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IN THE COURT OF SH. RAJENDER KUMAR : ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI. S. C. no.1/06 Tika Ram Vs. (1) R.P. Tyagi (2) Tej Singh (3) Gurdass Ram (4) K.P. Singh (5) Surender Pal (6) Jagdish (7) Kanwar Lal (8) Narender (9) Dr. A.K. Verma (10) Narender Gupta (11) Chander Kumar Sharma (12) Manoj Kumar U/s. 168/201/217/218/302/325/323/343/347/120B/34 IPC & 24 D.P. Act Complaint Case no. 98/1987 PS. Vivek Vihar Pr. :Sh. Zenul Abedeen, APP for State. All accused persons on bail except accused R.P. Tyagi who is in J/C. Sh. Sanjay Gupta advocate for accused R.P. Tyagi. Sh. Mukesh Kalia advocate for accused Tej Singh. Sh. S.K. Ahluwalia adv. for accused Gurdas Ram. Sh. Jai Gopal Garg advocate for accused K.P. Singh, Narender, Chander Kumar Sharma and Manoj Kumar. Sh. Arvind Kumar advocate for accused Surender and Kanwar Pal. Sh. R.S Juneja advocate for accused Ct. Narender and Ct. Jagdish. Sh. N.K. Sharma advocate for accused Dr. A.K. Verma.

JUDGMENT 1. On 16.08.1987, it was festival of Janamsthmi. ASI Rishi Pal

(DW1) posted in PS Vivek Vihar, was deputed at Chhota Bazar, Shahdara. At about 9.20 p.m., some one told him about two antisocial persons who were extorting money on the point of a

knife at Circular Road. Ct. Rishipal (as he then was) went there and if this witness is believed, he found one Mahender and Ram Kumar there. grippling On being challenged, both of latters started Ram Kumar stabbed him in chest and

with him.

Mahinder Kumar gave him beatings after snatching his own danda. An FIR No. 259/87 was registered in this regard, on the statement of Ct. Narender in PS Vivek Vihar. 2. In the intervening night of 24 and 25 August 1987 both of in SDN hospital having

said two accused were admitted

sustained injuries ostensibly by beating. Mahender was shifted to LNJP hospital where he died on 25/08/1987. As it appeared an unnatural death, area SDM S.S Rathore (Pw1) conducted inquest about cause of his death, on being nominated by ADM Head Quarter. Sh. S.S Rathore (Pw1) was transferred from the post of SDM. Sh. Parimal Rai (Dw 7) next SDM, submitted his report Ex.Dw7/A, after recording statements of several witnesses. 3. SDM Sh. S.S Rathore found involvement of the police in

that crime and recommended registration of FIR against the police of PS Vivek Vihar for offence U/S 304 IPC. Police did not lodge any FIR. Sh. Parimal Rai (Dw7) again conducted inquest and did not agree with his predecessor. He reached a conclusion that Mahender Kumar had sustained injuries on being beaten by the public. It did not satisfy family members of deceased

particularly his father. The latter left no door unknocked in bringing the law into motion. Same filed several complaints to various authorities from Prime Minister, Home Minister, Lt. Governor of Delhi, Commissioner of Police to local SDM and editors of most of newspapers. A member of MCD, Satish

Aggarwal (Pw2) also talked to SHO on behalf of complainant. Ultimately a case FIR no. 59/88 was registered for offence punishable U/s 304/34 IPC . This case was sent to concerned MM, KKD, Delhi as 'untraced' which was accepted by the then MM Sh. Z.S Lohat (Pw 29) by his order dated 07.07.89. Father of deceased Sh. Tika Ram preferred to file a complaint U/s 190 Cr PC. 4. Ld MM, Karkardooma Court, Delhi found a prima facie

case against all of accused including some other persons and summoned the same to face trial in this case. The accused

persons were charged by this court on 30.4.01 for which they pleaded not guilty and claimed trial. 5. In order to prove its case, prosecution examined 48 The accused persons in their statements

witnesses in total.

recorded U/s 313 Cr PC when the incriminating evidence on record was put to them denied its correctness. They examined 12 witnesses in defence. Accused Dr. A K Verma examined himself as DW11.

6.

I heard ld counsels appearing on behalf of all the parties

in detail. 7. Accused R.P. Tyagi, Gurdass Ram, SI Tej Singh, Surender

Pal, Narender, K.P. Singh, Jagdish and Kanwar Pal were employed with Delhi Police while Dr. A.K. Verma was employed with MCD as a doctor at the time of incident. It is contended by Ld counsels representing said accused that being public servants not removable from their office, save by or with the sanction of concerned Government, cognizance of offence could not have been taken against aforesaid accused persons. Similarly Section 140 of Delhi Police Act had barred taking of cognizance against police persons i.e accused mentioned above, except instituted within three months after the date of the act, which has not been done in this case. 8. Though Ld MM, Delhi had taken note of provisions of

sanction by concerned Govt. while summoning the accused. Sh. Sanjay Gupta advocate reminded me about an order of our High Court dated 06.12.95 where citing a mandate of the apex court given in case titled as Prof. Sumer Chand Vs Union of India JT 1993 (5) 189 his lordship J.K. Mehra, J, directed this court to consider the effect of Section 140 of D. P. Act in the light of pronouncement of the Hon'ble Supreme Court in case of Sumer

Chand Vs. Union of India

reported in JT 1993 (3) 189.

This

court was also required to examine whether it was a continuous offence and when did limitation start running in this case. 9. It is also the plea of ld. defence counsels that after sending

the case for investigation to police U/S 156 (3) Cr. P. C., ld. MM could not have resorted to inquiry U/S 202 Cr. P. C. by calling complainant and his witnesses to be examined in court, as has been done by ld. MM in this case. 10. All these issues have been considered in detail at the

time of initiation of trial and by order dated 07.4.01, it was decided by this court that no such sanction was called for in this case as actions alleged against the accused persons were not in discharge of their official duties and that proceedings of ld. MM in holding inquiry U/S 202 Cr. P. C., was also not illegal in any way. 11. When an issue has already been decided, there appears I find support in my

no propriety to discuss the same again.

opinion from a case titled as Lalta Prasad Vs State of UP 1970 Criminal Law Journal 1270 where it was held by the apex court of India that when an issue of fact has been tried by a competent court on a former occasion and a finding of the fact has been reached in favour of accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to

the trial and conviction of the accused for a different offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently. This finding was up - held by the apex court itself in case Masud Khan Vs State of UP AIR 1974 SC 28. It was again observed by the Supreme Court in case A R Antuley Vs R.S Nayak that this code (Criminal

Procedure Code) ought to recognise

the distinction between

finality of judicial order qua the parties and the reviewability for application to other cases. 12. Deceased Mahender Kumar was got admitted in SDN

hospital on 24.8.87 by Ct. Rattan Lal no. 576 E. Dr. A.K. Verma (now accused) who also examined himself as Dw11, examined said patient and pointed out 13 external injuries on said patient well described in MLC Ex.Pw6/A. Dr. Bishnu Kumar conducted postmortem upon the dead body of said deceased. The report in this regard is Ex.Pw36/A. In the opinion of Dr. Bishnu Kumar, the cause of death in this case was due to 'shock as a result of

multiple injuries all over the body caused by some blunt force object or surface (Ex. PW36/A)'. 13. When a person dies in the custody of police due to injuries

ostensibly caused by beatings and there were severe allegations of torture against the police, in such circumstances, it was for the police to explain the injuries suffered by such deceased. It was not

sufficient for the accused in whose custody the deceased was, merely to deny claim of torture. Police had to establish that injuries found on the body of such person were caused not by them but by someone else. May I refer here a recent case titled as State of Rajasthan Vs KashiRam 2006 IX AD SC (561). The respondent / accused was tried for murder of his wife, relationship between them was not cordial. There were instances of respondent assaulting deceased and treating her with cruelty, prosecution established that deceased was last seen alive in her house and that Pw2 had seen her as well as the accused in their rented premises. It was proved that two doors of the house were found locked in the morning, the respondent made only a bald denial of all the incriminating circumstances put to him and had no explanation to offer. In these circumstances, it was held by the Supreme Court of India that the respondent having been seeing last with the deceased, the burden was upon him to prove as what happened thereafter, since those facts were within his special knowledge. 14. In another case of murder and matrimonial cruelty titled

as Trimukh Maroti Kirkan Vs. State of Maharashtra 2006 IX AD (S.C) 81 it was held by the apex court :If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in

circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts and that law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. 15. It is plea of accused persons that said Mahender Kumar

had died due to injuries caused by public. An information in this regard was recorded in police station Vivek Vihar as DD9/A. FIR 59/88 was registered about said incident in PS Vivek Vihar. After investigation, the case was sent as untraced. The request of ACP Gandhi Nagar to close investigation in this regard was accepted by Sh. Z.S Lohat, the then MM, KKD, Delhi vide his order Ex.Pw29/A. 16. On the other hand, as per prosecution, it was police of PS

