Delhi District Court
Cbi vs (1) Satish Kumar Kadian on 9 August, 2012
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 51/09
Unique ID No. : 02401R0000081995
CBI versus (1) Satish Kumar Kadian
S/o Sh. Ram Singh
R/o 233, Sector II
R. K. Puram, N. Delhi
(2) Inder Singh Rana
S/o Sh. J. S. Rana
R/o H75, Sarojini Nagar,
New Delhi
(3) Jagmal Singh Yadav
S/o Sh. Surjan Singh
Yadav
R/o VPO Tajpur
Police Station Atali
Distt. Mohindergarh,
Haryana [Since
Expired
Proceedings Abated]
(4) Sh. Ramesh Chand
S/o Sri Chand
R/o Village Ladarawan
Police Station.
Bahadurgarh,
Haryana
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(5) Kewal Kishan Arora
S/o Sh. Kahan Chand
R/o 64, Priya Enclave
New Delhi
Case arising out of:
RC No. : 16(S)/88
Police Station : Patel Nagar
Under Section : 323/342/304/34 IPC and Section 218 IPC
R/w Section 109 IPC
Judgment reserved on : 31.7.2012
Judgment pronounced on : 09.8.2012
JUDGMENT
Case of the Prosecution: The incident in question occurred about 26 years ago. At the very outset, before dealing with the facts of the case, it must be kept in mind that this is a case of police torture and death of an innocent man while in police custody.
The brief facts of the case as borne out from the chargesheet are that on the night of 22.8.86 at about 10.45 PM, Accused No. 1 and 2 namely SI Satish Kumar Kadian and Inder Singh Rana along with Accused No. 3 and 4 namely Ct. Jagmal Singh Yadav (since expired) and Ramesh Chand, all of Police Station Patel Nagar, Delhi visited the residence of the complainant Sudesh Kumar and picked him up while :3: he was sleeping outside his house. They started beating him. On hearing his shrieks, his maternal uncle Gopi Ram (deceased) came out and he was also given beatings by aforesaid police officials. Both Sudesh Kumar and Gopi Ram were taken to the Police Station and where they were given beatings by above referred Accused persons with saria, danda and rollar.
It is alleged that one other police Insp. also reached there and ordered the team to beat both of them to death. As a result of the beatings Gopi Ram became unconscious, but despite that he was subjected to beatings. In the morning of 23.8.86, Gopi Ram was taken to Khera Hospital, a private nursing home in Patel Nagar by Accused Satish Kumar Kadian, Jagmal Singh Yadav and Ramesh, where he was declared dead. From Khera Hospital, deceased Gopi Ram was taken to RML Hospital by aforesaid police officers, where MLC No. 9483 was prepared by Dr. Y. K. Mishra, CMO who declared him dead. However, in the records, it was shown that Accused has been brought by his nephew Sudesh Kumar. After inquest under Section 174 CrPC on the body of late Gopi Ram was conducted by Sh. Satyendra Nath, the then SHO, Police Station Patel Nagar, he was taken to Civil Hospital, Subzi Mandi for postmortem examination. Dr. L. T. Ramani, Medical Officers, conducted the postmortem and gave his report No. 184 dated 23.8.86. The postmortem revealed 10 external injuries on different parts of the body in different sizes. It is further alleged that from the Civil Hospital, late Gopi Ram was taken to Electric Crematorium where :4: his wife Smt. Kashmeri Devi and others were waiting. The body was not handed over to the relatives, although in the papers it was shown that Sudesh Kumar received the body.
In view of the history of drug addiction, as given in the requisition dated 23.8.86 of SHO, Police Station Patel Nagar, Dr. L. T. Ramani deferred the cause of death till receipt of chemical analysis report. On 29.8.86 viscera of late Gopi Ram was forwarded to CFSL, New Delhi for opinion as to whether contents contained ethyl alcohol, heroin, charas, ganja which might have led to the death of Gopi Ram. A5 i.e. Accused K. K. Arora, Senior Scientific Officer cum Chemical Analyst, Texicology Division vide his report No. CFSL/86/T4611 dated 30.6.86 mentioned the receipt of 100 ml of blood obtained from the body of Gopi Ram. In the said report, K. K. Arora found positive tests for morphine and ethyl alcohol in the blood of Gopi Ram. When this report was put up before Dr. L. T. Ramani for giving cause of death, he asked for level of bloodalcohol concentration. Accordingly, the remnant of the viscera were again sent to CFSL on 24.11.86 for second opinion.
In the second report, vide No. CFSL/86/T/4611 dated 29.12.86, Accused K. K. Arora mentioned having received 60 ml of blood and found that contents of the said blood contained 294 mg of ethyl alcohol per 100 ml of blood. On the basis of this report, Dr. L. T. Ramani opined that the alcohol and morphine were sufficient to cause respiratory depression and death and the injuries were not sufficient to :5: cause death in ordinary course of nature.
The investigation was thereafter handed to CBI by the orders of Hon'ble Supreme Court, the remnant of viscera of late Gopi Ram were collected from malkhana, Police Station Patel Nagar and were referred to Director, Forensic Science Laboratory, Agra, UP by CBI for opinion as to whether the contents of the viscera contained any toxic substance and also for the blood alcohol level. Dr. S. C. Sharma, Scientific Officer of FSL, Agra vide his report dated 28.9.89 confirmed that the viscera did not contain any chemical poison including morphine, heroin, ganja or charas. However, because of insufficient quantity of blood, no test regarding alcohol poison could be conducted.
Owing to the said two contradictory reports, a Medical Board consisting of Dr. Bishnu Kumar, Director, Professor and Head of Department of Forensic Medicine, Maulana Azad Medical College, New Delhi. Dr. S. N. Aggarwal, Director, Professor and Head of Department of Forensic Medicine, Lady Hardinge Medical College, New Delhi and Dr. Shameem J. Rizvi, Professor and Chairman, Department of Forensic Medicine, J. L. Medical College, Aligarh Muslim University, Aligarh was constituted which submitted its report No. E6/90/MC/FOR/277 dated 23.5.90. The Board found the report of K. K. Arora not tenable and assigned the cause of death of late Gopi Ram as 'shock consequent upon multiple injuries on the body of the deceased caused by some blunt object like lathi'.
It is further alleged that in order to set up a fake story to cover up :6: the death of Gopi Ram in police custody, Accused Satish Kumar Kadian (A1) recorded a false entry in his writing on 23.8.86 vide GD A, Police Station Patel Nagar at 8.05 hours stating that he was present at Prem Nagar for patrolling alongwith Inder Singh Rana and Ct. Jagmal when at 04.00 hours, he received an information that Gopi Ram S/o Sh. Jwahara R/o 2103, Prem Nagar who sold smack and was addicted to it, was present in his house and if a raid was conducted, he could be arrested and smack could be recovered from him. However, on seeing the policemen, Gopi Ram tried to escape. He was overpowered and handed over to Ct. Jagmal and Satish Kumar Kadian and Inder Singh Rana got busy in opening the door of Gopi Ram. In the meanwhile Gopi Ram managed to free himself and ran away in the darkness.
On the basis of material on record, vide order dated 02.2.2000, Accused A1to A4 were charged for offence punishable under Section 323/342/304/34 IPC and Section 218 IPC R/w Section 109 IPC whereas Accused K. K. Arora was charged for offence punishable under Section 218 IPC. All the Accused persons pleaded not guilty and claimed trial when the charges were read over and explained to them. It may be mentioned at this juncture that during the course of trial, Accused Jagmal Singh expired and proceedings against him were abated.
I have heard the arguments advanced by Ld. Defence Counsels of the Accused and Spl. Public Prosecutor appearing on behalf of CBI. I :7: have also carefully gone through the record of the case and have considered the evidence, both oral and documentary on record.
Prosecution in order to prove its case examined 29 witnesses. Plea of the Defence: The statements of the Accused were recorded under Section 313 CrPC. 13 witnesses were examined by the Accused in their defence.
In his statement recorded under Section 313 CrPC, Accused Inder Singh Rana claimed innocence stating that he has been falsely implicated. He took the defence that he was posted as Division Officer at Police Station Patel Nagar on 22.8.86 as per duty roaster and after finishing his duty he reported back to the Police Station at 10.15 PM and after changing his dress he left to his home at about 10.30 PM and thereafter he remained at his home. He further pleaded that on 23.8.86, he reported to the Police Station for his duty as per the duty roaster at about 9.45 AM an when he reached the Police Station, he was informed that some false DD entry has been recorded in the roznamcha. He further stated that he reported the matter to SHO that a false DD entry has been recorded and he was not present at Police Station on the intervening night of 22/23.8.86 and was present at home and at that time Accused Satish Kadian was sitting his room. He further pleaded that DCP instructed the SHO that since his name has been wrongly mentioned in the DD entry let the roznamcha be destroyed. Thereafter, on the next day, when he came to the duty, he had been transferred to :8: District Line, Pahar Ganj and should immediately report there. He further stated that in the meantime, one person who was sitting in the room told him that they were going towards Pahar Ganj and will drop him at Pahar Ganj and he along with Satish Kadian sat in the vehicle. He further pleaded that when they reached near Pusa Chambery, he was informed that he had been arrested and they took him to office of Spl. Staff, Kamla Market and he was sent to judicial custody.
Accused Ramesh Chand in his statement under Section 313 CrPC also pleaded innocent and stated that he has been falsely implicated in this case. He also contended that he had not been named in the previous FIR investigated by Crime Team and no evidence was found against him. He further stated that later on the basis of false and fabricated documents, he had been included in the list of Accused persons. He further contended that there was another constable namely Ramesh Chand who was also posted in the same Police Station and even on that day he was on night patrolling duty. Accused Ramesh Chand further claimed that witnesses named him due to the tutoring of the Investigating Agency.
In his statement under Section 313 CrPC, Accused Satish Kadian stated that he was on patrolling duty in compliance of the directions of senior officers with regard to action taken against drug peddlers in the area. He further contended that he was performing his duty in his official capacity and whatever happened was correctly recorded in DD No. 11A on 23.8.86 at 8.05 AM. Accused Satish Kadian also stated :9: that drug mafia of that area in collusion with other drug pedlar's hatched a conspiracy against the local police and got the FIR registered against him and others to demoralised the local police so that they may not take stern action against them in the sale of smack in the area. He further pleaded that he is innocent and has been falsely implicated in this case.
Accused Kewal Kishan Arora contended that he was working as Sr. Scientific Officer in CFSL and his job was to make chemical analysis, receiving visceras and there was established procedure in CFSL in regard to receiving viscera from police. He further stated that specific number was given to the tile in regard to the viscera box received in CFSL and the number is written on the box in Director, CFSL Office where the same number was given to the file pertaining to that viscera box. He further pleaded that in this case viscera box was received in CFSL and the file was opened in CFSL Office bearing No. 86/T4611 pertaining to FIR No. 336/86 Police Station Patel Nagar and the same number was written on the box in bold letters with the stencil ink.
