Jasbir Singh Malik vs State (Cbi)
2001 Latest Caselaw 1288 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeal No. 192 of 1995 seeks to challenge the judgment and order dated 26.9.1990 of the Special Judge in Session Case No. 40/ 1994 whereby the learned Judge held appellants, Jasbir Singh Malik and Chhabi Lal Bhardwaj, guilty for the offence punishable under Sections 342 and 304 Part-II, IPC read with Section 34, IPC while R.S. Yadav was held guilty under Section 218, IPC. Further by order dated 30.9.1995 the learned Judge sentenced Jasbir Singh Malik to pay a fine of Rs. 3,50,000/- under Section 304 Part-II and Section 342, Part-II and Section 342, IPC and in default of payment of fine to undergo RI for two years; Chhabi Lal Bhardwaj was sentenced to pay a fine of Rs. 2,00,000/- and in default of payment of fine to undergo RI for one year while R.S. Yadav was sentenced to pay a fine of Rs. 20,000/- and in default of payment of fine to undergo RI for six months.

2. The facts of the case are that CBI registered a case pursuant to the order of the Supreme Court in W.P. No. 728/91 filed by Smt. Veer Bala, wife of Joginder Kumar, the deceased. In the FIR it was alleged by Veer Bala that:

"her husband late Joginder Kumar on learning about a threatening call, had gone to Police Station Model Town on 21.8.1990 along with one Parshotam Garg. Joginder Kumar was taken to Samrat Hotel, New Delhi for verification of the threatening call, at about 8.30 p.m. On 22.8.1990, Veerbalal had received a telephone call from the Duty Officer of P.S. Model Town, Delhi informing her that her husband Jodginder Kumar had been admitted to Hindu Rao Hospital. On reaching Hindu Rao Hospital, she was informed that her husband had been brought dead at 5.30 a.m. Smt. Veerbala alleged that her husband had died in police custody as his body bore marks of severe beatings."

3. Investigation taken up by the CBI resulted in filing of challan wherein it was mentioned that:

"Inspector Jasbir Singh Malik was functioning as Station House Officer at Police Station Model Town from July, 1990 to 24th August, 1990. Accused Chabbi Lal Bhardwaj remained deployed as Sub Inspector at P.S. Model Town from February, 1989 to 24.8.1989. Accused Ishwar Singh was working as Head Constable at Police Station Model Town from February, 1990 to January, 1991 and Head Constable Ashok Kumar was functioning as Head Constable at Police Station Model Town from December, 1988 to February, 1991. R.S. Yadav functioned as Sub Divisional Magistrate, Kingsway Camp, Delhi from May, 1989 to June, 1991 and was responsible for conducting inquest under Section 176, Cr.P.C. in cases of deaths in police custody including cases referred by Police Station Model Town, Delhi.

The Investigations further revealed that at about 3 p.m. on 21.8.1990, an anonymous telephone call was received at the residence of Joginder Kumar by his wife Veerbala. The caller enquired 'Joginder Kumar ghar par hai'? to which she informed that he was in office and asked for caller's identity. The caller, without disclosing his identity, threatened that if she was interested in the well-being of her husband, she should send him to room No. 311 of Samrat Hotel to settle the matter which related to the murder of Gautam Prakash. She informed Joginder Kumar through his colleague in his office. Joginder Kumar came back to his residence at about 4.30 p.m. On knowing the facts of the phone call, Joginder Kumar contacted Purshotam Garg, his close friend, whose younger brother Gautam Prakash was shot dead and case RIR No. 201/ 90 had been registered in that regard at P.S. Model Town. It was agreed between the two that the matter would be taken up with Police Station Model Town.

A little after 5 p.m. on 21.8.90, Joginder Kumar came to E-314, M.C.D. Colony, Azadpur, Delhi, residence of his father, along with his wife and children. At about 5.45 p.m., Purshotam Garg came there along with his relatives Jai Prakash and K.K. Gupta. Joginder Kumar accompanied them. At that point of time, Joginder Kumar was in his normal state of health without any injuries on his person.