Vivek Vihar by which deceased Mahender was beaten to death. It is also alleged that certain police persons posted in said Police station abducted family members of said deceased, confined them in police station and tortured the same in order to compel them to produce deceased Mahender Kumar and Ram Kumar in police station. Mother of deceased Smt. Rajkali (Pw9) deposed on oath that on the day of Janmashtmi, four police officials of PS Vivek Vihar namely SHO R.P. Tyagi, Surender, Narender and

Mukesh Kumar (PO) came to her house and asked her regarding whereabouts of Mahender and Ram Kumar. When she showed her ignorance about said fact those police persons started hurling abuses at her. She was directed by them to search said Mahender Kumar and Ram Kumar and produce them to police station. Thereafter, aforesaid police persons took her and her daughter in law Premwati in police station. They were confined in lockup. Aforesaid police persons also lifted sister and mother of Ram Kumar from their house and brought to police station Vivek Vihar. It is again deposed by this witness that at about 7.00 am her sons namely Mahender, Kishan Chand alongwith Jassu and Rajender, both of their neighbours and one more person whose name she did not recollect produced Mahender and Ram Kumar in police station and further that accused R.P. Tyagi told them that unless and until Ram Kumar and Mahender are produced they will keep them confined in police lockup. Accused R.P. Tyagi also stated to her that he will kill her son Mahender Kumar. He (R.P. Tyagi) gave her beatings with lathi as a result of which she sustained severe injuries on her fingers. He (R.P. Tyagi) used filthy language for her and her daughter in law. Further it is clarified by the same witness that when her son Kishan Chand produced Mahender and Ram Kumar in police station, accused R.P. Tyagi went to them and asked accused Jagdish to release

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them (PWs) from police station. It is further explained by this witness that after being released they kept standing outside police station. They also requested accused R.P. Tyagi to allow them to see Mahender and Ram Kumar. The latters were taken by the police officials inside police station and they had started giving beatings to them, due to which both of them (Mahender and Ram Kumar) were crying. 17. PW9 also verified her statement recorded by SDM

Ex.Pw1/B. In her cross examination by APP it is admitted by this witness that she was beaten by police at her residents as well as in police station, she was asked to give birth to one more Mahender on which she replied that it was not her age to bear a child. Again it is disclosed by this witness that SHO (R.P. Tyagi) had stated to her that he had already committed three murders and took her in a room, misbehaved and insulted her there. This witness again told to court that in the morning of 25.8.87 she went to JPN Hospital along with tea for serving it to her son Mahender but was not allowed to go there. The latter died on 25.8.87 at about 4.00 pm and she raised suspicion upon police for his death. 18. Rajender Prasad (brother of deceased Mahender Kumar)

who was examined as Pw12 reminded about an incident when he was lifted from his house by the police and was taken to the house of his in laws at Mangolpuri where his brother Mahender Kumar

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had gone.

The latter was found sleeping there.

Police

overpowered him and brought to police station. It was told to him that said Mahender was involved in a case of assault on some police persons. Police gave beatings to him and put him in lockup. About the incident of 16.8.87, it is deposed by this witness that it was occasion of Janmashtami police came to house of his father and inquired about Mahender. Police came to him also on 17.8.87 and lifted him. They inquired from him about Mahender. He met the latter and disclosed to him about the visit of police to their house and also the fact that police had taken away their father and brother on which Mahender got perplexed and went away. 19. This witness admitted having given a statement to SDM

Ex.Pw1/E and also before MM, Delhi as CW-9. In his statement as Cw9, it was deposed by this witness that on 16.8.87 he was informed that some police officials of PS Vivek Vihar lifted his mother, father, brother and sister in law who were taken to police station. On 17.8.87 four police persons came to his house at about 1.00 pm and inquired about Mahender and Ram Kumar. They gave him beatings and took to police station where he found some persons already sitting in a room of police station including his brothers and mother etc. Police gave them beatings. It is further stated by this witness that he was detained in police

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station for two days and during this period he was given beatings by the police. 20. About the incident of 24.08.1987 it is deposed by this

witness that on this day at about 7.00 a.m. he along with his brother Manohar Lal and Kishamn Chand was searching for Mahinder and Ram Kumar, his brother Rajender (same name), Jassu met them. They were looking about said Mahinder and Ram Kumar. Both of latters arrived there from Ghaziabad side. All of them requested both of latters to surrender before the police so that their parents and relatives and other persons be released. They agreed on the assurance that police will not kill them. They hired a TSR and reached police station. He along with Manohar Lal, Kishan Chand, Jassu and Rajender produced Mahender and Ram Kumar to police at about 7.45 am. On seeing both of them police officials started shouting. SHO R.P. Tyagi and other police persons came out and rushed to reporting room where they had surrendered. SHO (R.P. Tyagi) directed them to leave the police station. His mother and mother of Ram Kumar requested police to talk with said Ram Kumar and Mahender but they were not allowed to do so. All of them left police station but stood outside boundary wall of same. After few minutes they heard sound of weeping by Mahender and Ram Kumar. They wanted to enter in the police station but were not allowed by the

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police. Manohar Lal (Pw13) and his wife Premwati (Pw14) also verified the fact of lifting of Tika Ram and said Manohar Lal by the police. 21. Rakesh Kumar (Pw10), Govind Ram (Pw11), Pappu

(Pw18), Sondal (Pw20), Subhash (Pw21), Sukhbiri (Pw33) and Jamman Lal (Pw34) also deposed about the police having taken them to police station and inquired about said Mahender Kumar and Ram Kumar. Pw10, Pw11 and Pw21 mentioned above also deposed about their beatings by the police. Jamman Lal (Pw34) deposed that apart from his wife Sukhbiri and daughter Omwati, two of his sons namely Ram Lal, Dhrampal and one of their relatives namely Mormukat and a cousin Narain Dass were also lifted by the police. All of them were being taken in the morning and released in the evening. All this happened for 4-5 days. This witness identified his signatures on statement Ex.CW34/A. When examined by Ld MM at the time of pre-summoning evidence Manohar Lal (Cw 26), Kishan Chand (Cw 27) and Rajender (Cw 5) tautologiesd the story as told by Rajendre Prasad (CW9). Though not verified the same when examined in court, during trial. 22. It is contended by Ld defence counsels that depositions

of aforesaid witnesses given before the court of Ld MM at presummoning stage cannot be relied upon. Sh. Sanjay Gupta

advocate has also strong objection as incriminating evidence

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adduced at pre-summoning stage was put to the accused in their statements recorded U/S 313 Cr. P. C. In view of ld counsel,

statements of witnesses recorded by Ld MM during inquiry U/s 202 Cr PC cannot be relied upon as the accused had got no right to cross examine such witnesses at that time. A case titled as Sashi Jena & Ors. Vs. Khadal Swain & Anr. 2004 (1) CAR (SC) 156 is strongly relied upon by ld counsel here. Their lordships of Supreme Court pointed out three pre-requisites, where evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceedings. authority is reproduced as under:From a bare perusal of the aforesaid provision(section 33 of Indian Evidence Act), it would appear that evidence given by a witness in a judicial proceeding or before any person authorized to take it is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states in its evidence given in earlier judicial proceeding or earlier stage of the same judicial proceeding, but under proviso there are three pre-requisites for making the said evidence admissible in subsequent proceeding or later stage of the same proceeding and they are (i)that the earlier proceeding was between the same parties: (ii) that the adverse party in the first proceeding had the right and opportunity to cross examine; and (iii) that the questions in issue in both the proceedings were substantially the same, and in the absence of any of the three pre-requisites afore-stated, Section 33 of the Act would Relevant extract of this