Accused K. K. Arora further contended that the quantity of blood as well as the exhibits received in the CFSL is clearly mentioned in work sheet when opened by the Chemical Analyst and in this case also when the viscera box was opened there was clear mention of quantity of blood i.e. 100 ml. He further contended that it is prerogative of the postmortem surgeon to send the quantity of blood for chemical analysis :10: as far CFSL concerned there has been a record receiving 100 and more than 100 ml of blood in some cases from different postmortem surgeons.
Accused K. K. Arora further pleaded that he gave his report to the postmortem surgeon but again received the viscera for estimation of the alcohol and second time also mentioned the details in his work sheet and analyst the quantity of alcohol in the blood and the same was sent to postmortem surgeon and the postmortem surgeon has not put any preservative in the blood when sent to him and, therefore, there is formation of alcohol also.
Accused K. K. Arora also contended that on reinvestigation of the case by the order of CBI, as and when he was called, he appended his signatures without knowing the details of investigation and he also gave the concerned file bearing No. 4611 to the Investigating Officer. He further stated that he learnt that a wrong viscera box was sent to FSL, Agra as he received paper/documents from this Hon'ble Court wherein document bearing No. 29, there is clear cut mention of viscera box No. 1295 whereas the concerned viscera box pertaining to Gopi Ram was 4611 of FIR No. 336/86 Police Station Patel Nagar and he accordingly made representation to Director, CBI with regard to this most blunder laPolice Statione on the part of investigation being committed against him. He further pleaded that he sent reminders also but no relief was given to him and he also advanced his submissions before Hon'ble Court at the time of arguments on the point of charge :11: and accordingly filed file No. 87/T1295 of CFSL was summoned by this Hon'ble Court and same is on the record. He further stated that in the said file bearing No. 87/T1295 in the worksheet, the contents mentioned therein is similar to the contents sent to FSL, Agra as wrong viscera box was sent to FSL, Agra and hence the opinion in regard to the chemical analysis was bound to be different than his analysis and thereupon the opinion of the Board was bound to be different as ti is based on FSL analysis.
Defence has examined thirteen witnesses namely R. K. Srivastava, Dealing Assistant, Civil Hospital, Rajpur Road; Ct. Bansi Dhar, Clerk at Office of Director, CBI; Retd. SI Karta Ram; Neelam Arora, Scientific Assistant, CFSL, CBI; Retd. Insp. Biri Singh; SI Radhey Shyam, Retd. IPolice Station Diwakar Prasad; Alka Ghosh, PA to Joint Director, CBI; Insp. Vijay Kumar Singh; SI Ravinder Ahlawat; D. N. Kapoor, Police Station to Director CBI; Retd. SI S. C. Biswas and Kamlendra Prasad, Director CBI.
Prosecution Evidence: The Prosecution examined 29 witnesses in order to prove the aforesaid charges against Accused.
At the outset, it is necessary to note that complainant Sudesh Kumar who was being examined by the Prosecution as PW9 expired during the course of trial, and as a consequence thereof even his examination in chief could not be completed, thus making his part :12: recorded testimony inadmissible in evidence.
It is also a matter of record that in terms of orders of Hon'ble High Court dated 14.8.03 Dr. S. R. Singh, Director CFSL was examined at the initial stage of recording of Prosecution evidence and was brought into the witness box as PW2.
He deposed that he knows Accused K. K. Arora who was working as Sr. Scientific Officer and can identify his signatures as he had seen him writing and signing. PW2 exhibited PW2/A which is a paper slip having impression of seal bearing signatures of K. K. Arora (A5) at point A. Report submitted by Accused K. K. Arora was exhibited by him as Ex. PW2/B and the forwarding letter was Ex. PW2/C. He also identified the signatures of Accused K. K. Arora (A5) on Ex. PW2/D, PW2/E, PW2/F, PW2/G and PW2/H. Prosecution also examined wife of deceased Gopi Ram namely Kashmiri Devi as PW1. Prosecution also placed reliance on the deposition of PW8 Shankar Lal, brother of the deceased Gopi Ram who was living in the same house along with deceased at the time of incident. PW8 deposed that on 22.8.86 at about 1111.45 PM, all the four Accused namely Satish Kadian, Inder Singh Rana, Ct. Ramesh and Jagmal came to their house and started beating Gopi Ram and Sudesh who were sleeping in the lane outside the house. He further deposed that they continuously beat them and he ran away from there to save himself. He clearly deposed that he could see all the Accused persons as his house is a corner house and there was sufficient street light. He :13: further deposed that he ran from the spot when he saw Accused beating Gopi Ram and Sudesh as few days earlier Ct. Jagmal had unnecessarily taken him to the Police Station. PW8 further deposed that on next day, he went for his duty at Police Station Roop Nagar where he was working as a Constable at that time. At about 6 PM, his nephew Pratap informed him about Gopi Ram had been taken to the Police Station Roop Nagar on the previous night and he had come to know that Gopi Ram had died.
PW10 Ziley Singh who was earlier resident of same locality deposed that on 23.8.86, people had gathered in the locality and told him that Gopi Ram had been taken to the Police Station by the police and that he had died on account of the beatings given by the people. This deposition of PW10 was, however, objected to on the ground of hearsay. Another resident of the locality.
PW12 Naresh Chander Mudgal was also examined by the Prosecution, who deposed that on 23.8.86 at about 6 PM, he heard noise in the locality that police had abducted Gopi Ram a day before and that he had died. He further deposed that police had abducted Gopi Ram a day before he has died. He further deposed that Shankar Lal asked him to write a complaint and he wrote a complaint on the dictation of one SH. Panjwani, Advocate. The said complaint is Ex. PW9/A. Prosecution further relied on the deposition of PW18 Retd. SI Ved Prakash who deposed that as per duty roaster of 22/23.8.86, SI Inder Singh Rana and SI Satish Kadian were working as Division :14: Officers in the Police Station on that night.
He further deposed that on 22.8.86, he was working as Emergency Officer along with Umed Singh from 2 PM to 8 PM and on 23.8.86, he was Emergency Officer from 8 AM to 2 PM along with HC Ram Skal. PW18 also deposed that on 23.8.86, he received DD entry No. 45B lodged by Ct. Harnam Singh with regard to Gopi Ram having brought dead to the hospital by Sudesh Kumar. The said entry is Ex. PW18/A. The witness further exhibited DD No. 11A dated 23.8.86 made by Accused Satish Kadian as Ex. PW15/A. He further deposed that on receipt of DD No. 45B dated 23.8.86, he reached RML Hospital along with Ct. Kanwar Pal and thereafter Insp. Satinder Nath, SHO also reached there. The SHO concerned received the MLC of Gopi Ram and one sealed packet containing five pudia of smack which was seized vide seizure memo Ex. PW11/C. PW18 further deposed that he went to mortuary as per directions of SHO concerned along with Ct. Kanwar Pal and Sudesh Kumar. He further deposed that he recorded the statement of Sudesh Kumar which is Ex. PW9/C and PW9/D and also wrote a letter on the dictation of SHO. The said letter is signed by SHO and exhibited as Ex PW18/C for postmortem examination and preservation of viscera of deceased Gopi Ram. He further exhibited receipt of dead body as Ex PW9/F. The Prosecution further relied on deposition of this witness who also deposed that dead body was handed over to Sudesh Kumar as per record but the dead body was not handed over in his presence.
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PW18 further deposed that when he reached at Police Station at about 1 AM as he was not allowed to enter the Police Station as the public was pelting stones, he appeared before the ACP and produce to him the packet seizedvide memo Ex. PW11/C and got case FIR No. 337/86 registered under Section 21 of NDPolice Station Act against Accused Gopi Ram on the directions of ACP concerned.
The Prosecution also placed much reliance on the testimony of PW21 Dr. Anil Kumar Singh who was working as resident doctor at Khera Hospital was on duty in the said hospital on 22.8.86 from 8 PM to 8 AM. He deposed that on 23.8.86 at about 8 AM, one patient was brought by the police and on examination, the said patient was found to be clinically dead. He further stated that they told the police personnel who brought the said patient that they could give the certificate of brought dead. However, the police officers were not satisfied and they told them that they will take the patient to Govt. Hospital. The witness was, however, unable to tell the names of the police officials and their description but in response to a court question he told that he cannot tell the names and designation of the police But there were two police officers, out of which one was definitely having some stars on his uniform. The witness further told that one civilian was also accompanying them and the said civilian had told him that he was either the maternal uncle or the nephew of the deceased.
Relying on the deposition of the aforesaid witnesses, Prosecution strongly contended that the allegations against Accused have been duly :16: proved on record beyond any reasonable doubt. Ld. APP advanced arguments at length on behalf of Prosecution and also submitted detailed written arguments supported by relevant case law. Arguments and Analysis: It was contended on behalf of CBI that having regard to the facts of the case, the main points which arise for determination in this case are as under: (A) Whether there is any cogent and reliable evidence to prove the factum of deceased Gopi Ram and Sudesh being picked up by the Accused A1 to A4 on the night of 22.8.86 from their house and also being given beatings by A1 to A4 on the spot and further taking them forcibly to the Police Station Patel Nagar on the said night. (B) Whether there is any cogent and reliable evidence to prove the fact that both Gopi Ram (deceased) and Sudesh (i.e. PW9 who died during trial) were beaten by Accused A1 to A4 in Police Station Patel Nagar during the intervening night of 22.8.86 and 23.8.86 and because of which Gopi Ram died in illegal police custody.
(C) Whether there is cogent and reliable medical evidence to prove the fact that cause of death of deceased Gopi Ram is "shock consequent upon multiple injuries on the body of the deceased caused by some blunt object like lathi."
(A) Were Gopi Ram and Sudesh picked up from their house by A1 to A4 on the night of 22.8.86, given beatings by them and then forcibly :17: taken to Police Station Patel Nagar It was argued that there is cogent evidence on record which establishes the factum of deceased Gopi Ram and complainant Sudesh Kumar having been picked up by A1 to A4 on the intervening night of 22/23.8.86 from their house. It was contended that there is also sufficient evidence on record to establish that deceased Gopi Ram was given beatings by A1 to A4 and that they were taken forcibly to Police Station Patel Nagar on 22.8.86. Ld. APP contended that though deposition of PW9 cannot be read in evidence as it could not be completed, however, reliance was placed on the deposition of PW20 who had recorded statement of PW Sudesh Kumar under Section 164 CrPC. It was further contended on behalf of Prosecution that PW24 Raj Singh Chauhan also proved the factum of registration of FIR bearing No. 336/86 dated 24.8.86 by Police Station Patel Nagar on the basis of written complaint given by Sudesh Kumar. The said FIR is Ex. PW24/H. It was contended that although the deposition of PW Sudesh Kumar cannot be read, yet it can be taken note of that FIR bearing No. 336/86 Police Station Patel Nagar was recorded on the basis of his complaint.
In support of its arguments that Prosecution has been able to establish the factum of deceased Gopi Ram and Sudesh having been picked up by A1 to A4 from their house on the intervening night of 22/23.8.86 giving beatings to them and taken away of Gopi Ram and Sudesh at Police Station Patel Nagar, Prosecution relied on the :18: statement of PW8 Shankar Lal, PW1 Kashmere Devi, PW10 Jile Singh and PW12 Naresh.
