IN THE COURT OF SHRI I.S.

MEHTA, DISTRICT JUDGE & ADDITIONAL SESSIONS JUDGE, INCHARGE SOUTH WEST DISTRICT, NEW DELHI
Session Case No: 8/2009 Date of Institution : 16.2.2009 Date of Decision : 25.10.2012 State Vs. Jitender Mohla S/o Sh. Ashok Kumar R/o 662, Air Force Naval Officers Enclave, Plot No. 11, Sector-7, Dwarka, New Delhi. FIR NO : 5/2009 PS : IGI Airport (Domestic) U/S 336/503/506/170 IPC, 3 (1) (d) & 3 (2) of Suppression of unlawful Act against the Safety of Civil Aviation Act 1982 and 3 (2) & 4 under Anti Hijacking Act 1982. For State : Sh. Vishnu Saran, Ld. Designated PP. For Accused : Ms. Kamna Vohra, Adv. Ld. Defence counsel. JUDGMENT 1. Accused Jitender Mohla is facing trial for committing

offence under Section 336/503/506/170 IPC, 3 (1) (d) and 3 (2) of Suppression of unlawful Act against the Safety of Civil Aviation Act 1982 and 3 (2) & 4 under Anti Hijacking Act 1982, on 1.2.2009, while he was travelling in flight No. 6E334 of Indigo Airlines, from Goa to Delhi between chocks off at 15:12 hours from Goa and chocks on at IGI Airport, New Delhi at 17:13 hours. 2. Brief facts stated are that on 1.2.2009, at about 17.10 from ATC

hours, Inspector H.K Rai (PW32) Incharge of CISF, Operation Control Room, Palam Airport, Domestic, received a message Control Room that one Indigo aircraft No 6E334, from Goa to Delhi has been hijacked and he accordingly, informed all concerned
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including his senior officers and NSG. He also informed HC Ishwar Singh (PW21) Duty Officer PS Domestic Airport, District IGI, on telephone about the hijacking of flight no. 6E334. The said information was reduced down into writing vide DD No. 30 by HC Ram Parkash (PW43). The said DD 30 was sent to SI Atma Singh (PW17) through Ct. Rakesh Kumar (PW44) for inquiry/investigation. On receiving the said information SI Atma Singh along with Ct. Rakesh reached at the arrival hall of the IGI Airport. On receiving the said information, Inspector Raj Kumar (PW45), SHO Domestic Airport Palam along with Inspector J.S Mishra (PW23) and other staff also reached at Arrival Hall of the Domestic Airport, New Delhi. Inspector Raj Kumar, SHO Domestic Airport IGIA, recorded the statement of Ms. Neha Chhikara, after her arrival at Arrival hall of the Domestic Airport, Palam. Ms. Neha Chhikara in her statement has stated that

She

was working

as Cabin Attendant in Indigo Airlines, since,

September 2007. On 1.2.2009, she was operating at flight No. 6E334. The flight departed from Goa at 15:15 hours. Just before take off, her colleague Ms. Anchal Mehta (PW1) informed her that there is a passenger who claims to be a DGCA Official and he is preparing a report against the crew members. After take off, she went to the passenger whose name was later known as Jitender Mohla, who was sitting at the seat No. 16-D, but was frequently changing his seat and moving in the aircraft. She tried to convince and calm him but he was arrogant, shouting and misbehaving with co-passengers and crew members. During the course of flight the said passenger Jitender, came to rear and told her and her colleague Ms. Anchal, that, he, is, carrying a gun and some infected infection and to cut throat. needles which can be used for He also told that he was involved in

Kandahar hijacking and soon he along with his associates is going to hijack the aircraft. He came forward and moved his hand towards her neck to show her the point which he can press to make a person unconscious. She moved backward and got scared. Keeping in mind, the safety hazards and security of passengers, she went to the front
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and informed Ms. Jyoti Chhetri (PW3) about it and she informed the crew members in the cockpit. cockpit was adopted. Safety procedure of lock down of landed at New Delhi in Later, the aircraft

emergency. Legal action be taken against Jitender Mohla.

On the basis of the statement of Ms. Neha Chhikara, case FIR 5/2009, under Section 336/506 IPC was got registered and Inspector Raj Kumar, SHO Domestic Airport IGIA, carried out inspection of the aircraft. He flight No. 6E334 on 1.2.2009. On the basis of the statement of the oral witnesses and in pursuance to FIR No. 5/2009, of P.S Palam Airport, U/S 336/506 IPC, accused Jitender Mohla was arrested. Thereafter, vide office order No. A-32016/01/2009/Admn. Dated 9.2.2009, issued by the Bureau of Civil Aviation Security (BCAS), the further investigation of the case was carried out by Sh. S.K Bhatnagar, Deputy Commissioner of Security (CA), BCAS. The IO S.K Bhatnagar, interrogated the accused in judicial custody and he arrested the accused under Section 3(1) (d) of Suppression of unlawful Acts Against the Safety of Civil Aviation Act 1982. He further recorded statement of some of the passengers of the said flight and collected the incriminating documents. During the investigation it was revealed that on 1.2.2009, Indigo flight 6E334 took off from Goa Airport at 15:12 hour and its scheduled arrival time at Domestic Airport, IGIA, New Delhi was 17:10 hours on 1.2.2009. In the said flight there were one hundred sixty one passengers, four cabin crews and two cockpit crews. Mr. Amit Singh (PW4) was the Captain and Mr. Punit Prasad (PW5) was the Flight Officer of the aircraft. Two cabin crews namely Ms. Jyoti Chhetri (PW3) and Ms. Neha Gogia (PW2) were deployed in front of the cabin and other two cabin crews namely Ms. Neha Chhikara (complainant) and Ms. Anchal Mehta (PW1) were deployed in the rear of cabin of the aircraft. Ms. Jyoti Chhetri was the Lead Cabin
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the

investigation of the case. SHO Inspector Raj Kumar carried out site also recorded the statement of the passengers and crew members who had arrived from Goa to Delhi in

Crew of the aircraft. After boarding of the passengers the exit doors of the aircraft were closed and mandatory safety announcement was made and demonstration about use of seat belt and oxygen mask was made. As a routine operational requirements, when cabin crew Ms. Neha Chhikara, was briefing passengers, sitting on row 13A and B, about procedures for use of the emergency doors during emergency, she was informed by Ms. Anchal Mehta another cabin crew, that one passenger (accused) seated at seat No. 16D had called her and told that he was a DGCA official and would make a report against the cabin crew for permitting passengers to move from their seats when aircraft was taxing for take off. When Ms. Neha Chhikara turned back to see the movement on other side of emergency seats of the rows 12 and 13, she saw that three male passengers were sitting at row 13D, E and F, who were not there initially. By this time captain of the flight had made announcement for all cabin crew members to be seated. So, she briefed those three passengers who had occupied these seats of emergency doors and took her seat. Ms. Anchal Mehta also informed Ms. Jyoti Chhetri, Lead Cabin Crew about the same. The Lead Cabin Crew directed Ms. Anchal Mehta to tell the accused that of the flight Thereafter, when the fasten seat belt sign was switched off, Ms.Neha Chhikara went to the accused sitting on seat No. 16D, who was later identified as Jitender Mohla and enquired from him for any help. The accused started shouting on her and expressed his annoyance. Ms. Neha Chhikara tried to calm down the accused and explained to him about the procedure. The accused then moved to row 13 and told passengers of that row, who came from other seats, that they could not change their seats and directed them to go back to their allotted seats. The accused, further, told them that he was godfather of aviation services in India and he made all the rules of sky aviation. The accused also brought one lady passenger to the row on
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if the

accused had any problem they could discuss the same, after take off

emergency door and sat by her side. Later, Ms. Jyoti Chhetri noticed that the accused was standing in the rear of aircraft and talking to both crew members. She then went to the rear of the aircraft and enquired from the accused if he had any problem and on this, the accused requested for a glass of water. Thereafter, Lead Cabin Crew started service in the front of aircraft but she noticed that service in the rear did not commence and the accused was still talking to crew members and thus, delaying the service in the aircraft. Lead Cabin Crew informed the Captain that a passenger claiming himself sometime to be a DGCA official and sometime a Sky Marshal, was disturbing the rear cabin crew and not allowing them to perform their duty. Captain asked Lead Cabin Crew to verify the identity of the accused but crew members, however, could not go up to accused to verify his identity. During the flight, it was noticed that the accused was moving frequently in the aircraft and was changing his seat. The accused came harassing the again and again in the rear of aircraft and kept on cabin crew at the rear and disturbing their

working/functioning as well as hampering the safety procedures /requirements of cabin crew. The accused, later, claimed before the cabin crew, at the rear, that he was a Sky Marshal. Some of the passengers of the flight also observed the unruly behaviour of the accused during the flight. Mr. Sameer Uppal (PW6), a passenger became curious on the action of accused and enquired from the accused about his background, whether he was an IAF Officer of the rank of Air Commodore. The one pouch with from airport security. To this, the accused told to the said passenger that he was accused also told Mr. Uppal that he was carrying

some needles and when Mr. Uppal asked whether he was authorized for the same, the accused replied yes, and that he did not require any permission for the same. After some time the accused told the cabin crew at the
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rear that he was carrying a gun and some infected needles and these needles could be used for infecting any one and cut the throat. The accused, once also moved his hand towards the neck of Ms. Neha Chhikara in the name of explaining procedure to press particular nerve to make any one unconscious within no time. Ms. Neha Chhikara had to step back to save herself from his attempt. Ms. Neha Chhikara did not smell any odor of liquor from the mouth of the accused when he brought his face close to her. The accused also enquired about availability of restraining devices like handcuffs to restrain the passengers and on the refusal of the cabin crew for the same, he claimed that he was carrying a rope with him. The accused was seen keeping his one hand in the pocket, raising doubt of concealing something. Later, the accused enquired from Ms. Neha Chhikara whether she remembered about the killing of one passenger in Kandahar hijacking case and then claimed that he was involved in Kandahar hijacking incident. He said that he was a Muslim and he knew how to kill people. He said, that, there were two other associates with him in that aircraft, who would take charge of the aircraft shortly. He asked the cabin crew at the rear whether they could support the hijackers if they hijack the aircraft. Accused was also seen in arguments with passenger sitting on seat No, 30E. The accused later claimed before the cabin crew that the passenger sitting on that seat had been made unconscious by him. From time to time, both the cabin crews at the rear were keeping the Lead Cabin Crew informed of what the accused told them from time to time and other developments. The accused did not fasten seat belt himself even after announcement made by the crew before landing and was rather seen directing other passengers to fasten their seat belts and thus endangering the safety of the passengers as well as of the aircraft. Before landing, the accused came to row 08 and directed the person sitting at seat No. 8C, who was carrying a two months old infant on
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his lap, that he could not sit on the aisle seat with the infant and that he should move to the middle seat with the infant and fasten the seat belt covering her too, which was dangerous to the baby's life. The Lead Cabin Crew informed the Captain from time to time, about the conversations made by the accused with cabin crew in rear and also about his misbehaviour, dictating language and issuing directions on his own for changing seats etc. to other passengers. The Captain contacted ATC and told them that the aircraft had an unruly passenger and requested for priority landing and security curtain to the aircraft. He also informed ATC about above conversations he had with crew members and also informed that aircraft. them there was all sort of threats including a hijack threat to the ATC informed the Captain of the flight that they were

treating this as a hijacked aircraft. The Captain also requested for a Discrete Frequency (an exclusive frequency for conversation between

Pilot and ATC which cannot be overheard by any other aircraft in air) for communication with the ATC.
Sh. Vipin Gupta (PW38) WSO, ATC IGIA, New Delhi, was informed by the Area Control Center (ACC) (West), ATC, IGI, Airport, New Delhi at 11:33:37 UTC, (17:03:37 hrs.) that flight No. 6E334, Indigo Airlines arriving from Goa was having an unruly passenger on board and the pilot of aircraft requested for priority landing and requested for security personnel to attend the aircraft. At 11:38:48 UTC (17:08:48 hrs) the ACC (West) heard the Pilot informing cabin crew as follows : Ok nothing to worry we are informing ATC that there is hijack threat they will take care. Barely a minute later i.e 11:39:12 UTC (17:09:12 hrs) the following transmission was received from the Pilot : Can we have a discrete frequency ? Sh. Vipin Gupta, WSO, ATC, IGIA, signed a discrete frequency 119.3 MHz to the Pilot of the aircraft. At 11:41:39 UTC, the following transmission was received from Pilot : At first he claimed that there is hijacker in board and he is Muslim and he know how to kill people to support Muslims. I feel
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his charity is in question, he is not, his mental balance is not okay, but At 11:42:20 UTC the following transmission was received from pilot : He said he is Muslim and he himself is a hijacker at first he said there is hijacker on board then he said that ....... he says he is hijacker and is Muslim but name is Jitender Maula. Sh. Vipin Gupta gave instruction to Officer manning the discrete frequency to continue with the aircraft till it landed and that no time should be wasted and he went to activate respective control rooms. The Captain also informed Central OPS that the aircraft had an unruly passenger who claimed that there was threat on board. All the cabin crews were terrified due to threat made by the accused to take over the aircraft. Lead Cabin Crew also informed Captain that Neha and Anchal were crying at that point of time, due to the threat made by the accused. Some of the passengers also noticed that the cabin crews at the rear were crying. Aircraft landed at runway 28 instead of 29 due to this emergency at about 17.37 hours on 1.2.2009 and aircraft was taken to isolated parking bay. Thereafter, on completion of the investigation Sh. S.K Bhatnagar filed the charge sheet under Section 170/336/503/506 IPC and 3 (1) (d) and 3(2) of Suppression of Unlawful Acts Against the Safety of Civil Aviation 1982 and 3(2) & 4 under Anti Hijacking Act, 1982 against the accused. 3. Prima facie case having been made out charge for offence

under Section 336/503/506/170 IPC, 3 (1) (d) and 3 (2) of Suppression of Unlawful Act Against the Safety of Civil Aviation Act 1982 and 3 (2) & 4 under Anti Hijacking Act 1982, was framed against accused, to which he pleaded not guilty and claimed trial. 4.
PW1 PW2

In order to prove its case prosecution examined as many

Ms. Anchal Mehta Ms. Neha Gogia : : Cabin Attendant/crew member Cabin Attendant/crew member

as forty seven witnesses, as under:-

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PW3 PW4 PW5 PW6 PW7 PW8 PW9 PW10 PW11 PW12 PW13 PW14 PW15 PW16 PW17 PW18 PW19 PW20 PW21 PW22 PW23 PW24 PW25

Ms. Jyoti Chhetri Sh. Amit Singh Sh. Punit Prasad Sh. Sameer Uppal Sh. Vibhor Tyagi Sh. Suresh Chand Sharma Sh. Amit Aggarwal Sh. Nitin Khandelwal Sh. Ankur Garg Sh. Yogesh Mahajan Mrs. Hardeep Anand Dr. Anand Lakshman Sh. Shobit Goel Mr. Parag M. Nagarcenker SI Atma Singh Sh. Nilesh Ms. Marlene Sh. Ajay Shiva HC Ishwar Singh Dr. Manish Narayan Inspector J.S. Mishra Sh. Neeraj Verma Sh. Sanjeev Ram Dass

: : : : : : : : : : : : : : : : : : : : : : :

Cabin Attendant/crew member Captain/Pilot/cockpit crew Flight Officer/Co-pilot/cockpit crew Passenger Passenger Passenger Passenger Passenger Passenger Passenger Passenger Passenger Passenger Passenger Police witness Assistant Manager, Indigo Security, IGI Airport, New Delhi. Ground staff Indigo Airlines, Goa. Joint General Manager, ATC, AAI, IGI Airport, New Delhi. Police witness/duty officer Junior Resident Doctor, Safdarjung Hospital Police witness Junior Executive, Air Traffic Control, IGI Airport Vice President, Manager Airport operations Flight Safety, InterGlobe Aviation, Gurgaon Haryana. Aircraft Maintenance Engineer, Indigo Airlines. Senior Aircraft Maintenance Engineer, Indigo airlines. Senior AME, IGI Airport, New Delhi. Crew Scheduler, Indigo Airlines Junior Executive (Air Traffic Control), Area Control West Sector, Planning, IGI Airport. Director, Security Inter Globe Aviation Limited (Indigo), Gurgaon.

PW26 PW27 PW28 PW29 PW30

Sh. Rakt Kamal Singh Sh. Ajay Kumar Pandey Sh. Karunesh Tirpathi Sh. Sanjay Pathak Sh. Ripun Borah

: : : : :

PW31

Sh. Sanjay Chopra

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PW32 PW33 PW34

Inspector H.K Rai Sh. G.S Kalyan Sh. R.S Pasi

: : :

Incharge of CISF, Control Room, Domestic Airport, IGIA, New Delhi. Crew Scheduler, Indigo Airlines Deputy Director, Air Safety, at Directorate General of Civil Aviation, Ministry of Civil Aviation, Safdarjung Airport, New Delhi. Radar Controller, West IGI Airport Assistant General Manager, ATC, IGI Airport Manager ATC, IGI Airport, New Delhi. Joint General Manager ATM, WSO, ATC, IGI Airport New Delhi. Junior Executive, ATC, IGI Airport, New Delhi. Manager Communication,ATC,Airport Authority of India, IGI Airport, New Delhi. General Manager (ATM) AAI, IGI Airport, New Delhi. Manager Flight Safety InterGlobe Aviation, Gurgaon, Haryana. Police witness Police witness SHO PS Domestic Airport, Distt. IGI Airport, New Delhi. Initial IO of the case. Under Secretary, Aviation Security of Ministry of Civil Aviation, Government of India, New Delhi. Deputy Commission of Security (CA) , BCAS. IO of the case.

PW35 PW36 PW37 PW38 PW39 PW40

Sh. Malkeet Singh Ms. Ritu Sharma Sh. M.P Arun Kumar Sh. Vipin Gupta Sh. M.K Garg Sh. Deep Kumar

: : : : : :

PW41 PW42 PW43 PW44 PW45

Sh. Pramod Kumar Mishra Sh. Anirudh Choudhary HC Ram Parkash Ct. Rakesh Kumar Inspector Raj Kumar

: : : : :

PW46

Sh. S. Gauri Shanker

PW47

Sh. S.K. Bhatnager

Thereafter prosecution evidence was closed. 5. In the statement recorded under Section 313 Cr.P.C,

accused denied all the incriminating evidence and circumstances appearing in evidence against him and claimed false implication.

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6.