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not be attracted. 23. Hon'ble Judges also cited a case titled as V.M. Mathew

Vs.V.S. Sharma & Ors. AIR 1996 Supreme Court 109 in which it was laid down that in view of the second proviso, evidence of a witness in a previous proceeding would be admissible under Section 33 of the Act only if the adverse party in the first proceeding had the right and opportunity to cross examine the witness. 24. A minutia of Section 33 of said act and findings given in

said case, would make it clear that Ld defence counsel has misconstrued the mandate of apex court. Section 33 of Indian Evidence Act is reproduced here under as:Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is in capable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. Provided.- that the proceeding was between the same parties or their

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representatives in interest|: that the adverse party in the first proceeding had the right and opportunity to cross examine: that the questions in issue were substantially the same in the first as in the second proceeding Explanation- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. 25. When this entire section is read together, it becomes

explicit that this provision prescribes the conditions under which statements by persons as mentioned therein given in a judicial proceedings become relevant. This section does not say anything about such statements given by persons, who are alive or whose presence in court can be secured easily. In this way, depositions of PW's, made before Ld. MM in this very case but did not stick to their earlier statements, have not become irrelevant or inadmissible in view of Section 33 of Indian Evidence Act. 26. True, this provision makes deposition of complainant

Tika Ram given before Ld MM, Delhi irrelevant as the second prerequisite cited above was not fulfilled. The adverse party i.e

accused persons having got no opportunity to cross examine said witness. But the statements of witnesses who appear in court in subsequent proceedings and whose earlier deposition can well be tested on the touch stone of cross examination by adverse party

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cannot be thrown away like waif. 27. The witnesses mentioned above were examined by Ld

MM on oath. Same were again examined in this court during trial. Section 137 of The Indian Evidence Act, 1872 prescribes three forms of examination of a witness as:Examination-in-chief.-The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.-The examination of a witness by the adverse party shall be called his cross examination. Re-examination.-The examination of a witness, subsequent to the cross examination by the party who called him, shall be called his re-examination. 28. CWs mentioned above were called and examined before

Ld MM by the complainant. It was their 'examination in chief'. Similarly, same were again summoned in this court and re-

examined by the complainant/ prosecution. In view of aforesaid definition, this cannot be called as 're-examination', not being subsequent to cross examination. Said witnesses had not been cross examined till then by any of accused. In this way, it

remained their 'examination in chief' again. The Indian Evidence Act, 1872 nowhere envisages examination in chief of same witness twice or thrice in the same proceedings of a case even at different stages in court. It has also not been made mandatory that

'examination in chief' should always be in the presence of adverse

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party. Considering all this, mejudice when 'examination in chief' of these witnesses had already been recorded and that by a court, there was no need to record their 'examination in chief' again. Such witnesses could have been cross examined by the accused on their depositions already recorded by ld. Metropolitan Magistrate. Moreover, Section 80 of The Indian Evidence Act obliges the court to presume a document purporting to be a record or memorandum of the evidence, or of any part of the evidence given by a witness in a judicial proceeding, taken in accordance with law and purporting to be signed by any Judge or Magistrate as genuine and that statements purporting to be made by the person signing it, are true and that such evidence, statement or confession was duly taken. 29. What to say of a deposition recorded by a court, it was

held by our own High Court in case Sumer Singh and Ano. Vs. State and Ors. 130 (2006) DLT 430, that the investigation officer recorded the statements of the prosecution witnesses U/S 161 Cr. P. C., it has to be presumed that he correctly recorded their statements. 30. On this reason, I think statements of said witnesses

recorded by Ld MM were also relevant and examinations of said witnesses recorded during trial are in continuity of same It does

proceedings. This was a case initiated on a complaint.

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not sound well to say that it was a statement recorded at the summoning stage and to be thrown away when accused are summoned, or that it was a deposition to determine the charge against accused, not of any worth when charge is determined or same witness has to take oath of true deposition third time at trial when every time, he has deposed before a proper court of justice. In view of section 80 of Indian Evidence Act, discussed above, each of said statements can be presumed to be true. 31. It is again the plea of Ld defence counsels that many of

Pws turned hostile. As per Sh. Sanjay Gupta advocate there were lot of improvements in their statements and in this way no reliance can be placed upon the depositions of such witnesses. Ld counsel cited following authorities on this point :1. 2. 3. 4. 5. 32. Mohd. Iqbal Vs. State 1998 (2) CCC (SC) 58 Anil Kumar Vs. State 2000 (4) Crimes 283 (SC) Tarun @ Gautam Vs State 2000 (4) Crimes 260 SC State Vs Rajendra Singh 1998 (3) CCC (SC) 93 Jag Narain Prasad Vs State 1998 (2) CCC (SC) 45. In all these precedents, the apex court has cautioned the

trial courts about reliability of witnesses whose depositions suffer from heavy improvements. For example, in case Jag Narain

Prasad Vs State (SUPRA) one witness tried to make an important improvement by stating that one of accused had a pistol in his

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hand at the time of incident, no other witness had stated like that. In such a circumstance, it was held that deliberate improvement made by a witness indicate that he was not an impartial and truthful witness and had tried to falsely implicate him by ascribing a positive role to him that he was carrying a pistol at the time of incident. 33. If we assess the depositions of witnesses in this case

particularly of Smt. Rajkali (Pw9) a star witness of prosecution, by cross examining her ld defence counsel brought out certain facts which had not been recorded by the SDM in the statement of this witness, which was penned down during inquest proceedings. In my opinion, it was neither an improvement over some earlier statements nor contradiction. When a person witnesses some incident happening before his eyes, the facts of incident get stored in his memory. No doubt information such stored is

subject to wear and liable to be forgotten after a considerable time, if not reminded in between. Even otherwise, human

memory is not like a tape. If such a witness is asked to repeat the incident, it is very difficult for him to reproduce it like a tape recorder. Several facts got missed and some new imaginations are likely to creep in. Mind prepares the sketch of any incident every time afresh, which is natural to get changed. 34. Moreover, statement of said witness given in court was

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confronted by Ld defence counsel with the statement of same witness recorded by SDM. Section 174 of Code of Criminal Procedure, 1973 requires the Executive Magistrate for an investigation and drawing up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injuries as may be found on the body and stating in what manner, or by what weapon or instrument (if any), such marks appeared to have been inflicted. It is manifest that purpose of such inquest was to know the apparent cause of death of such deceased. The SDM was not supposed to make a detailed

investigation as how the incident had taken place or who was responsible for the crime. Due to this reason, in my opinion, if the SDM had not taken down the entire story by examining witnesses like Pw 9 in detail, is not surprising and for the same reason, credibility of Pw9 was not doubtful.

35.

There can be no denial that some witnesses took 'U' turn.

Rajender (Pw7) deposed that he did not know any person in the name of Jassu, Rajender, Kishan Chan, Manohar, Mahender and Ram Kumar. Needless to say that in his statement before the court of Ld MM, Delhi this witness had deposed to have produced Mahender Kumar and Ram Kumar in the company of said Jassu, Kishan Chand and Rajender. Rajender and Mahender are his real

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brothers. It cannot be presumed that he may not be knowing his own brothers. Sh. Jamman Lal (Pw34) during his cross examination by ld APP flatly refused to have given any statement in the court. On being further cross examined, this witness Jaswant @

identified his signatures on statement Ex.Pw34/A.