It was argued that PW8 is the eye witness of the factum of deceased Gopi Ram and complainant Sudesh having been given beatings by A1 to A4. He also contended that on 22.8.86, all the four Accused persons came to their house and gave beatings to Gopi Ram and Sudesh and took away both Gopi Ram and Sudesh while continuously beating them.
Ld. APP contended that PW8 younger brother of Gopi Ram and though he had stated about the incident after the gap of three years from the date of incident during the investigation of CBI and his statement under Section 161 CrPC was recorded by the IO of the CBI on 16.9.89, yet his deposition, is consistent with regard to incident in question.
It was argued that three years delay in recording of statement of PW8 has been duly explained by the witness himself as he had deposed that he had been taken to Police Station Patel Nagar by Accused Ct. Jagmal Singh unnecessarily few days before the incident. Moreover, this also explains the reason of his running away from the spot upon seeing the Accused giving beatings to deceased Gopi Ram and complainant Sudesh.
Ld. APP for CBI also argued that apparently the witness gave his statement to the CBI and did not get his statement recorded by the IO of Crime Branch which was also investigating the matter as he was himself in the police service and was able to speak the truth of the incident freely :19: only when the investigation was transferred to the independent agency other than Delhi Police i.e. CBI. Reliance was placed on the judgment of Hon'ble Supreme Court titled as Pathan Fatima Vs State of Andhra Pradesh AIR 1995 SC 1958 wherein the witness has deposed about the murder about two and half years after the incident. It was contended by Ld. APP in the said judgment it was observed by Hon'ble Apex Court that it is at all unlikely that the initially stage witness did not dare making any statement about the murder but she was cited as a witness, she wanted to make clean breast of the relevant facts and stated the truth. He further relied upon AIR 1986 Supreme Court 990 (Lali @ Chirnjib Vs State of West Bengal) wherein Hon'ble Apex Court observed that delay has been satisfactorily explained. The statements of the witness should not be disbelieved merely on the ground of delay in recording his statement. He further relied on judgment reported as 1977 Crl. L. J. 538 at 546 in support of the said arguments and on AIR 1988 SC 696 titled as Appa Bhai Vs State of Gujarat.
Extending the arguments further, Ld. APP contended that the deposition of PW8 Shankar Lal is truthful and that he was natural witness who was present in the house along with the complainant and deceased when they were picked up by the Accused. The delay in recording of statement of PW8 Shankar Lal has been satisfactorily explained and mere delay in disclosing about the incident cannot be the reason for discarding his evidence or for holding that witness is not worthy of reliance.
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It was further contended that since from deposition of PW8 Shankar Lal, who is a trustworthy and credible witness, it has been established that A1 to A4 took away Gopi Ram and Sudesh with them while beating them and the burden of proving as to what happened to deceased Gopi Ram in custody shifts upon A1 to A4.
The next witness relied by the Prosecution is PW1 Smt. Kashmiri Devi, wife of deceased Gopi Ram. It was contended that this witness has clearly stated regarding her efforts to find her husband and the response of the Accused A4 and other police personnel. It was further contended that deposition of PW1 Kashmiri Devi cannot be discarded, as being hearsay evidence inasmuch as her efforts of trying to trace the whereabouts of her husband on the next morning is very much part of the transaction and is 'res gestate'. In this regard, reliance was placed on a judgment titled Balram Prasad Aggarwal Vs State of Bihar reported as AIR 1997 Supreme Court 183.
Similarly, reliance was further placed on the deposition of PW10 Jile Singh and PW12 Naresh Chand who deposed regarding coming to know about the death of Gopi Ram on account of beatings given by the police. It was contended that though PW12 was declared hostile, his evidence to the effect that he was the writer of the complaint given by the complainant Sudesh at Police Station Patel Nagar upon which case under Section 336/86 was registered as well as the fact that demonstration was hold by persons of the locality outside Police Station Patel Nagar can be looked into and it corroborates the evidence of the :21: other Prosecution witnesses including PW25 who proved the wireless log book showing presence of senior police officials in RML Hospital on the morning of 23.8.86 and holding of demonstration by the public outside Police Station Patel Nagar.
With regard to the first submission of the Prosecution i.e whether Gopi Ram and Sudesh were picked up by A1 to A4 on the intervening night of 22/23.8.86 from their house and were given beatings and forcibly taken to the Police Station Patel Nagar, the Defence has vehemently opposed the case of the Prosecution by assailing the deposition of various witnesses relied upon by the Prosecution.
It is contended that deposition of PW8 Shankar Lal cannot be relied upon and that he is a planted witness. Ld. Counsel for Accused Satish Kadian, Inder Singh Rana and Ramesh Chand argued that the conduct of PW8 Shankar Lal in running away from the place of occurrence on seeing Gopi Ram and Sudesh being allegedly beaten by the Accused clearly belies the case of the Prosecution. It was argued that admittedly PW8 was working as a Constable and was posted at Police Station Roop Nagar at the time of the incident. It was contended that the conduct of PW8 Shankar Lal, despite his being a police constable, of running away from the place of occurrence upon seeing Accused giving beatings to deceased Gopi Ram and complainant Sudesh, is highly unnatural and the witness is thus not worthy of credit.
They further argued that police did not record the statement of PW8 Shankar for 03 years and the witness did not utter anything :22: regarding his being an eye witness to the incident and his statement for the first time was recorded by the CBI after 03 years of the incident in question.
Ld. Defence Counsel further tried to bring out from the cross examination of PW8 that entire family of the witness was involved in the activities of smack and drug peddling etc and many of the young family members died on account of drug addition. Accordingly, the witness is clearly planted and cannot be relied upon.
The Prosecution on the other hand submitted as aforesaid that there is plausible explanation for conduct of PW8 Shankar Lal of running away upon seeing the incident in question. My attention was drawn to the deposition of PW8 wherein he stated that few days before the incident, he was taken to Police Station Patel Nagar by Ct. Jagmal Singh unnecessarily and apparently on account of the same, he ran away from the place of incident upon seeing the deceased Gopi Ram and complainant Sudesh giving beatings by the Accused persons. Prosecution further contended that being police official, primarily PW8 could not be against the Accused who were also police officials and it is only when the investigation of this case was handed over to the CBI that he spoke about the incident for the first time. Prosecution relied upon judgment titled as Pathan Fatima Vs State of Andhra Pradesh reported as AIR 1995 Supreme Court 1958 in support of his arguments where it has been held that deposition in court of an eye witness to a murder who is not daring to make any statement to the police during investigation is :23: not liable to be discarded on ground that she deposed in court 2 ½ years after the incident.
Reliance was also placed on Lali @ Chirnjib Vs State of West Bengal AIR 1986 Supreme Court 990 wherein Hon'ble Apex Court has held that : "Where the delay has been satisfactorily explained, the statement of a witness should not be disbelieved merely on the ground of delay in recording his statement during investigation." It further relied upon Prithpal Singh etc. Vs State of Punjab and Anrs. Etc. reported as 2011 (4) RCR (Crl.) Page No. 791. Prosecution thus argued that PW8 is natural and reliable witness and there is no force in the contention of the Defence.
I have considered the aforesaid submissions and on going through the record of the case in its entirety, I find myself in agreement with the submissions of Prosecution that the deposition of PW8 cannot be thrown out merely because he fled away from the spot upon seeing the Accused giving beatings to complainant Gopi Ram and Sudesh. Moreover, his conduct has been explained that by the witness himself as he had deposed that he had been taken to Police Station Patel Nagar by Accused Ct. Jagmal Singh unnecessarily few days before the incident. Further, the mere fact that PW8 spoke about the incident for the first time after about 03 years is in my view, not per se, sufficient to discard his :24: testimony, which is otherwise credible.
It has been laid down by Hon'ble Apex Court in judgment titled as State of U. P. Vs M. K. Anthony AIR 1985 SC 48 that "The Court shall have to bear in mind that different witnesses react differently under different situations whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling with a set pattern is unproductive and a pedantic exercise".
It is the case of the Prosecution that a false entry being DD No. 11A (Ex. PW15/A) was recorded by Accused Satish Kadian to show that he along with Accused Inder Singh Rana had gone to the house of deceased Gopi Ram on receipt of information that if his house is raided, smack can be recovered. Further, that Gopi Ram managed to escape from there and he was found lying in a park on the next morning from where he was taken to RML Hospital. He has also stated in his statement under Section 313 CrpC that witnesses have deposed against him at the behest of Drug Mafia, Prem Nagar area inasmuch as he was trying to take action against them with regard to sale of smack in the area. It has been established on record from the deposition of PW15 which is unrebutted that DD entry Ex. PW15/A was made by Accused Satish Kadian.
:25:
The story as sought to be put up by Accused Satish Kadian, however, cannot be accepted considering the facts and circumstances of the case in its totality.
It is noteworthy that though Accused have sought to raise the plea that they reached the house of Gopi Ram upon receipt of information regarding presence of narcotics in his house which can be recovered if the house is raided, yet there is nothing to show that any attempt whatsoever was made to conduct the search/raid in the house of Accused Gopi Ram either before his alleged apprehension or after he allegedly managed to escape from the clutches of Accused Jagmal Singh Yadav (since deceased), as contended by the Defence.
It has also come in evidence on record that apparently the Accused failed to follow any of the mandatory provisions of NDPS Act regarding raid, arrest and search despite the fact that as per the information allegedly received, deceased Gopi Ram was having smack in his house which can be recovered if the raid was conducted.
I also find on going through the deposition of PW11 HC Harnam Singh and PW21 Dr. A. K. Singh that deceased Gopi Ram was firstly taken to Khera Nursing Home by three police personnel and also accompanied by complainant Sudesh. PW21 also deposed that when he told police officials that Gopi Ram is already dead, police officials did not agree for issuance of certificate declaring him brought dead but rather took the body of the deceased Gopi Ram to Rml Hospital where his MLC was prepared by Dr. Yogesh Kumar Mishra. Moreover, it is :26: clearly borne out from the testimony o f PW21 that on 23.8.86 at 8 AM when he was in the process of handing over the charge to Dr. R. K. Mathur, body of deceased Gopi Ram was brought to Khera Nursing Home by police officials.
I also find force in the contention of Prosecution that as per PW11 HC Harnam Singh, the body of the deceased was accompanied by his nephew Sudesh and three police officials posted in Police Station Patel Nagar. He also deposed that police officials had told him to get the name of Sudesh recorded as the person who had brought the dead body. There is no explanation whatsoever on record as to how Sudesh reached RML Hospital and the only plausible explanation could be that Sudesh along with deceased Gopi Ram were taken there by the police officials i.e. Accused who had taken them from their house. In other words, Sudesh could not have in any circumstances accompanied Gopi Ram to RML Hospital if the deceased was found lying in a park, as contended by the Defence.
It is also pertinent to note that upon search of body of deceased Gopi Ram by Dr. Y. K. Mishra, five packets containing smack were recovered though the same were not seen by the examining doctor at Khera Nursing Home. Apparently, the packets of smack were planted upon the deceased at RML Hospital and it is for this reason that they were not recovered at Khear Nursing Home despite the fact that deceased was examined by PW21 Dr. A. K. Singh and declared dead.
