Punjab-Haryana High Court
Inspector Om Parkash vs Central Bureau Of Investigation on 14 December, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 795-SB of 1998
Date of decision: December 14, 2010
Inspector Om Parkash
.. Appellant
Vs.
Central Bureau of Investigation
.. Respondent
Criminal Appeal No.796-SB of 1998 A.S.I. Anant Ram .. Appellant Vs. Central Bureau of Investigation .. Respondent Criminal Revision No. 1132 of 1999 Rekha .. Petitioner Vs. Central Bureau of Investigation and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Gautam Dutt, Advocate for the appellant(s) in Crl. Appeal Nos.795 and 796-SB of 1998 and for the respondents No.6 and 7 in Crl. Rev. No. 1132 of 1999. Mr. Ajay Kaushik, Advocate for C.B.I. None for the petitioner in Crl. Rev. No. 1132 of 1999.
A.N. Jindal, J This judgment of mine shall dispose of two connected appeals No.795 and 796-SB of 1998 and Criminal Revision No. 1132 of 1999, having arisen out of the same judgment. However, the facts necessary for disposal of these cases are taken up from the Criminal Appeal No.795-SB of 1998.
These appeals are directed against the judgment dated 22.9.1998 passed by the Sessions Judge, Ambala, acquitting the accused Ishwar Singh, Inderpal Yadav, C. Ramesh Malik and C. Dev Raj, all police officials of the Delhi Police, however, convicting Inspector Om Parkash and Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -2- ASI Anant Ram, both posted at CIA Staff Gurgaon, under Section 304-II IPC and sentencing them to undergo rigorous imprisonment for seven years and to pay fine of Rs.5000/- each.
There are two sets of accused viz. Inspector Ishwar Singh, HC Inderpal Yadav, C. Ramesh Malik and C. Dev Raj, all were posted at Police Station Jahangirpuri, Delhi and other set consists of Inspector Om Parkash and ASI Anant Ram who remained posted at Police Station, CIA Staff, Gurgaon.
The case relates to the custodial death of Ashok Kumar son of Ram Sarup who was allegedly picked up by the police of police station Jahangirpuri Delhi on 9.2.1993 where he was tortured and transferred to the Police Station, CIA Staff, Gurgaon, and ultimately he died on 22.3.1993 while in judicial custody. Ashok Kumar hails from Bawaria caste (criminal tribe) along with his relatives was allegedly confined in Jahangirpuri Police Station from 9.2.1993 where he was tortured along with his relatives which compelled Rekha (PW21) to file a writ petition (Ex.PGGG) before the Apex Court on 3.2.1995 over which the investigation was ordered to be handed over to the Central Bureau of Investigation (for brevity, 'CBI'). The CBI while making headway into investigation found that Ishwar Singh SI/SHO of Police Station Jahangirpuri, New Delhi, Inderpal Yadav Head Constable, Ramesh Malik and Dev Raj constables had control over Ashok Kumar and they tortured him. Prior to the arrest of Ashok Kumar, they had brought Kewal (PW25), Bimla sister (PW22) and Rekha wife of the deceased (PW21) and had subjected them to third degree methods. Consequently, on 8.2.1993, they could lay their hands over Sham Kumar (PW20) real brother of Ashok Kumar and in the evening of 8.2.1993, they picked up another brother of Ashok Kumar. On 9.2.1993, while coming to know that Ashok Kumar and Vinod Kumar were also confined nearby the police station, they made a search and he was apprehended on 10.2.1993. The CBI also brought forth the facts that on the evening of 9.2.1993, Bimla (PW22) along with Rekha (PW21) had brought meals for Sham Kumar. Rekha being on the family way was allowed to go back but Bimla was made to sit in the police station. On the evening of 10.2.1993 all the four accused posted at Police Station Jahangirpuri severely beat them. Since Ashok Kumar was suspected Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -3- to have killed one Mayawati, therefore, he was specially tortured and interrogated by the police. A roller was moved on his legs and patrol was injected in his rectum with the help of pump. Inderpal Yadav allegedly tore the blouse of Bimla. Ashok Kumar deceased was also hanged on the roof with his head downwards. He was also forced to commit sexual intercourse with his own sister Bimla. On his refusal she was made naked. The pant of Ashok Kumar was also removed and Bimla was forced to commit intercourse with Ashok Kumar. Thereafter, Inderpal Yadav himself committed rape upon her regarding which a separate case is pending. However, due to marriage in the family, Bimla, her mother and other relatives were relieved from the police station. CBI further collected evidence to the effect that the aforesaid accused relating to the Police Station Jahangirpuri handed over Ashok Kumar and Vinod to the accused- appellants being officers of the CIA Staff, Gurgaon on 22.2.1993 as Ashok Kumar was wanted in two cases under Sections 395/397 IPC in case FIR No.281 of 29.8.1992 and another case FIR No.289 dated 1.9.1992 relating to the Police Station City, Gurgaon. When followed, the custody by the accused-appellants, CBI further brought to light that since the whereabouts of Ashok Kumar could not be traced, they had already arrested Ramesh (PW19) and his brother and they were taken to police station on 3.1.1993, where they were tortured by the Gurgaon police. After the arrest of Ashok Kumar on 22.2.1993, he was applied third degree methods by the police during his custody with the police up to 27.2.1993, then he was sent into judicial custody, however, due to the injuries suffered by him due to torture at the hands of the appellants he was taken to general hospital, Gurgaon, on 8.3.1993 and subsequently on 9.3.1993 and finally he remained admitted in P.G.I. Rohtak w.e.f. 10.3.1993 to 20.3.1993 when he died.