At the Police Station Model Town, Joginder Kumar was interviewed by Inspector Jasbir Malik accused and R.K. Verma, the then A.C.P., Kingsway Camp and it was decided that J.S. Malik would lead a police party along with Joginder Kumar and other police staff to Samrat Hotel for verification of the threat. Accordingly, Inspector J.S. Malik, accused left the police station at 8.20 p.m. on 21.8.1990 along with the police officials and Joginder Kumar and returned to the police station at about 9.45 p.m. Entry to this effect was recorded by Inspector J.S. Malik, accused and there was no mention that Joginder Singh had any injuries on his person. Other officials accompanying the raiding party also stated before the C.B.I. that Joginder Kumar had no injuries on his person.

In the case diary dated 21.8.1990 in respect of FIR No. 201/90 written by accused C.L. Bhardwaj under the signature of accused J.S. Malik, it was recorded that after arrival at the police station, Joginder Kumar suspected one or two persons who could have given the threat and he was handed over to accused ASi Sri Bhagwan for further action regarding verification of threat in consultation with accused Si C.L. Bhardwaj. Joginder Kumar was taken by Sri Bhagwan ASi to his office room in the police station and was interrogated there by him and Si C.L. Bhardwaj. Head Constable Ishwar Singh and Head Constable Ashok Kumar also joined them. A fictitious story was set up that Joginder Kumar informed that he did not want to go home during the police party in the morning. Thus he was allowed to stay in the police station against his Will forcibly during the night intervening 21st and 22nd August, 1990.

At about 4.55 a.m. on 22.8.1990, Si C.L. Bhardwaj recorded D.D. entry No. 24- A mentioning therein that Joginder Singh (Kumar), who had received threat of his involvement in FIR No. 201/90 had stayed in the room of ASi Sri Bhagwan for accompanying the police in the morning. At about 4.50 a.m. ASi Sri Bhagwan came to his room and found that Joginder Kumar was lying unconscious. The ASi informed accused Si Chabbi Lal Bhardwaj (referred to as accused C.L. Bharadwaj hereinafter), who went to the room of ASi Sri Bhagwan and found Joginder Kumar unconscious. Accused C.L. Bhardwaj also recorded that Joginder Kumar was being taken to Hindu Rao Hospital with the assistance of ASi Sri Bhagwan, Head Constable Ishwar Singh and Head Constable Ashok Kumar and the facts were brought to the knowledge of SHO, Inspector J.S. Malik.

At Hindu Rao Hospital, M.L.C. in respect of Joginder Kumar was prepared by Dr. S. Venkata Raman showing him as brought dead at 5.30 a.m. on 22.8.1990. The M.L.C. showed that he was brought to the hospital by Si C.L. Bhardwaj.

On 22.8.1990, R.S. Yadav accused, the then S.D.M., Kingsway Camp prepared the death report (Unnatural death by violence) under Section 176, Cr. P.C. on the dead body of Joginder Kumar, R.S. Yadav accused described in the death report that the body of Joginder Kumar had marks of small injuries on the upper side of the right hand and left had near the outer side of the wrist and oozing of blood from the nose, whereas the post mortem report prepared by Dr. L.T. Ramani of Civil Hospital, Delhi reflected as many as seven external injuries of different sizes and shapes at different parts of the dead body. The external injuries, as per the post mortem report were ante-mortem and had been caused by application of blunt object.

Inquiry in the death of late Joginder Kumar was conducted by R.S. Yadav, accused and in his report dated 27.2.1991, he subscribed to the fabricated story of the accused that Joginder Kumar had stayed in the police station during the night between 21st and 22nd August, 1990 of his own. He also examined two public men as witnesses introduced by C.L. Bhardwaj accused to support their fake story that they had heard Joginder Kumar telling accused police officials at 10 p.m. on 21.8.1990 that in view of the threat, he would prefer to spend the night in the police station. However, the said two persons, namely Allah Rakha and Suresh Kumar had denied the version in their statements recorded under Section 164, Cr.P.C. by Shri R.K. Gauba, Metropolitan Magistrate, Delhi. Accused R.S. Yadav also falsely agreed with the version of the accused police officials that the injuries on the person of Joginder Kumar had been caused by fall in the process of shifting him from the room of ASi Sri Bhagwan to the Maruti Gypsy. It is alleged that Smt. Veerbala, wife of Joginder Kumar and other relatives of the deceased had repeatedly pointed out various injuries on the person of Joginder Kumar, but inspite of that, accused R.S. Yadav made a gross under statement of the injuries in order to save the other accused persons from punishment.