The accused in

his defence examined four witnesses

namely Mr. S.A. Dwarkanatha as DW1, Mr. Satender Kumar as DW2, Mr. Sajjan Kumar as DW3 and Mr. Sandeep Govil as DW4. 7. I have heard Sh. Vishu Saran, Ld. Designated PP on behalf

of the State and Ms. Kamna Vohra, Ld. counsel for the accused and also perused the entire evidence as well as the material placed on record. 8. Ld defence counsel has submitted that prosecution has While arguing, Ld. Defence

examined 47 witnesses in all, in the present case and accused has examined four witnesses in his defence. its own leg and has relied upon Asad Bai @ Asar Bai Vs. counsel has pointed out that the prosecution has to prove its case on judgment in Sohan Sahai Vs. State, State & Munna Lal Vs. State,

2009 (3) JCC 2436; Mohd. Afzal Kumhar & Ors. Vs. State 158 (2009) Delhi Law Times 549 (DB) Delhi High Court; Vikas & Ors. Vs. State of Maharashtra, 2008 (1) Crimes 288 (SC); Devesh Kumar & Ors. Vs. State 2010 (1) JCC 762; Kali Ram Vs. State of H.P. AIR 1973 SC 2773; Rathinam Vs. State of T.N. 2011 (3) SCC (Crl.) 111 and Chaudhary Vs. CBI 2009 (159) DLT 673. Further, she has submitted that unless the ingredients of the prima facie case are established, the surmises, conjectures and presumptions will not help to the prosecution and further relied upon judgment in case of State (through Inspector RPF) Vs. Ravikant 2010 (1) JCC 26 and Sahira Habibullah Sheikh & another Vs. State of Gujarat & others (2006) 3 Supreme Court Cases 374. Ld. Defence counsel has further submitted that while appreciating the evidence, the defence witnesses and the prosecution witnesses be treated equally as relied upon by Hon'ble Supreme Court of India in case Dudh Nath Pandey Vs. State of U.P. AIR 1981
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S.J

Supreme Court 911 and Kali Ram Vs. State of Himachal Pradesh AIR 1973 Supreme court 2773. The credibility of the witnesses be tested on the following five counts : 1. 2. 3. 4. 5. Whether they have means of correct information Whether they have any interest in concealing the truth. Whether they all agree in their testimonies Is the evidence consistent with itself. Is the evidence consistent with the usual and known principals of human action and with common experience of mankind. Ld. Defence counsel has further pointed out that all the forty seven witnesses in the present case are mutually destructive, inconsistent and singing song in their own way and does not bring out the real truth of the case and has relied upon judgment in case Sarwan Singh Rattan Singh & Harbans Singh Bhan Singh Vs. State of Punjab AIR 1957 Supreme Court 637. Ld. Defence counsel has further pointed out what could be the evidence on record, must be legal, reliable and unimpeachable before the accused can be convicted. Prosecution Accused

cannot drive strength from the weakness of the accused. may or may not bring witness prosecution

but silence will not strengthen

case. If two views are possible, on the basis of the relied upon judgment in case Harijana Thirupala &

material collected, the view which is favourable to accused be adopted and has 2821. Ld. commit offence. Defence counsel has further submitted that Ors Vs. Public Prosecutor High Court of A.P. AIR 2002 Supreme Court

prosecution has miserably failed to prove that there is intention to Mensrea/intention is a state of mind. Unless it is proved that the accused has intention to commit offence, it cannot be said that the accused has committed the offence and has relied upon judgment in State of Maharashtra Vs. Mayer Hans George AIR 1965

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Supreme Court 722; Director of Enforcement Vs. M/s MCTM Corporation Pvt. Ltd & Ors AIR 1996, Supreme Court 1100 and State (Through Inspector RPF) Vs. Ravikant 2010 (1) JCC 26. Ld Defence counsel has further pointed out that

prosecution has failed to establish

the motive

in the present case

and relied upon judgment in case State of West Bengal & another Vs. Mohammed Khalid, State of West Bengal & Another Vs. Mohammed Rashid Khan and State of West Bengal & Another Vs. Abdul Aziz & ors AIR 1995 Supreme Court 785. Ld. Defence counsel has further submitted that while in the provision and only

reading the statutory provisions, the court should give natural meaning first unless there is ambiguity then the court could look into the intention of the legislature and has relied upon judgment in S.A Venkataraman Vs. The State AIR 1958 Supreme Court 107; Hamdard Dawakhana Vs. Union of India AIR Shri Ram Daya Ram & Ors. Vs. the State Sarjoo Prasad Vs. 631; State of Maharashtra Vs. 1960 Supreme Court 554;

of Maharashtra AIR 1961 Supreme Court 674; State of UP AIR 1961 Supreme Court

Mayer Hans George AIR 1965 Supreme Court 722 and Sadanandan Bhadran Vs. Mahdavan Sunil Kumar 1998 (2) JCC (SC) 91. Ld. Defence counsel has further submitted that the preparation is not an offence, whereas the attempt is otherwise. The prosecution has failed to prove preparation in the present case and there is no evidence against the accused on attempt to hijack the aircraft and has relied upon another Vs. The State 2655. of judgment in Abhayanand Mishra Vs. 1698; Malkiat Singh & 713 State of Bihar AIR 1961 Supreme Court

Punjab AIR 1970 Supreme Court

and Sudhir Kr. Mukharjee Vs. State of W.B. AIR 1973 Supreme Court

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Ld. defence counsel has further submitted mandatory provision

that in the

present case, FIR was not sent to the area Magistrate, which is under Section 157 Cr.P.C. It is further Accused the submitted that section 155 Cr.P.C was also not followed. under Section 3 (1) (d) of Suppression of unlawful Act arrested under Section 3 (1) (d)

was sent to JC on 2.2.2009. Judicial remand of accused was sought against Safety of Civil Aviation Act 1982 on 2.2.2009 whereas, accused was of Suppression of unlawful Act from 2.2.2009 to 16.2.2009 against the Safety of Civil Aviation Act 1982 on 16.2.2009 therefore, the accused was illegally detained without the arrest and his right under article 19 & 21 of constitution was violated and same is curtailed without the due process of law. Police never sought police remand of the accused. No offence can be added after registration of the FIR and has relied upon judgment in case Directorate of Enforcement Vs. Deepak Mahajan & anothers AIR 1994 Supreme Court 1775; Ravi Kumar Vs. State of Punjab AIR 2005 SC 1929; State Vs. Jai Prakash & Ors 2011 (3) JCC 1878; Rajinder & Others Vs. State of Delhi 2011 (2) JCC 1134 and Rajeevan & Anr. Vs. State of Kerala 2003 (1) JCC 527. Ld. Defence counsel has further submitted that G.D Entry Ex PW 13/A should have been the FIR. There is delay in lodging of the FIR. GD Entry is not treated as FIR in the present case, which is fatal to prosecution case and has relied upon judgment in Hallu & others Vs. State of Madhya Pradesh AIR 1974 Supreme Court 1936; Apren Joseph @ Current Kunjukunju & ors Vs. The State of Kerala AIR 1973 Supreme Court 1; Sunil Kumar & Ors. Vs. State of Madhya Pradesh AIR 1997 SC 940; Superintendent of Police CBI & Ors Vs. Tapan Kumar Singh AIR 2003 SC 4140; Rajesh Kumar @ Raju Sharma Vs. State of Delhi 2011 (4) JCC 3055; Lallan Chaudhary & others Vs. State of Bihar & Another AIR 2006 SC 3376; Hasib Vs. State of Bihar AIR 1972 SC 283 and Shankar Vs. State of UP AIR 1975 SC 757.
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Ld. defence counsel has further submitted that any statement which is recorded after commencement of investigation, is not an FIR as it has happened in the present case. At the most, present FIR can be treated as statement u/s 161 Cr.P.C. Similarly, statement of complainant Neha Chhikara, at the most can be treated under Section 161 Cr.P.C. Ld. Defence counsel has further submitted that in the event of treating statement of Neha Chhikara as FIR, in such situation also, the FIR Ex PW 43/B is not a substantive piece of evidence as the said statement is to be proved through its maker. It does not prove the contents of FIR because the maker of the FIR did not depose in the witness box. Since, the contents of the FIR are not prove the same cannot be read in evidence and has relied upon judgment in case Harkirat Singh Vs. State of Punjab AIR 1997 & others Vs. State of Kerala and Supreme Court 3231; George State of UP AIR 2010 SC 281. Ld. Defence counsel has further submitted that if the present FIR Ex PW43/B is treated as an FIR in such situation also there is delay in lodging the FIR and has relied upon judgment in Kerala Apren Joseph @ Current Kunjukunju & ors Vs. The State of

another AIR 1998 Supreme Court 1376 and Moti Lal & Others Vs.

AIR 1973 Supreme Court 1 and Gunnana Pentayya @ Pentadu & others Vs. State of Andhra Pradesh, (2009) 16 Supreme Court Cases 59. Ld. Defence counsel has further the present case. Ex PW 46/A is submitted that the

prosecution failed to prove the sanction to prosecute the accused in not the sanction but only letter through which PW 46 S. Gowri Shankar has conveyed the sanction and has relied upon judgment in State of West Bengal & others Vs. Mohammed Khalid & others Court 637.
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AIR 1995 Supreme Court 785 and

Madan Mohan Singh Vs. State of Uttar Pradesh AIR 1954 Supreme

Ld. Defence counsel has further submitted that the prosecution has examined PW 34 R.S Passi as as expert witness but he does not fall under definition of an expert and has relied upon judgment in Sidhartha Vashisht Vs. State AIR 2010 Supreme Court 2352 and State of H.P. Vs. Jai Lal AIR 1999 Supreme Court 3318. Ld. Defence counsel has further submitted that maker of the FIR is Ms. Neha Chhikara. Ex PW 45/A is the statement alleged to have been given by Neha Chhikara before the police but she has not been examined before the court. Statement of Neha Chhikara is recorded after seven hours. FIR is full of manipulations and made statement to IO to Police station concoctions. Ld. Defence counsel has further submitted that as per prosecution version Ms. Neha Chhikara Inspector Raj Kumar PW45, IO sent the same

through Ct. Rakesh Kumar PW44. At Police Station Duty officer HC Ram Parkash PW43, handed over the same to computer operator and after the FIR was recorded, same was given to Ct. Rakesh Kumar PW 44 who took the same and handed over to the IO Inspector Raj Kumar. Inspector Raj Kumar, during the course of his statement has stated that statement of Neha Chhikara is in the hand of PW 23 Inspector J.S Mishra however, Inspector J.S Mishra has made statement that SHO Inspector Raj Kumar has recorded the statement of Neha Chhikara. There is contradiction in the statement of PW23 Inspector J.S Mishra and PW45 Inspector Raj Kumar and has relied upon judgment in State of Gujarat Vs. Anirudhsing & anothers AIR 1997 Supreme Court 2780 and Shanker Vs. State of UP, AIR 1975 Supreme Court 757. Ld. Defence counsel has further submitted that on the

date of incident the cabin attendants on board were deceased Neha Chhikara as R2, PW1 Anchal Mehta was L2, PW2 Neha Gogia was R1 and PW3 Jyoti Chhetri was the Lead cabin attendant. In the cockpit PW4 Amit Singh was the commander of the flight and PW5
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Punit Prasad was the co-pilot. Ld. Defence counsel has further submitted that the duty of Anchal Mehta was from row 22 to 30 and accused was sitting on seat no. 16D. PW1 Anchal Mehta subsequently, resigned from the Indigo Airlines on medical ground which shows that she was not medically fit and incompetent. The cabin crew were not maintaining orderly behaviour in the cabin on 1.2.2009 and were not following the rules laid down by DGCA. There was deviation of duty. Cabin attendants were permitting use of phone during flight and during taxing. They were allowing passengers to change the seat when seat belt signs were on. Cabin crew was not objecting to the passenger's who were changing the seats. Cabin Crew was not providing Child Restrain device to the passenger travelling with infant and allowed the passenger who was with an infant, to sit on isle seat. Passenger's are not allowed to sit on overwing exit row however, as per her deposition the passenger's were sleeping (lying down) on overwing exit row. Ld. Defence counsel has further submitted that PW1 Anchal Mehta is an infirm and hostile witness and no ingredient of offence have been made out by the deposition of PW1 as per the charges framed against the accused. Ld. Defence counsel has further submitted that statement of PW2 Neha Gogia is not admissible as the same is hearsay evidence. Handwritten statement of Neha Gogia is Ex PW2/D2.

Accused was perturbed on the inefficiency of the cabin attendants to maintain the discipline in the cabin as it was endangering the safety and security of the aircraft and the passenger's on board. Ld. Defence counsel has further submitted that PW3 Jyoti Chhetri is the Lead cabin attendant and her statement is again hearsay evidence without any effect on the case. Ld. Defence counsel has further submitted that PW4 is Captain Amit Singh. He is not the witness to the incident. Captain Amit Singh did not press the transponder or informe the ATC, at any stage, during the flight because the flight was normal and there was
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no threat to the flight. PW4 Captain Amit Singh never said that there is a threat to the plane. It was the ATC who informed the captain that they are treating the flight as hijack. Ld. Defence counsel has further submitted that PW5 Punit Prasad was the co-pilot and his statement is not admissible as the same is hearsay and has relied upon judgment in Balram Prasad Aggarwal Vs. State of Bihar & Ors. 1997 JCC 185 (SC); State (Collector, Central Excise) Vs. Papas Kumar 1985 CRI L.J 871; Laliteshwar Prasad Sahi Vs. Bateshwar Prasad Supreme Court 580; & others AIR 1966 Jagroop & another Vs. Rex AIR (39) 1952,

Allahabad 276; Kirtan Prasad Vs. State of Madhya Pradesh 2005 CRI. L.J 69 and Avadh Bihar Sharma Vs. State of M.P. AIR 1956 SC 738. Ld. defence counsel has further submitted that there is contradiction in the statement of PW1, PW2, PW3, PW4 and PW5 which was given in the court and their statement which was given to the police under Section 161 Cr.P.C and has relied upon judgment in Namdeo Daulata Dhayagude & others Vs. State of Maharashtra, AIR 1977 Supreme Court 381. Ld. Defence counsel has further submitted that PW6 Sameer Uppal, PW7 Sh. Vibhor Tyagi, PW8 PW11Sh. Ankur Garg, PW12 Sh. Suresh Chand Sharma, PW9 Sh. Amit Aggarwal, PW10 Sh. Nitin Khandelwal, Sh. Yogesh Mahajan, PW13 Mrs. Hardeep Anand, PW14 Dr. Anand Lakshman, PW15 Sh. Shobit Goel, PW16 Mr. Parag M. Nagarcenker are the passengers. They are independent witnesses in the present case. All the independent witnesses/passengers are saying that flight was normal. No independent witness has said anything against the accused. Accused did not threaten or talk to any of the independent witness/passenger. Most of the passenger's were sleeping thought out the flight. Some of the passenger's have said that accused was frequently moving in the aircraft. Ld. Defence counsel has further submitted that accused was
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frequently moving in the aircraft as he is a Manish has also said so. Ld. Defence counsel has

diabetic patient and

diabetic patients need to go to lavatory very frequently and PW22 Dr.

further

submitted

that

prosecution has examined PW30 Ripun Borah, Junior Executive ATC; PW 35 Malkeet Singh, Radar Controller ATC; PW36 Ms. Ritu Sharma, Deputy General Manager ATC and PW38 Mr. Vipin Gupta, Joint General Manager, ATM. Ld. Defence counsel has further submitted that in the present case, the captain PW4 Amit Singh did not conveyed the information regarding the possibility of hijacking to ATC but PW35 Malkeet Singh Sharma is the cockpit conversation is stated to be overheard by PW30 Ripun Borah. is Radar Controller ATC and PW36 Ms. Ritu Deputy General Manager, ATC. She is stated to be on

radar till the flight landed and was taken to isolated bay. PW38 Vipin Gupta is the Joint General Manager, ATM. He was not the controller. Ld. Defence counsel has further submitted that in the present case there is no evidential value of ATC. Whatever information is conveyed to ATC is based on the information given by PW4 Ms. Jyoti Chhetri Lead Cabin attendant, who is being given information from the aft. The captain is not giving his own assessment i.e what he saw, what he heard and what he perceived. Captain is saying, what he is being informed by the Lead. ATC comes into picture at fourth stage and ATC acted accordingly. Captain has given information to the ATC, which was being informed by the Lead and who was given information by the cabin crew. This evidence is no evidence under the Indian Evidence Act and has relied upon judgment in Sharad Birdhi Chand Sarda Vs. State of Maharashtra AIR 1984 Supreme Court 1622 ; Bhugdomal Gangaram & others etc Vs. The State of Gujarat AIR 1983 Supreme Court 906 and Subhash Harnarayanji Laddha Vs. State of Maharashtra (2006) 12 Supreme
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Court Cases 545. Ld. Defence counsel has further submitted that

prosecution has examined PW41 Pramod Kumar Mishra, General Manager ATM, PW 37 M.P. Arun Kumar Manager ATC, PW39 M.K Garg, Junior Executive ATC and PW40 Deep Kumar, Manager Communication, Airport Authority, pertaining to proving of tape transcript Ex PW37/A. As per prosecution version, the tape transcript was forwarded by PW PW41 Pramod Kumar Mishra, General Manager ATM on 12.3.2009. Ld. Defence counsel has further submitted that this witness only forwarded the tape transcript. Ld. Defence counsel has further submitted that in the present case, it is admitted fact that the ATC tapes were not seized and produced before the court till today. Spool of ATC, which is also a very vital piece of evidence, is also not seized. Seizure of the taps is must in the present case, as it is electronic evidence. Electronic evidence is very easy to alter. Ld. Defence counsel has further submitted that in the present case the tape is a very sensitive document and its custody, is must and has relied upon judgment in Ram Singh & Others Vs. Col. Ram Singh Devesh Kumar & Ors. Vs. J. Yashoda Vs. K. Shobha Rani (2007) 3 1985 (Supp) Supreme Court Cases 611; State 2010 (1) JCC 762; Supreme Court Cases (Cri) 9;

Hira H. Advani etc. Vs. State of

Maharashtra AIR 1971 Supreme Court 44; State Vs. Mohd. Afzal & Ors. 107 (2003) DLT 385; M/S V.S Lad & Sons Vs. State of Karnataka 2009 Cri.LJ 3760; All India Anna Dravida Munnetra Kazhagam Vs. L.K. Tripathi AIR 2009 Supreme Court 1314 and Chandrakant Ratilal Mehta & others Vs. The State of Maharashtra 1993 CRI, L.J 2863. Ld. Defence counsel has further submitted that Cockpit Voice Recorder is important as far as accidents and serious incidents are concerned. Cockpit Voice Recorder is a primary and vital piece of evidence. Decoding of Cockpit Voice Recorder is only done by Cockpit Voice Recorder experts. Ld. Defence counsel has further
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submitted that in the present case, Cockpit Voice Recorder has not been seized/sealed. Ld. Defence counsel has further submitted that the aircraft, which is containing the Cockpit Voice Recorder/black box, a vital piece of evidence, has also not been sealed/seized in the present case. Ld. Defence counsel has further submitted that PW 42 Anirudh Choudhary has exhibited the CD of Cockpit Voice Recorder. He is the manager/employee of Indigo and not a Cockpit Voice Recorder decoding expert. Ld. Defence counsel has further submitted that the version of the Cockpit Voice Recorder, which is placed on record, is not authentic as original Cockpit Voice Recorder is neither seized nor produced before the court and hence, Cockpit Voice Recorder is not proved on the court record. Ld. Defence counsel has further submitted that though the Cockpit Voice Recorder is not proved on record, but in the eventuality of looking into the evidence of Cockpit Voice Recorder, following facts be considered :1. Voice of accused is not there in Cockpit Voice Recorder. 2. Voice of complainant Ms. Neha Chhikara is not there in Cockpit Voice Recorder. 3. There is no identification of the voices in the transcript by its maker and also by PW4 Captain Amit Singh, PW5 Co-Pilot Punit Prasad and PW3 Lead Cabin Attendant Jyoti Chhetri saying that their voices are there. 4. The lead players in the cockpit have not heard the Cockpit Voice Recorder at the time of its making. 5. During trial also the Cockpit Voice Recorder was not put to lead players in the cockpit. 6. The recording was never done in the presence of captain, copilot and Lead cabin attendant. 7. Cockpit Voice Recorder is an incomplete document. 8. The pilot comes into picture, i.e something was communicated to the pilot by Lead, after 1 hour 25 minutes. Ld. Defence counsel has further submitted that accused has examined DW1 S.A. Dwarkanath. He is the passenger who was As per prosecution version, the passenger on 30E was but the witness has deposed in the said flight on the date of the incident and was sitting on seat No. 30 E. made unconscious by the accused

otherwise. DW2 Satender Kumar is the Ahlmad of the court of Ms.