It has also come on record from deposition of PW18 ASI Ved :27: Prakash that case FIR No. 337/86 was registered against deceased Gopi Ram at the instance of concerned ACP. This also certainly raises the doubt regarding the conduct of the police officials of the concerned area who were apparently acting in defence by registering a case against dead person.
Thus, upon considering the submissions made, the evidence on record and on going through the relevant case law, I find that it has been established on record that deceased Gopi Ram and Sudesh were picked up by A1 to A4 from their house on the intervening night of 22/23.8.86 and were given beatings to them and taken away by A1 to A4. I also find that PW8 was a natural witness as he was residing in the same house where deceased and complainant were residing and his presence at the spot cannot be doubted. Moreover, there is nothing on record to show that PW8 was not present at his house at the time of the incident or that he is deposing falsely merely to support the case of the Prosecution.
Thus, from the deposition of PW8 and it has been clearly brought on record that deceased Gopi Ram and complainant Sudesh Kumar were picked up from his house on the intervening night of 22.23.8.86 by A1 to A4 and taken along away by them. (B) Whether there is any cogent and reliable evidence to prove the fact that both Gopi Ram (deceased) and Sudesh (died during trial) were beaten by Accused A1 to A4 in Police Station Patel Nagar during the intervening night of 22/23.8.86 and because of which Gopi Ram died in illegal police custody.
:28:(C) Whether there is cogent and reliable medical evidence to prove the fat that cause of death of deceased Gopi Ram is "shock consequent upon multiple injuries on the body of the deceased caused by some blunt object like lathi."
Since points (B) and (C) as above are inter linked and corelated, both are being dealt with together.
The Prosecution by way of detailed written submissions as well as verbal arguments contended that there is sufficient evidence which establishes that deceased Gopi Ram and complainant Sudesh were beaten by Accused A1 to A4 in Police Station Patel Nagar during the intervening night of 22/23.8.86 and as a consequence of which Gopi Ram died in illegal police custody. It was argued that the following circumstances appear in evidence which unerringly point out towards the guilt of the Accused and establish the case of the Prosecution.
(i) Creation of false documents by Accused A1 Satish Kadian in the form of General Diary 11A (Ex. PW15/A).
It was contended that said entry Ex. PW15/A dated 23.8.86; 8.05 AM was created by the Accused to absolve themselves and to create their defence. It was argued that in the said general diary entry Ex. PW15/A, Accused No. 1 had mentioned that when he was on patrolling duty on foot along with A2 SI Inder Singh Rana and A3 Ct. Jagmal Singh Yadav (since expired) on the night of 22.8.86. At about 4 AM, he got information that Gopi Ram is available in his house and if raid is conducted, it may lead to recovery of smack. It is further mentioned that :29: pursuant to this information, A1 to A3 arrived at house of Gopi Ram and on seeing police personnel, Gopi Ram tried to flee from the spot who was subsequently overpowered and handed over to Ct. Jagmal Singh and both the Accused Satish Kadian and Inder Singh Rana tried to open the lock of the house and meanwhile Gopi Ram managed to run away from the grip of Ct. Jagmal Singh Yadav.
Prosecution strongly argued that the said entry is apparently false and was created by Accused Satish Kadian with a view to defend himself and coAccused. It was contended that a bare perusal of entry would reveal that the information recorded in the said entry was in respect of offence pertaining to NDPolice Station Act despite which Accused A1 to A3 did not follow any mandatory provisions of NDPS Act regarding conducting of raid, arrest and search.
It was further contended that even if it is accepted that Gopi Ram managed to flee away even then there was nothing which could have prevented the Accused to conduct search of his house since the alleged information was that if raid is conducted at this house, it may lead to recovery of smack. However, despite the said information as falsely recorded by Accused in the entry Ex. PW15/A, no raid was conducted in the house of deceased Gopi Ram.
Prosecution further contended that as per deposition of PW11 HC Harnam Singh coupled with the testimony of PW21 Dr. A. K. Singh, deceased was firstly brought to private hospital i.e. Khera Nursing Home :30: by three police personnel and they were also accompanied by one Sudesh Kumar. PW21 Dr. A. K. Singh also deposed that he told the police officials that person brought by them is already dead and told them that if they want certificate he can issue the same but the police officials did not agree to the same. Thereafter, the dead body of the deceased Gopi Ram was taken to RML Hospital where MLC of deceased Gopi Ram was conducted by Dr. Yogesh Kumar Mishra. PW21 also deposed that police officers who accompanied the dead body was from Police Station Patel Nagar. He also stated that though he cannot tell the name of police officers or their designation, but there were two police officers and either both the police officers but at least one of them was definitely having some star on his uniform. He also deposed in his crossexamination that since the patient was brought by the police officials, there was no need to inform the police about the same.
Ld. APP also contended that as per the deposition of PW21 Dr. A. K. Singh, deceased Gopi Ram was declared dead at 8 AM whereas as per the etnry Ex. PW15/A the information was received at 8.05 AM. This clearly shows that entry was created by A1 Satish Kadian to shield themselves from punishment.
In this regard reference may again be made to the ruling of the Hon'ble Apex Court in Prithpal Singh Vs State of Punjab (Supra) where relying on AIR 1960 SC 500, the Hon'ble Supreme Court held that "If there is sufficient evidence to show that the Accused fabricated some evidence to scree/absolve himself from the offence, such :31: circumstances may point towards his guilt".
(ii) Taking deceased Gopi Ram firstly to Khera Hospital and thereafter to RML Hospital It was contended that it has come on record by way of deposition of PW21 Dr. A. K. Singh that deceased was firstly taken to Khera Hospital and thereafter to RML Hospital. It has also come on record that Sudesh had accompanied the Accused along with police officials at Khera Hospital. The deposition of PW11 also reveals that Sudesh also accompanied the police officials of Police Station Patel Nagar to RML Hospital. Ld. APP contended that there is no explanation as to how the Accused took Sudesh went there along with them and from where they found him, if the version of the Defence is believed that infact the deceased was found lying unconscious in park in Prem Nagar. It was argued that it fortifies the version of the Prosecution that deceased as well as complainant Sudesh were picked up by the Accused A1 to A4 and that can be only reason as to who Sudesh was accompanyijng the dead body of deceased Gopi Ram when it was taken by police officials to Khera Hospital and from there to RML Hospital.
It was further argued that as per MLC Ex. PW11/A it has come in evidence that on search of body of deceased 05 packets of smack were recovered. However, PW11 HC Harnam Singh deposed that it was recorded in the MLC that the packets of powder were smack only at the instance of the police officials. My attention was also drawn to the deposition of PW18 ASI Ved Praksh who deposed that on 23.8.86, he :32: received DD entry No. 45B Ex. PW18/A lodged by CT. Harnam Singh from doctor RML Hospital over telephone. He deposed that when he reached the Police Station at about 1 in the night, he was not allowed to enter the Police Station as the public was pelting stones. He further stated that he appeared before the ACP and produced to him the packets seized by memo Ex. PW11/C by him at RML Hospital which were allegedly recovered from body of deceased Gopi Ram. PW18 also deposed that he registered case FIR No. 337/86 Police Station Patel Nagar under Section 21 NDPolice Station Act on the directions of ACP concerned. He further deposed that he did not tell the ACP that a case cannot be registered against a dead person.
(iii) The third circumstance pointed out by Prosecution against Accused is the factum of disposing body of deceased hurriedly without allowing his family members to perform last rites In this regard, reliance was placed on the deposition of PW14 and
19. It would be revealed on perusal of deposition of PW19 Chhattar Pal Singh that police officials had brought dead body of Gopi Ram in a police vehicle. He further deposed that police officials had also told him that Sudesh is the relation of the deceased and his thumb impression may be obtained on the entries as he has to complete all the formalities. It was argued that subsequent conduct of police officials in handing over body of deceased to relatives also shows that police officials were in hurry to dispose of body of deceased in haphazard manner.
At this juncture, it may also be pertinent to revert the arguments :33: advanced by Ld. Counsels representing Accused Inder Singh Rana and Accused Ramesh Chand. As aforesaid, the plea raised by Accused Inder Singh Rana is that entry Ex. PW15/A is false entry and that he has been falsely implicated in this case, though he was not on duty at the time of incident in question. Accused Inder Singh Rana strongly relied upon the deposition of DW3 Karta Ram and DW5 Biri Singh in support of his contention that Accused he had left for his home and was not on duty at the time of incident on the intervening night of 22/23.8.86.
I have considered the aforesaid submissions and gone through the evidence on record. However, I am of the considered opinion that deposition of the DW5 Biri Singh, who was posted as Duty Officer at Police Station Patel Nagar on the date of incident and the deposition of DW3 Karta Ram posted as Emergency Officer at Police Station Patel Nagar, cannot be said to be free from doubt inasmuch as there is every possibility of these witnesses deposing in favour of Accused Inder Singh Rana who was also a police official posted in the same Police Station at that time.
Moreover, DW3 Karta Ram upon being crossexamined by Ld. SPP deposed in his crossexamination that he was busy in his work and hence cannot confirm whether Inder Singh Rana and Jagmal Singh were present in the Police Station or not.
It is also pertinent to note that though Accused Inder Singh Rana claims that he was falsely implicated in this case on account of false DD entry Ex. PW15/A, yet admittedly, he did not lodge any complaint :34: against said false DD entry and his contention that he made verbal complaint to the senior officers cannot be accepted as the same is apparently an afterthought.
In other words, the fact that Accused Inder Singh Rana failed to make any complaint in writing either to the higher police officials or even to the court by way of any complaint regarding lodging of false entry Ex. PW15/A, in my opinion, clearly belies the plea raised by him regarding the false implication in this case. Moreover, it is his case that after returning back at Police Station at about 10.15 PM after change, he remained at his house. He has not examined his family members in his defence to prove that he was present in his house at the time of incident in question i.e. on the intervening night of 22/23.8.86.
Accordingly, I am of the view that Accused Inder Singh Rana has failed to prove his defence that he was falsely implicated in this case or that he had not accompanied Accused Satish Kadian and Jagmal Singh Yadav (since deceased) to the house of deceased Gopi Ram. Rather, from the deposition of Prosecution witnesses, particularly PW8 as discussed above, the fact that deceased Gopi Ram and Sudesh were picked up by three police officials from their house and taken to Police Station Patel Nagar stands duly established on record.
Insofar as Accused Ramesh Chand is concerned, it is his case that he was not named in the initial FIR investigated by Crime Branch and was not even chargesheeted by the Crime Branch. It is contended that on the basis of false and fabricated documents, he was arrayed as an :35: Accused. Moreover, there was another constable posted in Police Station Patel Nagar at night patrolling duty and that he has been falsely implicated in this case. In this regard, it may be noted that although PW8 deposed that Accused Ramesh Chand was one of the police officials who had picked deceased Gopi Ram and Sudesh from their house and given beatings to them, yet a bare perusal of cross examination of Prosecution's own witness PW24 Raj Singh Chauhan reveals that as per duty roaster, there were names of two constables by name of Ramesh Chand, one No. 1064 and other No. 1629. He further deposed that constable Ramesh Chand No. 1064 was on duty as beat staff and constable Ramesh Chand No. 1629 was on night patrolling duty. It was contended that as per deposition of PW24, Accused Ramesh Chand i.e. Accused herein was not on night patrolling duty.