A reference was made to Dr. Bishnu Kumar, Medical Superintendent, L.N.J.P. Hospital, Delhi for forming a Board of Forensic Experts for giving opinion about the cause of injuries and death of late Joginder Kumar. The Board consisting of Dr. Bishnu Kumar, Dr. George Paul and Professor S.K. Khanna of the Department of Forensic Medicine of the hospital, vide report dated 23.1.1993 opined that the seven external injuries could not be caused by blunt object/surface. The Board also opined that the injuries on the inner part of the left arm and inner middle part of the right arm could only be caused when the arms would have been in abducted position. Disagreeing with the cause of death being ischaemic heart disease as given in the post mortem report, the Board opined the cause of death as vasco-vogal attack consequent upon sustaining the injuries. It is alleged that accused C.L. Bhardwaj and Sri Bhagwan also made false entries in the records of the police station to show their departures from the police station to suit their convenience."

4. Charge under Section 304, IPC read with Section 34 and under Section 342 read with Section 34, IPC was framed against the accused-Jasbir Singh Malik, Shri Bhagwan, Ishwar Singh and Ashok Kumar while a separate charges under Section 218/109, IPC were framed against Chabbi Lal Bhardwaj and R.S. Yadav.

5. The prosecution examined 24 witnesses in support of their case. Learned Counsel for the appellants as also learned Counsel for the State-CBI took me through the record of the case at great length. It was argued before me that admittedly the deceased was in the police station on 21.8.1990/22.8.1990 from where he was taken to the hospital where he was declared 'brought dead'.

6. The question that has been posed for my consideration is whether, in the facts and circumstances of this case, the affiances, as charged, is made out or not. Goint by the admitted facts that Joginder Kumar came to the police station to make

a complaint of a phone call received by his wife and that the complaint was taken up for investigation by Jasbir Malik who took the deceased to Samrat Hotel and on return passed on the case to Chhabi Lal Bhardwaj who could take assistance of Sri Bhagwan. In the night intervening 21.8.1990/22.8.1990, Joginder Kumar preferred to stay in the police station being afraid of going back home on account of the phone call which he had received which fact is borne out from the material on record. However, when Joginder Kumar was taken to the Hindu Rao Hospital on 22.8.1990 at 5.30a.m., he was declared 'brought dead. Inquest on the body of the deceased was conducted by R.S. Yadav, the SDM.

7. At around 3.00 p.m. on 22.8.1990 Dr. T.L. Ramani conducted post mortem on the body of the deceased-Joginder Kumar. Blood and viscera of the deceased was preserved for Chemical analysis. Dr. Ramani in the post mortem report, Ex. PW 21/ A, found seven external injuries, which, in the opinion of the Doctor, were ante mortem caused by blunt force application and were not sufficient to cause death in the ordinary course of nature. Opinion regarding cause of death was withheld till the report of the Chemical analysis on the viscera was received. In the subsequent report on post mortem report, Ex. PW 21/B, the Doctor opined that in view of the fact that the viscera report is negative for any poison, injuries were not sufficient to cause death and were simple in nature. There were definite signs in the heart suggesting coronary artery occlusion. Death, in his opinion, was due to ischaemic heart disease. The Investigating Agency thought it proper to seek a further opinion on the postmortem, therefore, referred the matter to a Board of Experts. The opinion of the Experts can be summed up to mean that no definite opinion could be given regarding the exact cause of death but the possibility of the deceased having vasco- vagal attack consequent upon sustaining injuries could not be ruled out. It is this difference in opinion amongst the Medical Experts that led to the belief that the injuries which, according to the Doctor, had been caused within 24 hours of the death, could be caused while the deceased was in the police custody.