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Joginderi JMIC, Gurgaon Haryana. DW3 Shri Sajjan Kumar is the DSP, State Vigilance Bureau, Rohtak and DW4 Dr. Sandeep Govil is a Practicing Psychiatrist. Ld. Defence counsel has further submitted that accused was concerned with the safety of flight and passenger's on board including himself. Ld. Defence counsel has further submitted that with regard to incompetency and inefficiency of the crew members the admitted facts are as under : 1. Mobile phones were used on board as stated by prosecution witness, PW13 Mrs. Hardeep Anand. 2. Passenger's were changing seats and moving in the aircraft when plane is taxing and seat belt signs were on. 3. Passenger's/Prosecution witnesses were sleeping on emergency seats. 4. Supplementary loop was not given to child/infant on board. Ld. Defence counsel has further submitted that as per ICAO pilot can apprehend the person or take the help of other persons to apprehend the person, who pose risk to the safety of the aircraft and also any cabin attendant/passenger can take preventive measures without the commander's authorization. Ld. Defence counsel has risk so the further submitted that in the said flight nobody was at

pilot did not press the transponder. Commander, who is final authority, did not press the transponder as he did not assess any risk to the flight. Ld. Defence counsel has further submitted that there was no 232. Ld. Defence counsel has further submitted that after going through the complete record, the points/facts which emerges are :1. Accused never spoke or attempted to spoke with the captain during the flight. 2. All operations were normal during the flight. 3. Captain was in control of the flight. 4. Accused never approached or attempted to approach the
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violence on board in the present case and has relied upon

judgment in case Sunder Singh & Ors. Vs. State AIR 1955 Allahabad

cockpit. 5. Captain did not press transponder 7500 code while in the air. 6. Captain did not press transponder code 7700 (situation is very grave) while in air. 7. Captain is maintaining the same assigned squawck through out the flight. 8. Nothing has been recovered at the instance of the accused or from his person. 9. He was not accompanied with any hand baggage/cabin luggage. 10.There is no violence on board. Accused has not touched and mishandled anyone. 11.There is no injury to anyone hence there is no MLC of anybody except the accused. 12.There is no deviation of flight from its scheduled route i.e from Goa to Delhi. Ld. Defence counsel has further submitted that

ingredients of Section 3 (1) (d) and 3 (2) of Suppression of unlawful Act against the Safety of Civil Aviation Act 1982 and 3 (2) & 4 under Anti Hijacking Act 1982 are not proved on the record. Ld. Defence counsel has further submitted that in the present case what actual words accused has spoken, have not been proved by the prosecution. Ld. Defence counsel has further submitted that accused was one of the sixteen suspects and only he was sent for trial. Ld. defence counsel has further submitted that the act done by the accused was done in good faith and not to jeopardize the safety of the aircraft as well as passengers and has relied upon judgment in Brijendra Singh Vs. State of U.P. and others AIR 1981 Supreme Court 636 and her this submission is further strengthen by Ex PW45/D/X/DY1, which is the Incident report prepared by Sh. B.S prays that the accused be

Tiwari, RDCOS BCAS on 1.2.2009 and

acquitted from the charges framed against him. 9. On the other hand, Ld Designated PP on behalf of the

State has submitted that the prosecution has examined forty seven witnesses. Complainant Neha Chhikara, maker of the FIR, could not be examined as she expired, before her examination in court.
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Ld.

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Designated PP has further submitted that on 1.2.2009, Neha Chhikara was on board i.e Flight No. 6E334, as R2 while coming from Goa to Delhi. The flight No. 6E334 was coming from Goa to Delhi. There were four cabin crew members i.e Neha Chhikara, Anchal Mehta, Jyoti Chhetri and Neha Gogia and two cockpit crew i.e Captain Amit Singh and Co-pilot Punit Prasad. The said flight was carrying 161 passengers including the accused Jitender Mohla. 17.13 hours. Ld. Designated PP has further submitted that after the closing of doors of the aircraft when the aircraft took off from Goa the accused Jitender Mohla impersonated himself to be DGCA official and Sky Marshal and intimidated the cabin crew about making of complaint against them to DGCA and threatened Neha Chhikara cabin crew, other cabin crew members and also the passengers on board by saying that he is carrying gun and some infected needles for that he has already made on seat No. 30E. infecting and cutting throat and claimed The flight took off from Goa at 15.12 hours and touched down at Delhi at

one passenger unconscious who was sitting

Accused Jitender Mohla further threatened to Neha Chhikara that he is one of the hijacker of Kandahar hijacking case and he is a Muslim and know how to kill people associates shortly aircraft, if on board and there are two other with him on board who will take charge of the aircraft they hijack and committed offence under Section

and sought help from Neha Chhikara, for hijacking the

336/503/506/170 IPC, 3 (1) (d) and 3 (2) of Suppression of unlawful Act against the Safety of Civil Aviation Act 1982 and 3 (2) & 4 under Anti Hijacking Act 1982. Ld. Designated PP has further submitted that the

prosecution has examined all the relevant witnesses except the complainant Neha Chhikara. Cabin Crew members i.e PW1 Anchal Mehta, PW2 Neha Gogia, PW3 Jyoti Chhetri are the direct witnesses
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to the incident. The factum of the incident was brought to the notice of the Lead Cabin attendant PW3 Jyoti Chhetri, who too is witness to the incident and reported the matter to commander of the aircraft Amit Singh PW4 and Punit Prasad PW5 in the cockpit. Commander Amit Singh after taking the discrete frequency, communicated the information, given by the Lead, to the ATC Delhi, who treated the flight as hijacked. The pilot Amit Singh has been examined as PW4 and co-pilot Punit Prasad has been examined as PW5. board and who are witness to the said incident. Ld. Designated PP has further submitted that Prosecution has also examined material eleven passenger witnesses, who were on

communication so made to ATC by Amit Singh, Captain of the flight, was collected from the records available at the concerned offices and they are log book entries Ex PW 30/A, Ex PW35/A, and Ex PW38/A ; tape transcript Ex PW 37/A and transcript of cockpit voice recorder Ex PW 42/A and Ex PW 42/B. Ld. Designated PP has further submitted that accused during the statement under Section 313 Cr.P.C has admitted that he has stated that he was a DGCA Official and he shall report the authorities for the laps on the part of the cabin crew. Ld. Designated PP has further submitted that plea of the accused that he has so stated in good faith is not correct. The definition given in Section 52 of good faith in IPC is not equivalent to Section 3(22) of General Clause Act. The onus to prove that accused has stated so, in good faith, lies upon the accused and the accused did not prefer himself to examine as defence witness nor lead any evidence on this point. Ld. Designated PP has further submitted that the and

statement of all the witnesses and

material documents

on record

proves the case of the prosecution beyond reasonable doubt accused be convicted accordingly as per law.
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10.

Thus, from the above submission of the respective parties, (i) Whether the prosecution has been able to prove its case against the accused beyond reasonable doubt, if so, its effect? (ii) Final order. the reasons Yes. to be recorded hereinafter, while

following points arises for determination in this case:

11.

For

discussing the points for determination, my findings are as under: Point No.1 : Final Order: Accused Jitender Mohla is convicted as per the operative part of the judgment. REASONS FOR FINDINGS 12. sixty The case of the prosecution is that accused along with one passengers, six crew members i.e two in cockpit and four in

cabin, were on board, in Indigo flight No. 6E334, which took off from Goa at 15.12 hours on 1.2.2009 and was coming to Delhi. The accused Jitender Mohla, while on board on 1.2.2009 and impersonated himself to be a DGCA Official, Sky Marshal

intimidated the cabin crew about making complaint against them to DGCA. Accused further, while on board, endangered the human life and personal safety of the passenger and crew members, by moving frequently in the cabin and directing other passengers to fasten the seat belt and directing the passenger sitting on seat No. 8C who was carrying a two months old infant in his lap, to fasten his seat belt covering the infant, even after the announcement was made to fasten the seat belt. Accused further threatened Neha Chhikara cabin crew at rear, while on board that he is carrying a gun and some infected needles for infecting and cutting throat and claimed that the passenger sitting on seat No. 30 E had been made unconscious by

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him. He further moved his hands towards Neha Chhikara, explaining the procedure to press a particular nerve to make anyone unconscious within no time. He further threatened Neha Chhikara by putting one hand in his pocket raising doubt of concealing something and by saying that does she remember killing of one passenger in Kandahar hijacking case and associates that he was involved in Kandahar hijacking other take charge of the incident and know how to kill people and there are two with him in the aircraft who will

aircraft shortly and further sought support from Neha Chhikara for hijacking the aircraft, if they hijack. Accused threatened Neha Chhikara and Cabin Crew at the rear with injury to their person, with intend to cause alarm by unlawfully and intentionally communicating such information which he knew to be false and endangered the safety of the aircraft in the said flight and further he intended to exercise control of the aircraft in flight. The said information, after receiving by the Lead Jyoti Chhetri PW3 from the crew members, was communicated to the Captain Amit Singh PW4 in the cockpit and accordingly Captain Amit Singh after taking the discrete frequency on board, communicated to ATC at Delhi, who treated the aircraft to be in hijack situation and the aircraft was landed in emergency at Delhi airport at 17.13 hours and was taken to isolated bay. It has been held by their Lordship Hon'ble Justice V.R Krishna Iyer, P Jagan Mohan Reddy and H.R. Khanna in Shivaji

Sahebrao Bobade & Anr Vs. State of Maharashtra, AIR 1973 SC 2622 and has observed as under :The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but on innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will breakdown and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as
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a learned author (1) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'person' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say' with Viscount Simon, that a miscarriage of justice may arise from the acquittal of the , guilty no less than from the conviction of the innocent....' In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic.

It has been further held in Inder Singh and anothers Vs. State of

Delhi Administration, AIR

1978 SC page 1091, wherein

the

Hon'ble Supreme of India has observed as under:Credibility of testimony, oral circumstantial depends considerably on a judicial evaluation or the totality, not isolated scrutiny. While it is necessary that proof beyond reasonableness doubt should be adduced in all criminal cases. It is not necessary that it should be perfect, if a case is proved too perfectly, it is argued that it is artificial, if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool proof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic.

13. Ocular Evidence of Cabin Crew (i) Prosecution in order to prove its case has examined

Anchal Mehta as PW1. Complainant Neha Chhikara died before her examination in the court. PW1 Anchal Mehta has deposed that she was one of the crew member/cabin attendant operating in Indigo flight No. 6E334, from Goa to Delhi on 1.2.2009. She was on duty in the aircraft. When she was coming back to her seat, after checking, accused told her that he is a DGCA Official. He would make report that the passengers are moving in the aircraft while the aircraft is taxing. She told him that they will get back to him after takeoff as
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the flight was about to takeoff. She further deposed that when she was in aft i.e back side galley of the plane, accused said that he was in Kandahar hijacking and thereafter, he spoke about some infected needles and Neha informed about the incident to the Lead and they informed the cockpit crew. There was a slight disturbance and they landed at Delhi and National Security Guard were around the plane. After the checking, they were taken to airport police station and her statement Ex PW 1/A was recorded at the police station. This witness was declared hostile at the request of Ld. Designated PP pertaining to recording of her statement by Inspector Raj Kumar and subsequently by S.K Bhatanagar. Her statement Mark A' and Mark B' was given to Inspector Raj Kumar and S.K.Bhatanagar. During the cross-examination, she has stated that joined Indigo Airlines on 3.12.2007 and she resigned 5.10.2009 and out of she from Indigo

airlines on 17.3.2010. She has further stated that she got married on the six crew members, none attended her marriage. She has further stated that on 1.2.2009 the crew members who were flying with her were Lead Ms. Jyoti Chhetri, R1 i.e next to the Lead was Ms. Neha Gogia, at the back R2 was Ms. Neha Chhikara, and she was L2. Mr. Amit was the Captain and Mr. Punit was the the First Officer. She stated that R1 is responsible for row 1 to 11, R2 is responsible for row 12 to 22 and L2 is responsible for row 22 to 30. She further stated that on 1.2.2009 her duty position was L2 and she was responsible for row 22 to 30. She further stated that she did not talk to any Indigo Officer on phone after her arrival in Delhi to take instructions from them. On 1.2.2009, the flight duration from Goa to Delhi was around two hours. All the cabin attendants crossed checked the cabin in their respective zones. There were thirty rows in the aircraft of Indigo Airlines on 1.2.2009 from Goa to Delhi and there were more than 150 passengers on the said flight. Some passengers from row 30 changed their seats and sat down on overwing exit seats in row 12 and 13 on 1.2.2009 as Neha Chhikara told said fact to her. The changing of seats by passengers, did not happen in her presence.
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Ms. Neha Chhikara had briefed those passengers who had changed their seats as it was part of her duties. She saw the accused for the first time on the flight from Goa to Delhi on 1.2.2009 when he told her that he is from DGCA and he will make a report and that is the first time when she came across him. Accused was seated on seat 16D which was aisle seat. Row 16 comes under R2's responsibility zone. Neha Chhikara went up to the accused. The incident did not take place in her presence. She informed the Lead about the said incident before taking her seat for take off. She also informed the Lead that there is a passenger who is claiming himself to be a DGCA official. She admitted that when the plane landed and the doors did not open for a period of 4-5 hours, the passengers started getting restive and they were inquiring from the cabin attendants what is the reason and why the doors were not being open for them to come out. She further admitted that she went to the front galley as the on passengers were very restless. She has further admitted that

1.2.2009 she was responsible for row 22 to 30 in the aircraft while flying from Goa to Delhi. She also admitted that it is mandatory for the cabin attendants and passengers to be on their seats before takeoff of the flight. She further clarified during the cross-examination that Neha Chhikara was very upset due to the things said by the accused and she went to front galley and Neha Gogia was sent to aft because she was feeling bad seeing Neha Chhikara. She further said that the accused came to the aft galley and showed her a pen and asked her to identify the same to which she said that this is a pen. On this the accused said that what if someone kills using this pen. She further stated that she did not tell this fact to the police as the same has nothing to do with the flight but the accused sacred her in the flight by saying the same. She was carrying her mobile on 1.2.2009. PW1 Anchal Mehta is the witness to the incident and her presence on duty, in the aircraft has not been disputed by the accused during the cross-examination. There is no cross-examination on the side of
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the accused that her statement is based on enmity.

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There is no cross-examination that she has made the statement due to the closeness of Neha Chhikara or any other crew members. She has seen the accused in the Indigo flight No. 6E334 and talked to the accused and heard the talks between the accused and Neha Chhikara and she has identified the accused in the court. The contention of Ld. Defence counsel that PW1 is a hostile witness and her statement, made before the court, could not be relied upon, does not seems to be forceful in the facts and circumstances of the present case. PW1 Anchal Mehta has supported the version of the prosecution and only showed her ignorance about her statements given before IO Inspector Raj Kumar and Sh. S.K Bhatnagar Mark A' and Mark B'. The said statements Mark A' and Mark B' is not preferred to be cross-examined by the accused, during the cross-examination. Therefore, her statement cannot be rejected merely on the ground that she has been declared hostile. It has been so held by Hon'ble Supreme Court of India in Radha Mohan

Singh @ Lal Saheb & Ors Vs. State of U.P. with Kaushal Kishore Singh and Anr. Vs. State of U.P. 2006 Cri. L.J 1121 and State Tr PS Lodhi Colony New Delhi Vs. Sanjeev Nanda in Crl. Appeal No. 1168/2012 arising out of SLP (Crl) No. 3292 of 2010.
The contention of Ld. Defence counsel that PW1 Anchal Mehta is infirm witness is also not convincing. PW1 Anchal Mehta has specifically stated that she joined Indigo Airlines on 3.12.2007 and subsequently, she remained on duty till she resigned on 17.3.2010 from Indigo Airlines. There is no suggestion put to PW1 on behalf of accused that on the date of the incident she was infirm and she was not medically fit to be on duty on 1.2.2009. Rather, the accused has put suggestion to the witness that she was on duty on 1.2.2009 and she was responsible for row 22 to 30 in the aircraft. The said suggestion is reproduced as under :Question: Answer: Is it correct that on 1.2.2009, your were responsible for rows 22 to 30 in the aircraft, while flying from Goa to Delhi ? Yes.

