State vs Ranbir Singh
2010 Latest Caselaw 195 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                         Reserved on: 17.11.2009
%                                                    Date of decision: 15.01.2010



+                               CRL. A. No.176 of 1995


STATE                                                            ...APPELLANT


                                Through:        Mr.Ashiesh Kumar, Advocate.


                                          Versus

RANBIR SINGH                                                    ...RESPONDENT

                                Through:        Mr. K.B.Andley, Sr.Adv.                with
                                                Mr.M.L.Yadav, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.      Whether the Reporters of local papers
        may be allowed to see the judgment?                     Yes

2.      To be referred to Reporter or not?                      Yes

3.      Whether the judgment should be
        reported in the Digest?                                 Yes


SANJAY KISHAN KAUL, J.

1. Custodial death is a manifestation of acts when protectors of

law become perpetrators of crime.

2. "The police must obey the law while enforcing the law." said

Earl Warren. We are faced with a case where the allegation

against the respondent is of causing death of a person in

custody though the Trial Court has acquitted the respondent

giving him the benefit of doubt.

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3. Dayal Singh, deceased, was picked up on 19.09.1986 at 5.30

A.M. from his residence at Govindpuri by SI Ranbir Singh in

pursuance to registration of FIR No.365/1986 under Section

380 of IPC at PS Sriniwaspuri for theft of a VCR, some

cassettes and sarees etc from the house of Ms.Sumati Jain, r/o

3, Friends Colony, New Delhi. The complaint was made by Ms.

Sudha Sunderam, sister of Sumati Jain. Smt. Sumati Jain in

her statement did not cast doubt on any of her past or present

servants. The deceased/Dayal Singh was an ex-employee who

had worked as Chowkidar in the house of Smt. Sumati Jain and

his services had been terminated on 15.09.1986, i.e. the

alleged date of theft. The suspicion thus came on the

deceased and the respondent was entrusted with

investigation.

4. The case of the prosecution is that the deceased was brought

to PS Sriniwaspuri after being picked up from his jhuggi on

19.09.1986 by the respondent where his arrest was recorded.

The deceased is alleged to have been tortured and beaten

badly whereafter he died on 20.09.1986 while still in the

custody of the respondent, Const.Shiv Kumar Tyagi and Const.

Mukhtiar Hussain. The deceased was taken to AIIMS where he

was declared brought dead at 12.30 A.M. on 20.09.1986.

5. The body of the deceased was sent for post mortem, which

was conducted by PW-19/Dr.R.K.Sharma who opined that the

cause of death was coma as a result of head injury which was

ante-mortem in nature and likely to be caused by application

of blunt force. These injuries were sufficient in the ordinary

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course of nature to cause death. The SDM conducted the

inquest proceedings under Section 176 of Cr.P.C. and reported

the cause of death in police custody due to torture on

20.09.1986. The FIR No.17/1987 under Section 302 r/w

Section 120B of IPC was registered on 14.09.1987 in

pursuance to Home Secretary, Delhi Administration reporting

the cause of death of the deceased in police custody pursuant

to the inquest proceedings conducted by the SDM.

6. The prosecution claims that the deceased was subjected to

such severe beatings that on one occasion he had even lost

his consciousness in the presence of another domestic servant

of Ms.Sumati Jain. The deceased was taken to Govindpuri in

the gypsy of Ms.Sumati Jain driven by her driver PW-12/Kamta

Pandey. The police thereafter took him to the servant quarter

of B-12, Maharani Bagh where PW-4/Vaisakh Singh (brother-in-

law of the deceased) was living with his wife, PW-5/Smt.Kamla,

so as to carry out the search of the stolen goods. It is

thereafter that the deceased was taken to AIIMS where he was

declared brought dead.

7. Sanction was accorded by the competent authority for

prosecution of the respondent under Section 304 of IPC.

However, charges were framed under Section 302 of IPC to

which the respondent pleaded not guilty and claimed trial.

8. The prosecution examined 24 witnesses in support of its case.

9. PW-1/HC Narinder Singh described the deceased as a weak

person who appeared to be sick though there was no injury on

him when he was brought to the police station.

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10. The material witness on the health condition of the

deceased is PW-4/Vaisakh Singh who stated that the deceased

was working as a security guard-cum-chowkidar with the Jains

at their residence in Friends Colony. It has come on record

that the deceased had earlier been suffering from TB but had

fully recovered from the same and was leading a normal life

for a period of two years prior to the incident. The respondent

came to the house of PW-4/Vaisakh Singh to carry out search

of the stolen goods which was permitted. On enquiry, he was

informed that the deceased was in a good medical condition,

keeping fine and could be visited the next day in the police

station. However, on the next morning he was informed that

the deceased was in a serious condition and when they visited

the police station they were informed that the deceased had

passed away.

