Delhi High Court
Mahipal vs State Of Delhi on 19 October, 2015
Author: R. K. Gauba
Bench: Sanjiv Khanna, R.K.Gauba
$~R-13 to 16 (Part-B)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 27th August, 2015
% Date of Decision : 19th October, 2015
+ CRL.A. 112/2000
MAHIPAL ..... Appellant
Through Mr. Ajay Burman, Mr. Aditya
Swarup Agarwal, Mr. Karan Burman, Mr.
Karan Sidhu, Mr. Harshit Khurana & Mr.
Amritesh Raj, Advocates.
versus
STATE OF DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP along with Inspector Harendra Singh, P.S. Welcome & ACP (Retd.) M.S. Mattoo.
CRL.A. 135/2000 SUNIL KUMAR ..... Appellant
Through Mr. M.L. Yadav & Mr. Lokesh
Chandra, Advocates.
versus
STATE ..... Respondent
Crl.A.Nos.112/2000 & conn. Page 1 of 61
Through Ms. Aashaa Tiwari, APP along with
Inspector Harendra Singh, P.S. Welcome &
ACP (Retd.) M.S. Mattoo.
CRL.A. 148/2000
NEERAJ KUMAR ..... Appellant
Through Mr. Ajay Burman, Mr. Aditya
Swarup Agarwal, Mr. Karan Burman, Mr.
Karan Sidhu, Mr. Harshit Khurana & Mr.
Amritesh Raj, Advocates.
versus
STATE ..... Respondent
Through Ms. Aashaa Tiwari, APP along with
Inspector Harendra Singh, P.S. Welcome &
ACP (Retd.) M.S. Mattoo.
CRL.A. 202/2000
ANAND PRAKASH ..... Appellant
Through Mr. N. Hariharan, Sr. Advocate
with Mr. Varun Deswal, Mr. Siddharth S.
Yadav, Mr. Vaibhav Sharma & Mr. Sahil
Paul, Advocates.
versus
Crl.A.Nos.112/2000 & conn. Page 2 of 61
STATE ..... Respondent
Through Ms. Aashaa Tiwari, APP along with
Inspector Harendra Singh, P.S. Welcome &
ACP (Retd.) M.S. Mattoo.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K.GAUBA
R. K. GAUBA, J:
1. The spectre of "custody death" raises its ugly head yet again in the case at hand, bringing under cloud the claim of our polity that the State guarantees, to one and all, a civil society truly wedded to the normative of rule of law.
2. The four appellants stood trial in the court of additional sessions Judge in Sessions Case no. 73/96 on the basis of the report under section 173 of the Code of Criminal Procedure, 1973 ("CrPC"), submitted on conclusion of investigation into the first information report ("FIR") no. 72/92 of the police station Welcome, on the charge for offences punishable under section 342 read with section 34 of Indian Penal Code, 1860 ("IPC"), section 330 read with section 34 IPC and section 302 read with section 34 IPC, the gravamen being that, in furtherance of their common intention, they had wrongfully confined Darshan Singh, after having picked him up on the night intervening 10th and 11th of March 1992 from his house no. K- 463 New Seelampur, Delhi, assaulting him intentionally and causing injuries to him in order to extract a confession to such an extent as to result in his death. By judgment dated 15 February 2000, the trial Court held the Crl.A.Nos.112/2000 & conn. Page 3 of 61 appellants guilty, as charged. By order dated 22 February 2000, each of the appellants was awarded imprisonment for life with fine of Rs. 2000/- for offence under section 302/34 IPC, rigorous imprisonment for one year with fine of Rs. 500/- each for offence under section 342/34 IPC and rigorous imprisonment for 5 years with fine of Rs. 1000/- each for offence under section 330/34 IPC. It was directed by the trial Court that in case of default in payment of fine, the appellants would undergo rigorous imprisonment for 2 years, simple imprisonment for 2 months and simple imprisonment for one year respectively on the three counts. Benefit of section 428 CrPC was accorded and it was directed that the substantive sentences shall run concurrently.
3. Through the criminal appeals at hand, the convicted persons have assailed the judgement and the order of sentence.
4. It is not disputed that the four appellants were members of Delhi Police, posted at the relevant point of time in Anti Auto Theft Squad (AATS) of North East District. The AATS was headed by Inspector Shakti Singh (PW 15). Its office was located near the office of Deputy Commissioner of Police of the area. Since questions have been raised in such regard, it must be mentioned here that the building from where the office of AATS was functioning was distinct from the properties where the police stations named Seelampur and Welcome were located. Though, it may also be added here that all these units of Delhi police were not much distant from each other. The AATS had a total staff strength of 11 police personnel, including one Inspector (PW 15), 2 sub inspectors, one assistant sub Inspector, one head Constable and 6 Crl.A.Nos.112/2000 & conn. Page 4 of 61 constables. The appellant Mahipal (criminal appeal no. 112/2000), accused no. 3 (A3) before the trial Court, was posted as head Constable. The other three appellants namely Anand Prakash (criminal appeal no. 202/2000), accused no. 1 (A1) before the trial Court, Sunil Kumar (criminal appeal no. 135/2000), accused no. 2 (A2) before the trial Court, and, Niraj Kumar (criminal appeal no. 148/2000), accused no. 4 (A4) before the trial Court, were working as Constables.
5. Certain facts concerning Darshan Singh (hereinafter referred to variously by his name or as "the victim" or "the deceased") have also emerged as indisputable. He was son of Prem Pal (PW 3) aged about 21 years, unmarried, reasonably tall (170 cm) and average in build. He was residing in house no. K-463, New Seelampur, Delhi. Munna Lal (PW 4) describes him as his nephew. Since the parentage of PW4 is different from that of PW 3, it appears that both of them hailing from same brotherhood were distantly related. PW4 ran a shop of denting and painting (of motor vehicles) in Bihari Colony. He had employed the victim in his shop for some time but for about six months prior to the events which are subject matter of the case, he (the victim) had come to be employed in some other shop in similar work. Vikram Singh (PW2) is younger brother of PW3 and, therefore, Chacha to the victim. He also lived in the same area, in separate house (K-449). Beena (PW1) is the wife of another brother (Ram Niwas) of PW2 and PW3, she being a resident of a separate house (A-463) in the same locality.
6. Santosh (PW7) wife of Roshan Lal resides in the same area, in a house in another block (house no. K-155). Her family included her 3 Crl.A.Nos.112/2000 & conn. Page 5 of 61 sons named Bobby@Ramesh, Des Raj (PW5) and Dharam Pal (PW6). The evidence of the three members of this family, namely PW5, PW6 and PW7, is relied upon by the prosecution to corroborate the word of other witnesses as to the involvement of the appellants in the crimes qua the deceased, though restricted to the extent of he (the deceased) having been picked up from his house around the same time when PW5 and PW6 were also statedly taken away by certain police personnel from the house in which they were living during the relevant period.
7. The prosecution case also refers to Mohan Nursing Home & Hospital (hereinafter referred to as "the nursing home"), located in property described as 790, Indra Chowk, Delhi - 110053, not far away from the office of AATS. Dr Mohan Lal (PW12) is the proprietor of this nursing home. The evidence indicates that during the relevant period he was assisted by, amongst others, Dr VK Jain (PW25) and Dr GD Rathi. Dr GD Rathi was not examined at the trial but the prosecution relied upon the evidence of PW12 and PW 25 in the context of events that had occurred in the afternoon of 16 March 1992 wherein the victim was brought to the nursing home in injured condition by certain police officials.
8. The fact that Darshan Singh went missing sometime on the night of 10th and 11th March 1992 has been brought out by the prosecution, with virtually no contest from the defence, through the mouthpiece of PW1, PW2, PW3 and PW4.
Crl.A.Nos.112/2000 & conn. Page 6 of 619. The trial Court record shows that when the statements of Beena (PW1) and Vikram Singh (PW 2) were recorded on 7 October 1996, the learned trial judge had followed the earlier practice of preparing a simultaneous record of the deposition of the witnesses in vernacular (Hindi) in addition to the English translation. When the record was requisitioned for purposes of these appeals, the registry of this court inadvertently assumed (at the time of preparation of the paper books) the vernacular part of the depositions of the said witnesses as evidence given by different individuals. Thus, while preparing the compilation/paper books, the vernacular versions of the said witnesses were denoted as statements of PW20 and PW21 respectively. Ordinarily, in case of doubt, the Court should be looking at the vernacular record of the oral testimony of the witnesses, but, in the case at hand, we find, as pointed out by the learned counsel for the appellants, that the said part of the record is incomplete. The English version is authentic and veritable. The Hindi version clearly misses on several parts of the questioning or the responses thereto and, thus, cannot be relied upon. Therefore, with the consent of all sides, we exclude from consideration the vernacular record of the depositions attributed to PW1 and PW2, shown in the paper books as the depositions of PW 20 and PW 21.
10. Amongst the above-mentioned witnesses (PW1, PW2, PW3 and PW4), all related to the victim, the evidence of PW1 is the most direct; the testimony of the remaining being more relevant in the context of what is stated to have followed in the days to come. The deposition of PW1 is that she was outside her house at about 2 or 3 AM on the night Crl.A.Nos.112/2000 & conn. Page 7 of 61 intervening 10th and 11th of March 1992, helping her infant daughter in easing at the drain outside, when she saw four persons in civil clothes, knocking at the door of the house where the victim was living and then taking him away. This part of her deposition has remained unchallenged. The fact that Darshan Singh was taken away in this manner would have come, in due course, in the knowledge of the other three witnesses from her can be reasonably inferred. After all, no other witness (immediate relative or local resident) has come forward to share better information in such regard. Though PW1, in the course of her testimony in the Court, tried to claim that the persons who had picked up Darshan Singh and taken him away in the wee hours of 11 March 1992 were police officials, given the position she took on 17 March 1992, by when the victim had been located, her assertion on the subject of identity of the persons who were involved must be presumed to be based on what she may have heard from other relatives rather than her own knowledge, their identities i.e. name etc. being unknown to her at that stage. To bring clarity to this issue at this very stage, we need refer only to the FIR (Exh. PW 17/A), registered by SI Kartar Singh (PW 17), at 5:40 PM on 17 March 1992, on the basis of rukka (Exh. PW 23/A), in turn, founded on the statement (Exh. PW 1/A) made by PW1 herself sometime before 4:50 PM on 17th March 1992 before the investigating officer. The bare perusal of the FIR leaves no room for debate that PW1 was not at all familiar or acquainted with the identity of the persons i.e. their names with whom Darshan Singh had accompanied out of his house in the early morning hours of 11 th March Crl.A.Nos.112/2000 & conn. Page 8 of 61 1992, not at least till the time the case was being registered at her instance.