An enquiry made by Sandeep Garg an IAS Officer (PW14) has also been made, who vide his report Ex.PEEE and inquest report Ex.PEEE/1 had got the dead body of the deceased photographed vide photographs Ex.P1 to Ex.P4. According to him Ashok Kumar had died due to the injuries suffered by him. The CBI during investigation also came across the version that Ashok Kumar was given injuries while he was in custody with CIA Police Gurgaon under the charge of the present appellants Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -4- who had tortured him. He further opined that the cause of his death, as shown by the doctor is renal failure does not look to be correct.
After investigation, CBI further reached the conclusion that the police officers of the Police Station, Jahangirpuri as well as the accused appellants were responsible for causing death and disappearance of the medico-legal report which was conducted to reflect the injuries on the person of deceased Ashok Kumar and also for destroying the evidence for treatment etc. given to Ashok Kumar with the allegations that some oil had spilled on those records and for the allegations that as a result of the injuries caused to Ashok Kumar, his death resulted in P.G.I. Rohtak.
On filing of the charge sheet against both sets of the accused, they were charged for the offence under Sections 366, 367, 326, 304, 218 read with Section 34 IPC, to which they pleaded not guilty and opted to contest.
In order to substantiate the charges, the prosecution examined as many as 39 witnesses in all. Out of them, the important witnesses are Ramesh (PW19), he is son of Bimla. He was also arrested with Rajesh Kumar. Ramesh Kumar has stated that the police was already in search of Ashok Kumar. He has further stated that he as well as his family was under
great fear of torture. He was arrested by the police and was being tortured. Sham Kumar (PW20) is the real brother of Ashok Kumar. He has stated that he was arrested on 8.2.1993 by Ishwar Singh accused and was taken to the Jahangirpuri Police Station and on the next day his mother and Bimla had also come to the Police Station with meals. He has also deposed about the story of 9.2.1993. He has further reiterated that on 10.2.1993 his sister had come to the police station who had disclosed to him that Kewal, Ashok and Vinod had also been arrested by the police and were being tortured. He has further testified that when he came to know that his brother was taken to the Medical College & Hospital, Rohtak he came to know that Ashok Kumar was having injuries due to torture given to him. Rekha (PW21) has claimed that she was allowed to go from the police station, when she had come with the meal on 9.2.1993, but she claimed that his sister in law Bimla was detained in the police station along with her mother in law where Ashok Kumar deceased was confined. Besides, Kewal (PW25). Chandu Lal Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -5- (PW24) has also deposed the entire version.
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Inspector Ishwar Singh further explained that he was on leave from 4.2.1993 to 8.2.1993, therefore, there was no question of going to Majnu Ka Tilla and to apprehend the accused Sham Kumar and others from there. He has 27 years of unblemished career and he being responsible officer never indulged in such activities of illegal confinement and there was no evidence that he had tortured any person including the deceased Ashok Kumar. Similarly, Dev Raj explained that Bimla and Rekha have not named him in the complaint. Any way he had no hand in the crime. Rakesh Malik has submitted that Bimla (PW22) was asked to identify him in the identification parade in the court itself at Delhi but she failed to identify him. The crux of their statements is that they never arrested Ashok Kumar or tortured him or handed over him to the police of CIA Staff, Gurgaon, rather in order to put pressure upon the police and to get rid of them so that they may not be involved in criminal cases they named them as accused.