11. In respect of as to what transpired at the police station,

PW-7/Sanjiv Kumar and PW-11/S.R.Tewatia turned hostile. The

deceased and the respondent were both in the vehicle driven

by PW-12/Kamta Pandey who was the driver with Jains. PW-

12/Kamta Pandey deposed that when they proceeded from

Maharani Bagh to Ashram, they halted for refreshments on the

way. Thereafter they went to AIIMS. He has further deposed

that there was no speed breaker on the way from Govindpuri

to Maharani Bagh to Ashram to AIIMS nor did he feel any

necessity to apply emergency brakes. In cross examination,

he admitted that near the railway crossing at Okhla as soon as

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he crossed the railway level crossing, there was a speed

breaker but his speed was quite slow.

12. PW-13/Zile Singh, another help of Ms.Sumati Jain, has

given an eye witness account of the incident. The deceased,

PW-13/Zile Singh and a sweeper were taken in the room at

9.30 A.M. where SI Sukhi Ram was sitting. Respondent asked

PW-13/Zile Singh to remove his wrist watch and started

beating him with a danda on his hands and thereafter he was

asked to lie down on the ground and two policemen started

beating him. Raj Kumar and a chowkidar also helped the

police by holding his legs. He was put on an iron bench and 6

policemen put roller on his thighs. This torture is stated to

have continued day and night and on the next day, one APP

known as Sharma also joined in the beating. PW-13/Zile

Singh has stated that he was beaten again on 16th night when

his head was struck against the wall many times apart from

being slapped on his face causing injury(s) in his eye and other

parts of his body. Sharma is alleged to have also threatened

to fetch PW-13/Zile Singh's wife and molest her in front of him.

It is only on 17th evening that they went to his residence in a

Maruti gypsy driven by PW-12/Kamta Pandey. Respondent

informed PW-13/Zile Singh that he would not be beaten

hereinafter and he was given Iodex to apply on his body and

also new clothes and hot water to have bath. PW-13/Zile

Singh was released on the condition that he would not get

himself medically examined on the same day.

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13. Another important witness is PW-16/ACP Ranbir Singh,

who was the SHO of PS Sriniwaspuri in September, 1986. He

has deposed that on registration of the FIR, investigation was

entrusted to the respondent. PW-16/ACP Ranbir Singh talked

to two employees of Ms.Sumati Jain, who had been

apprehended by the respondent, which included the deceased

Dayal Singh and told the respondent to be polite with Dayal

Singh as he was weak and suspected patient of TB. The

witness has also deposed that he was in the interrogation

room when the respondent came and once again respondent

was advised to be careful with the deceased/Dayal Singh. In

the night intervening 19-20 September at around 1.30 A.M.

the respondent woke him up and told him that Dayal

Singh/deceased had complained of some chest pain and he

was removed to AIIMS. It is after this that PW-16/ACP Ranbir

Singh sent the requisition to the SDM for inquest proceedings.

A confidential letter was sent to the DCP on the basis of which

a committee was formed and the post mortem report of PW-

19/Dr.R.K.Sharma was re-examined. It has, however, been

deposed that when the said witness visited the hospital there

was no injury on the body of the deceased.

14. PW-18/Ravi Malik is the SDM who has deposed about

receiving the confidential note of the SHO with a request to

constitute a board for re-examination of the post mortem

report. This witness has deposed that he had opined for

registration of a case against the respondent under Section

302 r/w Section 120B of IPC and also to a certain extent

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against Constable Shiv Kumar, Const.Mukhtiar Hussain and

Mr.Sharma, APP.

15. PW-19/Dr.R.K.Sharma, whose opinion has been

discussed above, conducted the post mortem on the dead

body of the deceased. PW-19 has also opined that the

deceased was not infective and did not have any

complications except a minor one which is common in cases of

TB in stages of recovery.

16. PW-17/Dr.U.C.Dhawan was confronted with the OPD card

of the deceased. The last X-ray of the deceased had been

done on 07.09.1986 which showed that the patient had

improved and had calcified and fibatic lesion. She has opined

that the likelihood of death of the deceased due to TB was

remote.

17. On the prosecution witnesses being recorded, the

statement of the respondent was recorded under Section 313

of Cr.P.C. The respondent admitted that for the whole time

the deceased was in his custody and stated that he was a

weak person. The respondent admitted that he went in a

Maruti gypsy which belonged to Ms.Sumati Jain, from police

station to Govindpuri to Maharani Bagh to AIIMS. He claimed

that there were speed breakers and railways crossing on the

way. At the time of framing charges, the respondent pleaded

innocence and claimed trial. In terms of the impugned

judgment dated 17.12.1994, respondent has been acquitted

giving him the benefit of doubt.

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18. Learned counsel for the respondent/State drew our

attention to the post mortem report of PW-19/Dr.R.K.Sharma

where following ante mortem injuries were found:

"1.Contused abrasion present on right thigh mid of

size 8 x 6 cm. in size.

