Bombay High Court Overturns Acquittal in Fake Encounter Case, Convicts Police Official Including Former Squad Head Pradeep Sharma ; Holds S.197 CrPC No Bar for Murder

Mumbai: In a significant verdict delivered on March 19, 2024, the Bombay High Court overturned the acquittal of former police official Pradeep Rameshwar Sharma in connection with the alleged fake encounter of Ramnarayan Vishwanath Gupta alias Lakhanbhaiya in 2006. A division bench of Justices Revati Mohite Dere and Gauri Godse convicted Sharma and upheld the convictions of twelve other police personnel and one private person in the case, while acquitting five other private individuals.

The judgment in 2024:BHC-AS:16373-DB arose from multiple criminal appeals filed against the 2013 judgment of the Sessions Court, which had convicted 21 out of 22 accused but acquitted Pradeep Sharma (Original Accused No.1). The State of Maharashtra and Ramprasad Gupta , the brother of the deceased, had appealed against Sharma 's acquittal.

Case Background

The prosecution's case centered on the alleged abduction of Ramnarayan Gupta and his friend Anil Bheda on November 11, 2006, followed by Gupta 's custodial death, which was presented by the police as a genuine encounter. Anil Bheda was also allegedly wrongfully confined thereafter to prevent him from revealing the truth.

The defence, particularly for some police accused, maintained that it was a genuine encounter where Ramnarayan Gupta , a wanted criminal, opened fire on the police party, forcing them to retaliate in self-defence.

The case had a protracted history, with the High Court eventually directing the registration of an FIR and the constitution of a Special Investigation Team (SIT) in 2009, after a magisterial inquiry concluded that the encounter was fake. A crucial witness, Anil Bheda , who was present during the abduction, was himself abducted and murdered in 2011, just days before he was scheduled to depose in court.

High Court's Detailed Analysis

The High Court meticulously examined the circumstantial evidence presented by the prosecution, categorizing it into several key aspects:

Formation of Illegal Squad

Overturning the trial court's finding, the High Court held that the prosecution successfully proved the existence of an illegal squad operating under Pradeep Sharma . The court relied on the consistent testimonies of several police witnesses (PW20, PW25, PW32, PW43, PW45, PW55, PW63, PW72, PW79, PW82, PW87) and corroborating station diary entries, which showed police personnel from different units were deputed to work under Sharma at D.N. Nagar Police Station. The court found the denial by Addl. CP Bipin Bihari (PW78) to be unreliable, noting that the formation of such a squad was illegal and his denial likely aimed to avoid complicity.

Abduction of Ramnarayan Gupta and Anil Bheda

The court found the abduction proven based on the evidence of multiple witnesses (PW1, PW2, PW3, PW38, PW40, PW57) and supporting documentation. Crucially, the court held that the immediate disclosure made by an alleged bystander, Nilesh , to PW38 (Dheeraj Mehta) shortly after the abduction, was admissible under Section 6 of the Evidence Act (res gestae) , given its spontaneity and close proximity in time to the event. Similarly, Anil Bheda 's disclosure to his wife (PW40) about the abduction and being taken before Sharma at D.N. Nagar was also deemed admissible under Section 6 due to the continuous nature of his unlawful confinement. The court noted that faxes and telegrams detailing the abduction and expressing fear of a fake encounter were sent by the deceased's family promptly, even before the alleged encounter took place, debunking the idea of fabricated evidence post-event.

Fake Encounter and Custodial Death

The High Court rejected the defence's claim of a genuine encounter, concluding that Ramnarayan Gupta died in police custody and the encounter was staged. Evidence supporting this included:

• Fabricated Records: The court found evidence of false FIR entries and manipulation of station diary entries (Exh. 884A, 669A, 670).
• Spot Panchnama: Contrary to police claims, the spot panchnama was likely prepared at the police station and not at the actual site of the alleged encounter, based on the testimony of the scribe (PW73) and other witnesses who visited the spot later (PW1, PW2, PW77, PW83).
• Planted Evidence: The court found that a revolver and railway tickets were likely planted on the deceased to support the fake encounter narrative. The absence of fingerprints on the weapon (Exh. 284) and inconclusive handwash results for gunshot residue on the deceased's hands (Exh. 253A) supported this. The railway tickets, mentioned only in the muddemal register (Exh. 299A) but not in the initial MLC report (Exh. 174A) or station diary (Exh. 285A), were also deemed planted.
• Disproportionate Blood Pool: The limited 1-foot diameter blood pool at the spot was inconsistent with the severe bullet injuries sustained by the deceased, including injuries to vital organs like the heart and aorta, which would cause profuse bleeding.
• Ballistic Evidence: The court heavily relied on the ballistic expert's report (Exh. 658 Colly) and testimony (PW86). The report contradicted the defence's claim of firing from a distance of 40 feet, indicating shots were fired from approximately 2 meters. Critically, the report linked bullets found in the deceased's body to the service revolvers of Pradeep Sharma (OA1), Pradeep Suryawanshi (A9), and Dilip Palande (A15). An empty cartridge surrendered by A22 ( Sarvankar ) was also found to have been fired from Sharma 's revolver, and an empty found at the spot, allegedly fired by A11 (Sartape), matched A2's ( Tanaji Desai ) weapon. The court rejected the trial judge's view that ballistic evidence is weak, affirming its importance.

