-56. 247. Furthermore, after Sada Pawale was hit by the first shot from P.S.I.Sawant, the AK-56 would have dropped from his hands. The question therefore of P.S.I. Kadam removing the AK-56 from the hands of the injured Sada Pawale in such a case, would not arise. Although Sada Pawale is supposed to be the main-shooter or sharp-shooter of the Arun Gawli gang, neither API Salaskar nor PSI Desai was hit by any of the five bullets allegedly fired by Sada Pawale from his AK-56. More surprising and foolhardy, is the move by A.P.I.Salaskar and P.S.I.Desai of rushing towards Sada Pawale during the firing although they were not protected by bullet proof vests. (iii ) The first victim 248. While the assault on Sada Pawale was carried out on A. P. I. Salaskar , P. S. I. Sawant and P. S. I. Hemant Desai, the attack; on Vijay Tandel was left to P.S.I. Mayekar along with P. S. I. Kadam and P. C. Jadhav. P. S. I. Mayekar (RW 2 ) has, in his evidence at RW2/6 stated: "...Salaskar had told us that Sada Pawale would be accompanied by his associates. He did not te11 us that the associates would also be master shooters (main shooters). Before we left for the it, Salaskar did not give any specific instructions as to what the occupants of each vehicle should do during the arrest. . . " At RW2/8, P.S.I.Mayekar (RW 2) states: "...I received no instructions from Salaskar or any superior officers that I should only concern myself with the second man and not Sada Pawale. . . " Yet P.S.I.Mayekar (RW 2) states at RW2/2 that: ". . . At the same time the person who was seated by the side of Sada Pawale also got down with his pistol in his hand ., at that time constable Shetty told me that the person who was shot and had fallen was Vijay Tandel..." It is not clear at what point of time, P.S.I. Mayekar (RW 2) got instructions that he should apprehend or deal with Vijay Tandel only. However, it is pertinent to note that he came to know that the person whom he shot as Vijay Tandel only after the incident, after constable Shetty told him. From the narration of P.S.I.Mayekar (Rw 2), it is clear that Vijay Tandel was trying to escape in the westward direction, that is along Rajawadi Road but changed direction when he saw P.S.I. Mayekar and P.S.I. Kadam and he fired only after P.S.I.Mayekar (RW 2) told him to surrender. Admittedly, P.S.I.Mayekar (RW 2) did not know who Vijay Tandel was and therefore it is not understood why he tried to apprehend Vijay Tandel who according to P.S.I. Mayekars version, was trying to escape from the scene. 249. Moreover, according to the police witnesses themselves, Vijay Tandel was shot and fell down before Sada Pawale was shot. We gather this from the fact that P.S.I. Kadam first recovered the pistol from the hand of Vijay Tandel after he had fallen and then came to the spot where Sada Pawale had just fallen and removed the AK-56 from Sada Pawales hand.

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249. Moreover, according to the police witnesses themselves, Vijay Tandel was shot and fell down before Sada Pawale was shot. We gather this from the fact that P.S.I. Kadam first recovered the pistol from the hand of Vijay Tandel after he had fallen and then came to the spot where Sada Pawale had just fallen and removed the AK-56 from Sada Pawales hand. 250. The police version of the encounter with Vijay Tandel, seems improbable. The question of running, chasing or changing directions by Vijay Tandel on seeing PSI Mayekar (RW 2) and the others, is unrealistic because the entire incident took place within an area of hardly 50-60 sq. feet. Again while Vijay Tandel who was allegedly running, turned around and fired at P.S.I. Mayekar and others. P.S.I. Mayekar could have easily shot Vijay Tandel while he was in the process of turning and firing since P.S.I.Mayekar had the Tandel with his revolver upper hand as he was chasing Vijay pointing at the back of Vijay Tandel who was running away. 251. Although Vijay Tandel is alleged to have fired several shots at them, P.S.I. Mayekar (RW 2) and P.C.Jadhav (RW 4) allegedly suffered only minor injuries. (iv) Singeing and Tattooing : 252. Admittedly, neither in the case of Sada Pawale or Vijay Tandel, any policeman came close enough to the victims to fire shots which would result in singeing or tattooing. Since it is the case of the police that all the shots were fired by them from distances, as stated in their evidence, which in no case is less than two feet, the tell-tale marks of singeing and tattooing remain unexplained by the police. Therefore the police version cannot be taken as gospel truth. v) Maruti Fronties and Fiat Car : 253. Although several shots were fired in the vicinity of the vehicles, one of