Jassu (Pw3) denied having given any statement before the court. Same also refused about his statement Ex.Pw3/A, though admitted his signatures on the same at point 'A1'. Sukhbiri

(Pw33) also did not remember as to whether she had given any statement before the court of MM. Similarly, Anita (Pw39)

refused to have given any statement in the court, though she also identified her signatures on statement mark Pw39/A at point 'A'. 36. It is apparent that these witnesses told a blatant lie.

Having supported the case of complainant before the court of MM, Delhi, these witnesses clearly dragged out of their deposition. At the same time, it is equally true that nothing came out in cross examination of these witnesses to belie their earlier depositions except their flat refusal. In a case titled as State of M.P Vs Badri Yadav and Anr. 2006 (III) AD (SC) 536, the apex court faced similar problem. Statements of witnesses were

recorded U/s 164 Cr PC. Pw8 and Pw9 filed affidavits stating that their statements before Magistrate were made under pressure and that they were tutored by police. These witnesses were again

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examined as Dws. They resiled completely from their previous statements examined as Pws. In such a situation it was held:It therefore clearly appears as under that Dws their were or No

subsequent either won

statements over from or the

concocted well and after thought. They were threat intimidation accused.

reasonable person, properly instructed in law, would have acted upon such statements-------No complaint whatsoever was made by Dw1 and Dw2 to any court or to any authority that they gave statements on 18.12.1990 due to coercion, threat or being tutored by police. This itself could have been a sufficient circumstance to disbelieve the subsequent statements as Dw1 and Dw2 as held by Sessions Judge, in our view rightly.

37.

I do not agree with Ld defence counsels stating that no

reliance can be placed upon the deposition of hostile witnesses. It was held by the apex court in case Sheikh Zakir Vs State of Bihar AIR 1983 SC 911 that it is not quite strange that some witnesses do turn hostile but that by itself would not prevent a court from finding an accused guilty if there is otherwise acceptable evidence in support of the conviction. The Supreme Court has upheld this mandate on several occasions, one of such case is State Vs Ram Prasad Misra & anr. III (1996) CCR 115 (SC) where the court

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observed thatThe evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but can be subjected to close scrutiny and for portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. The fact that the hostile witnesses having given the statements about the facts within their special knowledge under section 161 Cr PC recorded during investigation, have resiled from correctness of the versions in the statements without giving any reason as why the IO could record statements contrary to what they had disclosed shows that they had no regard for the truth, they fabricated evidence in their cross examination to hold the accused which did not find place in their section 161 statements.

38.

It is urged by Ld APP that even if the depositions of

aforesaid witnesses who resiled from their statements recorded by Ld MM, Delhi at the stage of summoning, are not taken account of, there is sufficient material on record to establish the guilt of accused in this case. 39. It is well established till now that accused can be

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convicted on the deposition of even a single witness if same is found true and it is the quality of evidence and not the quantity that matters. May I reiterate Pw9 Smt. Rajkali, the mother of deceased, who deposed in clear and unequivocal terms that she along with some other witnesses was confined by the police in PS Vivek Vihar till 24.8.87, when Mahender Kumar and Ram Kumar appeared in police station. They were asked by the police to leave police station seeing Mahender and Ram Kumar having surrendered before police. It is also claimed by said witness that she saw police beating Mahender Kumar and Ram Kumar at the time of leaving police station and also that she heard weeping of both of said Mahender and Ram Kumar while standing outside the police station. I see no reason to disbelieve testimony of this witness being a natural witness of incident. It is also stated by this witness on oath that she was picked up from her house by four police officials of PS Vivek Vihar, one of them was SHO R.P. Tyagi. 40. Sh. Sanjay Gupta advocate submitted that the witnesses

examined by accused persons are also entitled to be treated at par with the witnesses examined by prosecution. Ld counsel referred several authorities in this regard. I have no dispute on this point. The Supreme Court of India had mandated in case Doodhnath Pandey Vs State of UP 1981 Criminal Law Journal 618 that defence witnesses are entitled to equal treatment with those of

26

the prosecution and courts ought to overcome their traditional, instinctive disbelief in defence witnesses, quite often they tell lies but so do the prosecution witnesses. 41. Ld counsel referred the inquest report submitted by

Parimal Rai (Dw7) about death of deceased Mahender Kumar in this case. This witness had come to conclusion that deceased Mahinder Kumar died due to beatings given by public. As

discussed earlier, predecessor of DW7, Sh. S.S Rathore after examining witnesses had found police torture as cause of death of said Mahender Kumar. Same had recommended registration of FIR against police persons. After perusing report Ex.DW7/A I do not find it carrying much weight, on following reasons:(a) (b) The business of Dw7 was to give opinion about cause of death and not about the person who had caused injury. Dw7 had not weighed the evidence of witnesses properly. Same gave more weightage to a particular set of witnesses. ( c) 1

Statements of witnesses upon which Dw 7 relied upon about Moreover, the 2 months and hence possibility of

were recorded much after the incident i.e after manipulation cannot be ruled out.

statements recorded immediately after the incident by his predecessor were not given due weightage. 42. In a case titled as Ravinder Kumar Vs State of Punjab 1996 decided on 19.8.96 Death of

Cri. Misc. no.6587 M of

deceased in police lock up was not disputed but whether suicidal

27

or homicidal was the question. In such a case, it was held by Punjab & Haryana High Court that custodial death cases are not ordinary case where onus of proving the charge would always be on the prosecution. Under such categories of cases though initial onus to prove the charge would of course lie on the prosecution, the defence would not be able to shirk their duty during the course of trial from showing that it was a case of suicidal death and not murder. 43. On the basis of facts discussed above, It can be presumed

that deceased Mahender died due to beatings given by police in PS Vivek Vihar. So far as the defence of accused that same was beaten by public at Surajmal Park, has not been established on record. On 24.8.87 at 2.05 pm DD 7A was recorded in that police station as that the police was informed that two bad characters were attempting to terrorize by threatening to stab the passer-by persons at Surajmal Park, road no.58. It is contended that after getting said information, a police team was sent there and Mahender and Ram Kumar accused of stabbing a police person were nabbed, who had been beaten by the public. No evidence was led in this regard in the court and hence this fact remained unproved. On the contrary, HC Narender Singh (Pw8) who is stated to have joined said police team having gone Surajmal Park, denied said fact in court rather stated that on 24.8.87 he was sent

28

by SHO R.P. Tyagi to Tis Hazari court along with an application of SI Tej Singh for his exemption from appearance in court. He returned from there to police post Anaz Mandi at around 2.00 pm and that he did not go along with any raiding party and no one (like Mahender and Ram Kumar) was arrested in his presence. The driver of police vehicle who is stated to have had driven the police team to spot i.e Surajmal Park namely HC Manoj Kumar (Pw38) deposed that he was deputed as driver on Jeep no. DED 1762 on 24-25 August, 1987. Log book of said vehicle was not available. This witness when examined before the court of MM was shown log book. He admitted the entries in the same

marked 'XA' in his own handwriting countersigned by incharge police post Anaz Mandi. It was disclosed by this witness that on 24.8.87 he performed journey ilaqa gast /patrolling of PS Vivek Vihar to SDN Hospital Shahdara to Anaz Mandi and back to police station after taking petrol from Shahdra. The copy of entry was Ex.Cw13/A. It was further clarified by this witness that he had seen said Ram Kumar and Mahender Kumar sitting in police station at 8.00 am on that day i.e 24.8.87 and he had taken both of said persons to SDN hospital at about 2.00 pm from the police station, on being directed by SHO R.P. Tyagi. All this falsifies the version of accused. 44. In this way, it is well proved on the file that deceased