11. It would be proper that we refer to the evidence about the events prior to 16th March 1992 (that is after Darshan Singh had been taken away) later. The evidence on record clearly shows that Darshan Singh was brought to the nursing home on 16th March 1992 by two police constables. Though the testimonies of PW12 and PW25, the two doctors connected with the nursing home, do not mention any specific date, their depositions read alongside that of the other witnesses (particularly the father of the victim) unmistakably show 16th March 1992 to be the date on the afternoon of which Darshan Singh was seen by independent witnesses being escorted at that time by two police officials. The evidence of the two doctors of the nursing home is not supportive to the prosecution case as to the identity of the two police officials who had come with the victim to the nursing home to be given medical aid. However, their testimonies (half-hearted and seemingly very hesitant) do confirm the prosecution charge that Darshan Singh was in critical and perilous condition with multiple injuries when brought to the nursing home. In this context, we may refer, inter-alia, to the oral testimony of PW12 and PW25, as indeed that of PW-2, PW- 3 and PW-4, besides the documentary evidence in the nature of post- mortem examination report (Exh. PW-18/A).
12. While on the subject, we are constrained to observe here that the manner in which the case was investigated, and later prosecuted by the State, has left much to be desired. There are a number of aspects which Crl.A.Nos.112/2000 & conn. Page 9 of 61 need to be quoted to illustrate this point. At this stage, we restrict to only two of them.
13. The victim had been taken to a nursing home. We presume - since nothing has been shown to the contrary - that the nursing home was being run lawfully. A patient in life and death situation had been brought to a nursing home. In normal course, upon receiving a patient with such injuries requiring urgent medical treatment, to which the victim fell and ultimately succumbed to on the next day, the nursing home would have prepared the requisite clinical notes documenting the injuries noticed, the course of treatment advised and administered. Even details like "brought by" etc. were withheld and not brought on record. The evidence further shows, as we shall see in due course, that the victim was shifted on 17 March 1992 by a police official (PW 29), evidently on account of official intervention, from the nursing home to a government hospital i.e. Lok Nayak Jai Prakash Narain Hospital (hereinafter referred to as "the hospital"), where he eventually died that very day. While permitting the patient to be thus shifted from the nursing home, some formalities in the records of the facility must have been made. After all, the custody and care of a patient, in critical condition, was being taken over by a police official. It is not the case of any of the doctors connected with the nursing home that they were not in know and had not maintained details of treatment, payment received, persons who were issuing instruction etc. It is not even claimed that the victim was being shifted against medical advice. Thus, the minimum formality and record maintenance that was bound to have been followed while admitting and thereafter allowing the patient to be Crl.A.Nos.112/2000 & conn. Page 10 of 61 moved from the nursing home would be preparation of papers, ideally, with the copies of the nursing home records showing the course of treatment given, which should have been collected and filed in the court. Shockingly, the investigating officer did not show any interest in collecting such documentary evidence. The records of the nursing home, if seized and presented as evidence, would have thrown better light on the condition of the victim at the stage of his first medical examination in the nursing home.
14. When PW 29 had brought the victim to the hospital, he dutifully communicated compliance with the instructions to the police station Welcome where it was logged vide DD no. 11-A (referred to in the trial Court record as document 'Mark-A'), at 3:45 PM on 17 March 1992. We are not much bothered about the fact that the daily diary entry was not strictly proved. Given the period of seven years that had gone by (PW 29 was examined on 6th July 1999), the possibility of the daily diary register having been weeded out needs to be kept in mind. What is definitely of concern, however, is the fact that in the hospital, at the time of admission and upon transfer from the nursing home, Darshan Singh had been examined and MLC had been prepared noting the injuries with which he had been brought in. The MLC undoubtedly was an important piece of evidence. Yet, the prosecution seems to have made no sincere efforts to prove it at the trial. Copy of the document filed on record shows it was prepared by Dr. Sanjeev Dixit of the Hospital. The said doctor had reportedly left the hospital and as per report dated 06.07.1999 of the Investigating Officer (PW 30), the doctor was no longer living at the available address. This was taken as Crl.A.Nos.112/2000 & conn. Page 11 of 61 sufficient reason to close the evidence of the prosecution on same date. No thought was given to have the MLC proved by another doctor of the hospital who may be acquainted with the writing or signatures of the doctor in question.
15. In the overall facts and circumstances of the case, the lapses of the above nature seem to be too many for comfort. A view will have to be taken, albeit at the stage of conclusion, as to what may have gone wrong and where, and more importantly, how and in what manner evidence and material should be read and interpreted.
16. Mercifully, in addition to the oral testimony of the witnesses mentioned above, the autopsy report (Exh. PW 18/A) documented the manner in which Darshan Singh had been subjected to physical assaults over the preceding days. As many as 23 injuries were found on his dead body by Dr SK Khanna (PW 18), who had carried out the post-mortem examination in the mortuary of Maulana Azad Medical College on 18 March 1992. The autopsy doctor noticed black eye on both sides with bleeding from the right nostril. He noted the following external injuries: -
(1) Contusion (Reddish blue) on the mucosol aspect of lower lip near the left angle of mouth - 2 x 1 cm. (2) Abrasion with brown scab, outer back of right shoulder 1 x 0.5 cm.
(3) Contusion (Reddish-blue) on the whole of back and ulnar aspect of right fore-arm - 26 x 9 cm Crl.A.Nos.112/2000 & conn. Page 12 of 61 (4) Contusion (reddish blue dorsum of right hand over the base and proximal phalanx of right thumb - 8 x 2 cm (5) Contusion (reddish blue) over back of proximal phalanx of right middle and ring fingers - 5 x 2 cm (6) Abrasion with brown scab lower, radial aspect of right forearm front - 4.5 cm proximal to the wrist -
2x1.5 cm, rectangular in shape.
(7) Contusion (brown) over inner aspect of right knee 11 x 5 cm (8) Contusion (reddish blue) upper back of right leg - 10 x 9 cm (9) Contusion (reddish blue) lower back of right leg -
13 x 9 cm
(10) Multiple abrasions with brown scab on the
lower part of right leg - 2 x 1.5 cm
(11) Abrasion with brown scab over middle front
of right foot 8 x 2 cm
(12) Contusion (green to purple) inner aspect of
right foot and sole 17 x 9 cm
(13) Abrasion with brown scab, over the tip of 2nd
toe of right foot near the nail - 1 x 0.5 cm
(14) Abrasion with brown scab over the tip of 3rd
toe of right foot near the nail - 0.5 x 0.3 cm
(15) Contusion (purple to green) on the inner
aspect of left foot and sole 27 x 6 cm
(16) Abrasion with brown scab, inner aspect of
left foot 2 cm proximal to the big toe - 3 x 1.5 cm
(17) Abrasion with brown scab, over lower front
of left leg 3 x 2.5 cm
Crl.A.Nos.112/2000 & conn. Page 13 of 61
(18) Abrasion with brown scab, outer aspect of
left little toe - 0.3 to .3 cm
(19) Contusion (reddish-blue) lower back of left
leg - 12 x 12 cm
(20) Contusion (brown) front of left knee - 14 x
11 cm
(21) Contusion (reddish - blue) back of left wrist
and hand extending upto proximal inter-
phalangeal joints 15 x 12 cm
(22) Contusion (reddish - blue), palm of left
hand 7 x 6 cm
(23) Abrasion with brown scab 3.5 x 1.2 cm,
upper part of left side of chest
17. The internal examination of the dead body led to the following important findings: -
Abdomen Peridinium- NAD Stomach - contains greenish fluid and semi-indigested food material about 300 ml walls congested. Trachea and larynx - contain small amount of mucosol material walls - congested Chest Coller bones - no fracture Ribs - no fracture Lungs - congested, edematous weight Right - 950 gm Left - 850 gm Head Crl.A.Nos.112/2000 & conn. Page 14 of 61 Scalp - Extravasation of blood present in the frontal region or both the sides Skull - no fracture Brain-meninges Suborachnoid haemorrhage present over both the frontal poles.
Maninges - congested Brain - oedematous - weight 145 gm Few petechial haemorrhages presentation both the cerebral hemispheres frontal, terminal and parietal poles
18. PW 18, the autopsy doctor, did not give final views immediately. In the autopsy report, he recorded his opinion as under: -
No definite opinion can be given regarding the cause of death at this stage. Usual viscera has been preserved for chemical analysis to rule out forgoing poisoning.
All the injuries are ante-mortem in nature and have been caused by blunt force impact.
Injuries No.1,3,4,5,8,9,19,21 and 22 appear to be 1 - 3 day old.
Injuries No.2,6,7,10,11,13,14,16,17,18, 20 and 23 appear to be 2 - 4 days old.
Injuries No.12 and 15 appear to be 5 - 6 days old.
19. The viscera report (Exh. EW 16/E), affirmed on oath by Dr KS Chhabra (PW 16) of Central Forensic Science Laboratory (CFSL), however, ruled out the possibility of poisoning. The matter was Crl.A.Nos.112/2000 & conn. Page 15 of 61 thereafter taken again to the autopsy doctor, Dr SK Khanna (PW 18), for his final opinion with regard to the cause of death. PW 18 recorded his "subsequent opinion" (Exh. PW 18/B) dated 11th June, 1993, stating that, in his view, the cause of death was cerebral damage consequent upon blunt force to the head of the victim.