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(ii)

Prosecution has examination Neha Gogia as PW2, who has

stated that she was on duty on 1.2.2009 on Indigo Flight 6E334, from Goa to Delhi. Her position was R1 and complainant Neha Chhikara was R2. After closing the doors of the aircraft, she was to give demonstration at the first row and Neha Chhikara was to given demonstration at the twelfth row. After completing the service to the captain she and Jyoti Chhetri brought the cart in the cabin and started service and saw accused Jitender Mohla seated on 12C. He was having a word with Jyoti Chhetri, which she could not hear as she was busy in service to the passengers. After completing the service, while they were going back to forward galley, Jyoti Chhetri told her about what she had interaction with Jitender Mohla, who was saying that he is a hijacker. He is accompanied with two more passengers carrying arms and needles along with him and planning to hijack. After hearing this, Jyoti Chhetri informed the Captain about the same. Captain switched on the seat belt sign and instructed to secure the cabin as they have to prepared for landing and make everyone sit. She further stated that accused Jitender Mohla was instructing all the passengers to fasten their seat belt. She told him to go back to his seat and to fasten his seat belt and let her do her job as other passengers were annoyed as to who is he to instruct them. Accused Jitender Mohla got up from his seat and rushed to aft galley. Neha Chhikara made announcement asking passenger to be seated. Accused Jitender Mohla continued to walk in the aft and reached to the aft galley. She asked Jitender Mohla as to why he is rushing in the aft galley again and again. He told her that he want to use the lavatory. After the passenger came out of seat. The aircraft landed the lavatory, Jitender Mohla used lavatory and thereafter, she told him to go back to his at Delhi and was taken to remote bay. NSG commandos and Sniffer dogs continued their work of frisking and checking the cabin. Later, they all were taken to the police station in front of the arrival hall. During her cross-examination, she has stated that she is
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graduate. She joined Indigo Airlines on 1st June 2007. She completed her schooling in the year 2005 from Ramjas School, Pusa Road from Arts Stream. On 1.2.2009, her area of responsibility was from row 1 to 11. She does not remember the exact time when the flight from Goa to Delhi took off but as far as she recalls it was around 3.45 pm. She does not remember exact number of passengers who were in the said flight. Anchal Mehta was L2 and was responsible from row 22 to 30. R1, R2 and L2 are required to do the demonstration. All the three crew members do the demonstration simultaneously, in the cabin. It was the first flight which she did with Neha Chhikara on 1.2.2009 from Delhi and Goa and Goa to Delhi. It was the first time on As per her She 1.2.2009, when she met Neha Chhikara in the office briefing, before flight. Prior to it, she did not meet Neha Chhikara. conversation, later she talking about her husband she believe that she about her parental house. outside the court. thought that she was married. As she was was married.

does not have any personal relation with her as she did not know Mr. Bhatnagar met her on 26.8.2010 She has denied to the suggestion that she is

deposing falsely under the pressure of Indigo Company as she is still in the service. She has denied to the suggestion that accused was perturbed on the inefficiency of cabin attendant to maintain discipline in the cabin as it was endangering the safety and security of the aircraft and he had no option but to say that he is a DGCA official. She further denied to the suggestion that accused did not do any illegal act or spoke any word to endanger either the safety of the passengers or the aircraft. PW2 Neha Gogia, is the witness to the incident. There is no allegation of false deposition on the ground of enmity with the accused or with Neha Chhikara or Anchal Mehta. She has identified the accused and saw him talking with Neha Chhikara but she could not hear what exactly the word of exchange taken place between Neha Chhikara and the accused. Her statement to the extent of that she is being told by Neha Chhikara, that accused is saying that he is
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a hijacker and further that he is accompanied with two more passengers carrying arms and needles along with him and planning to hijack, is hearsay evidence. (iii) Prosecution has further examined Jyoti Chhetri, Lead

Cabin Attendant as PW3, who has stated that on 1.2.2009, while she was on flight duty, as Lead Cabin Attendant from Goa to Delhi, her crew Anchal Mehta called her and told her that there was a passenger who was claiming to be DGCA Official and he was irritated about something but Anchal Mehta did not tell her what was that. Then she told Anchal Mehta that they will talk about it after take off as they were ready to take off. After take off, she did not notice much. When she went to the aft to get something from there she saw accused Jitender she asked Mohla talking to the crew but she does not

remember, whether she was Anchal Mehta or Neha Chhikara. Then, the accused Jitender Mohla whether he want anything. that he wanted a glass of water. Then, she Then accused told her

went to the forward. Thereafter, Neha came to her at the forward and told her that accused Jitender Mohla is threatening her and is saying that he is carrying some weapons and some needles and he said that he can slit the throat and he will also hijack the aircraft. After that she went to the cockpit and communicated to the captain and the captain informed the ATC. During the cross-examination, she has stated that she joined Indigo Airlines, in December 2007 as a Lead Cabin Attendant and she left the Indigo Airlines in the month of May 2010. She further stated that after door was closed, announcement was made by her regarding the non usage of mobile phones during the flight on 1.2.2009 from Goa to Delhi. There were 161 passengers on flight from Goa to Delhi on 1.2.2009. She did not meet anybody from Indigo Airlines, before coming to court. The contention of the Ld. Defence counsel that statement of PW3 Jyoti Chhetri Lead Cabin Attendant is hearsay, does not
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seems to be correct in toto as she is the witness to the incident and was working as cabin attendant. During the cross-examination, no suggestion is put to the witness that she is inimical to the accused or accused knows her prior to the date of incident. 14. Occular Evidence of Cockpit Crew (i) The prosecution has further examined Amit Singh pilot in

command as PW4, who has stated that on 1.2.2009 he was operating on Indigo flight 6E334 from Goa to Delhi as pilot. He stated that the incident happened on 1.2.2009 on Indigo Flight, 6E 334 from Goa to Delhi. Soon after takeoff from Goa, he was informed by the Lead cabin attendant Ms. Jyoti Chhetri that there is a DGCA person on board and he is objecting to a passenger who had moved from his seat and sat on the overwing seat. A little while later, there was some turbulence and he put the seat belt signs on. The Lead again came in the cockpit and informed him that the DGCA person is objecting to the portable electronic device sign not been put on during turbulence. When they were close to Mumbai during cruise, the Lead again came to the cockpit and informed him that the person who was claiming to be from DGCA, is now saying that he is a Sky Marshal and he has pins and infected needles which can put a person to sleep. Close to Delhi, the Lead again came to him and said that the said person is now saying that there is a threat to this aircraft and there are hijackers on the board. He further stated that later the Lead further told him that now the person claims that he has a weapon and he knows how to kill and if the crew will assist him in the hijacking. He put the seat belt sign on and made an announcement for all passengers to sit down immediately. He contacted the Air Traffic Control and asked for discrete frequency, which was alloted to him. On this frequency, he told Air Traffic Control that there is a person who first claims to be from DGCA, then a Sky Marshal and thereafter, a hijacker and that there is a threat to the aircraft. Since, the person claimed to be in
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possession of a weapon and that there was threat to the aircraft, he asked for priority landing. The ATC informed him that they are treating as a hijack. Soon the security forces came in and after a while took the charge of the aircraft and all the passengers were deboarded under supervision of NSG. They were then taken to the Palam police station wherein, they were asked about the incident. During the cross-examination, he has stated that he joined Indigo as a pilot on 27th June 2006. He was working as a pilot with Indian Airlines prior to joining Indigo. He further stated that on 1.2.2009, the Indigo flight No. 6E334 took off from Goa at around 15:30 hours. The duration of the flight was approximately two hours and the flight landed at Delhi Airport at around 17:30 hours. He further admitted that the alleged incident on 1.2.2009, on the flight from Goa to Delhi was communicated to him through Lead cabin attendant. The doors remained closed till about two hours, after flight landed at Delhi Airport. He was in control of the aircraft, during the flight. He came out of the plane close to 21:00 hours. During period from 17:30 to 21:00 hours he was in touch with his company. On 1.2.2009, approximately, at 16:30 hours, during cruise. he was close to Mumbai He further admitted that Mumbai is the closest Approximately at 17:10

suitable airport to Goa while flying from Goa to Delhi, as per the scheduled route of the flight on 1.2.2009. hours, he was over Jaipur. On 1.2.2009, the flight took approximately twenty minutes from Jaipur to Delhi. He further admitted that on 1.2.2009, the aircraft landed at Delhi airport close to its scheduled time. On 1.2.2009, about 163 passengers were on scheduled Indigo flight from Goa to Delhi. knowledge He further admitted that he had no that any Sky Marshal was on board on 1.2.2009 from Goa

to Delhi. He was not informed of any Sky Marshal flying on board. The aircraft from Goa to Delhi, on 1.2.2009 was equipped with the Portable Electronic Device System. The pilot flying did switch on the CVR during cockpit preparation, prior to departure of the flight on 1.2.2009. He was the captain of the flight on 1.2.2009. He denied to
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the suggestion that the cockpit voice recorder system was not switched on, on 1.2.2009. The co-pilot was the pilot flying at the time of taxing for the purpose of take off on 1.2.2009. He has admitted that in case of hijack the captain will activate the transponder code 7500, but in case of unlawful interference it may depend on the severity. He denied to the suggestion that in case of every unlawful interference irrespective of its severity the transponder will be pressed to code 7500 by the commander/captain. He further admitted that all the operations of the flight, from Goa to Delhi, on 1.2.2009 were normal. He asked for discrete frequency. He admitted that as per the security and DGCA rules, the captain is the final authority to make an assessment of the circumstances prevailing in the flight. He authorized the cabin attendant to check for the credentials of the passenger claiming to be a DGCA person and then Sky Marshal at approximately 16:45 hours. At around 17:00 hours, he was given some more information about the passenger, after which the Lead told him that she had not checked the credentials of the person involved and whether he still want the credentials to be checked. He further submitted that at 16:45 hours he authorized the Lead cabin attendant to check the credentials of a person claiming to have pins and infected needles which can put a person to sleep but the Lead did not check the same and she told him this fact when she came in the cockpit at around 17:00 hours to give him some additional information and further asked whether now she can check the credentials. He asked for discrete frequency at around 17:10 hours. At around 17:00 hours the Lead informed him that there is threat to the aircraft. He was given information about the alleged incident by the Lead after take off from Goa and thereafter periodically. At 16:40 hours, when the aircraft had crossed Mumbai enroute to Delhi, he got a bit of information from the Lead. He took controls of the aircraft during the period when the co-pilot left the cockpit to visit the lavatory. Secondly, after the threat to the aircraft was communicated to him by the Lead Cabin Attendant till the end of the episode, he was at the
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controls of the aircraft. Co-pilot was assisting him as pilot not flying. He took the charge of the control, during the flight from Goa to Delhi at 16:40 hours when the co-pilot left the cockpit to visit the lavatory and then at 17:10 hours till the end of the flight. He further denied to the suggestion that there is a procedure for issuance of warning letter by the captain, if informed about the unruly passenger flying on the board. He further denied to the suggestion that he has deposed falsely at the instance of the Indigo Airlines and Investigating Officer of the case. PW4 Captain Amit Singh is the material witness who was controlling the aircraft as pilot in command. Accused during the as pilot in cross-examination did not dispute him to be working

command in the Indigo flight on 1.2.2009. Accused did not put any allegation against the present PW Amit Singh that his statement is based on enmity. The contention of Ld. Defence counsel, that the captain Amit Singh did not press the transponder and informed the ATC at any stage, during the flight, because the flight was normal and there was no threat to the flight, is not convincing. PW4 Captain Amit Singh, has specifically clarified during the cross-examination that in the event of hijacking the captain will activate the transponder code 7500, but in case of unlawful interference it may depend on the severity. In the present case, PW4 Amit Singh has clarified that he was in the control of the flight. His statement shows that when he received the information from the Lead, about the presence and that of a the person who claims to be DGCA person, Sky Marshal said person is having pins

and infected needles which can put a

person to sleep and further extending threat to aircraft that there are hijackers on board and that he knows how to kill and if crew will assist them in hijacking, he asked for discrete frequency from the ATC and ATC gave discrete frequency and on the basis of the discrete frequency, ATC overheard the talks between the pilot and the crew i.e Lead Cabin attendant and the ATC treated the plane as hijack. The contention of Ld. Defence counsel
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that the captain

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Amit Singh did not contact ATC Mumbai, ATC Jaipur and ATC Udaipur etc regarding the presence of hijackers on board till Delhi, which otherwise means that the flight was normal, does not seems to be correct as he specifically stated that the information regarding the presence of hijackers on board was given to him by the Lead when the aircraft was close to Delhi. The accused during the crossexamination also did not put any suggestion to Captain Amit Singh PW4 that aircraft while flying over Mumbai, Jaipur and Udaipur was flying so low and was in touch with direct connectivity with the respective ATC's. (ii) Prosecution has further examined PW5 Punit Prasad, who around

has stated that he was operating in Indigo Flight 6E334 from Goa to Delhi on 1.2.2009 as co-pilot. After take off from Goa, at 10,000 feet, when they switched off seat belt signs, the Lead came to the cockpit and said there was a passenger who claimed to be DGCA official and was shouting at another passenger who changed his seat to emergency exit when the aircraft was taxing. The said passenger was then shouting at the Lead as to how could she let the passenger change the seat when the aircraft was taxing. Then the Lead went out of the cockpit. When there was little turbulence around 15,000 to 20,000 feet, and they switched on the turbulence sign, the Lead called them and told that a passenger is shouting at the Lead that why is the PED sign not on and that he will complain and get her fired. After some time, the Lead called them again saying that the passenger is now claiming to be Sky Marshal and that he is saying that there are two more Sky Marshals on the board and they asked from the Lead who are they. Then Lead replied that there was a passenger on seat 30 echo who was little rude to the crew while the crew was serving the passenger. She further stated that the said passenger went and started shouting on the passengers after which he went to the crew and told her that he is having needles which can incapacitate the people and
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put him to sleep and the said passenger

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will not get up. The said passenger also told the crew that he is a Muslim and he had something to do with Kandhar hijacking and if they get support from the crew. The said passenger also told crew that he has knives and he know how to kill people. Somewhere around Jaipur, the crew told them all this. They switched on the seat belt sign so that no one moves around in the cockpit and told the crew that the cockpit doors will not be opened for her to come in and whatever she had to say would be over the interphone. The crew then told them that accused was moving around the cabin telling passengers to take their seats. During decent the crew told them that he is saying that he is a hijacker and there is another hijacker with him on board and something is going to happen to this aircraft very soon. They informed the ATC of what Lead informed them of what accused Jitender Mohla was telling to her and they thought it is a case of his sanity. Delhi ATC then told them that they are treating this as a hijack case. The flight was landed at Delhi and taken to isolated bay and they shut down the engines and aircraft was surrounded by CISF persons and NSG. It took about 2 hours to open the doors of the aircraft. During the cross-examination he stated that he joined the Indigo Airlines on 3.11.2008. He was the pilot flying on 1.2.2009. The flight took off from Goa at around 3.30, which was its scheduled time. The route from Goa to Delhi was Goa, Mumbai, Udaipur, Jaipur and Delhi. The maximum hight the aircraft flew on that sector was 33,000 feet. He does not remember where they reached their top of flight. That information would be on the Flight Data Recorder. He does not recollect the exact number of times the Lead Cabin Attendant had to be entered the cockpit during the flight from Goa to Delhi. He denied that the Lead entered the cockpit only once when he relieved to go to the lavatory. The flight landed at New Delhi Airport at around 5.30 pm on 1.2.2009. The flight time from Goa to Delhi was around 2 hours. Around 163 passengers were flying on 1.2.2009 in flight no. 6E334 from Goa to Delhi. All the information is based on the
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information being passed over to him by Lead Cabin Attendant as he did not go out of the cockpit other than going to the lavatory and later the cockpit was locked down after Lead informed them that there was threat to the flight. As per his knowledge, Lead was passing the information to the cockpit, which was given to her by the aft crew. He denied to the suggestion that suggestion that nothing was told by the Lead to the He further denied to the cockpit crew and he has deposed falsely.

accused is falsely implicated at the behest of his

employer and also by investigating agency. He further denied to the suggestion that no such incident took place in the flight on 1.2.2009 from Goa to Delhi, which could jeopardize the safety and security of the passengers and the aircraft. He further denied to the suggestion that there was no threat to the aircraft. He further denied to the suggestion that the cabin attendants have fixed the accused, as aft crew was scared of an adverse report and of losing their jobs when the accused told to them that he is a DGCA officer and he will report. PW5 Punit Prasad is pilot flying on 1.2.2009 and is material witness to the incident. He has deposed what the Lead has told them in the cockpit or communicated by Lead in the cockpit. 15. In the present case, complainant Neha Chhikara has not

been examined as she is stated to be died before her examination. Statement of Neha Chhikara Ex PW45/A, the basis of the FIR Ex PW 43/B is reproduced as under :I am working as a cabin attendant in Indigo airlines since September 2007. Today, I was operating at flight No. 6E334. The flight departed from Goa at 15.15 hours. Just before take off my colleague Ms. Anchal Mehta informed me that there is a passenger who claims to be a DGCA official and he is preparing a report against the crew members. After the take off, I went to the passenger whose name was later known as Jitender Mohla, who was sitting at the seat No. 16D but was frequently changing his seat and moving in the aircraft. I tried to convince and calm him but he was arrogant shouting and misbehaving with co-passengers and crew members. During the course of flight the said passenger Jitender came to the rear and told me and my colleague Ms. Anchal that he is carrying a gun and some infected needles which can be used for infection and to cut the throat. He also told that he was involved in Kandhar hijacking and soon he along with his associates going to hijack the aircraft. He came forward
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and moved his hands towards my neck to show me the point which he can press to make a person unconscious. I moved backwards and got scared. Keeping in mind the safety hazards and security of the passengers, I went to the front and informed Ms. Jyoti Chhetri about it. Subsequently, she informed the crew members in the cockpit. Safety procedure of lock down of cockpit was adopted. Later the aircraft landed at New Delhi in emergency. Kindly take appropriate legal action against Jitender Mohla.

The FIR Ex PW 43/B is not a substantive piece of evidence in the present case for want of statement of complainant Neha Chhikara. However, its importance cannot be brushed aside merely on the ground of non examination of the complainant Neha Chhikara particularly in the presence of the statement of PW1 Anchal Mehta and other circumstantial evidence. It has been so held by Hon'ble High Court of Delhi in case Ramchander Vs. State (Govt of NCT of

Delhi) 2009 CRI L.J 4058.

16. Occular Evidence from ATC (i) Prosecution has examined Ripun Borah, Junior Executive

ATC, as PW30, who has stated that on 1.2.2009, he was working as Area Planning Controller in Delhi area west sector. He was on duty from 1123 UTC to 1240 UTC and he monitored Indigo Flight 6E334 who requested for priority landing and security assistance due to some unruly passenger on board. He overheard the conversation which indicted possibility of hijack and Indigo Flight 6E334 was changed over to 119.3 MHz. He reduced down the said information into writing which is Ex PW30/A, in log book and bears his signatures at point B', C' and D. (ii) Prosecution has examined Malkeet Singh, Radar

Controller as PW35, who has stated that on 1.2.2009 he was working as Radar Controller in area West at IGI Airport. He proved log entry Ex PW 35/A in log book which bears his signatures at point B'. The log entry Ex PW 35/A is reproduced as under : 1132 (UTC) 1GO 334 VAGO VIDP reported unruly passenger on
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board and requested priority and security personnels to attend the acft. Infd all concerned. 1139 (UTC) IGO 334 requested discrete frequency and was released to 119.3 mhz in cood with WSO. All concerned informed. (Cockpit conversation regarding suspected hijack was overheard on 124.55). 1101 (UTC) Took over watch. 1225 (UTC) Handed over watch.

