Mehrauli Custodial Death Case Judgement

7/31/2019 Mehrauli Custodial Death Case Judgement

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S/v Budhi Prakash etc.

death. In the present case also the prosecution seems to be in a

dilemma to prove its own case against the accused persons. On one

hand the prosecution has challaned all the accused persons u/s

304 IPC for causing death of deceased Indal. On the other hand they

themselves have attempted to adduce evidence on record that

injuries to the deceased Indal were caused by the public at the time

of commission of theft of stereo by him. Had there been severe

beatings by the public to the deceased at the time of his allegedly

committing theft of the stereo why the IO of the said case i.e. A-2 did

not brother to get any case registered against the persons who

allegedly took law in their hands. A-2 got registered case u/s 379

IPC vide FIR No. 8/96 against the deceased but he remained mum toproceed against any person for allegedly causing severe injuries to

the deceased. This is the same IO i.e. A-2 who got registered the

present case u/s 304 IPC only after Indal was declared brought dead

by the doctors at the hospital and he was informed about the death

of the deceased. A-2 has failed to explain what led him at that time

to register case u/s 304 IPC for the injuries caused to the deceased

which proved fatal. It is obvious that by getting the present case

registered u/s 304 IPC A-2 wanted to save his own skin.

XVII.Allegations of custodial violence in this case are not sham

attempts to gain undeserved benefit by the complainant who is a

poor lady having no financial means to bring to book the accused

contd..../-


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persons. No oblique motive has been imputed to the complainant.

Nothing is on record to show if complainant was intimated about

the arrest of the deceased in case FIR No. 8/96 or she was

informed soon after Indal was found in precarious condition. She

was not even informed during the whole night if any public person

had given beatings to the deceased.

XVIII.The prosecution witnesses examined by the prosecution in fact

have failed to prove if severe beatings were given to the deceased

by the public. It has not come on record as to which particular

person had caused beatings to the deceased. Name of such person

has not been inferred so far. There is nothing on record to show if

any such person was ascertained or apprehended for the injuriescaused to the deceased. In the present case only the complainant

or his associates could be interested persons to cause beatings to

the deceased at the time of alleged commission of theft of the

stereo in the car. However, neither the complainant nor his

associates examined by the prosecution claimed to have given

beatings to the deceased. Who else had given beatings to the

deceased has not been specified by any of them. It was a simple

case of theft of stereo where the outsiders/strangers are not

expected to gather at the spot and to inflict injuries to a thief. No

weapon of offence was recovered from the deceased. No implement

used for committing theft was recovered from his possession. So

contd..../-


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much so, no stereo was found in possession of the accused.

XIX.The accused had motive to subject the deceased with beatings.

They were to extract confession from the deceased regarding his

associates. Also they were to get information as to where and to

whom the deceased had passed on the stolen stereo. That motive

seems to have prompted the accused to use third degree

methods.

XX.Again I find no support in the arguments of the ld counsel for the

accused persons that the injuries found on the person of the

deceased were opined to have been caused beyond 12 hours from

the time he was declared brought dead. In my view there is no

exact evidence on record to show as to when these injuriesdetailed in 1 to 20 in postmortem report were inflicted. The

estimate whereby outer range has been opined by the doctor is not

exact. The deceased was not suffering from any external fatal

injuries at the time of his medical examination by PW1. It was

observed that his condition was not at all serious causing his

death due to the beatings allegedly given by the public. It was

duty of the accused persons to explain how and under what

circumstance deceased sustained all these fatal injuries.

XXI.Circumstantial evidence adduced on record by the prosecution

fully proves that injuries on the person of the deceased were

inflicted during his police custody.

contd..../-


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The law relating to circumstantial evidence has been

detailed in the latest case titled Trimukh Maroti Kirkan Vs. State

of Maharashtra reported in 2006 IX AD(S.C.)81, the Hon'ble

Supreme Court has observed:

The normal principle in a case based on circumstantial

from which an inference of guilt is sought to be drawn must be

cogently and firmly established; that those circumstances should be of

a definite tendency unerringly pointing towards the guilt of the

accused; that the circumstances taken cumulatively should form a

chain so complete that there is no escape from the conclusion that

within all human probability the crime was committed by the accused

and they should be incapable of explanation on any hypothesis other

than that of the guilt of the accused and inconsistent with his

innocence.