8. It is the admitted case before me that the deceased was not an accused in the case FIR No. 201/90 under Section 302, IPC, Police Station Model Town, but had come to the police station specifically with a complaint that his wife, Veerbala, PW 17, had received a threatening phone call on 21.8.1990 at 3.00 p.m. The caller had asked PW 17 to send Joginder Kumar to Room No. 311, Samrat Hotel to settle the matter relating to the murder of Gautam Prakash. This information was given to Joginder Kumar by PW 17 at around 4.30 p.m. At around 8.20 p.m. on 21.8.1990, Inspector Jasbir Singh Malik took Joginder Kumar to Samrat Hotel and thereafter brought him back to the police station. This is deposed to by PW 2, Kapoor Singh. PW 3, SI Sri Bhagwan, has deposed to the effect that after coming back from the Hotel, Joginder Kumar and Jasbir Singh Malik went to the office of the SHO where Joginder Kumar raised suspicion in respect of two persons whose names he could not remember who could possibly had given him the threatening call upon which SI Sri Bhagwan was asked to verify from Joginder Kumar names of the suspected persons. SI Sri Bhagwan was specifically told by Jasbir Singh Malik that after verification Joginder Kumar should be sent home and further proceedings should be carried out in the morning. Since Joginder Kumar was showing signs of fear, directions were given to Si Sri Bhagwan that if Joginder Kumar feels any danger, a Constable should be sent with him to his house. There is no evidence on record to show that Joginder Kumar was ever taken into custody or that he was required for any interrogation. On the contrary, it was the compliant of Joginder Kumar which was being investigated. Admittedly, the deceased did not come home that night and continued to be in the police station while Sri Bhagwan and Chabbi Lal Bhardwaj were not in the police station. Chhabi Lal Bhardwaj came in the early hours but did not meet the deceased. Therefore, the question whether the deceased had received injuries at the police station or not, remains in the realm of uncertainty. The Doctor opined that the injuries were caused within 24 hours before death which means that the injuries could have been caused before the deceased came to the police station i.e. between 21.8.1990 5.00 p.m and 22.8.1990 5.00a.m. The deceased came to the police station at 8.40 p.m. on 21.8.1990. In these circumstances, the possibility that the deceased had received injuries prior to his coming to the police station cannot be ruled out.

9. The post mortem report reveals that the deceased was wearing a shirt, trouser, belt and under-wear. The clothes were intact. All injuries except an abrasion on the nose were found beneath the clothes, apparently not visible without exposing the body. Since the deceased had remained in the police station immediately prior to his death, the burden of showing whether injuries were caused in the police station or not rested on the accused which burden could be discharged by establishing mere balance of probabilities which, to my mind, has been discharged by the accused with reference to the ocular and medical evidence. Another aspect of the matter to which attention can be drawn is the fact that the deceased was terrified going home in the night and preferred to remain in the police station which lends one to believe that the deceased probably had been subjected to a beating by someone prior to his coming to the police station and that he was afraid of going back home. Added to this was the threatening call received by PW 17. There is no evidence except for general conjectures that the accused caused injuries to the person of the deceased or that the injuries were caused in furtherance to any common intention. Also there is no evidence that the accused had any motive or mens read to cause injuries to the deceased. The entire case rests on circumstantial evidence revolving around the deceased having injuries on his person. Seven simple superficial injuries could have been caused even prior to the deceased coming to the police station. This cannot be ruled out, in which event it would be highly speculative to convict appellants herein only on the grounds that they are policemen and may be injuries were caused by them since the deceased was last in the police station. There is evidence that the deceased remained in the police station of his own volition. He was not kept there by force nor was he required to spend night at the police station. The injuries on the nose could very well have been caused when the deceased was being put into the policy gypsy while being taken to the hospital as there must have been panic in the police station seeing the condition of the deceased-Joginder Kumar in the morning of 22.8.1990 at 5.00 a.m.

10. In the totality of circumstances, I am of the opinion that the ingredients required to establish an offence under Sections 304 Part-II/342/34, IPC are not made out. The judgment of conviction is primarily based on conjectures and surmises. There is no positive evidence to hold the appellants guilty. The chain of circumstances does not lead to the inevitable guilt of the accused, the possibility of their being not guilty is as much as their being guilty. I, therefore, find it difficult to approve the judgment under challenge. Consequently, the same is set aside. Criminal Appeals 192 of 1995 and 196 of 1995 are allowed. The appellants are acquitted of all charges. Criminal Appeal No. 18 of 1996, which is an appeal by the State, is dismissed.

11. Since I have allowed Crl. A. 192 of 1995 and Crl. A. 196 of 1995, the benefits of this must go to the accused-R.S. Yadav who has to filed an appeal. Consequently, R.S. Yadav is also acquitted of all charges.