Accused during the cross-examination did not put any suggestion that the log entry Ex PW 35/A is not in his hand and same does not bears his signatures. The log entry Ex PW35/A shows that PW35 Malkeet Singh was on duty on the aforesaid date and time and he made entry in the log book and his entry in log book that Indigo Flight 6E334 reported to be having an unruly passenger on board and pilot in command requested for priority and security personnels to attend aircraft and request for discrete frequency and which was released to 119.3 MHz in coordination with WSO, is material evidence on record against the accused as the entry is done in due course of official duty of PW35 Malkeet Singh, particularly when there is no suggestion on behalf of the accused that the entry Ex PW35/A is otherwise. (iii) Prosecution has further examined PW 36 Ritu Sharma,

Deputy General Manager ATC, IGI Airport. She has stated that on 1.2.2009, she was on duty from 1.30 IST and 0800 UTC. At 1140 UTC her Watch Supervisory Officer (WSO) Mr. Vipin Gupta instructed her to open a discrete frequency to handle the flight IGO 334. The flight was to be given priority landing. On radar the flight was provided separation with the other landing and departing traffic and on priority assisted to make a safe landing and taxing upto the bay. During the cross-examination she has admitted that the flight IGO 334 made a safe landing. She has further admitted to the suggestion that captain in command was in constant touch with ATC through out the flight 334. (iv)
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Prosecution has further examined Vipin Gupta, Joint

Page 43/90

General Manager ATM as PW38. He has stated that he was the Watch Supervisor Officer of the shift in which the incident took place. He further stated that he was informed about the incident which had taken place on the Indigo Flight 6E334, by the area west controller. He was maintaining a log book in which he made log entry Ex PW38/A running into three pages, during his duty hours, with regard to the incident. During his cross-examination he admitted that all the entries in the log book, during his watch from 0810 (UTC) to 1422 (UTC) on 1.2.2009, are in his handwriting. 17. Occular Evidence of Tape Transcript Prosecution has examined M.P. Arun Kumar Manager ATC as PW37, M.K Garg Junior Executive ATC as PW39 and Deep Kumar Manager Communication Airport Authority of India as PW40, who have prepared the tape transcript. It is stated that after the incident, the department formed a committee, consisting M.P Arun Kumar, M.K Garg and Deep Kumar, to prepare the tape transcript. The tape was stated to have replayed in concerned technical section where the recorder was lying. Mr. Arun Kumar instructed the technical person to insert the tape and played the same for different frequencies. PW 37 M. P. Arun Kumar was noting down each and every conversation between the pilot and the controller and PW Deep Kumar and Manoj Kumar were verifying the test written by M.P Arun Kumar. After verifying the written text, it was typed by M.P. Arun Kumar and same was signed by M.P Arun Kumar and Deep Kumar. Ex PW 37/A is reproduced as under : TAPE TRANSCRIPT DATED 1.2.2009 UNIT AREA (W) RADAR TIME (UTC) UNIT IGO334
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FREQ 124.55 MHz

CALL SIGN 1GO334

TEXT Delhi ready for descent

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RADAR 113319 113327 113333 113337 113342 113348 1GO334 RADAR IGO334 IGO334 RADAR IGO334 RADAR IGO334 113434 RADAR IGO334 113436 RADAR

Descent to FL 150 And we have unruly passenger on board request priority landing Say again Say again sir We have unruly passenger on board we request priority on landing Roger, any assistance required We will require security to attend the aircraft Roger we will advice Tower Thank you. IGO334 any assistance required on Runway Say again Confirm in addition of security personal any additional assistance required on Runway Only security, IGO334 Roger

113442 113848

IGO334 RADAR

Overheard OK nothing to worry we are cabin informing ATC that there is hijack conversation threat, they will take care. IGO334 RADAR IGO334 RADAR RADAR IGO334 Delhi 1GO 334 IGO334 go ahead Can we have a discrete frequency Affirm sir stand by IGO334, Delhi Contact 119.3 119.3

113907 113912 113916 114013

TAPE TRANSCRIPT Date : 01/01/2009 Unit : Approach Radar TIME UNIT (UTC) 114123 114123 RADAR IGO334 Go ahead Frequency 119.3 MHz Aircraft : IGO334 TEXT IGO334 Delhi RADAR

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114132

RADAR

IGO334 confirm the person says that the hijacker is the person himself or someone else, request his name At first he claimed that there is hijacker in board and I am a Muslim and know how to kill people to support Muslims. I feel his charity is in question, he is not, his mental balance is not okay, but IGO334 Delhi RADAR Go ahead IGO334 Delhi RADAR Delhi IGO334 reading you strength five IGO334 RADAR, I was not getting you sir, I just missed last part of your transmission. He said he is muslim and he himself is a hijacker at first he said there is a hijacker on board then he said that ...... he says he is a hijacker and he is a muslim but his name is Jitender Maula. Roger sir his name is Jitender Maul. Affirm Roger Sir And we are requesting further descent from FL 150 and 28 for arrival Roger sir expect Runway 28 for arrival stand by for descend Roger IGO334 Stand by for descend IGO334 Roger IGO334 descend to FL110 Descend FL 110 IGO334 IGO334 RADAR Go ahead Confirm the person who is claiming to be hijacker has given threat to the aircraft He has been saying a lot of things right form beginning first he said that he is a DGCA personal he is on a check surveillance check than he claimed he is a..

114139

IGO334

114210 114210 114216 114216 114220

RADAR IGO334 RADAR IGO334 RADAR IGO334

114252

RADAR IGO334 RADAR

114300 114306

IGO334 RADAR IGO334

114408

IGO334 RADAR IGO334

114451 114456 114510

RADAR IGO334 RADAR IGO334

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114517

RADAR IGO334

Confirm he is claiming some weapon with him He hasn't said he has any weapon but he says that he had some pin which can disable people and the person on 30E is sleeping and will continue to sleep. Roger the person who is adjacent to him is sleeping He is on another seat his seat no. is 16 correction 12A as of now but he claim the person on 30E is sleeping and he has done something to him he will continue to sleep. Copied and confirm, he has not contacted you in person, he contacted airhostess only. He has'nt contacted me or attempted to contact me, he is only basically troubling cabin attendants and doing all sort of that .. Roger sir, copied, we are treating plane as hijacked Roger Further descend IGO334 IGO334 RADAR descend FL90 90 IGO334 IGO334 Which Runway do we expect 28 or 29 You expect Runway 28 sir IGO334, RADAR turn right heading 090 vectors for ILS Approach runway 28 Turn right heading 090 vectors ILS Runway 28 IGO334 IGO334 RADAR descend to FL070 070..IGO334 IGO334 continue descend to FL060 Continue 60 IGO334 IGO334 continue descend to 2600 feet QNH 1014 Descend 2600 NH 1014 IGO334 IGO334 RADAR turn left heading 040 Turn left heading 040 IGO334 IGO334 RADAR continue turn heading 020
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RADAR IGO334

114601

RADAR IGO334

114613 114618 114734 114741 114801 114808 114836 114841

RADAR IGO334 IGO334 RADAR IGO334 IGO334 RADAR RADAR IGO334 RADAR IGO334

the

115126 115243 115245 115249

RADAR IGO334 RADAR IGO334 RADAR IGO334 RADAR

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115349

IGO334 RADAR

Turn left heading IGO334 IGO334 turn left heading 315 clear ILS Approach report established on localizer Runway 28 Roger turn left 315 cleared LS Approach Runway 28 call you established on Localizer IGO334 established on the localizer IGO334 clear ILS Approach Runway 28 Cleared ILS Approach Runway 28 IGO334 IGO334 RADAR continue turn left 255 to intercept Continue 255 to intercept IGO334 IGO334 RADAR cleared to land Runway 28 Cleared to land 28 Winds are 270 degrees 10 knots 270 at 10 IGO334 Tower IGO334 taxi IGO334 RADAR vacate via D1, Further Taxi via D Runway 09 and Runway 15/33 you have to proceed to Dumbbell 15 D1, 09, 15/33 to dumbbell 15 IGO334 Dumbbell 15 affirm Roger And IGO334 after vacation of Runway kindly report sir Runway vacate IGO334 IGO334 Roger sir, stand by Standing by IGO334 wait for follow me sir follow me service will be provided to you Waiting for follow me, IGO334 IGO334 request follow me insight Follow me insight IGO334 now contact Ground 121.9 121.9 IGO334 Thank you madam You are welcome sir.

115400 115420 115423 115446

IGO334 IGO334 RADAR IGO334 RADAR IGO334

115522

RADAR IGO334 RADAR 1GO334 IGO334 RADAR

IGO334 115947 115950 120000 120001 RADAR IGO334 RADAR IGO334 RADAR IGO334 RADAR 120014 120041 120044 120047 120051 IGO334 RADAR IGO334 RADAR IGO334 RADAR

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Tape Transcript Date: 01/01/2009 Unit : SMC Time 120042 120042 120050 120051 120053 120103 120105 120120 Unit GND Fire station GND Fire station GND Fire station F/M 8 IGO334 GND IGO334 GND 120208 120210 121219 120326 120353 GND IGO334 GND F/M8 IGO334 GND IGO334 120405 120554 120552 GND IGO334 GND IGO334 GND IGO334 Text Fire station, Delhi ground Go ahead sir Fire station follow indigo A 320 Delhi ground, fire control go ahead sir Fire control advise CFT to follow indigo A 320 on D1 Copied Delhi ground, this is follow me 8 sir, fire tender as well as follow me 7 on D 1 now IGO334 is with you Confirm follow me in sight Follow me in sight sir Roger sir IGO334 follow follow me Following follow me IGO334 Follow me 8, provide follow me Roger follow me commenced Ground IGO334, the others ...now all operation are normal Confirm all operations normal on board Affirm sir IGO 334 follow follow me Ground IGO 334 Go ahead sir The gentle man on 12A wearing a greenish shirt and dark trouser Confirm 12A Affirm seat no. 12A wearing a greenish shirt and dark trouser and passenger on 30E which whom he claim that he has sedated or done something
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Frequency : 121.9 MHz Aircraft : IGO334

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is now OK 120626 120630 GND IGO334 Roger Crew claimed that there are other persons who might be with him but they are not very sure they suspect Roger copied Follow me 8 hold the aircraft on middle position on 15/33 Roger sir needful is done and we are holding aircraft Roger Delhi this is follow me 8, the aircraft is on designated position on 15/33 Roger IGO334 is shutting down Roger IGO334 maintain listening watch Roger Taking position to cross Rwy 27 to 15/33 Approved Follow me 4 vacated Rwy Follow me 3 requesting cross Rwy 27 with indigo engineers and equipments IGO334 ground Go ahead IGO334, have you given all information regarding this to your company Affirm the company know it Say again The company is aware confirm you want us to pass any other information Nothing maintain listening watch Roger IGO334 ground Go ahead IGO334 report persons on board We have 156 person on board

120633 120716 120725

GND GND F/M8 GND

120757 12075 120800

F/M8 GND IGO334 GND GND IGO334

120810 120834 121111 121313 121315

F/M4 GND F/M4 F/M3 GND IGO334 GND IGO334 GND IGO334 GND IGO334

121921

GND IGO334 GND IGO334

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GND IGO334 GND 121941 IGO334 GND IGO334 GND 122424 122434 1226 GND IGO334 GND 122650 122955 123000 IGO334 GND IGO334 GND IGO334 GND IGO334 123012 GND IGO334 GND IGO334 GND F/M4

Confirm including crew Affirm including crew Roger Revised person on board 169 IGO334 confirm 169 Affirm 169 Follow me ground Door still closed Follow me 4 waiting for NSG Follow me crossing Rwy 15/33 to A IGO334 ground Go ahead IGO 334 report pilot in command name and copilot name Pilot in command Amit singh and first officers Punit Prasad IGO334 ground Go ahead Confirm engines are running Engines are switched off Both engines are switched off Affirm sir IGO334 delhi ground Go ahead sir Any suspicion after that We have suspicion on passengers on 30 Row no. 30 D,E and F but we cannot confirm, but the passengers who was creating threat is on 12A Confirm 30 D 30 D E F under suspension and person who is giving threat is on 12A OK IGO 334 confirm person sitting on 12 A is still threatening. Nothing now he is sitting quietly but he has changed his position to 12 C Any suspected thing he is having
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GND IGO334 GND 123128 123157 GND IGO334 GND

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IGO334 GND IGO334 GND 124100 GND F/M1 GND F/M1 GND F/M1 124202 124226 GND F/M1 GND F/M1 GND 125323 125325 GND IGO334 GND IGO334 GND IGO334 GND IGO334 GND IGO334 130600 GND IGO334 IGO334

Say again Any suspected things like something like knife or guns having He has threatened that he have weapon with him and blades with which he can kill Roger Follow me 1 report the agencies arrived on 15/33 along with you NSG and CISF commandos Any other Stand by for details Follow me 1 confirm still door closed Affirm sir Confirm airport police is there Affirm sir CISF is there Follow me 1 delhi ground confirm commando, CISF, Airport police all seated near airport Affirm sir taken position Roger IGO334 ground Go ahead I need 3 information whether door between passengers and copied is closed or not Cockpit is secured door is closed communications channels are opened Any passenger trying embark cockpit No one is trying to enter the cockpit Passengers are sitting on seat Passengers are all standing wondering what is happening so OK about suspect passengers I just confirm sir IGO334 request registration VTINT While he was talking the crew claim he was very angry furious shivering while he was talking with them Roger
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all

up

they

are

GND
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133200

GND IGO334 GND IGO334 GND IGO334 GND IGO334

IGO334 ground Go ahead IGO334 confirm you are having a cell phone Affirm Can I have the number 9899399776 Can you give the number of cabin crew Stand by Ground IGO 334 lead attendant is Jyoti cell number 9990548450 15/33 E cross by follow me E4 Follow me 8 15/33 to E

133342 1341 1344 140510 140513 140706

IGO334

Ground IGO334

IGO334 Ground go ahead Confirm any reception for us to open the door

Stand by Sir will advise Ground IGO334 IGO334 Go ahead Confirm you will given the instruction to open the door or (team below Y not clean) negative sir stand by will advise shortly 140916 Ground IGO334 Ground IGO334 141617 ground IGO334 Ground IGO334 IGO334 Ground Go ahead sir As per central committee direction you can open the door Roger IGO334 ground Go ahead sir Confirm door has been opened Negative sir, we still coordinating with team below awaited for open the door, now Roger 142525 Delhi ground Follow me jeep Follow me jeep go ahead Coming to position on C1---------15/33 do you have to permission to enter Rwy 27/09
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142628 142638 142644 142658 Ground

Follow me 7 Delhi Ground Follow me Delhi ground Follow me Delhi ground Follow me 7 go ahead Follow me 7 ground confirm calling Negative sir

1428...

FM2

Delhi ground this is follow me 2 Follow jeep ground go ahead Position 15/33 dumble request permission to cross Rwy 15/33 to E

Ground 142856 142916 Follow me Follow me Ground 145541 Follow me2 Ground Follow me Ground

Follow me jeep roger approve report on E Report on E thank you Delhi ground Follow me 2 we clean of RWY 27 on taxi E now thank you Roger Delhi ground this is follow me 2 Follow me 2 ground go ahead Position on taxi way request permission to cross Rwy 10/28 from W to c in 10 sec clear Follow me 2 confirm you can select 118.1 frequency Roger 118.1 Follow me............. Ground go ahead sir We unable to contact via 118.1 it possible to have via, 121.9 Stand by I am co-coordinating via Twr frequency

145652

ground Follow me

145810

Follow me jeep Ground Ground Follow me

Ground Follow me go ahead sir Cross Rwy 28 from W to C request to C Roger clean to cross from W to C, will report on C Follow me 12 we clear Rwy on C Thanks for cooperation

145835

Ground

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Roger 154318 Ground IGO334 IGO334 IGO334 Ground IGO334 Go ahead Sir all passenger have been disembark now Roger sir We are now going off the air Say again sir We are going off the air now Roger

18. Occular Evidence of Passenger Witnesses Prosecution has examined PW6 Vibhor Tyagi; PW8 Sh. Sameer Uppal PW7

Suresh Chand Sharma; PW9 Amit Aggarwal;

PW10 Nitin Khandelwal; PW11Ankur Garg; PW12 Yogesh Mahajan; PW13 Mrs. Hardeep Anand; PW14 Dr. Anand Lakshman; PW15 Shobit Goel; PW16 Parag M. Nagarcenker, who were passengers on board on 1.2.2009. (i) PW 6 Sameer Uppal has identified the accused and stated

that accused present in the court was moving here and there and giving instructions to others. Accused told him that he is from Indian Air Force but he has not given much attention on that. This witness was not cross-examined by the accused. (ii) PW7 Vibhor Tyagi has stated that he was travelling from

Goa to Delhi on 1.2.2009 in the Indigo Flight and identified the accused that he was on the board on 1.2.2009 when he was travelling from Goa to Delhi. He observed one lady air hostess was terrified. During the cross-examination, he has admitted that it was not possible to hear the normal conversation between the passengers occupying the seats in row eight, nine or ten. The vibration and sound

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in the aircraft is so much that it is not possible to hear the conversation between the passengers occupying the seat at row eight or ten if he is seated in row nine. He further admitted that there was no panic hijack like situation in the aircraft. (iii) Prosecution has further examined Suresh Chand Sharma

as PW8 who identified the accused and stated that the accused was on board when he was travelling from Goa to Delhi on 1.2.2009 and he was later declared hostile. During the cross-examination, he admitted that he was sleeping in the flight from Goa to Delhi and the flight was normal however, the passengers were restless after landing in view of the fact that the doors were not being opened for about 2 to 3 hours. (iv) Prosecution has further examined Amit Aggarwal as PW9

who has stated that he was sitting on seat No. 16C and his friends were sitting on seat No. 30B and 30C. He was sleeping on the seat behind the seat alloted to him. The accused came there and asked to go to his alloted seat and thereafter he sat on his alloted seat and accused was directing other passengers and was claiming that he is god father of aviation who has framed rules. He does not know what exactly accused meant. Accused was also saying that he was Sky Marshal. The situation in the plane was not normal when the plane landed at Delhi. He was terrified as the plane was cordoned by the security personnels. During the cross-examination he denied that his friends were also frequently changing the seats when the plane was taxing for take of and also during the course of flight. He further denied to the suggestion that frequent changing of his seats along with his friends was endangering the flight hence, the accused present in the court was objecting to the same and requested him to go back to his allotted seat. He admitted that there is a noise of engines during the flight. He further admitted that one cannot hear the conversation between the
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passengers occupying seats in two rows ahead or behind. (v) Prosecution has further examined Nitin Khandelwal as

PW10. He has stated that he along with his two friends Amit Aggarwal and Ankur Garg, was coming from Goa to Delhi in Indigo Flight. He was not feeling well and laid down on another vacant seat, adjacent to seat No. 16C. The accused present in the court came there and told that he is from Aviation and he cannot sleep there. Thereafter, he left the said seat and he went back to some other vacant seat, after two three rows from row 16 and laid down on the said seat. At the time of landing, he woke up. This witness was declared hostile by the Ld. Designated PP. (vi) Prosecution has further examined Ankur Garg as PW11.