29

Mahender Kumar died due to beatings given by police. It is also clear from the statements of witnesses that it was police of PS Vivek Vihar who brought and confined relatives of said deceased namely Rajkali (Pw9), Tika Ram (since deceased), Rakesh Kumar (Pw10), Govind Ram (Pw11), Rajender Prasad (Pw12), Manohar Lal (Pw13), Subhash (Pw21), Sukhbiri (Pw33), Omwati, Ram Pal, Dharampal, Mormukut and Naraindass. Rajkali (Pw9) clearly

mentioned the name of accused R.P. Tyagi who had come to her house and took her in police station where she was confined. Though this witness also disclosed the name of Surender, Narender and Mukesh Kumar. Accused Mukesh Kumar has been declared as PO. Pw9 could not identify accused Narender and Surender in court. At the cost of repetition may I point out that Pw9 also named accused R.P. Tyagi having threatened her in police station to kill his son Mahender, gave her beatings and also asked them to leave police station when Ram Kumar and Mahender were produced in police station. All this establishes that accused R.P. Tyagi was very much present in the police station when deceased Mahender was produced / appeared and they were given beatings. He was incharge of police station. Photos Ex.Pw5/B-1 to Ex.Pw5/B-14 and Ex.Pw5/B-15 to

Ex.Pw5/B-27 well proved on file from the statement of photographer Amit Kumar (Pw5) and SDM S.S Rathore (Pw1)

30

speak of bastinado, soles of feet of deceased having found flattened and marked by bruises, such injuries were more probable in police station than at a public place. 45. In this way, in my opinion, all probabilities lead to only

conclusion that accused R.P. Tyagi having conspired with other police officials of police station Vivek Vihar had lifted and confined in the police station aforementioned relatives / known of deceased Mahender and caused beatings to the latter, which ultimately resulted in his death. 46. May I refer again Pw9 i.e mother of deceased who

deposed on oath that when she was confined in police station, accused R.P. Tyagi had stated to her that he will kill her son (Mahinder Kumar), she was asked to give birth to one more Mahinder and also that he (R.P. Tyagi) had already committed three murders. All this shows that accused R.P. Tyagi had fostered an intention to kill said Mahinder Kumar. 47. Sh. Sanjay Gupta advocate tried to evince that deceased

Mahinder was beaten by SI Ram Kumar (Pw48) in whose custody patient Mahinder Kumar was in JPN Hospital. As per this witness, when he relieved HC Ghan Shyam who was on night duty in said hospital, he found general condition of said injured very critical. Treating doctor was insisting to discharge him which he opposed. In view of his critical condition on his request the doctors recalled

31

their opinion and altered discharge slip. It is contended by Ld counsel that patient Mahinder was readmitted in that hospital and same was referred to orthopedics department where doctor found some fracture. As per Sh. Sanjay Gupta advocate this

fracture was caused due to beatings given by SI Ram Kumar in his custody. Otherwise Dr. A.K. Verma who had medically examined the patient at the time of his admission in SDN Hospital, did not find any such fracture. 48. I do not find much substance in this contention of Ld

defence counsel. It is clear from MLC Ex.Pw6/A that patient Mahinder was under sedation. He was not fit for giving

statement, in other words, he was not able to speak. There is nothing to suggest that any x-ray test was conducted on that patient at that time to detect any fracture of bones. There is possibility that said patient had fracture when was brought to the hospital. If Prof. J.B.Mukherjee is believed, ' it is possible that there may not be any trace of external bruising even after receipt of substantial violence, though there may be fracture of underline bone, rupture of an internal organ' (Forensic Medicine and Toxicology, by Prof. J.B. Mukherjee page 294). Dr. A.K. Verma, who examined himself as Dw11 deposed on oath that he had also suspected fracture on the body of Mahinder. 49. Accused R.P. Tyagi is hence convicted for offence

32

punishable U/s 342/302/120 B IPC. It is not established from the statements of witnesses as exactly for how many days said persons were confined and hence no offence punishable U/s 343 IPC is made out. None of witnesses was got medically examined. It is hence not proved that accused R.P. Tyagi had caused hurt to any of relatives of deceased Mahinder Kumar. Similarly it is also not proved against this accused that the same had prepared any incorrect document with intent to cause injury to any one or to save any one from legal punishment or disobeyed direction of law with such intention, accused R.P. Tyagi is hence acquitted of offences punishable U/s 325/167/201/217/218 IPC. 50. Accused K.P. Singh joined PS Vivek Vihar as SHO on

25.8.87 after earlier SHO accused R.P. Tyagi was placed under suspension. The former as well as co-accused Tej Singh, Gurdas Ram & SI Mukesh (P.O) were indicted for entering into a conspiracy with co-accused to take revenge from Ram Kumar and Mahinder Kumar, punishable U/s 120 B IPC, preparing documents in such a manner which they knew to be or believed to be incorrect, intending thereby to cause or or likely to cause injury to other person, punishable U/s 167/120 B IPC, making false entry of DD 7 and DD 9 dated 24.8.87 causing evidence of an offence to disappear with an intention to screen offenders from legal punishment punishable U/s210/120 B IPC, preparing false

33

record

being SHO/I.O in case FIR no. 294/87 knowingly

intending to cause injury to public persons and to save others from legal punishment punishable U/s 218/120 B IPC, knowingly disobeying the directions of law, being public servants by preparing false document punishable U/s 217/120 B IPC and for instituting criminal proceedings with intention to cause injury to said Ram Kumar and Mahinder Kumar punishable U/s 211/120 B IPC. 51. SI Tej Singh was also charged for voluntarily causing hurt

on person of family members of Ram Kumar and Mahinder Kumar having hatched a conspiracy wrongfully confining family members with other accused, of said deceased

punishable U/s 323/342/343/120 IPC. 52. It is argued by Ld defence counsel that K.P. Singh was not

accused by complainant, same had taken temporary charge of police station as previous SHO was suspended by DCP (East). He had simply signed the challan in case FIR no. 294/87, investigated by SI Tej Singh and by SI Gurdass Ram. About registration of FIR on the death of Mahinder Kumar, it is urged that DCP (East) himself initiated investigation of case in view of power conferred upon him U/s 36 Cr PC read with section 64 of The Delhi Police Act. As per Ld. counsel, accused K.P. Singh had directions from DCP (East) not to take any action in that case on his own, as the

34

latter had taken decision after consultation with Police Head Quarter that FIR will be registered only after receipt of final report of inquest proceedings. 53. Section 154 (1) Cr PC makes it obligatory for an officer

incharge of a police station (who is SHO in Delhi) to register an information about a cognizable offence if given orally or to enter the substance thereof in a prescribed book (register) if given in writing. This provision is reproduced here for ready reference asInformation in cognizable cases.-(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. 54. As described earlier, SDM S.S Rathore after recording

statements of witnesses had given direction to register FIR against police U/s 304 IPC. It is verified by Sh. S.S Rathore (Pw1) that thereafter (after examining several witnesses) he ordered for the registration of the case vide his order Ex.Pw1/M. There is no denial that accused K.P. Singh had taken charge of SHO PS Vivek Vihar till then. It is also disclosed by Pw1 that said order was sent through Dak (post) and necessary entry to this effect was also made in the relevant register. In such a situation, it can be

35

presumed that order would have received in its ordinary course. Even otherwise, there is no gainsaying that deceased Mahinder had died in custody of police of PS Vivek Vihar, SHO of same police station cannot plea for ignorance. SI Ram Kumar (PW48) who was deputed in JPN Hospital to take care of said patient stated in court that when injured Mahinder breathed his last, he gave this information to SHO. Furthermore, this was an incident which raised a dust against police, there was a hue and cry in public and press, how a head of police station in whose jurisdiction such ignominious incident had taken place could afford to be unaware of.
55.