20. Only two points were raised during the cross-examination of the autopsy doctor with regard to the correctness of his final opinion regarding the cause of death. The first issue was with regard to the availability of the application made on 21st April, 1993 by the investigating agency seeking his final opinion in the light of the report of CFSL. Secondly, the defence pointed out to the witness that he had taken two months‟ time in giving his opinion, suggesting that he had just toed the line of the investigation. The witness explained that he had retained the application on his record and further that he had been on vacation for a period of one month. In our opinion, the non- availability of the letter of request dated 21 st April, 1993 submitted to the autopsy doctor is inconsequential. It is not a document without which the subsequent opinion cannot be read. Mere reference to the said letter of request in the subsequent opinion is sufficient to complete the chain of correspondence at that point of time. Gap of two months has been properly explained.
21. Mr RK Mishra (PW 22) was posted as Sub Divisional Magistrate (SDM), Shahdara and the area where the offences statedly occurred fell in his jurisdiction. He was informed on 18th March, 1992 by the Deputy Commissioner of Police (North East) about the death of Darshan Singh whereupon he had entered upon enquiry in terms of the Crl.A.Nos.112/2000 & conn. Page 16 of 61 provision contained in section 176 CrPC. PW 22 (SDM) proved the report (Exh. PW 22/A) which had been finalised by him on conclusion of the inquest proceedings. The report noted that the autopsy doctor had not been able to give any definite opinion in spite of finding that the victim had suffered 23 ante-mortem injuries but concluded that, in his (SDM's) opinion, the death had occurred due to the six injuries which had been mentioned in form no. 35. The report referred to the case registered, and under investigation, with the crime branch of Delhi Police and the fact of the appellants having been placed under suspension, arrested and charges (of murder) framed against them.
22. The object and purpose of inquest proceedings is merely to ascertain as to whether a person has died under unnatural circumstances, or if it was an unnatural death and, if so, as to what was the cause of death. Inquest report cannot be treated as primary or substantive evidence. The opinion given in such report cannot be termed as final adjudication of the matter for the simple reason the questions regarding details as to how the deceased was assaulted or as to who had assaulted him or under what circumstances the assault took place are beyond the scope of the inquest proceedings [Madhu @ Madhuranatha & Another vs. State of Karnataka, (2014) 12 SCC 419 and Baldeo and another vs. State of U.P., 2004 Crl. L.J. 2686].
23. The inquest report, inter alia, also referred to the statements of the various witnesses examined by the SDM in the course of his enquiry, such witnesses including the relatives or neighbours of the victim, some of whom have been examined at the trial by the prosecution leading to the impugned judgement. The sum and Crl.A.Nos.112/2000 & conn. Page 17 of 61 substance of the version of the said witnesses before the SDM, however, cannot be relied upon by the prosecution. They are not substantive evidence for purposes of the criminal trial. Such statements, of course, were in the nature of previous statements of the corresponding prosecution witnesses. They could be used for contradicting or discrediting the witnesses during cross-examination in the proceedings before the trial Court. The defence made no such effort during the trial. Without formal record of their respective depositions being brought before the trial Court and without the witnesses being confronted with their previous statements before the SDM, the summary of what they may have said before the SDM during inquest proceedings cannot be read against the appellants. Thus, we exclude from consideration the material on the basis of which the SDM had concluded the inquest proceedings. For similar reasons, the conclusions reached, or the impressions gathered, by the SDM on such material must also be kept out of purview. After all, the purpose of the inquest proceedings was to find the cause of death and not probe as to who were the persons responsible.
24. But, it must be noted here that the inquest report denotes one interesting fact. It mentions, at least at two places, that the supervisory police officers, including the one posted as the Deputy Commissioner of Police (DCP) had visited the nursing home alongside the PCR staff and, further, that the DCP and the Asst. Commissioner of Police (ACP) had recorded the statement of the victim during his treatment in the nursing home. The prosecution relies upon the report of the SDM. It cannot wish away the fact that formal statement of the victim was Crl.A.Nos.112/2000 & conn. Page 18 of 61 actually recorded by the senior police officers when they had visited the nursing home to call on him. Since the trial Court record, and the police file, shows that the investigating officer of the case was not able to record statement of the victim, such statement as was recorded earlier by the DCP/ACP would be the last statement formally made by the victim before he died and, consequently, be his dying declaration. It does not call for much imagination to say that the statement in question was a crucial evidence to bring out the sequence of events from the time the victim was picked up from outside his house till his admission in the nursing home, particularly about the purpose for which he had been picked up, the manner in which he was treated during the interregnum and identity of the persons who were responsible for the injured state in which he had been found.
25. The investigating agency showed no interest whatsoever in collecting the aforesaid statement of the victim made from the nursing home bed before the DCP/ACP or including it in the list of reliance in the charge-sheet. At the hearing on these appeals, we had asked learned counsel representing the State but it was clarified that the said document was not to be found in the trial Court record or in the corresponding files of police or prosecution. Given the nature of the allegations on which the case at hand came for trial before the Court, wherein the investigating officer was probing a case involving charge of custody death, we do not need much imagination to infer the reasons for this glaring omission.
26. It is clear from the evidence of PW-2, PW-3 and PW-4 that they did not have a clue, initially, as to what had happened to the victim.
Crl.A.Nos.112/2000 & conn. Page 19 of 61Given the sequence of events narrated in the evidence, they would have learnt, on information given by PW1, about he having been taken away in the late hours of the night intervening 10th and 11th March 1992 from his house. PW1, as already noted, is in no position to identify the persons involved. She mentioned this in her first statement to the investigating officer on 17th of March 1992, on the basis of which the FIR was registered. PW-2, PW-3 and PW-4, on their part, confirmed that Darshan Singh could not be seen around after he had been taken away in the presence of PW1, who had informed PW-2 about this happening and who, in turn, had informed PW 3, the father. These three witnesses speak about their efforts to trace Darshan Singh and having gathered information about him possibly being in the custody of the police. They speak about their visits first to the police station Seelampur and then to the police station Welcome, both located close by, but with no success. It has come out in the evidence of these witnesses that a definite information about Darshan Singh being in the custody of Anand Prakash @ Anand Tyagi (A1) came their way, courtesy the input received from a local boy Kale @ Dharampal (PW
6), who along with his brother Desraj (PW 5) had also been taken away by police officials around the same time as Darshan Singh (the victim).
27. Desraj (PW 5) and Dharampal (PW 6), in their respective testimonies, confirmed that police officials, some in plain clothes and others in uniform, had come to their doorstep enquiring about their brother Bobby @ Ramesh and, upon they explaining that they had no connection with the person required by the police, both of them were taken away to the police station. According to them, they were Crl.A.Nos.112/2000 & conn. Page 20 of 61 detained in the police station and released only the next day. Both of them confirm that at the time of their detention in the police station, Darshan Singh was seen by them sitting in another room. That was the last time they would see Darshan Singh uninjured, hail and hearty.
28. The charge sheet had relied on the evidence of the above two witnesses (PW5 and PW6) to prove the connection of the four appellants with the detention of Darshan Singh in the police station around the same time they were present in the building. Both these witnesses, however, were reluctant to confirm. They disowned the statements under section 161 CrPC attributed to them indicating a specific role to the appellants in not only the detention of both of them with Darshan Singh, and certain others, but also physical assaults and ill-treatment (being "chained") in police custody at their hands. They refused to identify any of the appellants as the persons involved in what was clearly an unlawful detention.
29. The fact that the taking away of the two witnesses (PW5 and PW6) to the police station and their detention overnight was not lawful is confirmed by the evidence of their mother Santosh (PW 7) who had been vigilant enough to resort to the remedial action including filing of an application for bail and sending of a telegram expressing concern about the welfare of her sons. The copies of these documents were seized during the investigation from her, vide seizure memo (Exh. PW 13/B). The copy of the telegram (Mark-Y) was shown to KB Thukral (PW-28), an official of the Telegraph office of the Department of Telecommunication at Shahdara. The said witness would not state anything beyond confirmation that the copy of the telegram had been Crl.A.Nos.112/2000 & conn. Page 21 of 61 issued by the Superintendent in charge of the Telegraph office at Kashmere Gate. Though the office which issued the copy was not called upon to depute an official to strictly prove it, the confirmation by PW-28 that it had been officially issued provides sufficient corroboration to the word of Santosh (PW 7) about she having sent a telegram from the GPO (which is located at Kashmere Gate) to the ACP.
30. On conjoint reading of the evidence of PW 3, PW 5, PW 6 and PW 7, it emerges as a proved fact that PW 5 and PW6 had been picked up by the police around the same time when Darshan Singh was taken away from the same neighbourhood. The evidence of these two individuals, in particular, leaves no room for doubt that Darshan Singh was seen by them in the captivity of the police, though in another room, when they were being questioned by the police officials in the police station. It requires not much imagination to conclude that PW 5 and PW6 were let off on the afternoon of next day of being picked up, which would mean 12th March 1992, presumably on account of the protests being made around the time by their mother (PW 7) in the form of telegram to the ACP and application for bail in the Court. It may be added that the very fact that the said two persons were released close on the heels of the telegram being sent by their mother, also moving the Court for release on bail confirms that the detention of the persons thus picked up by the police staff on the night intervening 10th and 11th March, 1992 had not been made officially nor formally recorded and, thus, was wholly unauthorised and consequently unlawful. Indeed, no document or record has been produced at the trial Crl.A.Nos.112/2000 & conn. Page 22 of 61 as could show that the persons detained, which would include the sons of PW 7 (i.e. PW 5, PW6 or, for that matter, their brother Bobby @ Ramesh) and the victim (Darshan Singh) were lawfully detained.
31. Thus, Prem Pal (PW 3), the father of the victim, must be believed when he said that he had learnt about the detention of his son Darshan Singh in the police station from Dharampal (PW 6), known to the former by the name of Kale, in the evening of the release from custody of the latter. In the result, a definite clue regarding his whereabouts came the way of the members of the family of the victim in the evening of 12th March, 1992. It is on the basis of this information that PW 3, accompanied by PW 2 and PW 4, had gone to the place of detention to locate the missing person. The father of the victim (PW 3) testified that he had met Anand Prakash @ Anand Tyagi (A1) to enquire about his son when the latter confirmed that his son (Darshan Singh) was with him and told him to come in the evening.