The other set of the accused namely Inspector Om Parkash and ASI Anant Ram have stated that they never tortured Ashok Kumar nor caused any injuries. There was a BJP rally in those days and these two police officials used to remain on duty at BJP rally w.e.f. 22.2.1993 to 25.2.1993 and thereafter Inspector Om Parkash went on leave w.e.f. 26.2.1993 and 27.2.1993. Ashok Kumar did not die due to the injuries but due to renal failure as he was addicted to liquor and many other vices of drugs and smack.
In defence, they examined Sham Wati (DW1), SI Y.K. Bhatia (DW2), SI (Retd.) Ishwar Singh (DW3), HC Raj Kumar (DW4), HC Dhar Singh (DW5), Manoj Kumar (DW6), HC Sudesh Kumar (PW7) and Ajit Singh (DW8).
On scrutiny of the entire evidence, the trial court while disbelieving the prosecution version with regard to the taking of the custody by the first set of the accused i.e. police of Police Station Jahangirpuri and disbelieving that if they were tortured by the said accused acquitted them of Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -6- the charges. While holding that the accused was not handed over by the first set of the accused further observed that Ashok Kumar was arrested by the appellants on 22.2.1993 at Britannia Chowk Delhi and was taken to Gurgaon where they tortured him and got him admitted in jail where he died. Consequently, convicted Inspector Om Parkash and ASI Anant Ram and sentenced them accordingly.
It would also be significant to mention here that regarding the acquittal of the accused Ishwar Singh and others, neither the State nor CBI has preferred any appeal. However, the accused-appellants have assailed their judgment of conviction and sentence. As such, it would not be expedient in the interest of justice to delve deep into the evidence produced by the prosecution for examining home the charge against the accused Ishwar Singh etc. But, it would be suffice to say that on analysis of the evidence on record against Ishwar Singh etc. the same is found to be insufficient to prove the allegations that Ashok Kumar was arrested on 9.2.1993, and was taken to the police station where Ishwar Singh etc. moved roller on his legs and hanged him with his head downwards, he was compelled to commit rape upon his own sister Bimla. Though the witnesses namely Rekha (PW21), Bimla (PW22), Ram Kumar (PW23), Chandu Lal (PW24) and Kewal (PW25), have stated specifically that Ashok Kumar deceased remained confined at police station Jahangirpuri w.e.f. 9.2.1993 where he was tortured by the accused Ishwar Singh etc., yet, the story set up by these witnesses having suffered from many improbabilities and is unsupported by any documentary evidence, therefore, the trial court appears to have not placed reliance over them qua their confinement at Police Station, Jahangirpuri, New Delhi. Though there were allegations that roller was moved on the legs of Ashok Kumar but the Investigating Officer did not take any roller into possession, the plastic pump with which petrol was injected in the rectum of the deceased was also not taken into possession; the rope or any instrument with which he was hanged on the ceiling was also not taken into possession. The Investigating Officer has not said a word that he verified from the record that SHO Ishwar Singh was not on leave on 8.2.1993. If he was on leave and did not go to apprehend Sham Kumar, then the entire story as set up by the prosecution becomes Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -7- unreliable. Even the witnesses are not sure if the incident of rape took place on 9.2.1993 or 10.2.1993. Torn clothes of Bimla were also not taken into possession. She was also not got medico-legally examined with regard to factum of rape. Handing over the custody by Ishwar Singh etc. on 22.2.1993 also stands falsified as the evidence brought on record reveals that the deceased was arrested from Britannia Chowk, Delhi. Had there been any injuries on the person of Ashok Kumar on the day he was taken into custody by the Gurgaon police then the accused had some safe grounds to defend themselves. The Investigating Officer did not enquire as to why Gurgaon Police did not obtain medico-legal report conducted upon Ashok Kumar before they took the custody of Ashok Kumar, Vinod Kumar and Kewal. Had they taken their custody from Ishwar Singh etc. then some memo must have been prepared in that regard or they would have applied for their medico-legal examination instead of taking the responsibility of injuries, on the person of Ashok Kumar (if these were already present on his person) upon themselves. It has also come in the statement of Ranjit Singh Assistant Commissioner of Police Headquarters (PW2) had held enquiry regarding the confinement of Ashok Kumar in the Police Station Jahangirpuri during the night of 10.2.1993, but he reported that no such person was confined at the said police station. Had Ashok Kumar been arrested or confined, as claimed, at Police Station Jahangirpuri, then there was no purpose for detaining any other relative of Ashok Kumar as it was Ashok Kumar alone who was responsible for the murder of Mayawati and if he had been apprehended then he should have been put to arrest directly by the police of Jahangirpuri and there was no reason to keep him in wrongful confinement. Even Y.K. Bhatia (DW2) one of the Investigating Officers who was associating the investigation has also stated that Ashok Kumar had not been apprehended in the case. Similarly, Ishwar Singh (DW3) has also supported the case of Ishwar Singh accused etc. The factum with regard to taking the custody of the accused from Britannia Chowk, Delhi has been duly proved by Raj Kumar (DW4) who has stated that Ashok Kumar was not taken from the Jahangirpuri Police Station but was arrested from Britannia Chowk Delhi on 22.2.1993. Thus, in the absence of any proper reliable and creditworthy evidence, it Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -8- would not be difficult to hold that Ishwar Singh etc. were rightly extended benefit of doubt.