I have considered the aforesaid submissions. However, at the same time, it is to be borne in mind that PW8 Shankar was not examined by Crime Branch and it is only when the investigation was taken over by CBI that the statement of Shankar Lal was recorded. Hence, the argument that Ramesh was not chargesheeted by Crime Branch is not of much significance.
Further, it is a matter of record that PW8 Shankar categorically identified Accused Ramesh at the time of recording of his testimony as one of the Accused who had picked up Sudesh and Gopi Ram from their house. Despite a lengthy crossexamination the deposition of PW8 :36: Shankar remained unimpeached and he remained consistent in his stand as regards role and identity of Accused Ramesh. Hence, I find no force in arguments of the Defence that Accused Ramesh is falsely implicated. Moreover, it is a matter of common sense that a police officer need not be deputed either for night patrolling or as a beat staff in order to commit an illegal act. In other words, even if it is accepted that Accused Ramesh was not officially on duty at the time when Gopi Ram and Sudesh were picked up by other coAccused, yet there is nothing on record to show his presence elsewhere. Rather, both Accused Inder Singh Rana and Ramesh have been clearly identified by PW8 Shankar Lal and I find that the plea of alibi as sought to be raised by Accused Inder Singh Rana and Ramesh Chand has thus not been proved on record. It is well settled law that when a plea of alibi is raised by Accused, it is for Accused to establish the plea by positive evidence. (C) The next arguments of the Prosecution as stated above is that the cause of death of deceased is shock consequent upon multiple injuries on the body of the deceased caused by some blunt object like lathi In this regard reliance was placed on the opinion of Medical Board Ex. PW16/A. It was further argued that as per the opinion of the Medical Board, the opinion of A5 K. K. Arora vide CFSL reports Ex. PW22/A and Ex. PW22/B are not tenable and the doctor who conducted postmortem examination was misled by chemical analysis report of CFSL, Delhi. It was further argued that Accused K. K. Arora intentionally added one zero in his report Ex. PW22/A after 10 in order :37: to make it to be read as 100 ml of blood inasmuch as vide his chemical analysis report Ex. PW2/F, he opined that deceased was found having 294 mg of alcohol per 100 ml blood. It was argued that upon examination of report Ex. PW2/F, Dr. L. T. Ramani who had conducted the postmortem on the body of deceased gave his opinion dated 13.1.87 Ex. PW29/C where he opined that in view of such high blood alcohol concentration and presence of morphine, he was of the opinion that alcohol and morphine by itself is sufficient to cause severe respiratory depression, death and injuries as such were not sufficient to cause death in ordinary course of nature.
Ld. APP argued that examining doctor failed to notice that the CFSL report Ex. PW5/B mentioning of 100 ml of blood at CFSL, Delhi and subsequently when the second CFSL opinion was received, it mentioned receipt of only 60 ml of blood whereas as per the deposition of PW29 and PW17 and the opinion of the Medical Board Ex. PW16/A only 510 ml of blood is preserved for chemical analysis. It was argued that it is thus established that A5 K. K. Arora knowingly incorrectly mentioned receipt of 100 ml of blood in the first instance when he conducted the analysis of viscera of deceased Gopi Ram for the first time and detected the presence of morphine and ethyl alcohol in the viscera of deceased Gopi Ram at the behest of other Accused.
On the other hand, the report of the FSL, Agra Ex. PW17/B denied presence of alcohol and morphine. Similarly, report of Medical Board also finds report of Accused K. K. Arora to be not tenable. It was :38: contended that Accused K. K. Arora thus at the behest of other Accused gave false report and infact deceased died on account of beatings given to him by remaining Accused persons at the Police Station Patel Nagar while he was in their illegal custody.
As stated above, the case of the Prosecution against A5 K. K. Arora is for having committing offence punishable under Section 218 IPC. It is alleged that pursuant to the conflicting opinions regarding examination of viscera of deceased Gopi Ram by the Sr. Scientific Officer at FSL, Agra, coupled with the report of the Medical Board (Ex. PW16/A), it was alleged that Accused K. K. Arora deliberately gave the false report regarding analysis of viscera of the deceased in connivance with other Accused. In view of the report of the first viscera examination of the deceased conducted by Accused K. K. Arora, it was opined by Accused K. K. Arora that there was 294 mg of alcohol per 100 ml blood.
The report of the FSL Agra and the report of the Medical Board, however, disagreed with the report of Accused K. K. Arora. PW16 Dr. Vishnu Kumar who was Member of the Medical Board exhibited the said report as Ex. PW16/A. It was also the opinion of the Medical Board that in case where 294 mg of alcohol in blood at viscera analysis, one expects a strong smell of alcohol at postmortem examination. However, in the present case, the stomach contents of the deceased as per postmortem report (Ex. PW29/A)gave some fruity smell and no smell of alcohol. It was also the view of the Medical Board that in the report Ex. :39: PW16/A the mentioning of 100 ml of blood in the first chemical analysis report (Ex. PW22/A) 60 ml of blood in the second chemical analysis report (Ex. PW22/B) and few drops in the third report, a lot of suspicion is created regarding the correctness of the CFLS report itself. It further observed that at no time, at postmortem, 100 ml of blood is collected for chemical analysis purpose and usually 810 ml of blood in a small vial is collected. Medical Board was thus of the view that in the present case, the death of deceased was "shock consequent upon multiple injuries on the body of the deceased caused by some blunt object like lathi." and the doctor who conducted the postmortem examination got misled by the chemical analysis report from CFSL, Delhi which according to the Medical Board was not tenable.
Per contra, Ld. Counsel representing Accused A5 K. K. Arora submitted that there is basic flaw in the case of the CBI, inasmuch as the memo of seizure of viscera Ex. PW3/A by CBI upon being handed over to CBI through officials of Police Station Patel Nagar clearly shows that viscera box seized by CBI had a marking of No. CFSL87/T1295. Ld. Defence Counsel strongly argued that a perusal of the said seizure memo Ex. PW3/A reveals that viscera box seized by the Investigating Agency bearing No. CFSL87/T1295 was not the box containing viscera of deceased Gopi Ram. It was contended that as per the Prosecution case, the viscera of deceased Gopi Ram in case FIR No. 336/86 Police Station Patel Nagar was sent to CFSL, Delhi for chemical analysis and two chemical examination report, both bearing No. CFSL87/T4611 of the :40: chemical examination conducted by A5 K. K. Arora were submitted. It was argued by Ld. Defence Counsel that as per the established procedure followed in CFSL, when viscera from Police Station is received in the office of Director, CFSL, the file is opened of concerned case which is sent to the concerned division which collects the exhibits and gives permanent number on the viscera box which is corresponding to the file number. The box is then opened for chemical analysis where worksheet is maintained and after chemical examination, permanent report is prepared again with the same number with the worksheet.
It was further argued that in the present case, A5 K. K. Arora conducted chemical examination of viscera of deceased Gopi Ram in case FIR No. 3356/86 Police Station Patel Nagar and the viscera box and permanent report were given number CFSL87/T4611. The Investigating Agency, however, collected the viscera box bearing No. CFSL87/T1295, as reflected in the seizure memo Ex. PW3/A and thus the reports of analysis of this viscera by FSL, Arga as well as by Medical Board were bound to differ from the report of A5 K. K. Arora.
In support of the aforesaid arguments, my attention was drawn to the crossexamination of PW2 Dr. S. R. Singh, Director, CFSL, who explained the entire working and procedure followed by CFSL to open a file and marking of box in the CFSL. Ld. Defence Counsel vehemently argued that record of the CFSL file bearing No. CFSL87/T1295 pertaining to DD No. 30A dated 27.2.87 of Police Station Patel Nagar was exhibited during the crossexamination of PW2. The said file is Ex. :41: PW2/DX3. It was contended that PW2 has made clear distinction between viscera box and its file bearing No. CFSL86/T4611 i.e. pertaining to deceased Gopi Ram being FIR No. 336/86 Police Station Patel Nagar and the viscera box bearing No. CFSL87/T1295 pertains to DD No. 32A dated 27.2.87 Police Station Patel Nagar. It was contended that from the deposition of PW Dr. S. R. Singh, it has been established that viscera box bearing No. CFSL87/T1295 as mentioned in seizure memo Ex. PW3/A collected by the IO is entirely different from the viscera box bearing No. CFSL86/T4611 sent to Accused K. K. Arora for chemical analysis. It was argued that A5 K. K. Arora has given his report on the basis of viscera received vide No. CFSL86/T4611 while the CFSL, Agra and the Medical Board opined on the basis of viscera received vide marking CFSL87/T1295 pertaining to DD No. 32A. Hence, the difference in both the reports.
It was contended that PW2 Dr. S. R. Singh has clarified in his crossexamination stating the reference number of the report is reflected on the packing in which exhibits are returned and on the exhibits.
On the other hand, Ld. APP drew my attention to the deposition of PW26 HC Rameshar Singh and the entry Ex. PW26/D that the viscera box in respect of CFSL87/T4611 pertaining to DD No. 32A was destroyed on 29.11.88 vide order of the concerned Ld. Metropolitan Magistrate. It was further pointed out that postmortem pertaining to that Accused was conducted by Dr. Brijesh Singh and accordingly, contention of A5 that viscera box pertaining to deceased Subhash :42: Chand bearing DD No. 32A was sent to CFSL, Agra by CBI without any basis. It was contended that since the said viscera box in respect of CFSL87/T1295 (Ex. PW17/B) was destroyed on 29.11.88, there is no question of sending the same to FSL, Agra on 13.6.89.
I have considered the aforesaid rival submissions in the light of the material on record.
It is borne out from the record that as per Postmortem Report of deceased Gopi Ram Ex. PW29/A, the following injuries were found upon person of deceased Gopi Ram:
(i) Bruise bluish in colour 5" x 1" present transversely on the left side front of chest 1" below the nipple, clevical area is pale and injuries are bluish red in colour.
(ii) Multiple bruises reddish purpose in colour 2" to 5" long present transversely on the postero lateral aspect of left arm, elbow and postero lateral aspect of left forearm.
(iii) Diffuse swelling on the back of left hand.
(iv) Three bruises 3" to 5" long x 1" wide present transversely on the postero lateral aspect of right arm.
(v) Swelling on the back of right hand.
(vi) Five bruises 3" to 4" long x 1 ½ wide present transversely on the anterior lateral part of right thigh having pale central area and reddish injuries.
(vii) Two bruises 4" to 9 x 1" on the anterior aspect of left thigh.
(viii) Multiple bruises (89) scattered on buttocks and back of thighs. :43:
(ix) Three bruises mars 4" x 1 ½ size each on the postero aspect of left leg.
(x) Bruises 2" x 1" on the lateral aspect of right leg and abrasion.
