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33. In the considered view of this Court, the above findings clearly point to the homicidal death of late Vinod Kumar which took place while he was in judicial custody in the Tihar Jail. A clear case of violation of the fundamental right of the late Vinod Kumar under Article 21 of the Constitution has been made out.

Liability of the State for custodial death

34. The law concerning the liability of the State for custodial violence in prisons is well settled. In one of the early decisions concerning Tihar jail itself, the constitutional rationale for protecting the fundamental rights of prisoners was explained by the Supreme Court. In Sunil Batra v. Delhi Admn., (1978) 4 SCC 494, (SCC at page 517) the court observed:

36. This was later reiterated in D.K. Basu v. State of West Bengal (1997) 1 SCC 416 and has been followed in a large number of decisions of the Supreme Court and the High Courts since.

37. Custodial deaths in Tihar Jail are not an uncommon phenomenon as is evident from some of the recorded cases including Murti Devi v. State of Delhi (1998) 9 SCC 604. The following is the short order passed by the Supreme Court which reveals a familiar pattern of explanation offered by the jail authorities for a custodial death, which explanation was of course not accepted:

(emphasis supplied)

38. Yet another instance of award of compensation for the custodial death of a prisoner is Ajab Singh v. State of U.P. (2000) 3 SCC 521 where the Meerut jail authorities handed over to his family the undertrial prisoner‟s dead body two days after he had been remanded to judicial custody. The police offered an incredible explanation that Rishipal, the prisoner, died of "jaundice and liver failure" and that the post-mortem report which lists the cause of death as shock and haemorrhage due to ante-mortem injuries is "rather misleading". They stated that the bandages tied to Rishipal‟s wrists and ankles because he was throwing his legs and hands about while in a semi-conscious condition caused the injuries referred to in the post-mortem report. They surmised that the injuries on Rishipal‟s belly mentioned in the post-mortem report "can also be caused by bursting of liver inside the body". Upon the strength of such "expertise", the authorities described the post- mortem report and cause of death as "a concocted story". Disbelieving this version, the Supreme Court observed:

39. Other cases involving custodial deaths in Tihar Jail include Smt.Dhanno v. Union of India 93 (2001) DLT 218 (DB) and Government of NCT of Delhi v. Nasiruddin 89 (2001) DLT 91(DB). Recently on 24th May 2010, a Division Bench of this Court in W.P.(Crl.) No. 290 of 2010 (Court on its own Motion v. State) enhanced the compensation awarded to the family of a victim of custodial death in Tihar jail from one to three lakh rupees.

40. Therefore this Court holds that for the custodial death of Vinod Kumar in Tihar Jail on 12th June 2007, the Respondent jail authority is liable to compensate the victim‟s family.