He has stated that he along with Amit Aggarwal and Nitin Khandelwal was coming from Goa to Delhi by flight Indigo on 1.2.2009. He was alloted seat No. 30B. The person, who is present in the court, was saying he is god father of Aviation. (I am the godfather of the Aviation). The air hostesses seems to be perturbed. Thereafter, he was sleeping. During cross-examination, his statement u/s 161 Cr.P.C Ex PW11/DA was put to him wherein he admitted that in his statement u/s 161 Cr.P.C word (I am the godfather of the Aviation) is not recorded. (vii) Prosecution has further examined Yogesh Mahajan as

PW12. He has stated that he was on the board on 1.2.2009 and was alloted seat No. 27D. During the flight accused was seen going here and there, moving forward and backward in the plane, following the air hostess in the plane. He met the accused at Goa air port before boarding the flight. He noticed accused something like intoxicated. When plane was landed, the same was taken to corner of the airport.
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During the cross-examination, he has stated that he was allowed to leave airport by the police at about 1-1.30 am. (viii) Prosecution has further examined Mrs. Hardeep Anand as

PW13, who has stated that she was travelling in Indigo Flight on 1.2.2009 from Goa to Delhi. She has seen the accused before boarding the plane at the airport and asking for red bull energy drink from the security personnels having in his hand empty cane of red bull energy drink. In the flight she noticed 5-6 persons were having the mobile phones and they were not switching off their mobile phones, the crew staff/air hostesses were requesting those persons for switching off their mobile phones in the plane but those six persons did not switch off their mobile phones despite the request of the crew staff/air hostesses. After taking tea she slept and she woke up on the noise of weeping. She saw two crew members/air hostesses who were sitting in their respective seats at the rear side, one of them was weeping. After sometime, they landed at Delhi and the plane was taken to the corner of the airport. During the cross-examination she admitted that she was detained by Delhi Police for inquiry. She was told by the Delhi police that her name was also there in the names of suspects. (ix) Prosecution has further examined Dr. Anand Lakshman as

PW14. He stated that he was travelling with his wife on 1.2.2009 from Goa to Delhi. After the takeoff his wife had gone to the toilet and he was holding his infant daughter. He was sitting in the aisle seat. Accused told him that he is not supposed to sit in the aisle seat while holding a child in hand and asked him to move to the middle seat and wear his seat belt around him and his daughter. On this he called air hostess, who replied that him that he is officer of airlines. please follow his (accused) directions. Accused was checking other passengers and accused told

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During the cross-examination he stated that he is public health physician. He denied to the suggestion that the accused was only securing his safety as well as his infant daughter. (x) Prosecution has further examined Shobit Goel as PW15,

who has stated that on 1.2.2009, they were coming from Goa to Delhi. During taxing time in the plane, some passengers changed their seat and the persons sitting next to him called air hostess and told her that same is not allowed. Thereafter, the air hostess told him that she will give him hear, after the take off. After take off, she came to the said person and the said person was accused Jitender Mohla. There was talk between them during the flight time. The said person was frequently changing the seat. The said person thereafter, went back. The air hostess then came in front and was crying. During the cross-examination, one of the suspect. flight. (xi) Prosecution has further examined passenger Parag M. During the cross-examination he has admitted that the disturbance was due to changing of seats by 2-3 passengers when the plane was taxing and not due to the accused. He denied to the suggestion that the cabin staff was scared of loosing their job as they could not control 2-3 passengers who had changed their seat. 19. Defence witnesses (i) The accused has examined S.A Dwarkanath one of the He has admitted that he has denied that he is the flight was a normal

Nagarcenker as PW16, who was declared hostile.

passenger as DW1 who has stated that he was travelling from Goa to Delhi in Indigo Flight 6E334 on 1.2.2009. He stated that no untoward incident happened during the flight and flight was normal. The flight landed at Delhi. He was shocked to see number of security persons
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around the aircraft. His statement was not reduced into writing. During the cross-examination he has stated that he was busy in his work. (ii) Accused has further examined Satender Kumar Ahlmad of

the court of Ms. Joginderi JMIC, Gurgaon Haryana as DW2, who has brought the case record title Suresh Chikkara Vs. Ankit Dalal & anrs. in Criminal Complaint no. 279/2010, under section 498A/406/304B/120B IPC and also judicial record in case FIR No. 4/2010, under section 498A/406/323 IPC of PS Sector-18, Gurgaon. (iii) Accused further examined Sh. Sajjan Kumar, DSP State

Vigilance Bureau, Rohtak, who has proved report Ex DW3/A in FIR No. 4/2010, U/S 498A/304B/406/323IPC of PS Sector-18 Gurgaon. (iv) Accused further examined Dr. Sandeep Govil as DW4, who

has stated that he is practicing psychiatrist for the last ten years. He has further submitted that Serlift 50 is a medicine with the chemical name of Sertaline usually prescribed for patients of depression. However, its lower dose can be used for anxiety, Post Traumatic Stress Disorder and other eating disorders. 20. Witnesses relating to information and investigation of the present case (i) Prosecution has examined Inspector H.K Rai Incharge of on 1.2.2009 he was working in operation control has been

CISF, Control Room, Domestic Airport, IGI, New Delhi as PW32, who has stated that room Palam Airport and he received message from ATC control Room that one of the aircraft No. 6E334 from Goa to Delhi CISF, IGI Airport. The extract is Ex PW32/A. During the cross-examination, he denied to the suggestion
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hijacked. He brought the original GD Serial No. 563 dated 1.2.2009 of

that he has not given any information to the control room and that he was not on duty. Ex PW 32/A is the extract of GD S.L. No. 563 dated 1.2.2009 of CISF, IGI airport and PW32 Inspector H.K Rai was on duty and brought the original GD Extract and since the Ex PW32/A is the extract only, same has been proved. (ii) Prosecution has further examined HC Ishwar Singh, duty

officer at PS Domestic Airport, District IGI as PW21 and HC Ram Parkash as PW43, who have stated that on 1.2.2009, they received intimation on telephone from Inspector H.K Rai about hijacking of flight No. 6E334. The said information was reduced down into writing by PW43 HC Ram Parkash vide DD No. 30 and copy of the same was given to Ct. Rakesh for handing it over to SI Atma Singh for investigation. PW 21 HC Ishwar Singh and PW43 HC Ram Parkash brought the original DD No 30 dated 1.2.2009 and the copy of the same is Ex PW17/A. During the cross-examination, PW21 HC Ishwar Singh stated that copy of DD was handed over to Ct. Rakesh Kumar for PW21 HC Ishwar Singh was the duty officer on 1.2.2009 at PS Domestic Airport, District IGI, who received information regarding hijacking of Indigo Flight 6E334 and PW43 HC Ram Parkash reduced down the said message into writing vide DD No. 30. original of the DD No. 30. therefore, DD No. 30 stands proved. (iii) Prosecution has further examined Ct. Rakesh Kumar as They have Ex PW17/A is the copy of DD No. 30, handing it over to SI Atma Singh for investigation.

PW44, who has stated that on 1.2.2009 he was working as Constable at PS Domestic Airport. He received DD No. 30 Ex PW17/A and he handed over the same to SI Atma Singh at the airport. He further stated that thereafter, SHO Inspector Raj Kumar handed over to him tehrrier and same was handed over to
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Duty officer PW43 HC Ram Parkash to register

the case FIR

No.

5/2009 of PS Domestic Airport. After registration of the FIR, he brought back the original tehrrier and the FIR and handed it over to Inspector Raj Kumar for investigation. PW43 HC Ram Parkash also stated that in the mid night on 2.2.2009, he was working as duty officer at PS Domestic Airport and Ct. Rakesh Kumar brought the tehrrier i.e statement of Neha Chhikara in English along with endorsement of Inspector Raj Kumar SHO Domestic airport and submitted to him. On the basis of the same, FIR No.5/2009 was registered and the copy of the same was handed over to Ct. Rakesh for onward handing it over to Inspector Raj Kumar. Consequently, DD No. 2 is recorded in his handwriting and bears his signatures. Copy of the same is Ex PW43/A. During the cross-examination, PW43 HC Ram Parkash denied to the suggestion that DD No. 30 is not in his handwriting. PW43 HC Ram Parkash was duty officer and he received statement of Neha Chhikara along with endorsement of Inspector Raj Kumar SHO Domestic Airport and accordingly, FIR was registered under section 336/506 IPC. The FIR is Ex PW43/B, bears his signatures and stands proved to the extent of mode of registration of the FIR. (iv) Prosecution has further examined SI Atma Singh as PW17,

who has stated that on receiving Ex PW17/A i.e the DD No. 30 dated 1.2.2009, he along with Ct. Rakesh reached to the arrival hall of domestic airport in connection with inquiry where they met with SHO Inspector Raj Kumar. (v) Prosecution has further examined Inspector J.S Mishra as

PW23, who has stated that on 1.2.2009 he along with Inspector Raj Kumar SHO, ASI Ramjee and Ct. Rakesh reached inside the domestic airport where they met passengers of Indigo flight 6E334 and SHO Inspector Raj Kumar recorded the statement of Neha Chhikara and
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thereafter rukka was sent to PS for registration of the case. (vi) Prosecution has further examined Inspector Raj Kumar along with other staff members

SHO, Domestic Airport, IGI as PW45, who has stated that on receiving the DD No. 30 Ex PW17/A, he reached inside the airport and recorded statement of one crew Ms. Neha Chhikara. Statement was read over to her and she signed it. Her statement is Ex PW45/A. Thereafter, he made endorsement on her The statement and sent the rukka to PS through Ct. Rakesh.

endorsement is Ex PW43/C. During the interrogation, the accused made disclosure statement Ex PW17/F. Thereafter, the accused was arrested vide arrest memo Ex PW17/D and his personal search memo is Ex PW17/E. During personal search of accused, his boarding pass Ex PW17/C and tag Ex PW19/A were seized vide seizure memo Ex PW17/B. Accused was sent to Safdarjung hospital for medical examination along with application Ex PW45/C and after his medical examination MLC Ex PW22/A was collected. Accused was produced before the court of Ld. ACMM, Dwarka for judicial remand on 2.2.2009 from where he was remanded to judicial custody. Application for judicial remand is Ex PW45/D. During the course of investigation General Diary Extract of CISF was received which is Ex PW32/A. He recorded the statement of all the crew members including the complainant and some of the passengers, correctly and lateron, the investigation of the case was transferred to Bureau of Civil Aviation Security and he handed over the investigation alongwith the complete record to Sh. S.K Bhatnagar, Deputy Commissioner of Security (CA) BCAS (Bureau of Civil Aviation Security), New Delhi. During the cross-examination he has clarified that copy of FIR Ex PW43/B was sent to the higher officers. He has admitted that initially the FIR was registered u/s 336/506 IPC. He further admitted that section 336/506 IPC are non-cognizable and bailable offences. He admitted that he has investigated on the basis of Ex PW45/D/X/DY1.

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He admitted that he was investigating the case till 9.2.2009. He further admitted that he did not arrest the accused under Section 3 (1) (d) of Suppression of Unlawful Acts Against the Safety of Civil Aviation Act 1982. He further stated that he did not seek judicial remand of the accused under under Section 3 (1) (d) of Suppression of Unlawful Acts Against the Safety of Civil Aviation Act 1982. (vii) Prosecution has further examined Mr. S.K Bhatnager,

Deputy Commissioner of Security (CA) Bureau of Civil Aviation Security, New Delhi as PW47, who has stated that on receiving the letter Ex PW45/DX2 along with notification Ex PW47/A, he conducted further investigation of the present case. He collected the documents from previous IO SHO Inspector Raj Kumar. He also received notification Ex PW47/B from Delhi Government regarding designation of court for trial. During investigation, he interrogated accused under Section 3 (1) (d) of Suppression of unlawful Act against the Safety of Civil Aviation Act 1982, after seeking permission from the court vide application Ex PW47/C. He prepared his report Ex PW47/D. Vide application Ex PW47/E, he sought permission from the court to arrest the accused under Section 3 (1) (d) of Suppression of unlawful Act against the Safety of Civil Aviation Act 1982. He arrested the accused vide arrest memo Ex PW47/F. During investigation, he also recorded statement of crew members, passengers, officials of Indigo Airlines, Airport authority of India, DGCA and officials of Delhi Police. He also received the documents pertaining to duties of Watch Supervisor, Executive, Radar Controller, Planning Controller, ATC Circular 44 of 2004, Contingency plan vide letter Ex PW20/A. He also received photographs Ex PW27/A (1-6), scale diagram of the entire cabin, copy of aircraft registration certificate, certificate issued by AME at Goa airport, details of cockpit crew and cabin crew in respect of Indigo Flight 6E334 from Goa to Delhi, vide letter Ex PW25/A. He also received copy of insurance cover of the aircraft, cost of the aircraft,

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schedule time of departure from Goa, exact time of departure, schedule time of arrival at Delhi and exact time of arrival at Delhi in respect of Indigo Flight 6E334 from Goa to Delhi, vide letter Ex PW25/B. He also received one copy of recording of all the channels of cockpit voice recorder CD Mark X in respect of Indigo Flight 6E334 from Goa to Delhi, vide letter Ex PW25/C. He also received tape transcript of ATC Ex PW37/A, log extract Ex PW38/A, Ex PW35/A, Ex PW30/A, vide letter Ex PW41/A . He also received information vide letter Ex PW41/B, saying that there is no provision of direct recording (making copy) in the equipment, of the original recordings. Recording of the original as ambient sound on another tape is liable to be tampered and may not be authentic. He also received information regarding names and designation of officials who had prepared the tape transcript and also the copies of extracts of the log entries made by Watch Supervisory Officer of the Shift and the controllers manning the ATC Units on which the particular aircraft was handled, vide letter Ex PW41/C. He also received transcript of the CVR of Indigo flight 6E334 on 1.2.2009 from Goa to Delhi, vide letter Ex PW42/A. He also received the transcript of cockpit voice recording of flight 6E334 of 1.2.2009 from Goa to Delhi, vide letter Ex PW42/B along with CD Ex PW42/C of cockpit voice recording. He also received permanent address of the crew members of the flight No. 6E334 from Goa to Delhi on 1.2.2009, duty chart of crew members of the said flight, name and designation of Indigo Official who prepared duty chart for crew members, copy of licence of cockpit crew, certificate issued by the concerned authorities after conclusion of Training undergone by the cockpit and cabin crew, name of AME who issued certificate, name, designation, address and contact number who took videograph and photograph of Indigo flight No. 6E334 and also CD of videograph of the aircraft Mark Y, vide letter Ex PW31/C. He also received sanction Ex PW46/A for prosecution under Section 336/503/506/170 IPC, under Section 3 (1) (d) and 3 (2) of Suppression of unlawful Act

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against the Safety of Civil Aviation Act 1982 and under Section 3 (2) & 4 under Anti Hijacking Act 1982 from Under Secretary to the Government of India. On completion of investigation, he filed the chargesheet Ex PW47/H vide letter Ex PW47/J against the accused, under Section 336/503/506/170 IPC, under section 3 (1) (d) and 3 (2) of Suppression of unlawful Act against the Safety of Civil Aviation Act 1982 and under Section 3 (2) & 4 under Anti Hijacking Act 1982. During his cross-examination, he has stated that he discussed the matter with seniors. He investigated the case as per the orders of the Government. He did not visit the residence of the accused for investigation. investigated He does not remember whether he has for the case regarding the motive of the accused

committing offence. His investigation was on the basis of CVR, tape transcript and statement of the witnesses. He has not investigated the present case on the angle of the complainant being a sensitive and high strung woman having anxiety bouts. He came to know about the death of Neha Chhikara through newspaper only. He did not conduct polygraph test of accused at any point of time during the investigation. He has admitted that he has taken over the investigation on 11.2.2009. He arrested the accused on 16.2.2009 under section 3 (1) (d) of the Suppression of Unlawful Acts against the Safety of Civil Aviation Act 1982 as amended. As per the investigation on 1.2.2009, cabin crew were terrified from the acts of the accused. He has admitted that Dwarkanath was sitting on seat No. 30E. He stated that report, of sixteen passengers were suspect as per the letter of Sh. B. S. Tiwari, RDCOS, BCAS to Commissioner of Indigo. Letter Ex. PW45/D/X/Y1 dated 1.2.2009 which is an incident Security was found in the case file of Delhi police. He has not taken the custody of CVR during the investigation in the present case. All operations of the flight from Goa to Delhi were not normal as it was priority landing at the Delhi airport due to hijack threat communicated by the pilot to the ATC. He has denied to the

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suggestion that the accused did not threaten or did not attempt to threaten any crew with the injury to their person. He has admitted that he did not seize tape recording in the present case. He has also admitted that he has not seized the aircraft. He has also admitted that he has not seized the CVR. He has admitted that he has placed on record the extract of ICAO. Copy of the same is Ex PW 47/D-1. Annexure X is Ex.PW47/D-2. Annexure 11 pertains to Air Traffic Service is Ex PW 47/D-3. Section 15.1.3 of Chapter 15 pertains to the activation of mode A code is Ex PW 47/D-4. Chapter 1 (part VIII) Section 1.6 is Ex.PW47/D-5. He has received the letter Ex PW20/A. Circular is Ex PW 47/D-6. He has denied to the suggestion that Ex PW25/C is a tampered document. He further denied to the suggestion that the cabin attendants of the flight 6E334 from Goa to Delhi were ill trained, irresponsible and highly inefficient.

21.

Offence committed is on board

i.e flight No. 6E334 on

1.2.2009, from Goa to Delhi and the duration of the flight was two hours. There were four cabin crew members i.e Neha Chhikara, PW1 Anchal Mehta, PW2 Neha Gogia and PW3 Jyoti Chhetri and two cockpit crew i.e PW4 Captain Amit Singh Pilot in command and PW5 Punit Prasad co-pilot and 160 passengers excluding the accused Jitender Mohla, on the board. The offence on board felt special attention. The Question of national air space first arose when the balloons were used during the Franco-Prussian war in 1870-71. After the war, opinion was divided as to whether the air should be treated like the high seas, free from the use of all, or whether a nation should be able to control who used it. The issue became relevant too powered flight in 1909, when the French pilot Louis Balriot crossed the English Channel to England. The next year, in 1910 an international conference of diplomats in Paris failed to reach an agreement on question. Later, the formation of association of member States were
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felt and in 1919 International Air Traffic Association was formed and in the year 1944, in the Chicago Convention, International Air Traffic Association had set international airfare. Thereafter, ICAO was created in 1944 to promote safe and orderly development of International Civil Aviation through out the world. It has set the standard and regulations necessary for aviation safety, security, efficiency and regularity as well as for aviation environmental protection. Subsequently, in pursuance to the Hague Convention, the Parliament of India enacted Anti Hijacking Act 1982 (Act 65) and on the basis of the Montreal Convention 1971, which was held in Canada among the member nations, the Parliament of India has enacted Suppression of Unlawful Acts against the safety of Civil Aviation Act 1982 (Act 66). 22. Anti Hijacking Act 1982 is related to hijacking of the

aircraft and Suppression of Unlawful Act against the Safety of Civil Aviation Act 1982 is related to unlawful acts and violence against a person on board. 23. Section 336 IPC deals with an Act endangering the life or
(1) that some Act was done (2) that the Act was rash and negligent (3) that such Act endangered human life or personal safety of others.

safety of others. Following are the essentials :

The rash and negligent Act is gravamen of the offence. 24. essentials :
1. threatening a person with any injury, (a) to his person, reputation or property or (b) to the person or the reputation of any one in whom that person is interested. 2. the threat must be with intention, (a) to cause alarm to that person or ;
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Section 506 IPC deals with the punishment for criminal

intimidation. Section 503 defines the said offence. It has following

(b) to cause that person to do any act which he is not legally bound to do as means of avoiding execution of such threat or ; (c) to cause that person to omit to do any act which that person is legally entitled to do as means of avoiding of such threat.

Therefore, intention must be to cause alarm to the victim and whether he has alarmed or not is really of no consequence but material has to be brought on record to show that intention was to cause alarm to that person. 25. The injury defined in Section 44 of the IPC is an Act

contrary to law which include any tortious act, which is wider than general term injury. The reference could be made in case titled as

Habibul Razzaq Vs. Emperor (1923) 46 All 61, wherein, Hon'ble

Allahabad High Court has held :
...Before a person can be said to put any person into fear of any injury to that person, it must appear that he has held out some threat to do or to omit to do what he is legally bound to do in the future..

26.

Section 170 IPC deals with personating a public servant.

1. That the accused falsely pretended to be public servant or personated to be public servant. 2. That he did so knowingly and; 3. That while assuming such character he did or attempted to do something under the colour of such office.

The essentials are as follows :

Therefore, the person personating must do or attempted to do Act under the colour of personates. 27. PW1 Anchal Mehta in her examination in chief has the office of the public servant whom he

specifically stated that on 1.2.2009, in Indigo flight No. 6E334 from Goa to Delhi, the accused posed as a DGCA official. The accused also did not deny the said suggestion in his statement under Section 313 Cr.P.C.
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The statement of Anchal Mehta is corroborated with other witnesses to the incident i.e the cabin crew as well as the passengers. 28. Accused is facing trial u/s 3(1) (d) and 3(2) of Suppression

of Unlawful Act against the Safety of Civil Aviation Act 1982 and 3(2) & 4 under Anti Hijacking Act 1982 besides section 170/336/506 IPC, which are reproduced as under:
3.Offence of committing violence on board an aircraft in flight, etc --(1) Whoever unlawfully and intentionally --(a) .... (b) .... (c) .... (d) communicates such information which he knows to be false so as to endanger the safety of an aircraft in flight. (2) Whoever attempts to commit, or abets the commission of, and offence under sub-section [1] shall also be deemed to have committed such offence and shall be punished with the punishment provided for such offence.

and
3. Hijacking (1) .... (2) Whoever attempts to commit any of the acts referred to in subsection [1] in relation to any aircraft, or abets the commission of any such act, shall also be deemed to have committed the offence of hijacking of such aircraft. (3) .... 4. Punishment for hijacking -- Whoever commits the offence of hijacking shall be punished with imprisonment for life and shall also be liable to fine.

