IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 14.12.2012
LPA 352/2009
UOI & ORS. ..... Appellants
versus
SAPNA TYAGI ..... Respondent
Advocates who appeared in these cases:
For the Petitioners : Mr Sachin Datta with Ms Ritika
For the Respondent : Mr Y.S. Tyagi
CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
BADAR DURREZ AHMED, J. (ORAL)
1. This appeal is directed against the decision of the learned Single Judge of this Court in W.P.(Crl.) 243/2006 delivered on 25.05.2009 whereby a learned Single Judge allowed the writ petition partly and directed the respondent (appellant herein) to pay `10,00,000/- (Rupees Ten Lakhs) as damages/compensation to the respondent herein within three months from the passing of the said order.
LPA 352/2009 Page 1 of 5
2. The case of the respondent before the learned Single Judge was that her husband late Shri Ajay Kumar was enrolled as a Sapper/CAJ in the Indian Army and was placed in 101 Engineer Regiment C/o 56 APO and was posted at Baramula in October, 2000. At that point of time, it is alleged by the appellant herein that the respondent's husband committed suicide on 06.09.2001 by hanging himself with some ligature material. According to the respondent it was not a case of suicide but was a case of murder, which has not been investigated at all. We may point out at this stage itself that the respondent has filed another writ petition being W.P.(Crl.) 1837/2010 wherein the prayer for investigation has been made and the said writ petition is pending before a learned Single Judge of this Court.
3. The plea taken by the respondent in the present proceeding was that there were two post-mortem examinations conducted on the body of late Shri Ajay Kumar. One post-mortem was conducted at Government Hospital, Srinagar on 09.09.2001. A second post-mortem was conducted at P.L.S. Hospital, Meerut on 11.09.2001. The second post-mortem examination was conducted at the said hospital at Meerut at the insistence of the respondent herein, after the dead body had been handed over to the family. According to the learned counsel for the respondent, the second post-mortem examination revealed that the left kidney of the deceased late Shri Ajay LPA 352/2009 Page 2 of 5 Kumar was missing. Thus, according to the learned counsel for the respondent, all was not clear with regard to the manner in which late Shri Ajay Kumar died. According to him, the kidney was removed by the appellants herein. This is so because he had not made any allegation against the doctor and he has reiterated that in the course of arguments.
4. Prima facie we are unable to understand as to how the removal of the left kidney by the appellants, even if it is assumed to be correct, would in any way alter the case in favour of the respondent. This is so because there are no external injuries other than the ligature mark present on the body of the deceased Ajay Kumar. Neither of the two post-mortem reports indicate any other external injuries other than the ligature mark and the mark with regard to the stitching up of the body after conducting the post-mortem examinations.
5. Apart from this, we find that there is a report from the Jammu and Kashmir Forensic Science Laboratory, Srinagar dated 06.10.2001 which shows that it had received viscera of Constable Ajay Kumar, 101 Engineer Regiment (56 APO). The contents of the plastic container included inter alia a kidney. The report also indicates that the result of the examination was that no poison was detected in the said exhibit.
LPA 352/2009 Page 3 of 5
6. It is on the basis of this, that the opinion was rendered by the doctor at Srinagar on 24.10.2001 that the cause of death was asphyxia due to hanging leading to shock, coma, cardio respiratory arrest and death.
7. From the above, prima facie, we are of the view that there is no mention of homicidal death insofar as late Ajay Kumar is concerned.
8. In these circumstances, we do not agree with the learned Single Judge, inasmuch as she has arrived at the conclusion that the death was caused due to the negligence of the doctor. In the first place, the learned counsel for the respondent has admitted that there is no allegation against the doctor and the allegations are only against the present appellants. Secondly, it has not been established that it was a case of homicide, as alleged by the respondent. As of now, the record shows that it was a case of suicide.
9. Although we do not agree with the conclusion arrived at by the learned Single Judge and, therefore, we set aside the order directing compensation, we must note that the learned counsel for the petitioner has fairly conceded that in case an enquiry/investigation is ordered in the other writ petition, being W.P.(Crl.)1837/2010, and if thereafter it is found that it was a case of homicide and not suicide and the liability for the same is fixed on the appellants, the respondent would be at liberty to revive the present LPA 352/2009 Page 4 of 5 writ petition and seek compensation. We think that this is a very fair concession made by the learned counsel for the appellant as unless and until it is definitely established that late Ajay Kumar died a homicidal death for which the appellants were responsible, it would be very difficult for the Court to direct the appellants to pay any compensation to the petitioner.
10. The appeal is allowed with the above observations. The impugned order is set aside.
BADAR DURREZ AHMED, J.
SIDDHARTH MRIDUL, J.
DECEMBER 14, 2012 dn LPA 352/2009 Page 5 of 5