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Pilibhit Encounter 1991| "They Exceeded Power Given By Law": Allahabad High Court Convicts 43 Cops U/S 304 Part I IPC

Sparsh Upadhyay
15 Dec 2022 1:17 PM GMT
Pilibhit Encounter 1991| They Exceeded Power Given By Law: Allahabad High Court Convicts 43 Cops U/S 304 Part I IPC

The Allahabad High Court today convicted 43 Uttar Police Personnel under Section 304 Part I IPC in connection with the 1991 Pilibhit Encounter case wherein 10 Sikhs were killed treating them to be terrorists in an alleged fake encounter.

"It is not the duty of the police officers to kill the accused merely because he/she is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for a trial," the bench of Justice Ramesh Sinha and Justice Saroj Yadav remarked in its 179 page order converting conviction of 43 cops/appellants from Section 302 IPC to Section 304 Part I IPC.

The Court was essentially dealing with the appeal moved by 43 appellants/cops challenging the order passed by Special Judge, C.B.I. /Additional District Judge, Lucknow in April 2016 convicting them under Sections 120-B, 302, 364, 365, 218, 117 IPC

Noting that their case would be covered by Exception 3 to Section 300 of the IPC, the Court observed that the appellants, being police officers, exceeded the powers given to them by law, and they caused the death of the deceased by doing an act that they, in good faith, believed to be lawful and necessary for the due discharge of their duty.

It may be noted that Exception 3 to Section 300 of the I.P.C. provides that culpable homicide is not murder, if the offender, being a public servant, or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, thinks to be lawful and necessary for the due discharge of his duty as a public servant without ill-will towards the person whose death he has caused.

The case in brief

In this case, the police officials/appellants (then 47 in number), on the basis of confidential police reports, intercepted a bus carrying passengers/pilgrimage (on 12-13 July 1991) believing that there were some hardcore terrorists of 'Khalistan Liberation Front present in the bus. Thereafter, 10-11 young Sikhs were taken to the police bus by the cops, and later on, they were killed by them in three different places.

The trial court, in April 2016 concluded the trial in the matter by holding that the appellants, while committing criminal conspiracy, abducted ten Sikh youths and killed them in a fake encounter and thereafter prepared a number of documents in order to convert the killings of these Sikhs into encounters.

Consequently, they were convicted under Section 120-B read with Sections 364, 365, 218 and 117 I.P.C. Challenging their conviction, they moved to the High Court.

The High Court's observations

At the outset, the Court noted that the appellants had admitted the facts that they eliminated/killed ten Sikh terrorists in an encounter in the incident in self-defense, however, the Court noted that medical evidence did not support the self-defense theory of the appellants.

"The case of the appellants is that they killed ten terrorist persons as they eliminated them in self defense because when they saw the terrorists came out from the forest area, then, they challenged them and all of a sudden, the terrorists opened fire and in retaliation and in self-defense, the appellants had opened fire and in that way, ten terrorist persons were killed in the firing...The claim of the appellants that they killed ten terrorist persons in self-defense does not corroborate with the medical evidence," the Court observed.

Further, the Court also noted that in their 313 CrPC Statement, the appellants/police personnel had admitted that the deceased persons, in order to promote the Liberation of Khalistan, were operating in the Tarai region of district Pilibhit and nearby areas, and thus, they were eliminated in police encounters by the appellants.

Significantly, during the course of the trial, the criminal history of only a few alleged terrorists was specified and it was argued that since other deceased were the companions of the four deceased (alleged terrorists), hence they were also killed in the encounter, however, the Court rejected this argument by observing thus:

"The act of the appellants in eliminating the terrorists who were involved in various criminal cases of murder, loot, TADA activities as has been demonstrated from the criminal antecedents of some of the deceased, namely, Baljit Singh alias Pappu, Jaswant Singh, Harminder Singh alias Minta, Surjan Singh alias Bittu, Lakhvinder Singh but the appellants have failed to lead any defence against the other deceased whether they were also involved in terrorist activities with the four to six deceased and it was only argued by the appellants Counsel that other deceased who were shot in encounter were the companions of the four deceased, hence they were also killed in encounter but this contention of the learned Counsel for the appellants is not at all acceptable as act of the appellants cannot be justified to kill innocent persons along with some terrorist taking them to be also terrorists..."

However, it may be noted that the Court did observe that the prosecution failed to prove the facts that the police personnel had kidnapped or abducted 10-11 Sikh persons and after that by making criminal conspiracy with common intention, bifurcated them in three groups and killed them at three separate places.

Having analyzed the entire evidence on record, the Court came to the conclusion that though there was no ill will between the appellants/police personnel and the deceased persons and the appellants were public servants and their object was the advancement of public justice, however, they exceeded the power given to them by law and thus, they exposed themselves to face the rigors of law.

Consequently, the conviction and sentence of the appellants under Sections 302/120-B, 364/120-B, 365/120-B, 218/120-B, 117/120-B I.P.C. was set-aside and they were convicted under Section 304 Part I of the Indian Penal Code and sentenced to seven years' rigorous imprisonment along with fine of Rs.10,000/-.

Our readers may note that initially, the investigation of this alleged fake encounter was conducted by the local police of district Pilibhit, and a closure report was filed by the local police. However, pursuant to a direction of the Supreme Court, the investigation of the case was entrusted to the CBI.

Case title - Devendra Pandey and others vs. State Of U.P. Thru. C.B.I. along with connected matters

Case Citation: 2022 LiveLaw (AB) 527

Click Here To Read/Download the order

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