The Hon'ble Supreme Court further observed in the said

judgment that:

If an offence takes place inside the privacy of a house and

in such circumstances where the assailants have all the opportunity

to plan and commit the offence at the time and in circumstances of

their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of

circumstantial evidence, as noticed above , is insisted upon by the

courts. A Judge does not preside over a criminal trial merely to see

that no innocent man is punished. A Judge also presides to see that a

guilty man does not escape. Both are public duties. (See Stirland Vs.

Director of Public Prosecution 1944 AC 315 quoted with approval by

Arijit Pasayat, J. in State of Punjab vs Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead

contd..../-


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evidence of such character which is almost impossible to be led or at

any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the

facts and circumstances of the case. Here it is necessary to keep in

mind Section 106 of the Evidence Act which says that when any fact

is especially within the knowledge of any person, the burden of

proving that fact is upon him. Illustration (b) appended to this section

throws some light on the content and scope of this provision and it

read:(b) A is charged with travelling on a railway without ticket.

The burden of proving that he had a ticket on him,

Where an offence like murder is committed in secrecy

inside a house, the initial burden to establish the case would

undoubtedly be upon the prosecution, but the nature and amount of

evidence to be led by it to establish the charge cannot be of the same

degree as is required in other cases of circumstantial evidence. The

burden would be of a comparatively lighter character. In view of

Section 106 of the Evidence Act there will be a corresponding burden

on inmates of the house to give a cogent explanation as to how the

crime was committed. The inmates of the house cannot get away by

simply keeping quiet and offering no explanation on the supposed

premise that the burden to establish its case lies entirely upon the

prosecution and there is no duty at all on an accused to offer any

explanation .

XXII. The facts and circumstances of case Munshi Singh Gautam Vs

State of MP (supra) are fully applicable to the facts and

circumstances of this case. In the said case deceased Shambhu

Tyagi was brought to the PS on the intervening night 19-20/6/84

contd..../-


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to exhort confession. He was given beatings there at the PS as a

result of which he died. Thereafter to remove the traces of the

crime and conceal the acts, his dead body was thrown near a

'Nala' . In the said case the deceased was found to have sustained

injuries which were confined to the skin and upper level of the

body. Grievous injuries were not found on vital parts of the body

like head, heart,lungs etc. Duration of the injuries were widely

variant. The right lung of the deceased was T.B. effected. The

combined effect of alcohol and the injuries shortened the period

of death and resulted in a quicker death.

XXIII.In the present case mere consumption of alcohol by the

deceased and infliction of some beatings (if any) at the time of hiscommission of theft of stereo had no role to cause the death of the

deceased particulary when there is nothing to inter if the deceased

was suffering from any ailment.

XXIV.From the evidence documentary, circumstantial and oral,

proved on record I am fully satisfied that injuries were caused to

the deceased Indal while he was in police custody.

D. ROLE OF ACCUSED

Regarding role of A-1 in the commission of the offence,

only evidence that has come on record in the present case is that he

was working as Additional SHO on the intervening night of 2/3-1-96.

Nothing has come on record to show if Indal was interrogated by A-1

contd..../-


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during his custody at the PS. Again there is nothing on record to

show if custody of Indal came to A-1 at the PS. Again there is no

evidence whatsoever on record to show if A-1 participated in causing

injuries to the deceased.

II. It has come on record that rukka in case FIR No. 8/96 u/s 379

IPC was shown to A-1. It has also come on record that it was

routine to show rukka to the Additional SHO before registering

any case. So mere fact that A-1 had seen the rukka of case FIR

NO. 8/96 u/s 379 IPC and on the basis of the same, FIR was

registered, in my view is not sufficient to infer the complicity of A-

1 in the commission of the offence.

III.A-1 being Additional SHO of the PS was no doubt had duty to seeas to what was happening at the PS during his presence there. He

was not there to take rest as reportedly he was in his rest room.

Apparently A-1 did not perform his duty and failed to intervene to

save the life of a young person. The department/office of A-1 is

expected to take necessary action for dereliction of duty as during

his presence in PS custody death took place. However, for that A-1

can't be fastened with criminal liability. There is nothing to

suggest if A-1 shared common intention with co-accused persons

to give beatings to the deceased resulting in his death. No role

whatsoever has been imputed by the prosecution witnesses during

their statements before the court against A-1 for causing injuries

contd..../-


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to the deceased. Hence A-1 deserves benefit of doubt.