29.

The intimidation has not been defined in Suppression of

unlawful Act against the Safety of Civil Aviation Act 1982 and in Anti Hijacking Act 1982. Since there is no special interpretation given in both the statutes, the word intimidation is to be understood by taking the guidance of Section 503 of IPC. Here reference could be made in case Romesh Chandra Arora Vs. The State AIR 1960 SC 154, wherein Hon'ble Supreme Court has held :
..We are unable to accept this contention as correct. We agree with the High Court that the charge framed against the appellant

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was not as clear as it might have been. It stated however, that the offence of criminal intimidation was committed by threatening X and his daughter with injury to their reputation by having the indecent photographs published; the intent mentioned was to cause alarm to X and his daughter. The real intention, as disclosed by the evidence accepted by the trial Magistrate and the High Court, was to force X to pay hush money. Section 506 is the penal section which states the punishment for the offence of criminal intimidation; the offence itself is defined in S. 503. Leaving out what is not necessary for our purpose, the section last mentioned is in two parts; the first part refers to the act of threatening another with injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested; the second part refers to the intent with which the threatening is done and it is of two categories: one is intent to cause alarm to the person threatened and the second is to cause that person to do any act which he is not legally bound to do or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat. On the findings arrived at against the Appellant, the first part of the section is clearly fulfilled; and as to the intent, it comes more properly under the second category, that is, to cause X to do any act ( in other words, to pay hush money) which he was not legally bound to do, as a means of avoiding the execution of the threat.... We, therefore, hold that the conviction of the appellant under S. 506 is correct. We further agree with the High Court that no prejudice was caused to the appellant by reason of the defect, if any, in the charge as to the intent of the appellant. He was fully aware of the case made by the prosecution and had full opportunity of rebutting the evidence given against him....

30.

Prosecution has examined Anchal Mehta as PW1, who has

specifically stated that on 1.2.2009 she was on duty in the aircraft. When she was coming back to her seat, after checking, accused told her that he is a DGCA Official. passengers are moving He would make report that the in the aircraft while the aircraft is taxing.

She told him that they will get back to him after takeoff as the flight was about to takeoff. She further deposed that when she was in aft i.e back side galley of the plane, accused said that he was in Kandahar hijacking and thereafter, he spoke about some infected needles and Neha informed about the incident to the Lead and they informed the cockpit crew. There was a slight disturbance and they landed at Delhi and National Security Guard were around the plane. As per statement of PW1 Anchal Mehta, she met accused on board twice. First, when she was going back to her seat after
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checking and second time, she met accused in back side galley of the plane. When she met accused for the first time on board on 1.2.2009, while going back to her seat, after checking, the accused told her that he is a DGCA official and he would report that the passengers are moving in the aircraft while the aircraft is taxing and second time she met the accused in the back side galley of the plane where Neha Chhikara was talking with the accused and she heard accused Jitender Mohla saying that he was in Kandhar hijacking and thereafter he spoke about some infected needles and thereafter, Neha Chhikara informed about the incident to the Lead cabin attendant Jyoti Chhetri, who informed the cockpit crew. The statement of PW1 Anchal Mehta of her conversation with the accused on board and her over hearing the conversation of accused with Neha Chhikara, is direct evidence against the accused in the present case and same is Evidence Act. 31. In the cabin, at the time of the incident four cabin relevant under Section 3 of Indian

attendants, 160 passengers and accused were on board. The incident is stated to be communicated by the complainant Neha Chhikara to the Lead cabin attendant PW3 Jyoti Chhetri. In her evidence PW 3 Jyoti Chhetri has stated that the communication communicated to her through Neha Chhikara was communicated to the cockpit crew i.e PW4 Captain Amit Singh pilot in command in presence of co-pilot Punit Prasad on 1.2.2009, while the aircraft was in air, near Delhi. Consequently, pilot requested for priority landing by using discrete frequency and the communication between the cabin crew and the pilot was overheard simultaneously by PW35 Malkeet Singh, Radar Controller ATC Delhi, who reduced down the same into writing in his log book Ex PW35/A and PW30 Ripun Borah Executive ATC. What has happened in the flight No. 6E334 on 1.2.2009, is within the chain of duration of two hours in the air, while coming from Goa to Delhi. In the present case the chain of the circumstances
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of the incident is so well connected, interdependent i.e the accused

intimidated

to

Neha

Chhikare

and

Anchal

Mehta

and

they

communicated the said intimidation to the cockpit crew and consequently, the cockpit crew sought priority landing from the ATC Delhi and ATC Delhi overheard some conversation between the pilot and the cabin crew and the said information was reduced down into writing by the ATC personnels in the log book which is Ex PW35/A,
and is the relevant fact which goes against the accused. Therefore, the statement of PW1 Anchal Mehta is corroborated with the log book entry
the pilot in command requested

Ex PW35/A and statement of

for priority landing and

PW35 Malkeet Singh wherein it is stated that

security personnels to attend the aircraft,

by using the discrete frequency and ATC personnels PW35 Malkeet Singh and PW30 Ripun Borah
overheard the conversation of suspected hijack

therefore, the flight which departed from Goa normal. 32.

to Delhi, was not

PW4 Amit Singh Pilot in command, after receiving the

information from the Lead cabin attendant Jyoti Chhetri, that

there is a DGCA person on board and he is objecting to a passenger who had moved from his seat and sat on the overwing seat further that the DGCA person is objecting to the portable electronic device sign not been put on during turbulence ; that the person who was claiming to be from DGCA, is now saying that he is a Sky Marshal and he has pins and infected needles which can put a person to sleep ; that the said person is now saying that there is a threat to the aircraft and there are hijackers on the board and further that the person claims that he has a weapon and he knows how to kill and if the crew will assist him in the hijacking,
contacted ATC and asked for discrete frequency, which was allowed
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to him. He further clarified during the cross-examination that in case of hijacking captain will activate the transponder code 7500, but in case of unlawful interference it may depend on the severity, which indicates that the flight No. 6E334 from Goa to Delhi on 1.2.2009 was not normal. Asking for the discrete frequency, by the pilot in command, to the ATC, itself pinpoints that what was required to maintain zero tolerance in the aircraft, during the flight on board, was not in existence. The passengers are suppose to maintain required standard behaviour while on board and if any part of the system fails to maintain the required standards, the situation of insecurity qua the passengers as well as aircraft arises. 33. The accused is identified by the cabin crew members,

cockpit crew members as well as the passenger witnesses, who were examined on behalf of the prosecution and also by the boarding pass Ex PW17/C. The accused has not pleaded in his defence that he was not on board i.e flight No. 6E334 from Goa to Delhi on 1.2.2009. 34. The statement of the passenger witnesses though, not

consistent on every point, but their statement cannot be overlooked merely on the ground that it is not consistent among the statement of the passenger witnesses because the passengers were sitting on their respective seats and accused was going to another passenger seat and was giving instructions to them and was claiming that he is a DGCA official, Sky Marshal and God father of Aviation, is not the normal behaviour to maintain the required standards while on board. 35. Accused Jitender Mohla during his statement under
When the plane was taxing for take off, while the seat belt signs were on, two to three passengers ran from the rear and occupied the overwing exit row seats. I objected to the same and told the cabin attendant that such a movement in the aircraft when the plane was taxing and when the seat belt signs were on, is not permissible and is against the safety of the passengers. The cabin attendant ignored me
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Section 313 Cr.P.C has stated as under :

and to stress the importance what I was saying, I said I was a DGCA Official and I shall report to the authorities for the lapse on the part of the cabin crew. Beyond this, nothing happened during the flight. The flight was normal and it landed on its scheduled time. This case was manipulated against me by the cabin attendant feeling insecure and scared of losing her job. When I said I was a DGCA Official, it was said with the basic sole intention of making the cabin attendant follow the safety rules and not to ignore them. To cover the lapses on the part of the cabin attendant, the Indigo airlines in connivance with the cabin attendant slapped this false case against me.

36.

During the course of arguments, accused has taken the the accused was perturbed on the inefficiency of the the safety and security of the aircraft and the

defence that endangering

cabin attendant to maintain the discipline in the cabin as it was passengers, accused had no option officer in good faith. However, the accused has not preferred to examine himself as defence witness under Section 315 Cr.P.C. 37. The presumption under Section 10 of Suppressions of
10. Protection of Action taken in good faith--(1) No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of the provisions of this Act.

but to say that he is a DGCA

unlawful Act against the Safety of Civil Aviation Act 1982 is as under:

38.

The question whether the Act committed by the accused

on board comes within the well definition of good faith depends, on, whether a reasonable man has a belief by chain of probable reasoning leading to conclusion or inference about nature of the thing. Two ingredients i.e knowledge and reason to believe has to be taken from the various circumstances of the incident. The reference could be made to judgment in case titled as Joti Parshad Vs. State of

Haryana, AIR 1993 SC 1167 in which Hon'ble Supreme Court of

India has defined Section 26 IPC reason to believe as under :.
...A person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need

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not necessarily be capable of absolute conviction or inference ; but is is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e knowledge and reason to believe have to be deduced from various circumstances in the case.

39.

The good faith under the IPC is defined different than the

General Clause Act. The IPC regards honesty as immaterial and the gravamen of the term good faith is presence of care and caution. The burden of proving good faith for the protection of the person making it, is on the accused. The reference could be made in case title as

Harbhajan Singh Vs. State of Punjab AIR 1966 SC 97 wherein

the Hon'ble Supreme Court has held :
...Thus it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay down any rigid rule or test. It would be a question to be considered on the facts and circumstances of each case what is the nature of the imputation made; under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation; did he made any enquiry before he made it; are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true? These and other considerations would be relevant in deciding the plea of good faith made by an accused persons who claims the benefit of the Ninth Exception... ...The element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced by the definition of the Penal Code; and we are governed by the definition prescribed by S. 52 of that Code. So, in considering the question as to whether the appellant acted in good faith in publishing his impugned statement, we have to enqire whether he acted with due care and attention. There is no doubt that the mere plea that the accused believed that what he stated was true by itself, will not sustain his case of good faith under the Ninth Exception. Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role. If it appears that before making the statement the accused did not show due care and attention, that would defeat his plea of good faith...

Further reference could be made in case S.K Sundaram

AIR 2001 Supreme Court 2374.

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40.

The contention of Ld. Defence counsel that there is delay and copy of the FIR was not sent to area

in lodging of the FIR

Magistrate does not seems to be correct. The present FIR was registered after reducing down the oral statement Ex PW45/A of the complainant Neha Chhikara into writing by PW45 SHO Inspector Raj Kumar of PS IGI Airport. The SHO Inspector Raj Kumar, who was at the IGI Airport itself, came to know about the incident after meeting with SI Atma Singh and Ct. Rakesh, who handed over DD No. 30 Ex PW17/A to SHO Inspector Raj Kumar, at the arrival hall of IGI airport. After receiving DD No. 30, Ex PW17/A, on his instructions, statement of Neha Chhikara Ex PW 45/A was recorded inside the airport and on the basis of statement of Neha Chhikara FIR Ex PW 43/B was registered at 12.20 am. The matter in hand, of the SHO, Inspector Raj Kumar of IGI Airport, was, of hijacking of the aircraft in which the aircraft and the life of the passengers on board was under threat therefore, there was no occasion of false implication, in absence of any enmity. After the registration of the FIR, the copy of the same was sent to the Ld. ACMM, in compliance of Section 157 Cr.P.C and same was received by him at 10.00 am on 2.2.2009. Reliance could be placed on judgment in case Mohammad Mian Vs. State of Uttar

Pradesh AIR 2011 Supreme Court 397 wherein Supreme Court has held as under :

Hon'ble

...There are several parameters by which the spontaneity of a FIR and the prosecution's story as to the time at which it had been lodged has to be adjudged, and one of the primary factors is the time of the delivery of the special report to the Magistrate, as it is expected that he being unconnected in any manner with the investigation or the prosecution would be an independent person to endorse as to the time that a copy of the FIR had been received by him...

41.

The contention of Ld. Defence counsel that GD Extract The Section 154 Cr.P.C says that every information

should have been FIR in the present case is also not convincing. relating to the commission of cognizable offence, if given orally to an
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officer in charge of a police station, shall be reduced into writing by him or under his directions, and be read over to the informant. Further Section 155 (4) Cr.P.C relates, where a case relates to two or more offences of at least one is cognizable, the case shall be deemed to be cognizable case, notwithstanding that the other offences are non cognizable. Reliance could be placed on judgment in case title as State of Orissa Vs. Sharat Chander Sahu & Anr.

1996 (6) SC 435.

The GD Extract is Ex PW32/A received by Inspector H.K Rai, Incharge CISF, Operation Control Room, Palam Airport Domestic from ATC on 1.2.2009 at 8.08 pm pertaining to receiving of report of hijacking threat and he immediately informed all concern, including the senior officers and NSG. In the present case, the GD Extract is simply a cryptic telephonic message given by the ATC to all security concern at IGI Airport. The purpose of cryptic security concerns telephonic message is to alert the at the IGI Airport where the Indigo aircraft No. Mere receiving of cryptic telephonic

6E334 was to be given secure landing, in presence of hijack threat as perceived by the ATC Delhi. message, just two hours earlier to the recording of the statement of complainant Neha Chhikara Ex PW45/A, does not make GD Extract Ex PW32/A an FIR of the present case. The cryptic message sent by the ATC, was for all the concern, for alertness for the purpose of security and not for registration of the FIR. The statement of complainant Neha Chhikara was rightly registered as the FIR, in the present case. The reliance could be made on judgment in case

Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi) AIR 2010 Supreme Court 2352, wherein Hon'ble Supreme Court
has observed as under :
...the cryptic telephonic messages not giving the particulars of the offence or accused are bereft of any details made to the police only for the purpose of getting the police at the scene of offence and not for the purpose of registering FIR.... ....It has also been held in a number of judgments by this

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Court that merely because the information given on phone was prior in time could not mean that the same could be treated as the First Information Report, as understood under the Code. This view has been reiterated in Ramesh Baburao Devaskar and others Vs. State of Maharashtra (2007) 13 SCC 501; (AIR 2007 SC (Supp) 1606; 2007 AIR SCW 6475), that a cryptic message given on telephone by somebody who odes not disclose his identity may not satisfy the requirement of Section 154 of the Code of Criminal Procedure. In view of the above discussion, the three telephonic messages received b the police around 2.25 am on 30.4.1999 did not constitute the FIR under Section 154 of the Code and the statement of Shyan Munshi PW-2 was rightly registered as the FIR...

42.

The contention of Ld. Defence counsel that initially, the

FIR was registered under Section 336/506 IPC and both the section were bailable and the accused was illegally detained, from 2.2.2009 to 16.2.2009, by the SHO Inspector Raj Kumar, is also not convincing. Section 156(2) Cr.P.C prohibits raising question of investigation done by police officer, not being empowered to investigate the offence. Reliance could be placed on judgment in case

Sashikant

Rajguru

Vs.

State,

Crl.

M.C

390/2009

dated

17.3.2010 and H.N Rishbud Vs. State of Delhi AIR 1955 SC 196 wherein the Hon'ble Court has observed as under :
...A defect and illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr.P.C as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance..

In the present case, FIR Ex PW 43/B was registered on 2.2.2009 at 12.20 am. On the same date, SHO Inspector Raj Kumar produced the accused before the court of Ld. ACMM, Dwarka Court for judicial remand vide application Ex PW45/D. In the said application, SHO Inspector Raj Kumar disclosed that the offence committed by the accused is under Section 3(1) (d) of Suppression of Unlawful Act Against the safety of Civil Aviation Act, which is reproduced as under :Accused has intimidated all the passengers and threatened the crew members to hijack the Aircraft. The Act of
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accused attracts ingredient of 3 (1) (d) The Suppression of Unlawful Acts Against Safety of Civil Aviation Act 1982 and as per the notification under this case IO of BCAS is empowered to investigate in the offence.

Admittedly, PW45 SHO Inspector Raj Kumar competent to investigate the case under Section

was not 3(1)(d) of

Suppression of Unlawful Act Against the Safety of Civil Aviation Act 1982 and accused was sent to JC till 16.2.2009. PW47 IO S.K Bhatnagar, Deputy Commissioner of Security (CA) BCAS, on receiving the office order Ex PW45/DX2 of empowerment to investigate the case and its notification Ex PW47/A took over the investigation of the case on 11.2.2009 and after the notification of the designation of the court Ex PW 47/B, he filed application Ex PW47/C for interrogation of the accused and after the interrogation, he filed his report Ex PW 47/D on 16.2.2009. Thereafter, he made request and filed an application for arrest of the accused vide letter Ex PW 47/E under Section 3(1) (d) of the Suppression of Unlawful Acts Against the Safety of Civil Aviation Act 1982 and accused was accordingly arrested on 16.2.2009 vide arrest memo Ex PW 47/F with permission of the court. of the investigation, chargesheet After the completion Ex PW 47/H, against the accused

under Section 170,336,503 and 506 IPC and under Section 3(1) (d) and 3(2) of Suppression of Unlawful Act Against the Safety of Civil Aviation Act 1982 as amended and under Section 3(2) and 4 of Anti Hijacking Act, 1982 as amended was filed through letter Ex PW47/J. Admittedly, the accused was arrested under Section 3(1) (d) of Suppression of Unlawful Act Against the Safety of Civil Aviation Act 1982 on 16.2.2009 vide arrest memo Ex PW 47/F and he was sent to JC under Section 3(1) (d) of Suppression of Unlawful Act Against the Safety of Civil Aviation Act 1982 on 2.2.2009, after 3(1) (d) of Suppression of Unlawful mentioning in the application Ex PW 45/D that the offence committed by the accused is under Section Act Against the Safety of Civil Aviation Act 1982 and consequently,

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the procedure of documents of arrest was not got executed between 2.2.2009 to 16.2.2009. In the present case, laps on the part of the prosecution is in execution of arrest memo however, the offence committed was already mentioned and was stated to the accused in application Ex PW45/D dated 2.2.2009 i.e the offence committed by the accused is under Section 3(1) (d) of Suppression of Unlawful Act Against the placed on Safety of Civil Aviation Act 1982. Reliance could be Judgment in case State Represented by Inspector of

Police and others Vs. N.M.T.Joy Immaculate (2004) 5 Supreme Court Cases 729 wherein the Hon'ble Supreme Court has held as
under :
..Above all, the learned Judge has committed a grave error in awarding a compensation of Rs. 1 lakh on the ground that the police personnel committed acts of obscene violation, teasing the respondent herein. The learned Judge has relied upon only on the basis of the affidavit filed in the case for coming to the conclusion and also on the basis of the assumption that the respondent was not involved in the incident which will forceclose the further enquiry ordered by the learned Judge in the matter. There is no justification for awarding compensation to a person who is facing prosecution for a serious offence like murder even before the trial has started...