the vehicles appear to have received any damage from stray bullets although they were in the direct line of firing. The panchanama of the scene of offence states that the Fiat car bearing No.MH-01-R-1778 which was parked at the spot was taken charge of by the police under a panchanama. Nothing was found in the car except the keys. There is no mention of any bullet marks on the car or any bullets being found in the Fiat car. But what is more surprising is that the panchanama of the scene of offence makes no mention of the Maruti fronties at the scene of offence. The sketch of the scene of offence only shows the Fiat car in which Sada Pawale and Vijay Tandel came to the scene of offence. The Maruti cars are not shown on the sketch and the panchanama also makes no mention whatsoever of the two Maruti Fronties. If Sada Pawale had fired from his AK-56 at A.P.I.Salaskar and P.S.I. Desai, then at least one or two out of five shots, allegedly fired by Sada Pawale would have hit the Maruti car which was directly behind A.P.I.Salaskar and P.S.I. Desai. It is obvious that no reference is made to any bullet marks on any of the two Maruti cars because the absence of the bullet marks, debunks the Respondents case that Sada Pawale had fired from the AK-56. P.S.I. Sawant has tried to explain this by saying since Sada Pawale was hit by the bullet fired by him, Sada Pawale was slightly thrown off balance and therefore the AK-56 started wobbling in his hand and was pointing upwards and therefore the shots missed the target. If Sada Pawale had fired simultaneously when P.S.I.Sawant had fired, then over, the slightest pull of the trigger by Sada Pawale even accidentally, would have let out a volley of shots in that split second, in view of the speed of the AK-56 being more than 600 shots per minute and surely one of the bullets would have found their mark in that split second or at least the Maruti car behind A.P.I.Salaskar and P.S.I. Desai would have been struck by a bullet from the AK-56. A BLOODY AFFAIR 254. According to the medical evidence, Sada Pawale sustained 17 injuries, while Vijay Tandel sustained 16 injuries. There were 8 entry wounds with 8 corresponding exit wounds and one abrasion on the body of Sada Pawale. Therefore, there were 8 bullets fired at Sada Pawale at such a close range that all the 8 bullets exited. There were 9 entry wounds and 7 exit wounds on the body of Vijay Tandel. Therefore, Vijay Tandel was struck with 9 bullets of which 7 exited. All the shots were on the vital parts of the body. Therefore, Sada Pawale and Vijay Tandel must have bled to death on the spot itself and there would have been a considerable amount of blood at the spot where each fell. In fact, the panchanama of the scene of offence prepared by the police immediately after the incident, shows two pools of blood. The sketch prepared by the police who drew the panchanama, show the location of the two pools of blood on the rough sketch prepared by them. One pool of blood is shown on the M.G.Road near the eastern end of the divider on 7th Rajawadi Road. The other pool of blood is shown on Rajawadi Road No.7 itself, but more towards the electric pole at the northwest corner of M.G. Road and Rajawadi Road No.7. 255. According to P.S.I. Sawant, the Maruti Frontie intercepted the Fiat car after it had stopped just before the signal post because the signal was red by overtaking it from the left side and placing it across the road horizontally in front of the Fiat car. The distance between the front of the Fiat car and the right side of the Maruti Frontie, was over 10 feet. Sada Pawale is alleged to have got down from the right side of the Fiat car which he was driving and stood in front of the Fiat car, while A.P.I.Salaskar and P.S.I.Desai, are alleged to have got down from the right side of their Maruti car. When the alleged shoot-out took place, API. Salaskar and P. S. I. Desai were about 10 feet from Sada Pawale. Sada Pawale did not move forward and as gunned down in front of his Fiat car on the right front side where he fell bleeding profusely. Consequently, there ought to have been a pool of blood at the spot where Sada Pawale fell. The panchanama of the scene of offence and sketch, however, do not show such a pool of blood at that spot. 256. The pool of blood at the T-junction of M.G.Road remains unexplained. The distance between the right front side of the Fiat car where Sada Pawale fell and the pool of blood at the T-junction is about 35 feet. The pool of blood at the T-junction would therefore be on the other side, that is on the left side of the Maruti car, occupied by A.P.I.Salaskar and others. It is not the case of the Respondents that either Sada Pawale or Vijay