Wrongful Confinement of Anil Bheda

The court found that Anil Bheda was unlawfully confined by various accused after the abduction, first at Bhatwadi, Ghatkopar, then in a hotel in Kolhapur, and finally at the Mid-town Hotel in Andheri, for approximately one month. This was corroborated by the testimony of his wife (PW40), police personnel involved in guarding him (PW32, PW45, PW55), his son's school attendance records (PW52 showing prolonged absence), and CDR evidence.

Pressure Tactics and Manipulation

Evidence showed systematic attempts by the police accused and their associates to pressure witnesses and manipulate the investigation into the fake encounter. This included:

• A9's contempt conviction for threatening the Metropolitan Magistrate who found the encounter fake.
• Evidence of A9's brother (an ACP) and an advocate pressurizing investigating officers and witnesses (PW31, PW35, PW38) to alter statements.
• Recording of a fingerprint expert's statement by A9 after nearly three years when he was not the investigating officer.

Criminal Conspiracy

The High Court concluded that while direct evidence of conspiracy is rare, the chain of circumstances—formation of an illegal squad, planning and executing the abduction, the staged encounter, the killing of Ramnarayan in custody, the subsequent wrongful confinement of Anil Bheda , the planting of evidence, and the manipulation of records—irresistibly pointed to a criminal conspiracy among the accused to kill Ramnarayan Gupta and cover it up.

Applicability of Section 106 and Section 197 CrPC

The court held that once the prosecution proved the abduction and custodial death of Ramnarayan Gupta , the burden under Section 106 of the Evidence Act shifted to the accused to explain what happened to him while he was in their custody. Their failure to offer any plausible explanation for his death after abduction served as an additional incriminating circumstance.

Regarding the necessity of sanction under Section 197 of the CrPC for prosecuting police officers, the court held that such protection is not available for acts like murder, abduction, or wrongful confinement, as these are inherently outside the scope of official duty. The court stated that using official position as a cloak for criminal acts does not warrant the protection of Section 197.

Overturning Pradeep Sharma 's Acquittal

The High Court found the trial court's reasons for acquitting Pradeep Sharma perverse and contrary to the evidence. The trial judge had incorrectly dismissed the ballistic evidence as weak and overlooked substantial evidence linking Sharma to the formation of the illegal squad, his presence at key locations via CDRs, his use of A5's phone, and the res gestae disclosure by Anil Bheda naming him. The High Court found the evidence compelling and sufficient to prove Sharma 's complicity in the criminal conspiracy, abduction, murder, wrongful confinement, and related offences.

Acquittal of Private Persons

The court acquitted six private persons (A4, A6, A8, A10, A12, A21), finding the evidence against them insufficient. While some were identified by Anil Bheda in the TIP, his subsequent murder meant this identification lacked substantive corroboration. For others, like A4 and A6, the evidence primarily consisted of CDRs, which the court found insufficient on their own to prove their involvement beyond reasonable doubt in the specific acts alleged. Evidence regarding A10 hiring a vehicle that might have been used for abduction was also deemed inconclusive.

Judgment Outcome

The High Court dismissed the appeals filed by the convicted police personnel (A2, A3, A7, A9, A11, A13, A15, A16, A17, A18, A19, A20) and the private person (A5), confirming their life sentences and other convictions. The appeals of A14 and A22 stood abated due to their demise. The appeals against the acquittal of Pradeep Sharma (OA1), filed by the State and the complainant, were allowed, and Sharma was convicted and sentenced primarily to life imprisonment. The criminal revision for enhancement of sentence was disposed of as not pressed.

The court directed Pradeep Sharma to surrender before the appropriate court within three weeks.

The judgment also noted with concern the lack of progress in the investigation into Anil Bheda 's murder by the State CID, emphasizing the importance of bringing his perpetrators to justice.