IV.So far as A-2 to A-4 are concerned, in my view, the prosecution

has fully established that all these persons caused beatings

detailed in the postmortem report to the deceased Indal during his

custody. All the prosecution witnesses have categorically deposed

that custody of the deceased remained with these accused persons

after he was brought to the PS. PW6 ASI Nand Lal in his

examination-in-chief also stated that on the intervening night of 2-

3/1/96 at about 12.30 midnight, he received rukka from A-2

through A-4. As observed above this rukka was fabricated as A-2

with A-4 never reached at the spot where the deceased was

apprehended in case FIR No. 8/96. Again this witness PW6 ASINand Ram in his examination-in-chief stated that at about 2.40

am Indal was brought to the PS by A-2,A-3 and A-4. There is no

cross examination on this aspect. It shows that custody of Indal

remained with A-2 to A-4 after he was brought at about 2.40 am

at the PS.

V. On 3.1.96 when deceased Indal was found vomiting PW19 HC Jai

Singh called A-2 and informed him that the deceased was

vomiting and was not feeling well. A-2 got sent the deceased to

AIIMS through Ct Dalip and DHG Ct Om Parkash. At that time

PW19 did not inform A-1. Rather he informed about the deceased

vomiting to A-2. It also establishes his (A-2) presence at the PS at

contd..../-


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that time.

VI.PW19 HC Jai Singh has further testified that at 12.20 noon

information regarding death of deceased Indal was received and he

recorded DD no. 8A which was again handed over to A-2. A-2

along with A-3 and A-4 reached at AIIMS. Again at about 2.05 PM

PW19 HC Jain Singh received rukka from A-2 through A-3 and on

the basis of that he recorded formal FIR in the present case which

is Ex PW19/C. This fact has remained unchallenged in the cross

examination and it shows the presence of A-2 to A-4 at the PS.

VII.Similarly PW21 Ct Shyam Vir in his examination-in-chief stated

that at about 2.40 am Indal was kept inside the hawalat by A-2

and A-3. PW22 HC Ramji also deposed that after he had recordedDD No. 86B Ex PW22/A which was handed over to A-2 who left

for the spot with A-3,A-4 and A-5.

VIII.The above facts reveal that the custody of Indal remained with

A-2 to A-4. Hence they were having direct nexus for the injuries

sustained by the deceased during his custody with them. A-2 and

A-3 has failed to explain how and under what circumstance

deceased happened to sustain 20 injuries on his different body

parts during his custody with them.

IX.Conduct of the A-2 and A-3 in fabricating of ruka to save their

skin also lends credence to the apprehension of the mother of the

deceased for causing his custody death.

contd..../-


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X. In view of discussion, I am of this view that prosecution has fully

proved the involvement of A-2 to A-4 in the commission of the

offence. A-2 to A-4 have failed to give plausible explanation to the

incriminating circumstance appearing against them in their

statements recorded u/s 313 CrPC. The defence evidence

produced by them inspires no confidence. DW1 Vivek examined by

A-2 never narrated the facts deposed by him before any authority

at any time. Presence of this witness was not suggested to any

prosecution witnesses in the cross examination. Testimony of

DW1 Ct Suresh has no relevance in view of testimony of expert

witness PW1 Rajiv.

XI.There is nothing on record to show that prosecution of A-2 to A-4is bad for not obtaining sanction u/s 140 D.P. Act. The acts of A-2

to A-4 in causing severe injuries to the deceased during police

custody were not within their duties. Moreover the prosecution

has also proved sanction u/s 197 CrPC duly proved by PW30

Mansa Ram and PW31 S. Patni.

E. CONCLUSION

In view of my above discussion, I am of this view that the

prosecution has established beyond reasonable doubt that injuries

to the deceased were caused by A-2 to A-4 during police custody. I

am also of the view that the injuries caused to the deceased Indal

inflicted by the accused persons numbering 20 on various body

contd..../-


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parts of the deceased led to his death. The postmortem report is

categorical and has opined the cause of death was shock due to the

antemortem injuries inflicted on the deceased. The injuries were

inflicted intentionally. A-2 to A-4 can certainly be clothed with the

intention that the bodily injuries caused to the deceased were likely

to cause his death. The deceased was a young boy aged about 20/25

years. He was not suffering from any ailment/disease to accelerate

his death. The injuries proved fatal and caused his death. The

prosecution has thus proved on record commission of offence

punishable u/s 304 part-1 IPC. A-2 to A-4 are accordingly held

guilty for the commission of the offence punishable u/s 304 part-1

IPC and convicted accordingly.II. Benefit of doubt is given to A-1 and he is acquitted in this

case.