32. According to PW3, Anand Prakash @ Anand Tyagi (A1) had called him two or three times but in spite of the repeated entreaties he was not allowed to see his son. The testimony of PW 3 is corroborated by Vikram Singh (PW2) and Munna Lal (PW 4). As mentioned earlier, both are close family members of the former. Both stated that they had accompanied PW 3 and had also met Anand Prakash (A1) several times and it was confirmed in the said meetings that the victim was in his custody. Though none of these witnesses ever personally saw Darshan Singh in the custody of A1, or for that matter of the other appellants, in the police station, the conversation in which A1 engaged them at the time of their visits to him to enquire about the victim Crl.A.Nos.112/2000 & conn. Page 23 of 61 corroborates the prosecution case, and the word of PW 5 and PW6 noted earlier, that Darshan Singh was in the control or custody of police personnel which in the factual matrix include obviously A1.
33. According to PW4, Anand Prakash (A1) had stated that Darshan Singh was involved in cases of theft and had been taken to the Civil Lines area and would be released. There is no record of any specific criminal case of theft or otherwise registered by the police or under investigation with AATS in which the name of Darshan Singh or, for that matter, of any other individual who may also have been picked up with him during the relevant period, may have figured.
34. It has come in the statement of PW4 that Darshan Singh was ill treated during the confinement by the police personnel, basing his version to this effect on the information he gathered from the victim at the time of meeting him in the nursing home, quoting him stating that besides being beaten badly by the police, upon him asking for water, urine would be poured into his mouth. We could ignore this part of the evidence as extortionate in absence of confirmation, but it is apparent and unmistakable that the victim was tormented and tortured.
35. As per the case for the prosecution, during his interaction with the relatives of the victim (then in unlawful confinement), Anand Prakash (A1) had asked them to pay to him illegal gratification. Noticeably, in their court testimony, none of these witnesses spoke about this to be the desire or demand expressed by A1. The learned Counsel for the appellants submitted that the motive attributed to the accused persons having not been proved, the case could not end in Crl.A.Nos.112/2000 & conn. Page 24 of 61 conviction. We're not persuaded to accept this argument. If the allegations of the victim having been compelled to accompany the accused persons, and having been confined thereafter, stand proved the question of motive behind such acts of commission pales into insignificance. As we shall note, in due course, the law is well settled that the burden to explain in such fact-situation would shift on to the police personnel who are in the dock on the charge of custody death.
36. It, however, clearly emerges from the statements of PW2, PW3 and PW4 that none of them is in a position to identify any of the appellants other than Anand Prakash (A1). They identify the latter because they had met him in the course of their efforts to locate Darshan Singh who had been missing from 11 th March, 1992 and who had been seen by two boys from the same locality also picked up around the same time though released after one day. Questions were raised during the course of their statements about omission on the part of the investigating officer to arrange test identification parade (TIP). We, however, do not find any merit in this line of questioning because there is ample evidence available to corroborate the testimony of these three witnesses about the connection of A1 and others with the acts relating to the illegal confinement of the victim and the way he was treated resulting in his death. Most important corroborative evidence is the testimony of Inspector Shakti Singh (PW 15) which we may presently take note of.
37. As mentioned earlier, PW 15 was the senior most officer in the team of police personnel deputed during the relevant period to man the AATS. He was the officer in charge and would be responsible for Crl.A.Nos.112/2000 & conn. Page 25 of 61 directing the affairs of the team, allocating duties to the officials placed under his control and supervising the enquiries or investigations undertaken besides reporting to the superior officers. Before we take note of his testimony against the appellants, it needs to be mentioned here that this witness himself was a suspect at one stage of the probe into the unnatural death of Darshan Singh. This is clear from a variety of facts. After all, being the officer at the helm of AATS, he had some responsibility to shoulder as to how the men under him acted or behaved. As pointed out by the defence, during the course of arguments, after the FIR had been registered, at a stage when there was still hope for Darshan Singh to survive, PW 15 made himself unavailable to the senior police officers and had to be marked absent from duty in the daily diary register (DD no.3 dated 18 th March, 1992) of the unit (AATS) which he had been heading till then. Pertinently, he applied for anticipatory bail which, it appears, was granted. He admitted in the course of his statement that departmental action under the disciplinary rules was taken against him in the context of the unnatural death of Darshan Singh and, having been found guilty of misconduct, on the charge of "negligence", he was awarded major penalty in the form of loss of the service of five years.
38. It was vociferously argued by the learned Counsel for the appellants that given the above facts, evidence of PW15 deserves to be discarded outright since it was coming from a tainted source, an individual who could possibly have been himself the perpetrator. We do not agree.
Crl.A.Nos.112/2000 & conn. Page 26 of 6139. There is nothing in the statements of any of the material witnesses, particularly those related to the victim or others from the same locality, as would support the argument that PW 15 might have had a role in what had happened to Darshan Singh from the time he was taken away from his house till he was seen by him in the office of AATS on the morning of 16th of March 1992. While it is true that this witness was responsible for the day-to-day affairs of AATS and manage the duties of the police personnel deputed under him, it has to be borne in mind that no evidence suggests that Darshan Singh was confined in the office of AATS or brought there on any day prior to 16th March 1992. On the contrary, the evidence of the other two persons (PW 5 and PW6), contemporaneously confined, shows that the individuals picked up on the night of 10th and 11th March 1992 had been taken to the premises of a police station. In other words, prior to PW 15 coming across Darshan Singh in the premises where the office of AATS was located (which would be the morning of 16th March 1992), the victim had not been seen by any witness other than the said two persons anywhere other than the police station.
40. True, PW 15 had the overall responsibility. But it cannot be stretched to the level of accountability for the acts of commission or omission on the part of the police officials under his control at places, or in connection with affairs, other than those relatable to the duties of AATS. As the evidence of this witness (which we shall take note of hereinafter) itself demonstrates, he was indeed negligent in the exercise of his supervisory responsibility inasmuch as he, having come to know about the critical state of Darshan Singh, failed to take the necessary Crl.A.Nos.112/2000 & conn. Page 27 of 61 steps not only to ensure that he was given proper medical aid but also to enquire as to the circumstances in which he had suffered the extensive injuries. An injured man was seen lying in the premises of the office he was heading at the time. It was his duty, not only moral but also official, to take charge of the situation. The matter, having come to his notice, required to be documented (the least possible action as per normal police procedure being an entry in the daily diary register) and a detailed report made to the supervisory officers in the hierarchy. He failed to live up to the expectations of the office held and instead, by his own account, was busy entertaining some personal guests.
41. For the neglect in the discharge of his official duties, PW15 has already been dealt with by the appropriate disciplinary authority in the department which he was serving at the relevant point of time. We cannot assume, not the least because the appellants so argue, that PW15 was party to the whole incident only because he was the official in charge of the office of AATS at the time. The role of the appellants, particularly A1, has come up in the evidence of other witnesses who had no personal axe to grind or out to settle any past scores. They are witnesses who would be interested more in bringing to book the persons responsible for the untimely death of their dear one rather than falsely frame others who had no role to play. In these circumstances, the testimony of PW15 serves the purpose of corroboration and fills in the gap in the narrative of the sequence of events given by the relatives (PW 2, PW 3 and PW 4) who, for obvious reasons, suffered the handicap of not being privy to the facts in entirety since they had not Crl.A.Nos.112/2000 & conn. Page 28 of 61 been allowed by the then custodian to meet the victim in captivity. If PW 15 actually had had a role, the appellants - at least A1 against whom there is direct evidence - would have taken the defence that they had been acting in the discharge of their duty as per directions of their superior (i.e. PW 15). Thus, there is no reason as to why PW 15 should be treated as an accomplice. But we agree that, given the allegations he faced in the departmental proceedings, his evidence requires to be subjected to closer scrutiny than any other witness.
42. PW 15 deposed about the events in the office of AATS on the morning of 16th March 1992. He had reached the office at about 9:30 AM. He saw Darshan Singh lying in injured condition in the courtyard of the premises. He stated that the four appellants, who were posted under him in AATS, were present at the scene and further that the victim had been brought to the office by them. According to him, he had enquired and was told by Anand Prakash (A1) that the injured person (the victim) was involved in a number of robberies. On being asked about the serious injuries seemingly suffered by the victim, A1 only responded by stating that he (the victim) had been brought by the appellants in said condition "just then". The witness stated that his enquiry of the roznamcha munshi (DD writer) had confirmed that the victim had been brought in only 15 minutes prior to his arrival. Interestingly, PW 15 would also add that he had questioned the injured "boy" to be told by him that the person sporting a beard, pointing towards A1, had beaten him. The witness confirmed, and the defence did not resist, that A1 actually sported a beard during the relevant period. Be that as it may, PW 15 further testified that he had directed Crl.A.Nos.112/2000 & conn. Page 29 of 61 the injured person to be taken to the hospital and that pursuant to his command, appellant Anand Prakash (A1) and appellant Sunil Kumar (A2) had gone out to arrange a three-wheeler scooter. He stated that the victim had been taken to the hospital by A1 and A2 while he got busy with his personal guests. He testified that it was on the next day, i.e. 17th March 1992, on return at about 2:30 PM from Patiala House Courts, he learnt that the victim had been taken by the said two appellants (A1 and A2) to the nursing home rather than to the hospital as directed by him. He added that he had then gone to the nursing home but did not find any of the appellants present there. He claims that he had returned to the office and given a complaint in writing against the appellants to the senior police officers. He has also stated that he had found the appellants were not available on duty in the office of AATS and, thus, marked their absence (DD no. 8 recorded at 3:30 PM on 17.01.92) in the daily diary register of AATS.
43. Indeed, the police record shows that the statement of this witness (PW 15) under section 161 CrPC (PW 15/DA) was recorded on 20.05.92, which is about two months after the registration of the FIR. The defence has argued that the version of PW15 as reflected in the said document was one which could not be taken on its face value inasmuch as given the suspicion of his own involvement in the episode at that time, the witness had had sufficient time to reflect and would have tailored his statement to ensure that it was self-exculpatory and designed to point the needle of suspicion towards others.