Now coming to the case of the present accused appellants, their conviction appears to be well founded and well reasoned. Since there were two sets of the accused, therefore, evidence of PW19 to PW25 should be segregated and evaluated independently irrespective of the fact that their testimonies could not be believed qua the first set of the accused for certain reasons, or for the reasons that they never knew that as to who had taken Ashok Kumar, caused torture upon him and his relations, but the documentary evidence speaks to the volumes proving the complicity of the second set of the accused in the commission of the crime, therefore, it would be immaterial if the witnesses PW19 to PW25 had been disbelieved qua the first set of the accused, but at the same time, they could be believed for the other set of the accused. Their evidence could be seen in the light of the other circumstantial or documentary evidence.
In order to establish the complicity of Inspector Om Parkash and ASI Anant Ram, there is a complete chain of circumstances which unerringly point towards their guilt and leads no room of doubt in the mind of the court to hold that they were the persons responsible for the death of Ashok Kumar after he was taken in custody on 22.2.1993. Besides, the statement of Raj Kumar (DW4), who stated that the deceased was not taken from Jahangirpuri Police Station but was arrested from Britannia Chowk Delhi. Hari Singh UPG (DW9) has also supported this fact that Ashok Kumar was arrested on 22.2.1993 by the police from Delhi in connection with the dacoity cases. He was produced before the Magistrate on 23.2.1993 from where he was remanded to the police custody up to 27.2.1993. Lot of evidence has come on record that the accused remained in the custody of Om Parkash and ASI Anant Ram during the said remand period. Hari Singh (DW9) though has stated that he remained on duty in CIA Staff throughout but the deceased was not given beatings. His this statement proves one fact that the deceased Ashok Kumar was in the custody of Om Parkash and Anant Ram in the premises CIA Staff. In the absence of any medical examination of Ashok Kumar before he was taken into custody, he would be presumed to be possessing good health, so it was Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -9- for the accused persons to explain as to how the deceased died and had to be sent to the Medical College, Rohtak.
It would be pertinent to mention here that since the accused was arrested on 22.2.1993 and he remained in the police custody till 27.2.1993, therefore, it does not appeal to the reason that he remained unattended and un-interrogated by the police in connection with the dacoity cases particularly when the police officers were over anxious to arrest him right from 3.1.1993 as claimed by Ramesh (PW19). Earlier, Ramesh Kumar and Rajesh Kumar, both brothers of Ashok Kumar were also arrested and tortured by the police of Police Station Gurgaon, therefore, the plea that Inspector Om Parkash remained busy in BJP rally cannot be believed and is not sufficient to condone his act of torture towards Ashok Kumar. The other circumstance which lends support to the torture given to Ashok Kumar in the CIA staff is that after 27.2.1993, HC Mange Ram (PW7) had taken him to Civil Hospital, Gurgaon for treatment and there is no evidence that prior to 1.3.1993 he had ever been taken to the Civil Hospital by the police for treatment. Dr. R.K. Chaudhary, who had conducted the post mortem examination upon Ashok Kumar had also detected the injuries. The relevant part of his statement is reproduced as under :-
"There was bandage over left elbow. Rigour mortis was present in eye lids and jaws while it was absent in neck and all the four limbs. There were blisters over body containing serous fluid. There were multiple vesicles with G.V. Paint applied over them on both lower limbs above and below knee. I observed the following injuries :
1. There was 4 cms x 3 cms size infected patchy wound over right fronto parietal area of scalp. 5 cms above pinna of right ear. It was scalp deep.