Aggrieved by not taking any action by police on his

complaints dated 03.1.05 and 03.8.05, petitioner Laxmi Narayan Gupta approached the High Court through two petitions, after hearing both of parties and considering several authorities of apex court it was held by our own High Court in case Laxminarayan Gupta Vs Commissioner of Police 130 (2006) DLT 490 that a statutory duty is cast upon police to register and investigate case on receipt of information relating to commission of cognizable offence, it cannot be left to discretion of police officer to register or not to register case or to undertake preliminary inquiry even before registration of case. 56. Hon'ble Judge relied in his findings upon a case Kuldeep

36

Singh Vs State 54 (1994) DLT 380 (DB) where the Supreme Court of India had mandated that in our view the legal position is clear that information being laid before the police about the commission of cognizable offence, the police has no option but to register the case, and also a case titled as State of Haryana and Ors. Vs Bhajan Lal and Ors. 1 (2000) CCR 209 (SC) in which the apex court has cautioned thatIn case, an officer incharge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him. 57. No doubt, in view of sub section 3 of section 154 Cr. PC,

the complainant could approach Superintendent of Police in case, incharge of police station (SHO) had refused to register a case. But this was not enough to absolve SHO from his statutory duty. Being head of Police station, SHO was duty bound to bring law in to motion, whenever information of such a heinous offence was received by him. To say that 'DCP concerned was already in action', is also no excuse. There is nothing on record to show that DCP had forbidden SHO K.P. Singh from taking any action in that regard. 58. Though FIR about this happening was registered as FIR

59/87 and that on the statement of accused K.P. Singh himself. But when an order of Lt. Governor of Delhi was communicated

37

through the office of Deputy Commissioner, Delhi. This FIR was registered on 11.2.88 while Mahinder Kumar had died on 25.8.87 in other words, SHO did not register the case for about 5 months despite the fact that a young boy had died unnatural death and SDM who did inquest, had directed the same to register a case on next very day i.e 26.8.87. Sh. K.P. Singh in his statement to Duty Officer told about arrest of Mahinder Kumar and Ram Kumar in case FIR no. 294/87 in injured condition. It is proved on record that Mahinder Kumar and Ram Kumar appeared in police station on their own and were not arrested in aforesaid case. Accused R.P. Tyagi, SI Tej Singh (IO of that case) etc had already been suspended due to aforesaid incident. All this is evident that accused K.P. Singh did not obey direction of law intending to save other person who were also police persons from legal punishment. punishable U/s 217 IPC. 59. Accused SI Tej Singh investigated said case (FIR 294/87). Same is hence convicted for offence

He prepared documents shown as 'personal search memo' Ex.Pw40/DC2, disclose statements purporting to be made by Mahinder Kumar Ex.Pw40/DC3, by Ram Kumar Ex.Pw40/DC4, seizure memo of knife Ex.Pw40/DC6, sketch of knife

Ex.Pw40/DC1 and personal search memo of Ram Kumar Ex. Pw40/DC5. Accused Tej Singh admitted to have prepared all

38

these documents in his statement recorded U/s 313 Cr PC. It is well proved on file that Mahinder Kumar and Ram Kumar appeared in police station on their own and not arrested from Surajmal Park as shown in that case. It is not proved on file that said Mahinder Kumar and Ram Kumar gave any such disclosure statement or after their arrest any personal search of them was taken or any such knife was recovered from possession of any of them from that place. These facts, if true were within the special knowledge of police. It was held by the apex court in case titled as State of Rajasthan Vs KashiRam (SUPRA) burden to prove such fact was upon the accused which were within his special

knowledge. It was for this accused to establish all these facts being specially within his knowledge but no such evidence was led in this regard. 60. As stated earlier it is well proved that none of said accused

was arrested from said spot at Surajmal Park and all those documents were false. Accused Tej Singh is hence convicted for offence of preparing false documents knowing that by doing so, he will save some persons from legal punishment and with that intention gave information about offence which he knew to be false, all punishable U/s 218/201 IPC. 61. No other offence is proved against accused K.P. Singh or

accused Tej Singh, both of them are hence acquitted for those

39

other offences. Similarly no charge is proved against accused Gurdas Ram. He is acquitted from all charges. 62. Accused Narender Kumar, Chander Kumar and Manoj

Kumar are stated to have signed afore stated documents i.e Ex.Pw40/DC1, Ex.Pw40/DC2, Ex.Pw40/DC3, Ex.Pw40/DC4,

Ex.Pw40/DC5 and Ex.PW40/DC6. This fact is admitted by all these accused in their statements recorded U/s 313 Cr PC. All these accused persons were charged for offence punishable U/s120B/109/211 IPC. 63. It is submitted by Ld defence counsel that none of said

accused had any intention to falsely implicate or to cause injury to anyone. Same were compelled by police to sign aforesaid documents. Section 211 IPC prescribes for punishment for

instituting or causing to be instituted any criminal proceedings against a person or falsely charging a person having committed an offence, with an intent to cause injury to such person.

Similarly, section 120B IPC makes a criminal conspiracy punishable. It is apparent that both of these offences require a criminal intention and there is nothing on record to establish that any of said accused had any such intention. In the same way, section 109 IPC makes it an offence when someone abets commission of any act of offence. 64. Section 107 IPC prescribes as when a person can be said

40

to abet the doing of a thing as under:First.- Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. 65. There is no evidence to show that any of these accused

had ever instigated any police officer i.e co accused in this case or engaged or the intentionally aided the same in doing of such offence. Needless to say that as per these accused, same were compelled to sign said documents by the police. No offence is made out against any of these accused. All of same i.e accused Narender Kumar, Chander Kumar and Manoj Kumar are hence acquitted of all charges framed against them. 66. There is no evidence at all against accused Ct. Jagdish, Ct,

Kanwar Pal, SI Surender Pal and Ct. Narender. No charge levelled against any of said accused is proved. All of them are hence acquitted of all charges. 67. This is not in dispute that accused Dr. A.K. Verma had

medically examined Mahinder Kumar and prepared MLC Ex. Pw6/A and that he had shown thirteen external injuries on the body of said injured / deceased. Dr. Bishnu Kumar conducted postmortem on the dead body of same Mahinder. The report

41

prepared by Dr. Bishnu Kumar Ex. Pw36/A is proved on file by statement of Dr. Vinod Kumar Ramtek (Pw36), Medical Superintendent of LNJP Hospital who identified signature of Dr. Bishnu Kumar at points A and B. It is also deposed by Pw36 that he had seen Dr. Bishnu Kumar writing and signing before him and also that said doctor had already retired and his

whereabouts were not known. Considering same, I think postmortem report (Ex.Pw36/A) has been proved as per law. Dr. Bishnu Kumar pointed 43 external injuries on dead body of said Mahinder. 68. As per prosecution, Dr. A.K. Verma had conspired with co-

accused to prepare false MLC Ex.Pw6/A intentionally to screen offenders i.e co-accused from legal punishment and that same had disobeyed direction of law, in this regard to save co-accused. It is submitted by APP that this accused inspite of citing injuries properly in said MLC had reproduced the injuries shown by IO of case, FIR 256/87 in his application Cw21/B, not mentioned the medicines prescribed for said patient and served some sedative without mentioning it on prescription slip/ MLC. In the opinion of Ld APP, all this shows that he was connived with police. 69. On the contrary, it is strenuously refuted by Ld counsel

Sh. N.K. Sharma advocate that his client had any such intention. Ld counsel also denied accused A.K. Verma having received any

42

'injury seat' referred by prosecution. 70. So far as non description of medicines prescribed for said concerned, Ld counsel cited Modi's Medical

patient is

Jurisprudence and Toxicology 22nd Edition where it is described that medico legal report consists of three parts namely:(1)Introductory of preliminary data, for example full

name, age, address, date, place, time of examination including identity marks etc. (2)the facts observed on examination (3)the opinion or the inference drawn from the facts. 71. As per ld counsel, mentioning of prescribed medicines in