Since, the accused was already intimated that the offence committed by him is under Section 3(1) (d) of Suppression of under Section Unlawful Act Against the Safety of Civil Aviation Act 1982 and later chargesheet is also filed by the IO S.K Bhatnagar, 170,336,503 and 506 IPC and under Section 3(1) (d) and 3(2) of Suppression of Unlawful Act Against the Safety of Civil Aviation Act 1982 as amended and under Section 3(2) and 4 of Anti Hijacking Act, 1982 as amended, there is no illegality found on the record. However, faulty investigation cannot be made ground to acquit the accused solely on the technical defect. The reliance could be made on the judgment in case titled Ram Bali Vs. State of UP, AIR 2004

Supreme Court 2339 and Dhanaj Singh @ Shera & Ors. 2004 (3) SCC 654 wherein the Hon'ble Supreme Court has held as under
.... In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right

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in acquitting an accused person solely on account of the defect ; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective..

43.

The contention of Ld. Defence counsel that the prosecution the accused is

failed to prove sanction in the present case hence, entitled for acquittal, is also not convincing.

The prosecution has examined Mr. S. Gauri Shanker Under Secretary Government of India as PW 46 who has stated that file i.e sanction file was examined at the Ministry level and he conveyed the approval Ex PW 46/A of the Sanction. During the cross-examination, he has clarified that they have examined all the material documents. The accused at the time of framing of the charge did not raise objection that the sanction has not been obtained. The PW46 S. Gauri Shanker, Under Secretary, Government of India has proved the letter Ex PW 46/A by which the sanction is conveyed. The examination accused has put suggestion during the crossto PW 46 S. Gauri Shanker, who has denied the that the mind of the sanctioning

suggestion put by the accused reproduced as under:

authority was under pressure to accord sanction in this case, which is

It is further incorrect to suggest that the mind of the sanctioning authority was under pressure to accord sanction in this case.

Ex PW46/A is letter No.AV.13024/003/2009-SS dated 15.4.2009 of Government of India, Ministry of Civil Aviation, to the Commissioner of Security, (CA) BCAS , Janpath Bhawan, New Delhi for conveying the sanction of the Central Government for institution prosecution under Section 170,336,503 and 506 IPC and under Section 3(1) (d) and 3(2) of Suppression of Unlawful Act Against the Safety of Civil Aviation Act 1982 as amended and under Section 3(2) and 4 of Anti Hijacking Act, 1982 as amended, in case registered vide FIR No. 5/2009, dated 2.2.2009 of PS Domestic Airport, IGI, New Delhi.
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Letter Ex PW 46/A clarifies the approval of the sanction accorded specifically under Section 170,336,503,506 IPC and under Section 3(1) (d) and 3(2) of Suppression of Unlawful Act Against the Safety of Civil Aviation Act 1982 and under Section 3(2) and 4 of Anti Hijacking Act, 1982, in FIR No. 5/2009, dated 2.2.2009 of PS Domestic Airport, IGI. The suggestion put by the accused to PW 46 S. Gauri Shanker is that the sanctioning authority was under pressure to grant sanction therefore, the granting of the sanction against the present accused under Section 170,336,503,506 IPC and under Section 3(1) (d) and 3(2) of Suppression of Unlawful Act Against the Safety of Civil Aviation Act 1982 and under Section 3(2) and 4 of Anti Hijacking Act, 1982 is not in dispute. The letter Ex PW46/A is an official communication emanating from the Government of India to Commissioner of Security (CA) BCAS. The presumption would therefore arise that the sanction to which reference is made in the document had infact been accorded. Further, since the communication is an official one, the presumption would also arise that the official act to which reference has been made that the letter Ex PW 46/A was regularly performed. Therefore, I am of the opinion that the letter of conveying the sanction Ex PW46/A on record prima facie meets the requirements of Sanction 196-A of Criminal Procedure. The reliance is placed on judgment in case Tulsi Ram

Vs. State of UP 1963 (Supp) (1) SCR 382 wherein the Hon'ble Court has observed as under :
...It is not his contention that there was no sanction at all but the gravamen of his complaint is that there is no proper proof of the fact that sanction was given by the authority concerned after considering all the relevant facts and by following the procedure as laid down in Article 166 of the Constitution... ...There would have been good deal of force in the argument of Ld. Counsel had Ex P-1560 not been placed on record. Though that document is not the original order made by the Governor or event its copy, it recites a fact and that fact is that the Governor has been pleased to grant sanction to the prosecution of the appellants for certain offences as required by Section 196-A of the Code of Criminal Procedure. The document is an official communication emanating from the Home Department and addressed to the District

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Magistrate at Kanpur. A presumption would, therefore, arise that sanction to which reference has been made in the document, had in fact been accorded. Further, since the communication is an official one, a presumption would also arise that the official act to which reference has been made in the document was regularly performed. In our opinion, therefore, the document placed on record prima facie meets the requirement of Sanction 196-A of the Code of Criminal Procedures and, therefore, it is not now open to the appellants to contend that there was no evidence of the grant of valid sanction. We, therefore, overrule the contention raised by Ld. Counsel...

and further reliance could be made on judgment in case Feroz Deen

Vs. State of West Bengal, AIR 1960 SC 363 wherein the Hon'ble
court has held as under :
...It is true that the sanction does not on the face of it refer to the facts constituting the offence. There is, however, ample evidence in this case, which we did not understand the learned Advocate for the appellants to challenge and which clearly establishes that the entire facts connected with the offence had been placed before the sanctioning authority and the sanction had been granted on a consideration of them. The Judicial committee in the case abovementioned itself observed that the sanction would be good if it was proved by evidence that it has been granted after all necessary facts had been placed before the sanctioning authority though these facts might not have been stated on the face of the sanction itself. It therefore seems to us that the sanction in the present case is unobjectionable....

44.

The contention of Ld. Defence counsel that accused is

falsely implicated in the present case as there were sixteen suspects on board and further the flight No. 6E334 from Goa to Delhi was normal, which is evident from BCAS own letter Ex PW45/D/X/DY1, is also not convincing. The letter Ex PW45/D/X/DY1 dated 1.2.2009 of Sh. B.S Tiwari, RDCOS (BCAS) to Commissioner of Security Civil Aviation BCAS, is information letter regarding landing of the aircraft No.6E334 at Delhi Airport, without any loss and taking of the aircraft at the isolated bay due to unruly behaviour of three passengers (1) Jitender Mohla, (2) Hardeep Anand and (3) Sameer Uppal. The source of information given is simply informative information and not specific and this information is sent before the registration of the FIR and

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prior to the

investigation taken place. The FIR is registered on

2.2.2009 at 12.20 am, which is Ex PW43/B. So far the false implication of accused in present case is concerned, it is completely ruled out as all the eye witnesses to the incident have identified the accused on board at the time of the incident and also through boarding pass Ex PW17/C. Further the accused has taken the defence that as he was perturbed due to the inefficiency of the crew members, he told them that he is a DGCA official and he will make report against them. 45. Ld. defence counsel has further contended that the

prosecution failed to prove intention and motive behind the alleged incident, as such, accused deserves acquittal in the present case, is also not convincing as intention is a state of mind and cannot be It can only be detected or proved by precised direct evidence.

inferred from the other factors. Some of the relevant consideration may be nature of weapon used, the relevance of place where the incident has taken place, the nature of the injuries and the circumstances in which the incident has taken place. In the present case, the incident was taken place on board in flight No. 6E334 while the aircraft was in air on 1.2.2009 and PW1 Anchal Mehta has identified the accused while coming back after checking her responsibility and stated that accused told her that he is a DGCA official and he would make report that the passengers are moving in the aircraft while the aircraft is taxing. She contacted to Neha Chhikara and she heard accused was saying that he was in the Kandhar hijacking and thereafter, he spoke something about infected needles. She further stated that there was slight disturbance and Lead about this incident and they informed cockpit Neha informed

crew about the same. During the cross-examination, she has clarified that the passengers were very restless. Neha Chhikara was very upset about

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the things said by Mr. Mohla to her so she went to forward and Neha Gogia was sent to the aft because she was feeling bad seeing Ms. Neha Chhikara she went forward. Mr. Mohla came to the aft galley and showed her a pen and asked her what is this, she replied this is a pen and the accused told what if someone kills using that pen. This fact she had not told to the police also because this was nothing to do with the flight but personally it scared her in the flight. The same is reproduced as under :
Mr. Mohla came to the aft galley showed me a pen and asked me what is this. I replied this is a pen and he said what if someone kills using this pen. This fact, I had not told to the police also because this has nothing to do with the flight but personally it scared me in the flight.

The fact that he was on board and in the air and still he intimidated the deceased Neha Chhikare and Anchal Mehta and intimidated by saying that he is a DGCA official and would make report against the cabin crew members that the passengers are moving in the aircraft and he was involved in Kandhar hijacking and terrified crew members by showing pen to be needle, shows that he had prerequisite culpable intention. Even if, it is presumed, that he has no such intention it must be attributed that he is possessing such knowledge that he was on board in Indigo flight No. 6E334 along with 160 passengers and his act would endanger the safety of the The reliance could be wherein Hon'ble passengers as well as the aircraft in flight.

placed on judgment in case titled Mrs. Rupan Deol Bajaj & Anr. Vs.

Kanwar Pal Singh Gill & Anr. 1996 AIR 309

Supreme Court has held as under :

.. It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being state of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case.... ... The sequence of events which we have detailed earlier indicates that the slapping was the finale to the earlier overtures of Mr. Gill, which considered together, persuade us to hold that he had the requisite culpable intention. Even if we had presumed that he has

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no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society as the names and designations of the people given in the FIR indicate. While on this point we may also mention that there is nothing in the FIR to indicate, even remotely, that the indecent act was committed by Mr. Gill, accidentally or by mistake or it was a slip. For the reason aforesaid, it must also be said that, - apart from the offence under Section 354 IPC an offence under Section 509 IPC has been made out on the allegations contained in the FIR as the words used and gestures made by Mr. Gill were intended to insult the modesty of Mrs. Bajaj...

So far the motive is concerned, it is not always capable of precise proof, if proved, may only lend additional support to strengthen the probability of commission of the offence by the person accused but the absence of proof does not ipso facto warrant an acquittal, because the motive lies locked in the heart to the man and it is difficult to know it. Reliance is placed on judgment in case title

Meharban and others Vs. State of M.P, (1996) 10 SCC 615

wherein Hon'ble Supreme Court of India has observed as under :
...The motive lies locked in the heart of a man and so, it becomes difficult to know the same. Failure to bring on record any evidence regarding motive does not, however, weaken a prosecution case though existence of the same may strengthened the same...

Conclusion As discussed above, it is proved on record that accused Jitender Mohla was on board on 1.2.2009 in Indigo flight 6E334 from Goa to Delhi. The offence committed is on board in flight No. 6E334 from Goa to Delhi between chock off at 15:12 hours from Goa and chocks on at IGI Airport, New Delhi at 17:13 hours. On the board, every person standards has to maintain certain of behaviour as per the norms laid down by ICAO and

DGCA and India is one of the signatory State to the Montreal Convention. Any breach of rule would result into the endangering the aircraft as well as passengers on board. Therefore, what is required is zero tolerance on board.
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As per statement of PW1 Anchal Mehta, the accused Jitender Mohla impersonated himself to be a DGCA official and intimidated that he would prepare report against the crew members and further stated that he was involved in Kandhar hijacking episode and he is having some infected needles. PW1 Anchal Mehta has clarified during the cross-examination that what was his spoken behaviour was in the form of intimidation as she has stated that Mr.

Mohla came to the aft galley showed me a pen and asked me what is this. I replied this is a pen and he said what if someone kills using this pen. This fact, I had not told to the police also because this has nothing to do with the flight but personally it scared me in the flight.
PW1 Anchal Mehta is the witness to the incident and her statement is direct. She is an independent witness and has got no enmity against the accused as she has seen the accused for the first time on the board and there is no interest of false implication to the accused, on her part. The another witness to the incident is the complainant Neha Chhikara, who died before her examination in the court and her statement before the police is Ex PW45/A which is basis of the FIR Ex PW 43/B, however, it is not a substantive evidence but it does not weakens the prosecution case, rather gives strength to the prosecution version. The communication of the incident was communicated by deceased Neha Chhikara to the Lead Cabin attendant Jyoti Chhetri, who communicated the same to the cockpit crew members i.e The Captain Amit Captain Amit Singh and co-pilot Punit Prasad.

Singh PW4, on the basis of the information received in the cockpit, requested for discrete frequency from the ATC Delhi and finally succeeded in landing the aircraft at IGI Airport, New Delhi in security cordon. While, the Indigo flight No. 6E334 came down within the range of ATC Delhi, the ATC Delhi overheard the conversation between the cabin crew and the cockpit crew, regarding the situation on the board, and, in the meanwhile, pilot in command PW4 Amit
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Singh succeeded in taking discrete frequency from the ATC and informed the situation on the board. The said situation has been proved by the prosecution by the oral statement of PW4 Amit Singh and Punit Prasad PW5 and log book entry Ex PW 35/A, which shows that situation on the board was otherwise than normal. The log Entry Ex PW35/A is reproduced as under : 1132 (UTC) 1GO 334 VAGO VIDP reported unruly passenger on board and requested priority and security personnels to attend the acft. Infd all concerned. 1139 (UTC) IGO 334 requested discrete frequency and was released to 119.3 mhz in cood with WSO. All concerned informed. (Cockpit conversation regarding suspected hijack was overheard on 124.55). 1101 (UTC) Took over watch. 1225 (UTC) Handed over watch.

The duration of the flight was of two hours and the evidence coming from the eye witness PW1 Anchal Mehta as well as the passenger witnesses and the cabin crew members suggests that the behaviour of the accused on board was not normal as required on the board. The chain of circumstances i.e making communication to the Lead regarding the incident by Neha Chhikara and further her communication to pilot in command Amit Singh in cockpit and the cockpit crew communicating the situation to ATC Delhi and ATC Delhi permitting the parking of Indigo flight 6E334 at isolated bay, also indicates that the flight was not normal, as defence claimed. What is claimed by the accused in defence and under Section 313 Cr.P.C, is that the act done by him is in good faith and situation was normal, which does not seems to be correct, as good faith in General Clause Act is not applicable to either on board or on the intimidation under the IPC. The onus lies on the defence to prove the same. The accused did not prefer himself to examine under Section 315 Cr.P.C, to dispel the charges of the prosecution.

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The intimidation intimidated to Neha Chhikara and Anchal Mehta by accused that he is a DGCA official and would make report against the cabin crew members that the passengers are moving in the aircraft and he was involved in Kandhar hijacking and terrified crew members by showing pen to be needle, shows that he had prerequisite culpable intention. Even if, it is presumed, that he has no such intention it must with 160 passengers be attributed that he is possessing such knowledge that he was on board in Indigo flight No. 6E334 along and his terrifying act against the cabin crew members would endanger the safety of the passengers as well as the aircraft in flight. The reliance could be placed on judgment in case

Hari Singh Vs. State

in Crl. A. No. 598/2001 decided on

3(1) (d) of

29.3.2011 by Hon'ble High Court of Delhi. Thus, I accordingly,

convict the accused Jitender Mohla under Section Suppression of Unlawful Act Against the Safety of Civil Aviation Act 1982 and under Section 336/506/170 IPC only. Since, nothing was found in the possession of the accused at the time of his arrest and there is no evidence on record to show that the accused entered into the cockpit, the prosecution case under Section 3(2) and 4 under Anti Hijacking Act 1982, fails. Announced in open court on 25.10.2012. (I.S Mehta) Judge, Designated Court Dwarka Courts/New Delhi

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IN THE COURT OF SHRI I.S.MEHTA, DISTRICT JUDGE & ADDITIONAL SESSIONS JUDGE, INCHARGE SOUTH WEST DISTRICT, NEW DELHI

Session Case No: 8/2009 Date of Institution : 16.2.2009 Date of Decision : 25.10.2012 State Vs. Jitender Mohla S/o Sh. Ashok Kumar R/o 662, Air Force Naval Officers Enclave, Plot No. 11, Sector-7, Dwarka, New Delhi. FIR NO : 5/2009 PS : IGI Airport (Domestic) U/S 3 (1) (d) of Suppression of unlawful Act against Safety of Civil Aviation Act 1982 and 506/336/170 IPC. For State : Sh. Vishnu Saran, Ld. Designated PP. For Accused : Ms. Kamna Vohra, Adv. Ld. Defence counsel.

ORDER ON SENTENCE 1. family. Ld. Defence counsel Ms. Kamna Vohra has submitted that He is son of a retired Air Force Commodore. He is never

convict Jitender Mohla is 45 years old and belongs to a respectable implicated accused in any other case. There is no case against him. He has clean antecedents. He is a qualified Chartered Accountant and was practicing Chartered Accountant before he was arrested in the present case. He is in JC since his arrest on 2.2.2009. He is married. His mother is suffering from Cancer and his father is a heart patient. He is the only son. There is nobody in in his family to look after his old parents and prays that lenient view be taken.

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2.

On the other hand, Sh. Vishnu Saran, Ld. Designated PP

has submitted that accused is being convicted under Section 3(1) (d) of Suppression of Unlawful Act against Safety of Civil Aviation Act 1982 and the said Act was enacted on the basis of the Montreal Convention, to which, India is one of the signatory State. The minimum punishment is already given in the special Act convict be sentenced as per the Act. 3. The punishment given under the Suppression of Unlawful and the

Act Against Safety of Civil Aviation Act 1982, in violation of Section 3(1) (d), is as under :

Shall be punished with imprisonment for life and shall also be liable to fine.
4. The dominant purpose in construing a statute is to

ascertain the intention of the Parliament. One of the well recognized canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. The Act, the Suppression of Unlawful Act against Safety of Civil Aviation Act 1982 (66 of 1982) was passed by Parliament of India to give effect to the Montreal Convention and better teeth to curve the offences on board. India is one of the signatory State to Montreal Convention. 5. The language of the Act 3 (1) (d) of Suppression of

Unlawful Act Against Safety of Civil Aviation Act 1982 is very clear and does not require any external aid to its construction. The plain language of the Section shows that the convict is to be awarded life imprisonment and is also liable to fine. The reference could be made to judgment in case title Lt. Col. Prithi Pal Singh Bedi Etc Vs.

Union of India & Ors. Decided by Hon'ble Supreme Court of India on 25.8.1982 and Amrinder Singh Vs. Union of India

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(Uoi) And Anr. Decided by Hon'ble Rajasthan High Court on 14.12.1992.

6. Accordingly, the convict Jitender Mohla S/o Sh. Ashok

Kumar is sentenced to imprisonment for life and fine of Rs. 5,000/(five thousand) and in default of payment of fine, he shall undergo further SI for six months, under Section 3 (1) (d) of Suppression of Unlawful Act Against Safety of Civil Aviation Act 1982. The convict Jitender Mohla is further sentenced to R.I for two years and fine of Rs. 1000/- (one thousand) and in default of payment of fine, he shall undergo further S.I for one month, under Section 506 IPC. The convict is further sentenced to R.I for two years and fine of Rs. 1000/- (one thousand) and in default of payment of fine, he shall undergo further S.I for one month, under Section 170 IPC. The convict is further sentenced to R.I for one month under Section 336 IPC. All the sentences shall run concurrently. 7. The period already undergone by the convict, during the Copy of the judgment and order on sentence be supplied to the convict free of cost. File be consigned to Record Room. Announced in open court on 30.10.2012. (I.S Mehta) Judge, Designated Court Dwarka Courts/New Delhi

investigation and trial, shall be set off under Section 428 Cr.P.C.

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