Tandel were shot at the spot the pool of blood at the T-junction debunks the Respondents story that Sada Pawale was shot in front of the Fiat car. 257. Advocate Ponda for the Respondents, dismisses this "small discrepancy" as he calls it, by explaining that while the crowd was being dispersed, Sada Pawale might have been lifted from the spot where he initially fell and was moved to the spot at the T-junction where the pool of blood was shown and from there picked up by the police van. But Advocate Ponda fails to explain the absence of blood at the spot where Sada Pawale initially fell. Having been hit by 8 bullets, Sada Pawale might have bled profusely and in a short while, maybe a minute or two that he lay at the initial spot, a considerable amount of blood would have collected there forming a pool of blood . Moreover, if the police moved Sada Pawale from that spot to the T-junction, it would have been by dragging him there and if Sada Pawale who was bleeding profusely, as indeed dragged to the T-junction from the initial spot, then there would have been a trail of blood from the initial spot to the pool of blood at the T-7unction which, of course, is not mentioned in the panchanama of the scene of offence. The explanation of Advocate Ponda just does not wash. It just does not wash away the pool of blood at the T-junction. SUMMING UP: 258. The Respondents case is that the entire operation to apprehend or arrest the dreaded gangster Sada Pawale, was a secret operation and therefore, no entries were made in the police records nor was the concerned police station informed of the raid. The only person who was informed was D. C. P. Paramvir Singh as permission for the raid had to be obtained from

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SUMMING UP:

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258. The Respondents case is that the entire operation to apprehend or arrest the dreaded gangster Sada Pawale, was a secret operation and therefore, no entries were made in the police records nor was the concerned police station informed of the raid. The only person who was informed was D. C. P. Paramvir Singh as permission for the raid had to be obtained from the higher officer. However, D.C.P. Paramvir Singh who allegedly gave permission for the raid, has not been examined. A.P.I.Salaskar who organised the raid and gave the necessary instructions to members or the raiding party for the arrest or Sada Pawale and who literally called the shots in the entire operation, has not been examined. 259. Admittedly, the raiding party was well armed and well equipped for carrying out the raid and apprehending Sada Pawale. Al1 the officers were armed with weapons pistols and one of the police constables (P.C.Jadhav) was carrying handcuffs ostensibly for the arrest of Sada Pawale. It is alleged that on Sada Pawale being called upon to surrender, Sada Pawale raised his AK-56 in defiance causing the police officers, especially P.S.I.Sawant, to apprehend imminent danger to A.P.I.Salaskar and P.S.I.Desai, at whom Sada Pawale was pointing the AK-56 and this caused P.S.I.Sawant to make a pre-emptive strike and fire at the left temporal region of Sada Pawale. If the purpose for the raid was only the arrest of Sada Pawale, then the first shot fired by P.S.I.Sawant, which admittedly caused Sada Pawale to lose his balance, would have been sufficient to disarm Sada Pawale and cause the AK-56 to fall from his hand. It would thereafter have been an easy job for the police officers to apprehend Sada Pawale and place him under arrest. On the contrary, we find that after P.S.I.Sawant fired the first shot at Sada Pawale, the police officers A. P. I. Salaskar and P. S. I. Desai fired several shots from their revolvers/pistols at Sada Pawale, causing him to fall at the very spot where he was standing after having got out from the Fiat car. 260. It is also seen that all the shots were fired at Sada Pawale at his head and left side of his chest, i.e. at the heart, indicating that the shots were not fired randomly but after careful aim having been taken. The number of shots fired and the accuracy with which the shots were fired at the followed him, chased him and ultimately he and PSI Kadam fired shots at him in retaliation and Vijay Tandel fell at the spot, near the footpath on the northernside of Rajawadi Road No.7, somewhere near the junction of Rajawadi Road and M.G.Road. The reason for PSI Mayekar chasing Vijay Tandel is not known. To them, Vijay Tandel was just a total stranger and not known to them as a gangster or member of the Arun Gawli gang, nor were instructions given to them to arrest any person such as Vijay Tandel nor did they know or recognize Vijay Tandel till he was shot and had fallen down. Therefore, the entire story of the Respondents that the police party had proceeded to the scene of offence for the purpose of arresting Sada Pawale, the well-known sharp-shooter or main-shooter and gangster of the Arun Gawli gang, stands exposed. 