Announced in the openCourt on 02/02/2007 Additional Sessions Judge

New Delhi

contd..../-


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IN THE COURT OF SHRI S.P. GARG : ADDITIONAL SESSIONS JUDGE : NEW DELHI

Sessions Case No : 17/2003

State vs (1) HC Rajbir ..A-1s/o Ramanandr/o 40, Ashoka Police Line,Chanakyapuri, New Delhi.

(2) Ct. Bachoo Singh ..A-2s/o Sohan Lalr/o Village naugaya, Post Peepla,District Bharatpur, Rajasthan.

(3) Ct. Ramesh ..A-3s/o Dharam Singhr/o Village Kiloi Khas, DistrictRohtak, Haryana.

(5) DHG Kanwar Pal ..A-4(since PO)Home GuardPS Mehrauli

FIR No : 9/1996PS : MehrauliU/s : 304 (Part I) IPC

ORDER ON SENTENCE

I have heard the convicts on the point of sentence.

Plea of convict A-1 is that he has remained in JC in this

case for about four years. He has three small children and no one is

there to look after them.

Plea of convict A-3 is that he has already remained in JC

in this case for about four years. He has a small child aged about 4

years and there is none to look after him. He has aged parents who

contd..../-


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remain ill .

Plea of convict A-2 is that he has already remained in JC

in this case for about four years. He has poor background. He has

wife, three sons and one daughter aged about 15,12,10 and 8 years

respectively. All the children are school going. They are being

maintained by his wife while working as labourer.

I have considered the prayer of convicts and have gone

through the file.

On perusal of the file it reveals that the offence committed

by the convicts is very serious and grave. The convicts caused the

death of a young person aged about 25 years by giving beatings to

him in police custody. The deceased was a suspect in a petty theft case. He was tortured with a view to extort information from him.

The Hon'ble Supreme Court has time and again reminded restraint

against unauthorized process of misuse of law. In the case reported

in AIR 1981 SC 625 the Hon'ble Supreme Court has observed :

Nothing is more cowardly and unconscionable than a

person in police custody being beaten up and nothing inflicts a deeper

wound on our constitutional culture than a State of Official running

berserk regardless of human rights. Article 21, with its profound

concern for life and limb, will become dysfunctional unless the

agencies of the law in police and prison establishments have

sympathy for the humanist creed of that article instead of a rough

treatment by police for getting information or confession.

contd..../-


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In the case of Gauri Shanker Sharma vs State of UP

reported in AIR 1990 SC 701 , the Hon'ble Supreme Court has

observed that :

The offence is of a serious nature aggravated by the fact

that it was committed by a person who is supposed to protect the

citizens and not misuse his uniform and authority to brutally assault

them while in his custody. Death in police custody must be seriously

viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment

should be such as would deter others from indulging in such

behaviour. There can be no room for leniency. We, therefore, do not

think we would be justified in reducing the punishment imposed by

the Trial Court.

However, considering all the facts and circumstances of

the case; the fact that the convicts have remained in JC in this case

for about four years; the fact that they are not involved in any other

similar offence; the fact that they are not previous convicts; the fact

that they have small families to look after; the fact that they are the

only earning members of their families; the fact that the case of the

prosecution is based upon circumstantial evidence and other prayer

of the convicts, the convicts are sentenced to undergo RI for seven

years with fine of Rs. 5000/- each and failing to pay the fine to

undergo SI for three months for the commission of the offence

punishable U/s 304 (Part I) IPC.

The period already remained by the convicts in JC shall

contd..../-


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be counted and set off against their substantive sentence U/s 428

CrPC.

Copy of the judgment be given free of cost to the convicts.

File be consigned to record room.

Announced in the openCourt on 06/02/2007 Additional Sessions Judge

New Delhi

Mehrauli Custodial Death Case Judgement

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