44. We agree that given the chronology in which the events would have occurred and the investigation proceeded, PW15 had sufficient Crl.A.Nos.112/2000 & conn. Page 30 of 61 time for reflection, and to take advice, and accordingly offer to co- operate with the investigative process in such a manner that possibility of his own implication could be warded off. But then, it is also to be remembered that PW15 was not available to the investigating officer earlier since he was busy taking care of his own welfare, inter alia, by applying for anticipatory bail and explaining his position to his departmental superiors. The delay in recording of his statement under section 161 CrPC, by itself, cannot be the reason why his testimony should not be acted upon. He was the person at the helm. He is, therefore, the best person to give an inside view. In our opinion, if he was a witness prone to falsehood, it would have been easier for PW 15 to dissociate himself totally by taking the position of ignorance. Since the police records and registers, particularly those maintained at AATS, are silent about the taking away of Darshan Singh from his house or his illegal confinement thereafter that would be a simpler way for PW 15 to divert attention from himself. It is a matter of some satisfaction that PW 15, having first indulged in gross neglect of his responsibilities, came clean by owning up that Darshan Singh had been brought to the office of AATS within his knowledge, in his personal presence, in seriously injured state.
45. Undoubtedly, the report in writing given by PW15 to the senior police officers at the supervisory level has not been shown the light of the day in the trial. We must presume, however, that PW 15 would have submitted a report to his seniors inasmuch as the evidence clearly shows that the senior police officers came to be proactively involved on 17th March 1992 and, as shown by the inquest report, even visited Crl.A.Nos.112/2000 & conn. Page 31 of 61 the nursing home at the time when the victim was still admitted there. Given the chronology of events, this would not have been possible save for information given by PW 15. But, for the omission to gather the necessary evidence about formal report, PW15 cannot be blamed. This was the job of the investigating officer. He should have collected the official note given by the officer-in-charge of AATS (PW 15) and made it a part of the documentary proof of what was contemporaneously reported. It is trite that the default of the investigating officer ought not to be a reason to disbelieve a witness who sounds truthful.
46. We are mindful of the fact that PW 15 has made some effort to go beyond his original account in the statement under section 161 CrPC. Illustratively, in the Court he spoke about his enquiry of the victim as to the author of injuries evincing fingers being pointed at A1; enquiry from the DD writer confirming arrival of the injured in the office of AATS only 15 minutes prior to he coming to the office; the information about the suspicion of involvement of the victim in the robbery cases being sourced from A1; and, his own preoccupation with his personal guests at the time - all such facts as were conspicuously absent in his statement under section 161 CrPC. The variations, or improvements (if they can be so called), however, in our judgement, are not such as could render his word totally incredible. They are definitely not contradictions going to the root of the case. The witness had nothing to gain by these additions to his original version. The exchange with A1, as mentioned in the Court, only adds to what was otherwise clearly stated about the role of the latter. The confirmation Crl.A.Nos.112/2000 & conn. Page 32 of 61 by the DD writer may be ignored because it would be in the nature of hearsay, the official in question himself not having been examined, but these were records maintained in normal course and a part of official record written contemporaneously.
47. We find no good reasons as to why the testimony of PW 15 should be disbelieved to the extent it confirms that it is the appellants who had brought the victim to the office of AATS on the morning of 16th March 1992 in seriously injured state and further that upon PW 15 questioning he was told by A1 that the victim was a suspect in robbery cases. The evidence of this witness also confirms that upon him directing the victim to be taken to hospital for medical aid, A1 and A2 took him away in a three-wheeler scooter, not to a government hospital as instructed, but to a private nursing home. PW 15, negligently considerate to his workmates as he was, learnt about this non- compliance in the afternoon of the next day.
48. Dr Mohan Lal (PW12), the owner of the nursing home, has deposed that the two police officials who had brought the victim to his establishment had left the place while the patient (the victim), then unconscious, was being treated. He has further stated that the victim had regained consciousness around 2 or 3 AM on the night in question and during his small conversation with the attendant he had provided the address. Till then, his particulars were not available. PW 12 had sent an employee of the nursing home to the address provided. This precisely is the version of the relatives of the victim who deposed that upon being informed by the "boy" from the nursing home they had finally learnt regarding the whereabouts of the missing person (the Crl.A.Nos.112/2000 & conn. Page 33 of 61 victim) and, thus, proceeded to the said place and met him. We do observe that PW-12 knew and was aware of the identity of the two police officers but has withheld and concealed this information.
49. There is a slight discrepancy in the evidence as to the time when the family had received the information from the messenger sent by the nursing home. If we go by the word of PW 12, it could not have been at any time prior to 2 or 3 AM of 17th of March 1992 since it is only by such time as per the witness that the victim was able to communicate. But, PW2 and PW3 created confusion by pegging the time of receipt of the information from the nursing home employee to 11:30 PM (of 16.03.92) and 1 AM (of 17.03.92) respectively. In our opinion, this contradiction cannot detract from the fact that, in the given fact-situation, the family would not have come to know as to the location of the victim except by the message received from the nursing home. There is no reason why PW 12 should be disbelieved about he taking the initiative of sending the information to the family upon learning the particulars of the unconscious patient who had been brought to his nursing home by the two police officials and knowing the victim‟s serious condition and even senior police officers paying visits. It is correct the medical records of the nursing home have not been seized or made available. Thus, the time when the victim would have regained consciousness or who had given identity and details of the victim cannot be cross checked. It is possible that PW 12 was speaking about the time when the victim was in a position to tell his own particulars by some guesswork. But then, the greater possibility is Crl.A.Nos.112/2000 & conn. Page 34 of 61 that PW 2 and PW 3 are telling the time of the visit of the messenger from the nursing home also by guesswork.
50. Nothing turns on the discrepancy in the time. What is consistent in the statements of these witnesses is the fact that the family having learnt that Darshan Singh was in nursing home, it rushed to meet him there. The testimony of PW 2 and PW 3 in this regard is corroborated by that of PW1 and PW4. Their version would be more credible and reliable.
51. Placing reliance on Maruti Rama Naik vs. State of Maharashtra, AIR 2003 SC 3884, it is the argument of the defence that the conduct of the witnesses (PW1, PW2, PW3 and PW4), who are related to the victim was most unnatural and, therefore, cannot be relied upon. The learned counsel on their behalf submitted that even though these witnesses claimed knowledge about the victim having been taken away on the night of 10th /11th March, 1992, and having been illegally confined thereafter, they did not lodge any protest anywhere. Drawing parallel with the case of Santosh (PW7) whose sons (PW5 and PW6) had also been taken away and similarly confined around the same time, it is pointed out that Prem Pal (PW3), the father of the victim, at least, should have undertaken similar exercise by either moving the competent court or approaching some superior police officer for intervention. It is submitted that since no such measures were taken, the possibility that the abduction or wrongful confinement of Darshan Singh (victim) may have been engineered by someone other than police staff cannot be ruled out. The appellants argued that the evidence of Inspector Shakti Singh (PW15) only shows that the victim Crl.A.Nos.112/2000 & conn. Page 35 of 61 had been brought by them in injured conditions to the office of AATS on the morning of 17.03.1992. The submission is that since there is no evidence showing the location where the victim had been wrongfully confined prior to the said event, it cannot be concluded that the appellants were responsible for his confinement or the state in which he had been brought to the office of AATS.
52. We do not agree. These arguments ignore and are contrary to the facts proved and established. These arguments are based on half reading of the evidence. The facts and circumstances proved, as noted above, when seen in their entirety form a chain complete in itself. The victim had been taken away by a group of persons in the dead of night from his house. He was seen going away with them, apparently not lodging any protest. The fact that two other persons from the same locality were also similarly picked up by the police staff is too significant a circumstance to be ignored. The similarity of the two actions leads to the irresistible conclusion that each of them including Darshan Singh (victim) had been taken away by the police personnel against similar backdrop. The fact that PW5 and PW6 saw Darshan Singh (victim), in confinement under the control of police personnel, at the same place where they were detained and the fact that when Prem Pal (PW3) with his relatives met Anand Prakash (A-1), he confirmed that Darshan Singh (victim) was in his custody and further the fact that Darshan Singh (victim) was brought on the morning of 16.03.1992 in critically injured state to the office of AATS, are such circumstances as together join the dots and complete the chain unerringly pointing towards the complicity of Anand Prakash (A-1), in the entire episode.
Crl.A.Nos.112/2000 & conn. Page 36 of 61The conduct of the other appellants vis-à-vis the victim at the time of enquiry by Inspector Shakti Singh (PW15) on the morning of 16.03.1992, is direct evidence confirming their complicity with Anand Prakash (A-1) in the acts of commission or omission committed against Darshan Singh (victim).
53. The relatives (PW1, PW2, PW3 and PW4) of the victim are illiterate persons, seemingly resource-less and from very poor strata of the society. They would not have been in position to take recourse to legal remedies, or even been aware, as to what possible steps they could have taken to secure the release of Darshan Singh (victim). In fact, for quite some time, they were not even aware, as to his whereabouts. When they learnt about he being held in captivity by police personnel, all they could think of, or do, was to visit police stations and meet Anand Prakash (A-1), one of the police personnel involved. The failure on their part to lodge any protest in the court, or with the superior police officers, in these circumstances, cannot affect their credibility.
54. All the witnesses connected to the victim (PW1, PW2, PW3 and PW4) have spoken about visiting the nursing home and finding the victim under treatment there. All of them, save for the father (PW 3), deposed about interacting with the victim and being told that he had been beaten badly by police officials. The version of the father (PW 3) is somewhat different. He (PW-3)was not allowed to meet and had to go to the office of A1 and thereafter return to the nursing home with his brother, A1 also giving company. PW3 restricted himself to testifying that he had to bring in political pressure - called a local Crl.A.Nos.112/2000 & conn. Page 37 of 61 politician - whereafter police officials from the crime branch had come to the nursing home and his son was shifted to the government hospital where he expired.