263. The Respondents case that Sada Pawale and Vijay Tandel were armed with AK-56 and pistol respectively, is unproved. PSI Kadam who allegedly removed the AK-56 and pistol from the hands of Sada Pawale and Vijay Tandel respectively, after they fell, has not been examined. The police officer at the scene of offence committed an unpardonable error in not taking steps to preserve the finger impressions of Sada Pawale and Vijay Tandel on their weapons and thereby destroyed vital evidence which would have gone a long way in proving the Respondents case that Sada Pawale and Vijay Tandel were armed. 264. Despite Sada Pawale having fired simultaneously from his AK-56 at A.P.I.Salaskar and P.S.I.Desai, neither of them was hurt. Even the Maruti car behind them in the direct line of firing, was not hit by any stray bullet from the AK-56. P.S.I. Mayekar and constable Jadhav had allegedly suffered bullet injuries due to firing by Vijay Tandel. However, the injuries are superficial and could not have been caused by bullet shots. Constable Jadhav s injuries is only a contused lacerated wound and definitely not caused by a bullet. 265. The alleged recovery of the bullet empties of the AK-56 used by Sada Pawale and or the pistol used by Vijay Tandel from the scene of offence under a panchanama, are not proved. 266. Injury No.2 over the right eyebrow of Sada Pawale and over the left side chest of Vijay Tandel, show marks of singeing and tattooing. Authorities on medical jurisprudence state that tattooing occurs in case of shots fired from any shot-gun at a distance of less than 2 feet while singeing (scorching) occurs when the pistol/revolver is fired within 2-3 inches. From the evidence of the police officers, it is seen that none of them came closer than one and a half feet from Sada Pawale and five feet from Vijay Tandel. The Respondents have failed to explain how singeing could have taken place when the shots were fired from a distance beyond one and a half feet. 267. Lastly, it must be stated that the evidence, or lack of it, that really clinches the issue, is the unexplained presence of the pool of blood on M.G.Road at the T-junction acid the absence of any blood at the spot in front of the Fiat car where Sada Pawale is alleged to have been gunned down. 268. In conclusion, it may be observed that the Respondents have come out with a clear positive case that the police had gone to Rajawadi Road junction to apprehend and arrest Sada Pawale, the most dreaded gangster of the Arun Gawli gang. However, they were compelled to shoot Sada Pawale, who was armed with an AK-56, as instead of surrendering when called upon to do so by A.P.I.Salaskar, Sada Pawale raised his AK-56 in defiance, causing an apprehension in the mind of the police officers , especially P.S.I. Sawant who admittedly fired the first shot at Sada Pawale, that there was imminent danger to the lives of A. P. I. Salaskar and P. S. I. Hemant Desai. 269. The police have brought no evidence on record to show why they considered Sada Pawale as the most "dangerous gangster" of the Arun Gawli gang, nor have they brought any evidence on record to show what offences have been registered against him. However, even assuming that the police are right in the assessment of Sada Pawale being the most dreaded gangster or a dangerous criminal who ought not to be allowed to roam freely in society, it was for the police to have established by cogent and compelling evidence that they had in fact gone to the scene of offence, only to arrest Sada Pawale which they have failed to do. Admittedly, the police first fired at Sada Pawale (of course since he raised his AK-56 in defiance). But the police have miserably failed to prove that Sada Pawale was armed with an AK-56 or that Vijay Tandel was armed with a pistol and they have themselves to blame for this as they did not take adequate precautions to preserve the fingerprints on the AK-56 and pistol and other available evidence. The number of bullet injuries on the vital part of the bodies of Sada Pawale and Vijay Tandel, disprove the police claim that they had gone to the spot to arrest Sada Pawale. FINDINGS: 270. The encounter in which Sada Pawale and Vijay Tandel were killed, cannot be said to be a genuine encounter. Principal & Sessions Judge, Greater Bombay.

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Bombay Police

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