MLC was not necessary at all. This fact is also admitted by Dr. S. Patnayak (Pw6) explaining that MLC Ex.Pw6/A is prepared on the format supplied to the doctors in their hospital in those days and there was no column/ space in that format where examining doctor is required to mention medicines prescribed by him to the patient. 72. True, Dr. A.K. Verma in MLC Ex. Pw6/A has shown

'patient under sedation' and hence 'not fit for giving statement'. It is contended by Ld counsel that even if said patient was under sedation, it is not necessary that he was served with any sedative and that by Dr. A.K. Verma. It is admitted by Dr.S Patnayak (Pw6) in his cross examination that 'depending on the depth of shock, a

43

patient under shock may sometime appear as if he was sedated. Explaining the difference of injuries reported by accused Dr. A.K. Verma in MLC Ex.Pw6/A and in postmortem report of Dr. Bishnu Kumar Ex.Pw36/A, it is submitted by Ld counsel that patient Mahinder Kumar was produced by police immediately after the latter had suffered injuries and Dr. A.K. Verma took no time in examining the same in order to give treatment expeditiously while Dr. Bishnu Kumar examined the body when more than one day's time had lapsed after infliction of those injuries and there are bruises which emerge on skin after several hours. Ld counsel referred 'Forensic Medicine and Toxicology by Professor J.B. Mukharjee' where in the topic 'injuries' it is described that 'Deep or delayed bruises usually show up not before 24-48 hours or even later after its infliction. The surface appearance of such bruising may be misleading, as the external colour change may be slight in comparison with the amount of blood that has collected in the deeper tissues.' 73. Ld counsel again cited Modi's Medical Jurisprudence 22nd

Edition chapter XII, where 'Ecchymosis' is stated asEcchymosis makes its appearance over the seat of injury in one or two hours after the injury. It may appear in less time, if the skin injured is very thin, as in the eyelids and scrotum. When ecchymosis has occurred in the deeper tissues or under tense fasciae, it appears on the surface at an interval of one or two days or even more, at some distance from the seat of injury

44

following the line of least resistance and in obedience to the law of gravity (known as ectopic bruises). For example, the appearance of a black eye in the case of contusion on the forehead or on the head. Sometimes, ecchymosis may not appear until after death, when a contusion has been caused a few hours or a day or two before death. 74. It is further the plea of Ld. counsel that for a doctor

examining a patient writhing in pain, it is not possible to see and note every minor injury suffered by him while at the time of postmortem, the body is motionless, patient having been died, Dr. conducting postmortem can observe every injury minor or major on the dead body. This fact is admitted by Dr. Vinod Kumar Ramtek and Dr. S. Patnayak in their statements as Pw36 and Pw6 respectively. It is admitted by the latter that the

examination of dead body at the time of postmortem would be easier then the clinical examination of a patient when he is alive. In depth injuries can be found and noted in the dead body more easily than in the live patient. 75. Accused Dr. A.K. Verma examined himself as Dw11 and

deposed on oath that no police officer had met him before patient Mahinder Kumar was brought to him for medical examination. No 'injury statement' was given to him by police before examination of said patient. It is also clarified by him that due to seriousness of condition of patient, the latter was examined first

45

and then entry was made in register. His priority was to save his life and hence he examined him even before making entry in said register. As per Dw11 (accused) superficial bruises appear within one or two hours of impact. When injuries are more severe, there is rupture of blood vessels in deep tissues like muscles etc. It takes the blood following the direction of least resistance and to show up externally it takes several hours or one or two days following the impact. 76. No discrepancy appeared in the examination of this

accused. 77. Considering all the facts as discussed above, I find no

reason to believe that accused Dr. A.K Verma was also a complicit in crime in question or had prepared false MLC of the patient / deceased Mahinder intentionally. Same is hence acquitted of

charges framed against him in this case. 78. As pointed out earlier, that Rajender (Pw7), Jamman Lal A

(Pw34), Jaswant @ Jassu (Pw3) told apparent lie in court.

separate complaint to ACMM, Karkardooma courts is being sent with a request to initiate proceedings against them.

Announced in the open court. On this 13th day of December, 2006.

(RAJENDRA KUMAR) Additional Sessions Judge Kkd. Courts, Delhi.

46

IN THE COURT OF SH. RAJENDER KUMAR : ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI. S. C. no.1/06 Tika Ram Vs. (1) R.P. Tyagi (2) Tej Singh (3) K.P. Singh. (5)

Surender Pal (6) Jagdish (7) Kanwar Lal (8) Narender (9) Dr. A.K. Verma (10) Narender Gupta (11) Chander Kumar Sharma (12) Manoj Kumar . U/s. 168/201/217/218/302/325/323/343/347/120B/34 IPC & 24 D.P. Act Complaint Case no. 98/1987 PS. Vivek Vihar Pr. :- Sh. Zenul Abedeen, APP for State. Convict RP Tyagi in J/c with Sh. Sanjay Gupta advocate. Convict KP Singh on bail with Sh. JG Garg advocate. Convict Tej Singh on bail with Sh. Mukesh Kalia advocate. ORDER ;-

1.

May it be a scorching heat of May and June or

chilling cold of December and January, one will find every crossing and corner manned by a man in uniform guiding the traffic. If you are in some trouble, whatever may be the odd hour, simply call at phone no. 100, you will find 2 3 pairs of strong hands in no time for your help. There is a long list of beau

47

gestes, as making stranded children and persons of unsound mind to meet their parents or guardians, to facilitate a free treatment of abandoned mental patients in Mental Hospitals like IHBAS. Shahdara, Delhi, which Delhi Police performs as its duty. Every man in Delhi has reasons to be proud of such police. But perhaps no system in this world is free from bugs. Delhi police is also no exception. 2. Sh. RP Tyagi (convict) who was posted as SHO

in PS Vicek Vihar in 1987, has been found guilty of beating one Mahender Kumar to death having conspired with other staff of same police station and also wrongfully confining family

members of said deceased in police station, which are offences punishable U/S 302/342/102B IPC. Ties of brotherhood prevailed upon another SHO KP Singh (convict), an immediate successor of said RP Tyagi. He refused to register an FIR having knowledge of a felony about a cognizable offence and despite directions from area SDM, to save his fellow beings. He is convicted for offence punishable U/S 217 IPC. Other police officer of same police

station i.e. SI Tej Singh (convict) in his attempt to give a different colour to a crime, framed incorrect record of a case file during investigation of that case in order to save other police officials from punishment. Same is held guilty for offence punishable U/S 218/201 IPC.

48

3.

Heard on point of sentence. It is submitted by of rare case

Sh. Sanjay Gupta advocate that this is not a rarest

while ld. APP requests for maximum sentence as prescribed by law. 4. We are living in a democratic society. Rule of to democratic

law is essence of democracy. It gives blood

system. Torture by a law - enforcing agency is like cancer to that blood which infects entire democratic system leading to its

awesome end. The convicts in this case are officers of a law enforcing agency i.e. police, a puncheon of democracy. 5. has been Section 302 IPC under which accused RP Tyagi convicted, prescribes for death penalty or

imprisonment for offence. 6.

life and also fine as punishment for this

By a catena of authorities, it is mandated by the

Apex Court of India that death sentence be awarded in rarest of rare case. In a case titled as State Vs. Atbir and Others 2006 1 AD (Delhi) 665 it was reminded by my Lords Justice Manmohan Sarin and Justice Rekha Sharma that 'for the offence of murder, life sentence is the normal rule with death sentence, an exception to be imposed in rarest of rare cases. There is no straight jacket formula to identify rarest of rare case. Same is to be determined keeping in view the facts and circumstances of each case. '

49

7.