55. The case was registered on the basis of rukka (Exh. PW 23/A), sent by ASI Ram Sidh (PW 23), through Head Constable Pramod Kumar (PW 9), from the hospital at 4:50 PM on 17.03.92. The FIR (Exh. PW 17/A) was recorded by SI Kartar Singh (PW 17) at 5:40 PM on the same day. Thus, the case was initially investigated by PW 23. Inspector VP Kohli (PW 26), the SHO of police station Welcome took over the case from him for one day (18.03.92) and thereafter the investigation was made over to the crime branch where it was handled eventually by Inspector (later ACP) Mahinderjit Singh (PW 30) with effect from 23.03.92, though for some period it remained with Inspector Bhagwan Singh Dahiya, who himself has not been examined but reference to his said role has come in the evidence of SI Harbhajan Singh (PW 11).
56. The investigation did not see much progress when the case was with PW 23. He had prepared site plan (Exh. PW 23/B) which is not of much assistance as it only depicts the layout of the houses of the locality where the deceased was living showing the position of his house vis-a-vis that of PW1. On information coming in from the hospital about the death of the victim (DD no. 26-B) on 18.03.92, he had converted the case into one involving offence under section 302 IPC. It is for this reason that the investigation was then taken over by the SHO from him. PW 26, on his part, had taken the necessary steps to get the inquest proceedings conducted. After the post-mortem Crl.A.Nos.112/2000 & conn. Page 38 of 61 examination of the dead body, he had handed over the same to the next of kin vide formal receipt (Exh. PW 26/A). The investigation was then transferred to the crime branch on 19.03.92. PW 30 has broadly narrated the steps taken by him during the investigation including the formal arrest of A1, after personal search (Exh. PW 30/A), and his disclosure (Mark 'Z ') during interrogation. Of course, the disclosure statement attributed to A1 cannot be used against him, it being inadmissible in terms of section 25 of the Evidence Act. PW 30 explained that the other accused had already been granted anticipatory bail.
57. SI Harbhajan Singh (PW 11), then posted in SIT crime branch had assisted the then investigating officer (Inspector Bhagwan Singh Dahiya) by getting the barrack where A1, A2 and A3 were residing at the time inspected by the crime team and fingerprint expert. But since nothing came out of such efforts, inasmuch as no incriminating evidence based on the inspection of the crime team has been relied upon, the same is inconsequential. PW 11 also spoke about he going on 21.03.92 to the office of the AATS (North-East) and taking into possession the duty register for the period 01.01.92 to 17.03.92 and the daily diary (roznamcha) for the period 17.02.92 to 21.03.92, as per formal seizure memo (Exh. PW 11/A). The two registers were proved by him as Exh. P-1 and Exh. P-2 respectively.
58. It is necessary to refer to the two registers - the duty register (Exh. P-1) and the daily diary register (Exh. P-2) to note some of the relevant entries and, also for purposes of examining the defence of two of the appellants based on the entries contained therein.
Crl.A.Nos.112/2000 & conn. Page 39 of 6159. As mentioned above, the second register (daily diary register) covers the period 17.02.92 to 21.03.92. The first thing which needs to be noted is, and all sides agree, that this register (Exh. P-2) does not contain any information that may have been subject matter of interest leading to the need for interrogation of the victim, or for that matter the other two boys (PW 5 and PW6), for any specific case under investigation or even from the perspective of the possibility of developing intelligence of general or specific nature in terms of the ordinary police practice. Further, the register does not contain any entry, not even a remote one, reflecting the visit of any of the police personnel, of AATS (where this record was maintained), to the locality where the victim and the others were residing on or about 10th and 11th March 1992 or thereafter. It does confirm the leave of absence of one appellant for certain period for which we may first refer to the duty register (Exh. P-1).
60. The duty register (Exh. P-1) covers a large period but, in the case at hand, we need focus mainly on the entries for the period 10th March 1992 onwards. These entries, we must observe, do confirm the fact of the four appellants being deputed as staff of AATS for North- East district headed by PW15. The sheets allocated for each date are utilised to mention the staff strength, the particulars of personnel reporting for duty on each given day, the status of leave of absence or medical rest and, more importantly, the duties assigned. The entries for the dates 10th to 13th March 1992 and 17th March 1992, show Head Constable Mahipal (A3), Constable Anand Prakash (A1) and Constable Niraj (A4) to be forming a separate group (out of two such groups) Crl.A.Nos.112/2000 & conn. Page 40 of 61 deputed for "Trape (sic) duties" (apparently meaning "trap duties"). On 16th March 1992, again Head Constable Mahipal (A3) and Constable Niraj (A4) with another (Constable Ravinder Kumar) constituted a group for similar duty. On 14th and 15th March 1992, Head Constable Mahipal (A3) is shown to be not on duty being away with "permission". No one was assigned the trap duties on these two days.
61. The fact that Head Constable Mahipal (A3) was off duty for two days (Saturday the 14th and Sunday the 15th March 1992), as shown in the duty register (Exh. P-1), is confirmed by the daily diary register (Exh. P-2). The DD entry no. 11 recorded at 06:05 PM on March 1992 logged the permission given to him to be absent from duty for two days. He logged his return vide DD no. 6 recorded at 9 AM on 16th March 1992.
62. The duty register (Exh. P-1) also shows that Constable Niraj (A4) was additionally assigned the duties of DD writer in the AATS from 8 PM on 10th and 15th March 1992 to 8 AM of next day. Similarly, Constable Sunil Kumar (A2) was on duty as DD writer in the AATS from 8 AM to 8 PM of 11th March 1992 and from 8 PM of 12th to 14th March 1992 to 8 AM of following days.
63. It is trite that in a criminal trial, it is the duty of the prosecution to prove its case beyond or reasonable doubts and mere suspicion cannot take the place of proof [Sarwan Singh Rattan Singh vs. State of Punjab, AIR 1957 SC 637 and Datar Singh vs. State of Punjab, 1975 SCC (Cri.) 530]. It is equally well settled [Sharad Birdhichand Sarda Crl.A.Nos.112/2000 & conn. Page 41 of 61 vs. State of Maharashtra, 1984 SCC (Cri) 487), that in a case based on circumstantial evidence, prosecution seeking finding of guilty against the accused, must establish the following :-
(i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely „may be‟ fully established,
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(iii) the circumstances should be of a conclusive nature and tendency,
(iv) they should exclude, every possible hypothesis except the one to be proved, and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
64. The appellants have referred to Dev Raj Arora vs. State, 2012 (2) JCC 1045, Chander Shekhar vs. State of NCT of Delhi, 2011 (3) JCC 2053 and Ganesh Gogoi vs. State of Assam, (2009) 7 SCC 404, to plead prejudice on the ground that the questioning of appellants under Section 313 CrPC was improper, in that facts which had not even been proved, were put as incriminating evidence. Reference was made particularly to question nos. 1, 7, 9 and 10 in the statement of Niraj Crl.A.Nos.112/2000 & conn. Page 42 of 61 (A4) wherein role has been attributed to him which, as per the evidence, actually pertains to Anand Prakash (A1) or to Sunil (A2), with similar errors having crept in the corresponding questions put to Mahipal (A3). We agree that the trial court should have been careful in framing the questionnaire for the stage of statement under section 313 CrPC by separately focussing on the evidence specific to each accused and not using a common template for all of them. We, however, do not think that this would cause irreparable prejudice as, for final evaluation, the evidence has been considered only to the extent it incriminates a particular accused.