PW11 HC Harnam Singh deposed that on asking of police officials the search of deceased Gopi Ram was taken and five pudias of smack were recovered. PW11 further deposed that Dr. Y. K. Mishra recorded in the MLC, history of deceased Gopi Ram as "patient was addicted to ganja, smack and alcohol", on the asking of police officials of Police Station Patel Nagar who had accompanied the dead body along with Sudesh. It is relevant to note that though Accused sought to set up a defence that deceased Gopi Ram was found lying in park in Prem Nagar, yet no search of body of deceased was conducted by police officials at the time of alleged recovered of his body from the park in Prem Nagar. It is also pertinent to note that as per PW21 Dr. A. K. Singh, deceased was taken to Khera Nursing Home at 8 AM. However, admittedly, doctors at Khera Nursing Home were not asked to search body of deceased Gopi Ram. Rather, when Dr. A. K. Singh told the police officials who had brought him that he can issue medical certificate to the effect that Gopi Ram was brought dead in Khera Nursing Home, the police officials refused and took him to RML Hospital instead. The alleged recovery of five pudias of smack from the body of deceased Gopi Ram at RML Hospital only and not prior thereto. Thus makes the case as sought to be put up by the Defence entirely doubtful. Apparently, once the police officials came to know that Gopi :44: Ram is dead, the entire case of planting of smack upon him was manipulated and the false entry was made in the general diary vide Ex. PW15/A. I find myself in agreement with the Prosecution on this ground inasmuch as it is only when deceased was finally taken to RML Hospital when the examining doctor was specifically asked to search the body of Gopi Ram at RML Hospital and not prior to that.
Further, as per postmortem report Ex. PW29/A, as many as ten injuries were found on the body of deceased Gopi Ram. Though the examining doctor namely Dr. L. T. Ramani was not examined by the Prosecution, however, it is a matter of record that on an application moved by Prosecution, postmortem report Ex. PW29/A was permitted to be proved by Dr. L. K. Barau who was examined in place of Dr. L. T. Ramani, which was allowed by court vide order dated 08.6.07, which admittedly was not challenged by the Defence.
Hence, it now does not lie in the mouth of Defence to raise that postmortem report Ex. PW29/A cannot be read in evidence on account of nonexamination of Dr. L. T. Ramani. Further, perusal of postmortem report Ex. PW29/A show that as per said report "fruity smell" was emanating from stomach contents. The cause of injuries in the postmortem was given as having been caused due to use of blunt object object/weapons and all the said injuries were described to be ante mortem. It is also a matter of record that in view of the alleged history of drug addiction of deceased and at the request of police, report :45: regarding cause of death was deferred till the receipt of chemical analysis report of the viscera of deceased. The said viscera of the deceased Gopi Ram was sent by the officials of Crime Branch through road certificate Ex. PW26/B to CFSL. As per deposition of PW26 HC Rameshwar Singh, viscera was examined by Accused K. K. Arora at CFSL, Delhi vide report dated 30.9.86 Ex. PW2/B and as per said report examination of viscera gave positive test for morphine and ethyl alcohol.
In view of the said report, Dr. L. T. Ramani made endorsement on the report itself requesting to get the alcohol blood concentration level done. Consequently, as per report Ex. PW2/F of Accused K. K. Arora, it was opined by him that blood of the deceased was afound containing 294 mg of ethyl alcohol per 100 ml of blood. On the basis of said report Ex. PW2/F, Dr. L. T. Ramani opined vide his report Ex. PW29/C dated 13.1.87 that in view of such high blood alcohol and presence of morphine, he was of the opinion that alcohol and morphine by itself is sufficient to cause several respiratory depression, death and injuries as such were not sufficient to cause death in ordinary course of nature. Relying on the said report, it is contended by Defence that deceased Gopi Ram died on account of extreme quantity of presence of alcohol and morphine in his blood, as discussed above. It is further the plea of the Defence that viscera of the deceased sent to FSL, Agra and subsequently to the Medical Board did not belong to deceased Gopi Ram as the box had marking of 87/T1295. It was thus contended that since the wrong viscera box was sent to FSL, Agra and to the Medical Board, :46: their reports regarding absence of any morphine or alcohol ingredient cannot be relied upon.
Per contra, Prosecution has vehemently argued that viscera of deceased Subhash Chand pertain to DD No. 32A was destroyed on 29.11.88 as per orders of Ms Deepa Sharma, the then Ld. MM/Delhi and reliance has been placed on Ex. PW26/D as proved by PW26 HC Rameshwar Singh. It was contended that since viscera box of Subhash Chand pertain to DD No. 32A was already destroyed in November 1988, there is no question of it having been sent to FSL, Agra or to the Medical Board, as argued by Defence.
Prosecution further argued that at the time of conducting of postmortem of deceased Gopi Ram, Dr. L. T. Ramani was assisted by PW6 Krishan Lal, Postmortem Technician. He deposed that during his deposition PW6 identified signatures of Dr. L. T. Ramani on Ex. P3 on portion encircled red which is vial containing viscera of deceased Gopi Ram. It was thus contended that from the deposition of PW6 also it has been established that viscera which was sent to FSL, Agra as well as Medical Board is viscera of deceased Subhash Chand pertaining to DD No. 32A, which was not examined by Dr. L. T. Ramani but was infact examined by Dr. B. Singh as the vial Ex. P3 could not have borne signatures of Dr. L. T. Ramani and thus the fact that PW6 identified part of signatures of Dr. L. T. Ramani on vial clearly proves that it was viscera which was sent to FSL, Agra for examination during the investigation by CBI.
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Ld. APP contended that Dr. L. T. Ramani failed to notice that the CFSL report Ex. PW5/B mentioned 100 ml of blood received at CFSL, Delhi by A5, K. K. Arora. He also failed to notice subsequently when the second opinion of CFSL Ex. PW2/F was received, it had mentioned receipt of blood 60 ml. It did not occur to his mind as to why the receipt of blood in CFSL is mentioned 100 ml initially and the second time, 60 ml whereas as per the deposition of PW29, PW17 and Medical Board opinion Ex. PW16/A, only 5 to 10 ml of blood is preserved for chemical analysis. It has been conclusively established that K. K. Arora, A5 knowingly incorrectly mentioned receipt of 100 ml blood in the first instance. The reason for the same is that when he conducted the first time analysis of the viscera of deceased Gopi Ram, he had detected on the behest of Accused A1 to A4, presence of morphine and ethyl alcohol in the viscera of deceased Gopi Ram. But since the percentage of ethyl alcohol in the blood concentration was not mentioned, there was no option but to conduct further chemical analysis of the blood as demanded by Dr. L. T. Ramani. It was argued that mere presence of alcohol in the blood is not sufficient to cause respiratory depression and until unless it is very high in quantity. Since the need had arisen for second chemical analysis of the viscera, A5, K. K. Arora falsely showed receipt of 100 ml of blood contrary to actual receipt of 10 ml of blood. In this regard, Medical Board opinion Ex. PW16/A is very important and relevant wherein it has been mentioned that Dr L. T. Ramani was misled by the two CFSL report made by A5, K. K. Arora and which led to his :48: opinion about cause of death as mentioned in his subsequent opinion Ex. PW29/C. I have given my thoughtful consideration to the rival submissions in the light of the evidence on record.
However, after considering the evidence in its totality, I am unable to subscribe to the arguments raised on behalf of Accused, particularly Accused No. 5 K. K. Arora.
It is the contention of Accused K. K. Arora that wrong viscera box was sent to FSL and to the Medical Board which gave its opinion based on the same which was bound to differ from his earlier opinion as the said viscera did not belong to deceased Gopi Ram.
Before going into this controversy, it may be necessary in my opinion, to read deposition of PW16 Dr. Vishnu Kumar carefully. PW16 Dr. Vishnu Kumar was the Member of the Medical Board who gave its report vide Ex. PW16/A. PW16 deposed that final opinion of the Board was that the cause of death in this case was shock consequent upon multiple injuries on the body of the deceased caused by some blunt object like lathi. He further deposed that "doctor who conducted postmortem got misled by chemical analysis report from CFSL, Delhi which according to board were not tenable". A careful reading of the aforesaid deposition of PW16 and the opinion of Medical Board Ex. PW16/A would thus reveal that as per the opinion of the Medical Board the cause of death of deceased Gopi Ram was shock consequent upon multiple injuries on the body of the deceased caused by some blunt :49: object like lathi. The Board was further of the opinion that the doctor who conducted the postmortem got misled by the chemical analysis report of CFSL, Delhi. In other words, as per opinion of the Board, the actual cause of death of deceased Gopi Ram was shock consequent upon multiple injuries on the body of the deceased caused by some blunt object like lathi and examining doctor should not have been misled by the chemical analysis report of CFSL, Delhi.
It cannot be disputed that opinion of the Medical Board comprising of three doctors from various fields of medicines would be far more acceptable than the report of single doctor and the report of Medical Board must therefore be given precedence over the postmortem report of single doctor. The Board not only found the report of chemical analysis of CFSL, Delhi not tenable, but also strongly opined the cause of death of deceased was due to injuries caused upon him by blunt object like lathi. Thus, though Dr. L. T. Ramani may have opined cause of death of deceased Gopi Ram to be excessive alcohol and morphine, yet the report of Medical Board certainly must be preferred over the same.
Insofar as the contention of Defence is concerned that viscera of wrong person was sent to FSL, Agra and to the Medical Board, I am unable to accept this contention also. In view of the deposition of PW26, it has clearly emerged on record that viscera of the deceased pertaining to DD No. 32A was destroyed vide entry Ex. PW26/B as per orders of concerned court. It has also come on record by way of deposition of PW6 who had seen Dr. L. T. Ramani working, he being his :50: assistant during various postmortems that the part of signatures of Dr. L. T. Ramani appear on vial Ex. P3 on portion encircled in red colour.
Thus, it stands proved on record beyond any reasonable doubt that the vial Ex P3 which was sent to FSL, Agra, box contained remenants of viscera of deceased Gopi Ram which had earlier been examined by Dr. L. T. Ramani of CFSL, Delhi.
The argument of Defence that CBI sent the viscera of wrong person, thus, cannot be sustained in the light of the aforesaid evidence.
Moreover, in view of the fact that Medical Board was of the opinion that doctor who conducted postmortem of deceased Gopi Ram was misled by the report of chemical analysis of CFSL, Delhi and deceased died on account of injuries sustained by him by blunt object, the Prosecution in my opinion, has also been able to prove that deceased Gopi Ram infact died on account of injuries sustained by him by means of blunt object like lathi.
Consequently, I am of the view that the allegations of offence punishable under Section 218 IPC against Accused K. K. Arora also stand established on record.
In other words, since it stands established that vial Ex. P3 in fact contained viscera of deceased Gopi Ram only, and viscera of deceased pertaining to DD No. 32A had already been destroyed as per DD entry Ex. PW26/B under court orders, the viscera examined by A5 was the viscera of deceased Gopi Ram. However, his findings vide Reports Ex PW22/A and Ex. PW2/F were clearly different from Report of FSL, :51: Agra Ex. PW17/B and the opinion of Medical Board Ex. PW16/A. Thus, A5 clearly returned incorrect findings vide his Reports dated 30.6.86 Ex. PW22/A and Report dated 29.12.86 Ex. PW2/F, with a view to save A1 to A4, and thereby committed offence under Section 218 IPC.