Rule I, Chapter 19, Volume III of Delhi High

Court Rules give some guidelines in determining sentence to the offenders. Same run as :The award of suitable sentence depends on a variety of considerations The

determination of appropriate punishment after the conviction of an offender is often a question of great difficulty requires and always The law

careful consideration.

prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment

prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a

variety of considerations such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances,

50

such

as

sudden

temptation,

previous

convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence.. 8. Machi Singh Vs. State of Punjab (1983) 4 SCC

470 is a benchmark case where the Supreme Court of India has laid down certain propositions for determining rarest of rare case as :(i) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. (ii) When the murder is committed for a motive which evinces total depravity and meanness; e.g' murder by hired assassin for money for reward or a cold blooded murder for gains of a person vis-a-vis whom the murdered is in a dominating position or in a position or trust, or murder is committed in the course for betrayal of the motherland. (iii) When murder of a member of a Scheduled

Caste or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of ''bride burning'' or ''dowry deaths'' or when murder is committed

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in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (iv) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (v) When the victim of murder is an innocent child, or helpless woman or an old or infirm person or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.

9.

The Apex Court in case Bachan Singh Vs. State noted down aggravating and

of Punjab AIR 1980 SC 898

mitigating circumstances which ought to be considered while imposing death penalty upon the accused of murder which are as under :AGGRAVATING CIRCUMSTANCES :(a) if the murder has been committed

after previous planning and involves extreme brutality, or (b) if the murder involves exceptional

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depravity, or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed (i) while such member or public servant was on duty, or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member of public servant, as the case may be, or had ceased to be such member or public servant, or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973 or who had rendered assistance to a Magistrate or a police officer after demanding his aid or requiring his ass istance under Section 37 and Section 129 of the said Code.

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MITIGATING CIRCUMSTANCES :(1) that under the offence was committed the influence of extreme

mental or emotional disturbance, (2) The age of the accused. If the

accused is young or old, he shall not be sentenced to death, (3) The probability that the accused would not commit acts of criminal acts of violence as would constitute a continuing threat to society, (4) The probability that the accused

can be reformed and rehabilitated, The State shall by evidence prove that the accused does not satisfy the Conditions (3) & (4) above. (5) That in the facts and circumstances of the case, the accused believed that he was morally justifying in committing the offence. (6) That the accused acted the another person. duress or under domination of

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(7)

That the condition of the accused showed that he was mentally that the said defect

defective and

impaired his capacity to appreciate the criminality of his conduct.

Following the guidelines laid down by the Apex Court in above referred cases, may I assess mitigating factors of this case. 10. It is pointed out by ld. APP that the victim was a It raises hackles to visualize aggravating and

member of scheduled caste.

how torturous it would have been for deceased Mahender to bear the pain till his last breathe. Photos proved on file tell, like voluble informers that every whit of his body was bashed mercilessly for hours. He was made to die bit by bit writhing in pain like a halaled animal. Treating Dr. A.K. Verma found him under sedation immediately after he was brought to hospital. This MLC tells that he would have been served with some sedative when pain surpassed his tolerance. Such brutality is foreign even in animal kingdom. society. 11. Deceased Mahender Kumar had surrendered It has shaken the conscience of entire

before the convict R.P. Tyagi for being interrogated in an

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accusation. This is extremity of outrageousness that a hapless boy was crushed to death by strong police, who were duty bound to protect human rights of everyone including victim himself. 12. While prescribing a punishment for a convict of

rape, the legislature has provided for a more severe sentence for a public servant specially police officer U/s 376 (2) IPC when he commits rape within the limits of a police station to which he is appointed. Extrapolating same principle, a murder by a police

officer and that of a victim in his custody should be dealt with more seriously.

13.

The factors that convict R.P. Tyagi was officer of

police station and deceased was wanted as an accused in a criminal case, are not enough to ignore gravity of offence, particularly the manner i.e brutality, the deceased was subjected to before his death. Convict also managed to prepare a false record showing the deceased as having beaten by the public. I find no circumstance, due to which this convict would have been compelled to commit crime in question. 14. It is told during arguments that convict R.P.

Tyagi has already been retired from his job and that he was given promotion also after incident under consideration. No chance to reform him at this stage. On the other hand if extreme

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punishment is awarded in this case, same may serve as a deterrent for other such public servants of this armed force duty bound to protect life and liberty of subjects. 15. Hon'ble Justice VR Krishna Iyer had rightly

observed in a case Raghubir Singh Vs. State of Haryana AIR 1980 SC 1087 that : We are deeply disturbed by a diabolical recurrence of police torture resulting in a

terrible scare in the mind of common citizens that their lives and liberty are under a new peril when the guardians of law gore human rights to death. The vulnerability of human rights assumes a traumatic, torture some poignanecy when the violent violation is perpertrated by the police arm of the State whose function is to protect the citizens and not to commit gruesome offences against them as has

happened (at present). Police lock up if reports in newspapers have a streak of credence, are becoming more and more awesome Cells. This development is disastrous to each human rights awareness and humanist Constitutional order.

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16.

The Apex Court deplored the police custody

deaths in case Kishore Singh Ravinder Dev Vs. State of Rajasthan AIR 1981 SC 625 in following words :Nothing unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our is more cowardly

Constitutional culture than a State official running berserk regardless of human rights.

17.

The Supreme Court has directed the courts in

case Anil Yadav and others Vs. State of Bihar AIR 1982 SC 1008 in unequivocal terms that it is clear duty for the courts when a case of this kind is proved, to pass sentence which may have deterrent effect. 18. Keeping in view all the pros and cons of the case

and circumstances of convict R.P. Tyagi I sentence the latter (R.P. Tyagi) to death along with fine of Rs. 50,000/- for offence punishable U/s 302/120 B IPC. In default of payment of fine said convict is directed to undergo six months rigorous imprisonment. Out of said amount, a sum of Rs. 25,000/- be paid to the mother of

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deceased (it is told that deceased was unmarried at the time of his death and father of same has also expired during trial of this case). Convict R.P. Tyagi be hanged by neck till he is dead. For offence punishable U/s 342 IPC convict R.P. Tyagi is sentenced to one year's rigorous imprisonment only. 19. So far as convict K.P. Singh and Tej Singh are

concerned , ld counsels representing said convicts urged the court to release said convicts after due admonition or on probation or at least after imposing some fine. Convict Tej Singh is stated to be still in police service while convict K.P. Singh has retired . Ld counsels took me through section 360 Cr PC

providing for release of certain convicts on probation. 20. Needless to say, both of these officers were

posted in police station Vivek Vihar at the time of aforesaid abhorrent incident. Both of them contributed their share in their own way. There is an old proverb when fence starts eating crop who will save?. The convicts despite being protectors of human rights throttled the same cruelly. More powers bring more

responsibilities but these convicts showed a scant regard for the rule of law or for the human-rights of a citizen. I do not see any reason to show leniency towards any of these convicts. Convict K.P. Singh is hence sentenced to one year's rigorous

imprisonment as well as fine of Rs.25,000/- for offence punishable

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U/s 217 IPC. Out of this amount Rs.15,000/- be paid to the mother of deceased. In default of payment of fine, convict K.P. Singh is directed to undergo three months simple imprisonment more. Convict Tej Singh is sentenced for three years rigorous imprisonment and fine Rs.25,000/- for offence punishable U/s 218 IPC. Out of said amount Rs.15,000/- be given to the mother of deceased. In default of payment of fine convict Tej Singh is

directed to undergo three months simple imprisonment more. For the offence punishable U/s 201 IPC this convict (SI Tej Singh) is sentenced to three years rigorous imprisonment and fine

Rs.10,000/-. In default of payment of fine same is directed to undergo three months simple imprisonment more. 21. Sentences awarded to said convicts will run

concurrently. The convicts will be entitled to setting of the period of detention already undergone by them during investigation, inquiry and trial of this case, in view of section 428 Cr PC. 22. Proceedings of this case along with all

documents including exhibits be sent to the High Court of Delhi through Registrar General with a request for confirmation of sentence of death awarded to convict R.P. Tyagi as provided by Section 366 Cr PC. 23. A copy of this order as well as of judgment be

given to each of convicts free of cost.

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Announced in the open court today i.e 15.12.06. (Rajender Kumar) ASJ/KKD/DELHI