65. From the evidence led by the prosecution, as summarised above, the following facts and circumstances can safely be said to have been established beyond the pale of all doubts:
(i) During the relevant period, i.e. March 1992, the appellants were members of Delhi Police, posted in Anti Auto Theft Squad (AATS) of the North-East district, its office being located near the office of the Deputy Commissioner of Police (DCP) of the district, in close vicinity of two police stations viz. Seelampur and Welcome;
(ii) The AATS had a total staff strength of 11 police personnel, out of which Inspector Shakti Singh (PW 15) was the senior most and in-charge of AATS, the others including the appellant Mahipal (A3) holding the rank of Head Constable and the other three appellants, namely Anand Prakash (A1), Sunil Kumar (A2) and Niraj Kumar (A4) working as Constables;Crl.A.Nos.112/2000 & conn. Page 43 of 61
(iii) During substantial part of the period in question (10th to 17th march 1992), Head Constable Mahipal (A3) with Constables Anand Prakash (A1) and Niraj (A4) constituted a group, formally organised, deputed by the officer in charge of AATS (PW 15) to be responsible for trap duties - the documentary evidence showing this also reflecting that Constable Niraj (A4) was assigned the additional duty of DD Writer in AATS for certain specific durations on some of these dates and, further, that Head Constable Mahipal (A3) had remained off duty for 2 days i.e.14th and 15 March 1992;
(iv) The victim (Darshan Singh) son of Prem Pal (PW 3), aged about 21 years, was gainfully engaged assisting his employer in the work of denting and painting (of motor vehicles) in Bihari Colony and was residing in house no. K-463, New Seelampur, Delhi in close vicinity of the hoses where his father (PW3) or his father's brothers, including Vikram Singh (PW2) lived;
(v) At about 2 AM of 11 March 1992, Darshan Singh (the victim) was picked up from his house by 3 or 4 persons in civvies and taken away within the sighting of Beena (PW1), the wife of Ram Niwas, another brother of PW2 and PW3, she being a resident of another house (A-463) in the same locality;
(vi) PW2 with his brother (PW 3) and cousin Munna Lal (PW4), upon learning about the above event from PW-1 tried to Crl.A.Nos.112/2000 & conn. Page 44 of 61 locate his son but with no immediate success;
(vii) Des Raj (PW5) and Dharam Pal (PW6), both sons of Santosh (PW7) wife of Roshan Lal residing in house no. K-155 in the same locality were also contacted by the police staff on the pretext of search of their brother Bobby@Ramesh and, upon they showing ignorance as to his whereabouts, they were also taken away from their house around the same time and, as a result of the efforts made by their mother (PW 7) it was revealed that they had been picked up by the police personnel and detained by the police staff in police station Seelampur;
(viii) During the period of their detention in the police station Des Raj (PW5) and Dharam Pal (PW6) came across Darshan Singh (the victim), also kept in the police station, though in a different room;
(ix) Santosh (PW7) lodged protests as to the unlawful detention of her sons, Des Raj (PW5) and Dharam Pal (PW6), by sending a telegram to the ACP in the early morning hours of 12th March 1992 and also moving an application for release of her sons on bail in the Court, in the wake of which Des Raj (PW5) and Dharam Pal (PW6) were released by the police officials who had taken them away;
(x) Prem Pal (PW 3), the father of the victim, learnt about the detention of his son by the police in the evening of 12 March 1992 from Des Raj (PW5) and Dharam Pal (PW6), and on that basis contacted Anand Prakash (A1), meeting him Crl.A.Nos.112/2000 & conn. Page 45 of 61 several times, accompanied by Vikram Singh (PW2) and Munna Lal (PW4), when Anand Prakash (A1) confirmed to him that Darshan Singh (victim) was in his custody, though not allowing Prem Pal (PW 3), or his relatives, to see or meet the victim, inter alia, on the pretext of he having been sent away somewhere;
(xi) On 16 March 1992, at about 9:30 a.m., Inspector Shakti Singh (PW 15) reached the office of AATS and found Darshan Singh (the victim) lying in the courtyard in a seriously injured condition, and upon enquiry learnt from the appellants, who were present in person, that he had been brought there by them;
(xii) Inspector Shakti Singh (PW 15) instructed the appellants to take Darshan Singh (the victim) to the hospital for medical care and treatment but, instead of complying with the said direction, appellant Anand Prakash (A1) and appellant Sunil Kumar (A2) took him in a three-wheeler scooter to Mohan Nursing Home, a private facility run in a nearby locality by Dr Mohan Lal (PW 12);
(xiii) When Darshan Singh (the victim) was brought to the nursing home by two police officials, he was unconscious and in critical condition, the accompanying police officials leaving him;
(xiv) Darshan Singh (the victim) regained consciousness during the night intervening 16th and 17th March, 1992;
(xv) Dr. Mohan Lal (PW 12) had sent the information to victim‟s Crl.A.Nos.112/2000 & conn. Page 46 of 61 family through a messenger;
(xvi) Upon information regarding Darshan Singh (the victim) reaching the family, Prem Pal (PW 3), accompanied by Vikram Singh (PW2), Munna Lal (PW4), Beena (PW1) and others, went to the nursing home and saw him in critically injured state;
(xvii) Inspector Shakti Singh (PW 15) states that he had learnt in the afternoon of 17th March 1992 that the appellants had not abided by his direction of taking the victim to the hospital and had instead left him in the private nursing home and that they (the appellants) were not available, he made a report to the senior police officers and recorded the absence of the appellants from duty;
(xviii) Upon the information reaching the senior police officers on the afternoon of 17th March, 1992, the DCP and ACP visited the nursing home and saw the victim admitted there whereupon arrangements were made and Darshan Singh (the victim) was shifted to LNJP Hospital the same day; (xix) First information report was registered on 17th March, 1992 by SI Kartar Singh (PW-17) and taken up for investigation for offences under sections 342/323/34 IPC; (xx) Darshan Singh (the victim) died during treatment in LNJP Hospital in the afternoon of 17 March 1992; (xxi) The post-mortem examination on the dead body of Darshan Singh (the victim) revealed that he had suffered 23 ante mortem injuries, mostly contusions or abrasions, almost all Crl.A.Nos.112/2000 & conn. Page 47 of 61 over the body, including on the face, upper limbs, lower limbs, extremities (hands, soles, fingers, toes etc.), nails, joints (knees and wrists) and the chest region, the internal examination showing extravasations of blood present in the frontal region on both sides with subarachnoid haemorrhage present over both the frontal poles, it also showing a few petechial haemorrhages presentation in both the cerebral hemispheres frontal, terminal and parietal poles - some of the injuries being fresh (1 to 3 days old), some a little older (2 to 4 days old) and yet some more still older (5 to 6 days old), indicative of constant physical assaults over a prolonged period, at least six days in duration; and (xxii) The autopsy doctor (PW 18) was unable to give any definite opinion regarding the cause of death on the basis of findings during the post-mortem examination of the dead body. He recorded that he had preserved the viscera for chemical analysis to rule out the possibility of poisoning thereby indicating that he was reserving his final opinion on the subject of cause of death till the viscera report had come in.
The report of the CFSL (Exh. PW 16/A) was negative on the possibility of poisoning. Thus, when the matter was taken back to the autopsy doctor (PW 18), he recorded his final views (Exh. PW 18/B) stating that, in his opinion, all the injuries noted in the autopsy report were ante-mortem in nature, caused by blunt force impact, and that the death had occurred due to cerebral damage consequent upon force Crl.A.Nos.112/2000 & conn. Page 48 of 61 trauma to the head.
66. It is the submission of the learned counsel for the appellants that neither the father of the victim nor his uncles nor, for that matter, his aunt (PW1), knew any of them from before. It is argued that, in this view, the dock identification by them ought not be accepted, or acted upon, because the investigating agency had failed to arrange TIP. Reliance is placed on Raju @ Rajendra vs. State of Maharashtra, 1998 SCC (Cri) 296; Vijayan vs. State of Kerala, 1999 SCC (Cri) 378; State of H.P. vs. Lekh Raj & another, 2000 SCC (Cri) 147; and State of U.P. vs. Ashok Dixit & another, 2000 Supreme Court (Cri) 579. We reject the argument as unmerited. It is mainly Anand Prakash (A-1) who has been identified by the father and uncles of the deceased. They had met him in his office on several occasions. During their respective cross- examination, their ability to identify was never challenged. His description matches with the physical appearance of A-1. Even otherwise, the prosecution does not rely only on the evidence of the said witnesses from the family of the victim on the question of identity. The testimony of Inspector Shakti Singh (PW15) is of import and relevance and confirms involvement of A-1.
67. It is the argument of the appellants, other than Anand Prakash (A-1), that the responses given by him, in answer to the enquiry by Inspector Shakti Singh (PW15) in the office of the AATS on the morning of 17.03.1992, in so far as the same carried admissions, cannot be used as evidence to draw the conclusions against them. In this context, reference was made to State of A.P. vs. E. Satyanarayana, (2009) 14 SCC 400, to submit that (so-called) confession was not Crl.A.Nos.112/2000 & conn. Page 49 of 61 documented by Inspector Shakti Singh (PW15) immediately and, thus, his evidence is rendered suspect. Reliance is also placed on Pancho vs. State of Haryana, AIR 2012 SC 523, particularly the following observations (in para 16 of the report) :-
"...Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right. ...though confession may be regarded as evidence in generic sense because of the provisions of Section 30 of the Evidence Act, the fact remains that it is not evidence as defined in Section 3 of the Evidence Act. Therefore, in dealing with a case against an accused, the court cannot start with the confession of a co-accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence". (emphasis supplied) Crl.A.Nos.112/2000 & conn. Page 50 of 61
68. Indeed, the law is settled, as expounded in the above-quoted observation of the Supreme Court, that confession of a co-accused cannot be the starting point of consideration of the case against the other accused being jointly tried with him for the same offence. When the factum of the victim, being in a critically injured state, came to the notice of Inspector Shakti Singh (PW15), he made an enquiry of all the four appellants, who were present around the victim in the courtyard of the office of AATS on the morning of 17.03.1992. The enquiry was answered by Anand Prakash (A-1). The responses given by him at that stage were out of his own free will and volition. His status, or for that matter of the other appellants present with him, at that stage was not that of accused. Further, the status of Inspector Shakti Singh (PW15) was not that of a police officer interacting with his colleagures. Indeed, both sides were police personnel, part of the same unit, the appellants being subordinate in hierarchy to PW15. The questioning by Inspector Shakti Singh (PW15) was in the nature of administrative enquiry. At that stage, he could not even conceive or visualize as to what possibly may have been the background. The responses given by Anand Prakash (A-1), indeed carried admissions which confirm the complicity not only of himself but also of the other appellants who were present with him at that point of time. His verbal responses are relevant, but the conduct of the other appellants, in not raising objection or taking exception to what was said by him in answer to queries of Inspector Shakti Singh (PW15) is equally relevant against each of them.
Crl.A.Nos.112/2000 & conn. Page 51 of 6169. Reliance on Md. Ankoos & Ors. vs. the Public Prosecutor (High Court of H. P.), AIR 2010 SC 566 and Shamshul Kanwar vs. State of U.P., (1995) 4 SCC 430, by the appellants is misplaced since the prosecution has made no attempt before us to seek verification of the statements of prosecution witnesses by reference to the contents of the case diary, or the statements under Section 161 Cr.P.C. recorded therein.
70. Death as a result of torture in police custody is indeed one of the worst kinds of crime in a society governed by Rule of Law that promises to secure to all its citizens, amongst others, justice, liberty and equality. Such cases not only pose serious threat to the orderly civilized society but also are an affront to human dignity. The State, or its agencies, cannot be party to such acts as undermine the basic rights enshrined in, and guaranteed by, the Constitution. Thus, whenever cases of maltreatment of detainees or suspects in custody come to light, they need to be dealt with appropriately and with the sensitivity which is due in such matters.
71. Undoubtedly, a police officer when charged with accusations of crime is entitled to same rights (including that of initial presumption of innocence) as any other person facing a criminal charge. Further, it is the obligation of the criminal court adjudicating upon such matter to carefully examine, as in any other criminal case, to find out whether the allegations are genuine or not or, to put in clear perspective for present purpose, as to whether the complainant is feigning it as one of custodial violence. But, it also needs to be borne in mind that when custody or illegal confinement is proved beyond doubt, then presence Crl.A.Nos.112/2000 & conn. Page 52 of 61 of physical injuries on the detenue would require an explanation from the custodian of law as in cases of such nature, direct evidence of maltreatment, or excess, by police officials vis-à-vis a person in detention is hard to gather or present before the court. The facts and evidence is in the special knowledge of the police officer. As observed by the Supreme Court in Gauri Shankar Sharma vs. State of U.P., AIR 1990 SC 709, it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in the control of the official record of the police station and, thus, do not find it difficult to manipulate. Further, cases are not unknown where police official(s) have given wrong accounts to secure a conviction or to help out a colleague from a tight situation of his creation.