However, at the same time, it has come on record that viscera box handed over to the CBI was having marking of 87/T1295 of CFSL. But, in view of the aforesaid findings arrived at after careful analysis of evidence on record, it has been held that the viscera box, though bearing marking of 87/T1295, in fact contained the viscera of deceased Gopi Ram only. In view thereof, keeping the totality of facts of the case, I am of the view that the connivance of officials of Police Station Patel Nagar where Accused No. 1 to 4 were also posted at the relevant time cannot be ruled out. Apparently, the officials of Police Station Patel Nagar, changed the CFSL number on the viscera box of Gopi Ram and the beneficiary of the same is certainly none other than the Accused facing trial. Hence, though there is no change of criminal conspiracy against the Accused, it duly stands established on record that Accused Satish Kadian, Inder Singh Rana, Ramesh Chand and Jagmal Singh Yadav (since expired) committed offence punishable under Section 218 r/w Section 109 IPC by abetting the commission of offence under Section 218 by Accused K. K. Arora.
I would, at this juncture place reliance on a rule of the Hon'ble Apex Court in State of Madhya Pradesh Vs Shyam Sunder Trivedi :52: 1995 (4) SCC 262. The Hon'ble Supreme Court while considering the question of standard of proof required in cases relating to custodial death observed that "The High Court erroneously overlooked the ground reality that rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available".
It was further observed that "Exaggerated adherence and insistence upon establishment of proof beyond any reasonable doubt, by the Prosecution, ignoring ground reality, the facts situation and the peculiar of given case.......often result in miscarriage of justice and makes the justice delivery system a suspect in the ultimate analysis the society suffers and crime gets encouraged. Torture in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the court because it reinforces belief in the mind of the police that no harm would come to them, if a odd dies in the lockup because there would hardly be any evidence available to the Prosecution to directly implicate them with the torture, the courts must not lose sight of the fact that death in police custody is perhaps worst kind of crimes in civilized society governed by rule of law and causes a serious threat to an orderly civilized society. Torture in custody flouts the basic right of the citizens recognized by the Indian constitution and is afferent to human dignity......The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve otherwise common man may lose faith in the judiciary itself :53: which will be sad day". Similarly, in Prithpal Singh Vs State of Punjab (Supra), Hon'ble Supreme Court categorically laid down: "In a case where the person is alleged to have die in police custody, it is difficult to get any kind of evidence. Rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had did. Bound as they are by the ties of brotherhood, this is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues."
On the basis of above case law, the evidence on record and the aforesaid discussion, I am of hte view that the Prosecution has been able to prove that deceased Gopi Ram and Sudesh were picked up by Accused A1 to A4 on the intervening night of 22/23.8.86 and were given beatings by them. The story sought to be put forth by the Defence that they had raided the house of deceased Gopi Ram on receipt of information regarding presence of narcotics has not been accepted on record for the reasons discussed hereinabove. The plea of the Defence that deceased was found lying in a park on the next morning is also not acceptable in view of the deposition of PW21 and PW11, as already :54: discussed in detail above.
It has been brought on record that deceased was taken by police officials firstly to Khera Nursing Home and from there to RML Hospital despite the fact that doctor at Khera Nursing Home had told the police officials that Gopi Ram is dead and he can issue a certificate to this effect. Further, the fact that alleged recovery of five pudias of smack from the body of deceased Gopi Ram only after reaching RML Hospital also shows that the same was planted as no such recovery was effected at Khera Nursing Home. Further, presence of complainant Sudesh Kumar, both at Khera Nursing Home and then to RML Hospital also demolishes the plea of the Defence that deceased Gopi Ram had managed to escape from his house and was found later lying in a park on the next morning.
The factum of deceased Gopi Ram and Sudesh having been given beatings by the Accused and picked up from their house has been duly established from the deposition of PW8 who has been found to be credible and trustworthy. It has also come on record that the persons of the locality were raising hue and cry in front of Police Station Patel Nagar on the date of the incident. It has also been proved on record that body of the deceased Gopi Ram was not handed over to his family members and was rather hurriedly cremated. The entry Ex. PW15/A recorded by A1 in the general diary also stand disbelieved and it apparently amounts to creation of false evidence as it stands proved on record that deceased Gopi Ram was picked up from his house by A1 to A4 on the intervening night of 22/23.8.86 and was also given beatings. :55: It has not been proved that he was found lying in a park on the next morning. The cause of death of deceased Gopi Ram as shock consequent upon multiple injuries on the body of the deceased caused by some blunt object like lathi and the report of Dr. K. K. Arora Ex. PW5/B are not worthy of reliance for the reasons as discussed above and the report of the Medical Board Ex. PW16/A must prevail on the postmortem report of Dr. L. T. Ramani Ex. PW29/A. From the above evidence, it has been proved on record that deceased Gopi Ram died on account of injuries found upon his person as per postmortem Ex. PW29/A and as per report of Medical Board Ex. PW16/A and in these circumstances, the Prosecution, in my opinion, has been able to establish beyond any reasonable doubt that deceased Gopi Ram and Sudesh were beaten by Accused at Police Station Patel Nagar on the intervening night of 22/23.8.86 and deceased Gopi Ram died consequent upon receipt of multiple injuries on his body by some blunt object like lathi.
It must be reiterated that it has not been proved that deceased escaped from the clutches of Accused on the intervening night of 22/23.8.86 or that he was found lying in a park on the next morning. It is, however, established that deceased who was picked up on the intervening night of 22/23.8.86 by four Accused persons died in police custody on account beatings given to him by A1 to A4.
I am unable to subscribe to the contentions of Ld. Defence Counsel that since testimony of Sudesh/complainant who was an eye :56: witness cannot be read in evidence, the Prosecution could not have relied on the rule of burden of proof under Section 106 Evidence Act and contend that the injuries found on the person of deceased Gopi Ram were caused by A1 to A4 while detaining him in illegal police custody. In this regard, Ld. Defence Counsel placed reliance on judgment of Hon'ble Supreme Court titled as Murlidhar & Ors. Vs State of Rajasthan IV (2005) SLT 271.
I have gone through the said judgment and have considered the same in the light of facts and circumstances of the present case. In the said judgment relied upon by the Defence there was no other evidence but for the deposition of the witnesses who were not found to be trustworthy and it is in these circumstances that Hon'ble Apex Court observed that 'Prosecution having put forward case that what transpired after R was dragged away by assailants was within knowledge of witnesses, utterly failed in proving said facts: Once this is established, not open for High Court to have fallen back on rule of burden of proof under Section 106 of Evidence Act".
However, in the present case, however, though the deposition of the eye witness cited by the Prosecution namely complainant Sudesh cannot be looked into, yet there are numerous circumstances as highlighted hereinabove which categorically point out towards guilt of all the above named Accused and none other. The question of shifting of burden of proof under Section 106 Evidence Act, hence, does not arise in the present case inasmuch as the Prosecution witnesses have :57: duly proved on record that deceased Gopi Ram and Sudesh were picked up from their house by A1 to A4 and given beatings to them. The story as sought to be set up by Accused that deceased Gopi Ram was found lying in a park has not been accepted. The deceased is proved to have died on account of injuries sustained by him by means of blunt object like lathi. The DD entry Ex. PW15/A recorded by A1 has been found to be false. The other circumstances appearing against Accused have discussed in detail hereinabove completing entire chain of circumstances which unerringly point out towards guilt of the Accused and are rather incapable of any other hypothesis but for the guilt of the Accused. Hence, in my humble opinion, judgment of Hon'ble Apex Court relied upon by Ld. Defence Counsel has no application to the facts and circumstances of the present case.
Rather the Hon'ble Superior Courts have in catena of judgments, while dealing with the offence of custodial death has observed as under:
(i) In Ravinder Kumar Vs State of Punjab 1996 (3) RCR (Criminal) 763, Hon'ble Punjab and Haryana High Court observed that "Though onus of proving the charge is always on Prosecution in ordinary cases of custodial death, all cases of custodial death is not an ordinary cases. It further observed that in cases of custodial death though initial onus to prove the charge would of course lie on the Prosecution but the during the course of trial Defence would not be able to shirk their duty showing that it was case of suicidal death and not murder".
:58:
(iii) In Dilip Singh Vs State of Haryana 1993 AIR SC 2302=1993 CLJ 2094, Hon'ble Supreme Court while dealing with appeal in custodial death decided the question of onus of proof and held that "In cases of death in police custody where the evidence establishes that the deceased was taken in custody by the police officer, in such a case it is responsibility of the Accused/police officer to show as to how deceased went out of their custody. The denial of entire story by the police is only a false explanation. Accused died of beatings by police. The story of police that Accused died of bus accident was not believed".
(iv) In Gori Shankar Sharma Vs State of Uttar Pradesh 1990 AIR SC 709, Hon'ble Supreme Court again held that "It is generally difficult to secure evidence against the policemen since they are Incharge of the Police Station and can manipulate and it is only in few cases that some direct evidence is available".
(v) In yet another cases titled as Brij Lala Prasad Vs State of Bihar 1998 AIR 2443, Hon'ble Supreme Court held that "Conviction of the police officials was upheld on the basis of circumstantial evidence to the effect that police party left the Police Station on a van duly armed and returned with three dead bodies. It was held that it was for the police to explain under what circumstances, the said three persons were killed and in absence of any explanation by the police, it was held that it was linking in chain of circumstances that police killed the three persons and the guilt of the police officials was established by way of circumstantial evidence".
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I also find myself unable to agree with the submissions of Ld. Defence Counsel that Prosecution has not been able to establish the charge under Section 342 IPC framed against Accused Satish Kadian, Inder Singh Rana and Ramesh.
It was contended by Ld. Defence Counsels that there is no evidence on record to show that the deceased Gopi Ram and Sudesh were wrongfully confined at Police Station Patel Nagar on the intervening night of 22/23.8.86 by the above named Accused. In this regard, reliance was placed on the crossexamination of PW28 J. P. Verma, DSP Spl. Crime Branch, CBI who conducted investigation of this case upon it being referred to CBI on the orders of Hon'ble Supreme Court.
In his crossexamination, PW28 admitted that on the intervening night of 22/23.8.86, 67 other persons were arrested and were in the group. He further deposed that he had examined the persons detained in the lock up on that night during investigation of this case and they had informed him that no beating had taken place inside the lock up. He also admitted that he did not record the statement of Constable posted at the entry gate of the Police Station on that night or the Constable posted at the lock up at the lock on the intervening night of 22/23.8.86.
It was further pointed out that as per crossexamination of PW25 HC Ram Singh there was entry at point X2 on document Ex. PW25/A at 0.50 hours and the force from CRPF was present in the Police Station. It was argued that despite which no official from CRPF was examined to :60: support the case of the Prosecution that deceased Gopi Ram and complainant Sudesh were given beatings by the Accused and confined in the Police Station on the intervening night of 22/23.8.86.