2. There was a bed sore over lower most part of back just above natal cleft of the size of 10 cms x 4 cms."
Besides the aforesaid medical evidence, Udho Ram Chawla (PW11) the then Deputy Superintendent Jail testified from the entries in the register Ex.PX at Ex.PA that some medicines were to be obtained for the Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -10- deceased. It was recorded in the entry that Ashok Kumar was feeling weak and was semi unconscious many a times and had head injury may be due to fall on account of giddiness. He further testified that Ashok Kumar was examined by Dr. N.S. Punia Pharmacist. He also proved the entries regarding issuance of medicines. However, it appears that since the accused being police officers having hold over the police department faded the entry by spilling oil and water. However, Dr. N.S. Punia (PW12) who had made these entries in the register Ex.PBB at Ex.PZ/3 to Ex.PZ/6 has stated that the entries made by him are correct. It would also be significant to mention here that in the entry Ex.PZ/6 there is mention of "M-injuries" on the person of Ashok Kumar which indicates "multiple injuries", therefore, an inference could be drawn that Ashok Kumar was suffering from multiple injuries when he was admitted in the jail affter the period of remand was over, therefore, he was being taken to the Civil Hospital, Gurgaon as directed by Dr. V.K. Yadav. In the said entry Ex.PW3/6, Dr. N.S. Punia has identified the handwriting and signatures of Dr. V.K. Yadav. Mr. Sandeep Garg (PW14), the then Additional Deputy Commissioner, Gurgaon who had made enquiry into the matter vide his report Ex.PEEE also gave a categorical opinion that the deceased died of injuries.
There is another important piece of evidence produced by the prosecution i.e. Inspector N.K. Pathak (PW37) who while appearing in the witness box testified that the M.L.Rs. relating to Ashok Kumar dated 1.3.1993 and 9.3.1993 were not traceable in the civil hospital. From his testimony inference would be drawn that Ashok Kumar was examined on the aforesaid two dates. Had there been no injury recorded in those MLRs then there was no reason to conceal those MLRs or to destroy these documents. The destruction of these documents further leads this court to draw an inference that the accused with an intention to disappear this material evidence managed to remove the valuable documents from the record. Had these documents come on record, then the injuries could be exposed. On conspectus of the aforesaid evidence led by the prosecution to bring home the charge against the accused this court is convinced that the prosecution has led sufficient evidence on the record to complete the chain of circumstances which unerringly point towards the guilt of the accused. Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -11- The circumstances appeal that Ashok Kumar was arrested on 22.2.1993 from Britannia Chowk in connection of the cases relating to the dacoity registered against him, interrogated and tortured him for five days i.e. during the period he remained in their custody when on granting judicial remand he was inducted into jail. As per Dr. N.S. Punia (PW12), the entry in the jail register Ex.PZ/6 indicates that Ashok Kumar was suffering from "M-injuries" (Multiple injuries) on his body. The said entry recorded in the ordinary course of nature by the jail authorities cannot be said to be in any way concocted or manipulated particularly when the entries have come from proper custody and are part of public record. Again, in the case of custodial deaths, when the custody of the police officers is once proved and then it becomes obligatory on the part of such police officers to explain his death. What to talk of explaining by any plausible defence, the police officers even could not explain the entry of the register Ex.PZ/6 showing "M-injuries"
and also the postmortem report conducted by Dr.R.K. Chaudhary (PW18) who also pointed out one injury on the head of the deceased. They instead of explaining injuries, rather went upon destroying the valuable evidence which might have added to the evidence already collected to prove their complicity. They also destroyed the MLR dated 1.3.1993 and 9.3.1993 which were conducted when Ashok Kumar was taken to P.G.I. Rohtak. It is also well settled by now that when a person is in custody of the police and confined there, he is proved to have received injuries or died then no amount of further evidence was required to be produced by the prosecution in order to establish as to how and in what manner he died or received injuries, then the onus shifts upon the officers who remained his custodians. The trial court has taken the right view while observing that it disbelieved the statements of the witnesses qua the first set of the accused but in the light of the sufficient evidence led by the prosecution that Ashok Kumar came into custody of the accused-appellants who tortured and caused injuries to him, consequently, he remained under the treatment of jail doctor and thereafter under the treatment of doctors at P.G.I. Rohtak and ultimately died on 20.3.1993, therefore, these accused-appellants are responsible for the death of Ashok Kumar.
No other argument has been raised.
Criminal Appeal No. 795-SB of 1998 , Criminal Appeal No. 796-SB of 1998 & Criminal Revision No. 1132 of 1999 -12- For the aforesaid reasons, both the appeals as well as the revision petition being devoid of any merit are dismissed.
December 14, 2010 (A.N. Jindal) deepak Judge