72. In State of Madhya Pradesh vs. Shyam Sunder Trivedi, JT 1995 (4) SC 445, the Supreme Court administered caution against ignoring the ground realities and exaggerated adherence to, or insistence upon, the establishment of proof beyond what is required and necessary. Onus, once primary facts are established, would shift and require an explanation. This view was reiterated in Ram Bihari Yadav vs. State of Bihar, (1998) 4 SCC 517, wherein it was observed thus :-
" Though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by bringing on record dying declaration and GD Entry and have Crl.A.Nos.112/2000 & conn. Page 53 of 61 exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice".
(emphasis supplied)
73. Taking a similar view, in Munshi Singh Gautam vs. State of M.P., (2005) 9 SCC 631, the Supreme Court ruled as under :
".... The courts are also required to have a change in their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed". (emphasis supplied)
74. Amongst the appellants, A-3 was the senior most in the rank. He may have availed of leave of absence for two days during this period. But, this does not mean that he would have had no role in the episode concerning the victim. As noted earlier, he was, in fact, the head of the trap team which included A-1 and A-2. A-4 may have Crl.A.Nos.112/2000 & conn. Page 54 of 61 been given the additional duties of DD writer for same days. But, he was part of the group controlling the custody of the victim when brought to the office of AATS in the morning of 16.03.1992.
75. Whilst it is true that in the case at hand there are lapses to cover up and withhold evidence showing the involvement of the appellants so as to help them, in our view, the same cannot detract from cogent and reliable evidence about illegal abduction, confinement and torture. The evidence leaves no room for doubt as to the complicity of the four appellants in the crime. It is correct that more evidence (e.g. the statement of the victim recorded by the DCP/ACP; the report of PW15 to his superior officers; MLC of the victim, etc.) could have been produced. But, the omission on the part of the investigating officer to gather the requisite material, or the default of the prosecution agency in leading evidence on the available material, do not bring about a break in the chain of circumstances. The facts and circumstances which have been proved are sufficient to join the dots. They unerringly point towards the culpability of the appellants.
76. The first informant (PW1) may not have known the identity of the persons who had taken away her nephew (the victim) from his house in the dead of night on the night intervening 10 th & 11th March, 1992 or her version may have been logged by the recording officer but the information given by PW5 and PW6 unravelled the mystery. They had seen the victim in the police custody. The family members of the victim (PW2, PW3 and PW4), thus, approached A-1 in his office seeking the release of the victim from custody. A-1 confirmed the fact that victim was indeed in his custody and control but would not agree Crl.A.Nos.112/2000 & conn. Page 55 of 61 to set him free. The fact that PW15 also saw him in the control of the appellants on the morning of 16.03.1992 shows that he had continued to be in their custody till that stage. PW12 may not be ready to identify any of the appellants as the police officials who had brought the victim to his establishment. But, given the evidence of PW15, there can be no doubt that it was two of the appellants who had left him in the nursing home in critically injured condition. The omission on the part of A-1 to A-4 in taking the victim to a government hospital in compliance with the direction of their superior (PW15) was clearly deliberate and intentional and indulged in with the objective of avoiding the responsibility and accountability for the condition to which he had been reduced in captivity.
77. From the above, we unhesitatingly conclude that the appellants were responsible for the unlawful acts of unjustifiably taking away the victim from his house on the night of 10 th and 11th March, 1992 and his illegal detention thereafter till 16.03.1992. In absence of any theory to the contrary, it has to be assumed that the victim was in state of good health, when picked up from his house on the night in question. It is natural corollary that the burden of explaining as to how he had suffered the injuries (as noted on his body in the autopsy report) with which he came out of captivity six days thereafter is that of his captors, i.e. the appellants. The fact that appellants made no effort to offer any explanation worth the name on this score, and instead have opted to come up with defence of total denial, only means the onus has not been discharged by them. Thus, Crl.A.Nos.112/2000 & conn. Page 56 of 61 they are bound to be held accountable for the injuries suffered by the deceased.
78. The autopsy report shows that the twenty three injuries suffered by Darshan Singh were not inflicted on one day, or in the course of one assaults. They are the end result of continued and prolonged assaults, practically over the entire period of being in unlawful detention. Having regard to the manner in which the assaults were directed against him, almost all over his body, with no medical treatment made available till his condition had deteriorated (to the extent of rendering him unconscious), what with he having suffered haemorrhage in both cerebral hemispheres, knowledge that the injuries which were being inflicted intentionally and voluntarily on such vital part of his body were such as were sufficient, in the ordinary course of nature, to cause his death within the meaning of the third clause of Section 300 IPC must be attributed.
79. In the facts and circumstances, when evidence clearly shows that all the four appellants were together, and in concert, common intention on their part to commit acts of commission or omission leading to the homicidal death of Darshan Singh is bound to be inferred. Thus, charge for the murder of Darshan Singh, punishable under Section 302 IPC read with Section 34 IPC has been rightly held proved against them.
80. The proved facts also lead to the irresistible conclusion that the detention of Darshan Singh from early hours of 11.03.1992 to 16.03.1992 was unlawful and, therefore, wrongful confinement within Crl.A.Nos.112/2000 & conn. Page 57 of 61 the meaning of the penal clause contained in Section 342 IPC. There is no reason or justification shown for these police officials to have picked up Darshan Singh from his house or to have kept him in captivity, concealed from his immediate family members during the afore-said period. Thus, conviction of the four appellants on the charge for offence punishable under Section 342 IPC read with Section 34 IPC has been rightly recorded by the trial court in the impugned judgment.
81. But, in our judgment, conviction of the appellants on the charge under Section 330 IPC read with Section 34 IPC cannot be sustained. There is no material indicating that Darshan Singh, or any person closely connected to him, was wanted or was suspect in any criminal case pending inquiry or investigation with the police during the relevant period. Therefore, it cannot be said that he was subjected to assault or hurt or ill-treatment in the unlawful custody of the four appellants for the purpose of extorting from him, or from any person interested in him, any confession or any information which might have led to the detection of an offence or misconduct. Firstly, it is nobody‟s case that Darshan Singh, or those connected to him, were custodian of, or privy to information about any such property, valuable security, claim or demand as could impel a person to commit assault against him to secure restoration of such property or satisfaction of such claim or demand. Thus, ingredients requisite for constituting the offence provided in Section 330 IPC are missing.
82. In the result, we partly allow the appeals and set aside the conviction, and the order on sentence, passed against the appellants for Crl.A.Nos.112/2000 & conn. Page 58 of 61 the offence under section 330 read with section 34 IPC. The conviction and sentences passed for the offences under section 302 read with section 34 IPC and section 342 read with section 34 IPC are upheld against each of the four appellants.
83. The appellants were released on bail, the sentences against them having been suspended pending adjudication of the appeals. They are directed to surrender within fifteen days and undergo sentences awarded against each of them. We direct the learned Additional Sessions Judge presiding over the trial court (the Successor Court) and Station House Officer (SHO) of Police Station Welcome to take necessary steps to ensure compliance with above directions in accordance with law.
84. This case of custody death cannot be allowed to conclude only with award of substantive punishment under the penal law. It is the obligation of the court to bear in mind the expectation of the victim (here, the next of kin) for complete justice. We are conscious that money cannot bring the deceased person back to life but monetary compensation would undoubtedly apply some balm and tell the victim that he is not forgotten. Thus, we recommend to the Delhi State Legal Services Authority to consider award of compensation to the next of the kin of the victim in terms of Section 357-A CrPC. For such purposes, a copy of this judgment shall be sent by the registry to the Member Secretary, Delhi State Legal Services Authority.
85. Before we part with the case, some thoughts about the lapses noticed above are required to be penned.
Crl.A.Nos.112/2000 & conn. Page 59 of 6186. The cases of custody death we perceive and believe are an aberration but such instances erode the confidence of the law-abiding citizenry, or result in loss of faith in the promise inherent in the motto "With you, for you, always", and sully the image of the organization as a whole. It is incumbent on part of the functionaries at the helm in the police department to exercise extra vigil over the conduct of its personnel, ensuring that they work - invariably and always - within the bounds of law. The sincerity and commitment of the police force to the cause of justice is tested when a case of criminal conduct by its member comes to light. An attempt at cover-up is like shoving the dirt under the carpet - it persists to soil the environment. Instead, if it is dealt with firmly and turned into a model not to be emulated, it would sub-serve dual objectives - punitive and deterrent - and also enhance the image of the force in the esteem of people at large.
87. A case of participation by a policeman in a crime needs action at two levels - one, his prosecution in the criminal court and, two, disciplinary action under the conduct rules applicable to his service. Both actions necessarily depend on same set of evidence. Utilizing part of evidence here or part there makes no sense. Withholding of material evidence (which may have been used in the disciplinary action) from the criminal court, particularly, gives rise to frivolous arguments of prejudice or for adverse inference to be drawn. In order that the two actions are not unduly (or unjustly/unfairly) frustrated by functionaries sympathetic to the wrongdoer, it is necessary that both are handled appropriately and under supervision of senior officers.
Crl.A.Nos.112/2000 & conn. Page 60 of 6188. Thus, we suggest that, for future, the Commissioner of Police must formulate a clear protocol to be followed for dispassionate probe into allegations of custodial violence or death and the same be put in public domain to infuse the element of transparency to the process. The duty of supervision over investigation of such cases involving members of Delhi Police may be entrusted by the Commissioner of Police to senior officers like Deputy Commissioner of Police (Vigilance) for ensuring its thoroughness, the said officer to be responsible for not only the pursuit of the disciplinary action under the conduct rules but also coordinating with the prosecution department so as to take care that the evidence gathered during the probe is brought out in entirety at the criminal trial.
89. We direct that the registry shall send copies of this judgment to the Principal Secretary (Home) of the Government of NCT of Delhi and to the Commissioner of Police, Delhi.
R. K. GAUBA (JUDGE) SANJIV KHANNA (JUDGE) OCTOBER 19, 2015 Crl.A.Nos.112/2000 & conn. Page 61 of 61