I have considered the aforesaid submissions and I find on going through the evidence on record that though there is no specific evidence to establish the case of the Prosecution regarding confinement of the deceased Gopi Ram and complainant Sudesh within the four walls of Police Station Patel Nagar on the intervening night of 22/23.8.86. However, at the same time, I am of the opinion that there is sufficient material on record, as discussed hereinabove which establishes that deceased Gopi Ram and complainant Sudesh were picked up by A1 to A4 on the intervening night of 22/23.8.86 and were given beatings by the above named Accused persons. It has also been established by the Prosecution, as discussed hereinabove that deceased Gopi Ram died on account of shock consequent upon multiple injuries on the body of the deceased caused by some blunt object like lathi. The Accused have failed to prove that deceased managed to escape from their clutches on the intervening night of 22/23.8.86 when they raided at his house as per entry Ex. PW15/A. It has also not been established that deceased was found lying in a park on the morning of 23.8.86. Rather, from the evidence led by the Prosecution, it has been established that deceased Gopi Ram along with complainant Sudesh were firstly taken to Khera Nursing Home where the police officials accompanying him did not accept the certificate of the deceased being dead and rather took him to :61: RML Hospital. Five pudias of smack apparently planted upon deceased recovered from his possession and case under Section NDPolice Station Act was registered against deceased Gopi Ram, a dead person.
Further, the factum of the deceased having been picked up from his house along with complainant Sudesh has been duly established from the deposition of the various witnesses, as discussed hereinabove particularly PW8 Shankar Lal. The fact that he remained in custody of the police officials till 8 AM on 23.8.86 when he was taken to Khera Nursing Home also stands established from the deposition of PW11 HC Harnam Singh and PW21 Dr. Anil Kumar Singh. The fact that he was declared dead at RML Hospital from where planted smack was recovered from his possession has also been duly proved. The Accused have failed to establish their plea that they have been falsely implicated in this case and in these circumstances there Prosecution, in my opinion, has been able to establish that deceased was in illegal custody of A1 to A4 from the intervening night of 22/23.8.86 when he was picked up from his house by them and that while was detained, he sustained multiple injuries on his body, as borne out from the postmortem report Ex. PW29/A which were opined to be antemortem and caused by blunt object/weapon and which injuries ultimately found to be sufficient to have caused death of deceased Gopi Ram as per opinion of Medical Board Ex. PW16/A. Consequently, from the above discussion and the evidence on record, I find that Prosecution has been able to establish that deceased :62: Gopi Ram and Sudesh were picked up by the Accused Satish Kadian, Inder Singh Rana, Ramesh Chand and Jagmal Singh Yadav (since expired) on the night of 22.8.86 from their house and also being given beatings by them on the spot and were further taken away along with them. It is also proved on record that both Gopi Ram (deceased) and Sudesh (i.e. PW9 who died during trial) were beaten by Accused A1 to A4 while in their custody during the intervening night of 22.8.86 and 23.8.86 and because of which Gopi Ram died in illegal police custody. The cause of death of deceased Gopi Ram has also been proved as "shock consequent upon multiple injuries on the body of the deceased caused by some blunt object like lathi" has also been duly proved on record as per the above discussion.
Accordingly, in the light of the aforesaid discussion, and evidence on record, Accused Satish Kadian, Inder Singh Rana and Ramesh are hereby convicted for offence punishable under Section 323/342/304/34 IPC and Section 218 IPC R/w Section 109 IPC while Accused K. K. Arora is convicted for offence punishable under Section 218 IPC. Let them be heard on the point of sentence.
Announced in the Open Court on August 09, 2012 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
:63:CBI Vs Satish Kaidan Etc. RC No. : 16(S)/88 CBI/SCB/New Delhi SC No. : 51/09 09.8.12 Present: Sh. Rajan DahiyaLd. SPP for CBI.
All accused on bail.
Vide judgment announced of even date on separate sheets, Accused Satish Kadian, Inder Singh Rana and Ramesh are hereby convicted for offence punishable under Section 323/342/304II/34 IPC and Section 218 IPC R/w Section 109 IPC while Accused K. K. Arora is convicted for offence punishable under Section 218 IPC.
Let all convicts except K. K. Arora be taken into custody. Put up for arguments on sentence on 18.8.12.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
:64:In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 51/09
Unique ID No. : 02401R0000081995
CBI versus (1) Satish Kumar Kadian
S/o Sh. Ram Singh
R/o 233, Sector II
R. K. Puram, N. Delhi
(2) Inder Singh Rana
S/o Sh. J. S. Rana
R/o H75, Sarojini Nagar,
New Delhi
(3) Jagmal Singh Yadav
S/o Sh. Surjan Singh
Yadav
R/o VPO Tajpur
Police Station Atali
Distt. Mohindergarh,
Haryana [Since
Expired
Proceedings Abated]
(4) Sh. Ramesh Chand
S/o Sri Chand
R/o Village Ladarawan
Police Station.
Bahadurgarh,
Haryana
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(5) Kewal Kishan Arora
S/o Sh. Kahan Chand
R/o 64, Priya Enclave
New Delhi
Case arising out of:
RC No. : 16(S)/88
Police Station : Patel Nagar
Under Section : 323/342/304/34 IPC and Section 218 IPC
R/w Section 109 IPC
Judgment pronounced on : 09.8.2012
ORDER ON SENTENCE:
1. Vide judgment dated 09.8.12, Convict Satish Kadian, Inder Singh Rana and Ramesh Chand have been convicted for offence punishable under Section 323/342/304/34 IPC and Section 218 IPC R/w Section 109 IPC while Accused K. K. Arora is convicted for offence punishable under Section 218 IPC.
2. I have heard the submissions made by Learned Defence Counsel for convict Inder Singh Rana and Ramesh Chand and and arguments of accused Satish Kadian and accused K. K. Arora on the point of sentence. I have also considered the submissions made on behalf of :66: Prosecution.
3. It is contended on behalf of all the convicts that they have faced protracted trial in this case and have prayed for lenient view on this ground. Ld. Counsel for convict Inder Singh Rana also contended that said convict is sole bread earner of his family which includes two daughters who are studying in college. He is stated to be outstanding police officer who was recruited in police service in 1983 and was on his first posting at the time of the incident in question. He was also stated to be outstanding sportsman and scholar. It was contended that several documents have been placed on record in support of the said submissions. Ld. Counsel for convict Inder Singh Rana thus prayed for release on probation stating that there is no previous record of any convict against the said convict.
4. Convict Satish Kadian who argued in person also prayed for probation stating protractive trial as one of the reasons. He also contended that he was newly recruited and was on his first posting at the time of the incident in question. He further submitted that he had already been denied promotion and gallantry medal due to pendency :67: of this case.
5. Ld. Counsel for convict Ramesh Chand contended that he is having old aged parents who are suffering from various ailments. His family also comprises of two grown up children. It was contended that there is no previous record of any conviction against him and he may be extended benefit of probation. Ld. Counsel for convict Ramesh Chand relied upon judgment of Hon'ble High Court titled as Pawan Kumar And Others Vs State 2004 Crl. L. J. 2310 in support of his arguments.
6. Ld. Counsels for convicts also submitted during the course of arguments on the point of sentence that convicts are ready and willing to pay compensation to the widow of deceased.
7. On the other hand, Ld. Prosecutor for CBI placed reliance on judgment of Hon'ble Supreme Court titled as State of M. P. Vs Kashiram & Ors. 2009 Crl. L. J. 1530 wherein Hon'ble Supreme Court had laid down "PenologyPunishment to be awarded for a crime must not be irrelevantIt should conform to and be consistent :68: with atrocity and brutality with which crime has been perpetrated, enormity of crime warranting public abhorrenceAnd it should "respond to the socity's cry for justice against the criminal". He has relied upon another judgment of Hon'ble Supreme Court titled as Ramnaresh & Ors. Vs State of Chhattisgarh 2012 Crl. L. J. 1898 wherein Hon'ble Supreme Court has dealt with various aggravating and mitigating circumstances to be considered while awarding sentence. On the basis of aforesaid case law, Ld. Prosecutor has strongly prayed for maximum prescribed punishment to be awarded to the above named convicts. He contended that the offence in question is serious offence wherein the police officials who were duty bound to protect the citizens have themselves committed atrocities and there is no scope for any leniency.
8. I have considered the submissions made. It is a matter of record that convict Satish Kadian, Inder Singh Rana and Ramesh Chand were serving in Delhi Police at the time of the incident in question. It has been proved on record that above named persons caused death of deceased Gopi Ram by giving him beatings on the night of 22.8.86 :69: while he was in their custody. There is also evidence to establish that records were manipulated by convict K. K Arora, Sr. Scientific Officer, CFSL, who prepared incorrect reports with a view to save other coaccused from legal punishment.
9. The offences thus proved to have been committed by the above named convicts are not ordinary in nature. It has been laid down by Hon'ble Supreme Court in case titled as State of U. P. Vs Kishan 2005 Crl. L. J. 333 wherein Hon'ble Supreme Court held that "PenologySentenceAwarding ofObject is to protect society and deter criminalTaking liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time Will be resultwise counterproductivePunishment awarded should conform to and be consistent with atrocity and brutality with which crime has been perpetrated, enormity of crime warranting public abhorrence and should 'respond to the society's cry for justice against criminal'.
10. The Hon'ble Supreme Court observed that "....the courts must :70: not lose sight of the fact that death in police custody is perhaps worst kind of crimes in civilized society governed by rule of law and causes a serious threat to an orderly civilized society. Torture in custody flouts the basic right of the citizens recognized by the Indian constitution and is afferent to human dignity......The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve otherwise common man may lose faith in the judiciary itself which will be sad day"
11. Keeping in view the aforesaid case law, I am of the opinion that this is not a fit case where convicts should be granted benefit of the benevolent provisions of Probation of Offenders' Act. Rather, the convicts being protectors of citizens have been found to be guilty of causing death of innocent persons while in their illegal custody and in these circumstances, I find myself unable to agree with the submissions of Ld. Defence Counsels that above named convicts are entitled are entitled to be released on probation, as prayed.
12. Accordingly, keeping in view the seriousness of the offences proved to have been committed by the above named convicts, convict Satish Kadian, Inder Singh Rana and Ramesh Chand are hereby sentenced as under: :71:
i) For offence punishable under Section 304/34 IPC, each of the above named convicts are sentenced to undergo Rigorous Imprisonment for 10 years addition to payment of fine of Rs. 25000/ each which shall be paid by way of compensation to Smt. Kashmiri Devi, Widow of the deceased. In default of payment of the aforesaid, the above named convicts shall undergo for Simple Imprisonment for one year.
ii) For offence punishable under Section 323/34 IPC, all the above named convicts are sentenced to undergo Rigorous Imprisonment for 01 year.
iii) For offence punishable under Section 342/34 IPC, all the above named convicts are sentenced to undergo Rigorous Imprisonment for 01 year.
iv) For offence punishable under Section 218 IPC r/w Section 109 IPC, all the above named convicts are sentenced to undergo Rigorous Imprisonment for 03 years each.
13. Convict K. K. Arora who has been convicted for offence punishable under Section 218 IPC is hereby directed to undergo Rigorous Imprisonment for 03 years in addition to payment of fine of :72: Rs. 5000/, in default whereof, he shall undergo Simple Imprisonment for 06 months.
14. It is thus ordered accordingly. All the sentences shall run concurrently. The convicts shall be entitled to benefit of Section 428 CrPC. Copy of judgment and order on sentence be provided to convict free of cost. 15. File be consigned to Record Room. Announced in the Open Court on August 18, 2012 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.