2. Contused abrasion on right chin anterior one third

size 6 x 1 cm.

3. Contused area present in left shin anteriorely size

23 x 4 cm.

4. Contused area on right chin area size 18 x 7 cm.

5. Four contused abrasions present on left elbow

area of proximal one third posterior aspect parallel

to each almost perpendicular to bodyline each 3 cm.

in length and 5 cm in breath. Space between each

abrasion was cms.

6. Abrasion on left shin medial mallous size 3 x 2

cm.

7. Contusion on posterior left thigh upper 1/3rd size 6

x 1 cm.

8. Swelling on right torsal of hand on sectioning

contained blood.

9. Fracture both radial and ulna distal one third."

19. The doctor has given the health condition of the

deceased as under:

"SKULL

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There was extravassation of blood in mid frontal

area. No fracture was seen in the skull. The brain

was conjusted, edematous, weight of 1400 gms.

Subdural haemtoma was present on right occipital

lobe area 8 x 6 cm. Few pethichal haemorhages were

present in the brain.

CHEST

Tractha and brochi was conjusted. Left plural cavity

showed andhsion in the lungs. Right lung showed

caseation suggestive of Tuberclosis left lung showed

caseation with addition to plural cavity.

Rest of the organs were within normal limits.

Approximate time of death was about 12 to 14 hours

from the commencement of post mortem

examination."

20. The said PW-19/Dr.R.K.Sharma thereafter opined that

the cause of death was coma as a result of head injury which

was ante mortem in nature and likely to be caused by

application of blunt force and was sufficient in the ordinary

course of nature to cause death. Learned counsel for the

appellant/State sought to read this testimony with that of PW-

1/HC Narinder Singh who had accompanied the respondent to

pick up the deceased. The witness has deposed that the

deceased was a weak person and was appearing sick and that

there was no injury on the person of the deceased when he

was brought to the police station. The submissions of learned

counsel for the appellant/State thus is that it clearly emerges

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from the depositions that the deceased was injury-free when

he was picked up and as per the own admission of the

respondent in his statement recorded u/Section 313 of Cr.P.C.,

the deceased was throughout in his custody and the injuries

were thus sustained during the said period and thus it was for

the respondent to explain as to how the injuries were caused.

In this behalf, the testimony of PW-16/ACP Ranbir Singh is also

material who is the SHO of the police station and had

specifically asked the respondent to be careful while

interrogating the deceased for health reasons. The

respondent thus had full knowledge of the physical condition

of the respondent.

21. Insofar as the deceased suffering from TB is concerned

and that having some connection with the death of the

deceased, the post mortem report and other depositions

clearly establish that the deceased was cured of TB. As per

the post mortem report, he was found suffering from no

disease. In fact, the contention sought to be advanced on

behalf of the respondent was that due to sudden application of

the brakes of the vehicle, an injury was caused as the head of

the deceased struck against the rod of iron frame of the gypsy

on which rexine roof was fixed. This claim is falsified by the

testimony of PW-12/Kamta Pandey to the effect that in fact

head of none of the occupants of the gypsy struck against the

iron pipes of the frame. The approach during investigation of

the respondent is clear from the deposition of PW-13/Zile

Singh who was subjected to third degree treatment. He was

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also in the staff of Smt.Sumati Jain, at whose house the theft

had taken place.

22. Learned counsel for the appellant/State has thus

contended that as to how the injuries were caused to the

deceased was within the knowledge of the respondent and the

burden of proving that fact was on the respondent in view of

the provisions of Section 106 of the Indian Evidence Act, 1872.

23. Learned counsel for the respondent on the other hand

sought to defend the impugned judgment by contending that

material witnesses had turned hostile, the deceased was a

patient of TB, injury was caused in the jeep and the judgment

against the said acquittal should not be interfered with in view

of the observations of the Supreme Court in State of Rajasthan

v. Naresh @ Ram Naresh; 2009 (4) JCC 2552.

24. The last aspect urged by learned counsel for the

respondent was that the sanction for prosecution of the

respondent was for offences punishable under Section 304 of

IPC and not under Section 302 of IPC under which the

respondent was charged.

25. We would first like to deal with the last issue itself which

is the nature of sanction required to prosecute a police official.

In the present case, sanction was obtained. The sanction was

for the act/offence committed by the respondent. There could

thus be no question of the sanction being confined to a

particular provision of the IPC. What is the most material

aspect is that no sanction was really required in the present

case since the respondent was alleged to have committed

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offences and such offences could not be said to be done in the

course of duty. In this behalf, we may refer to the judgment

Prakash Singh Badal & Anr. v. State of Punjab and Ors.; (2007)

1 SCC 1. In a recent judgment in Dalbir Singh v.State of U.P.&

Ors.; AIR 2009 SC 167, it has been observed that torture and

custodial violence cannot be permitted to defy the

fundamental rights under Articles 20(3) and 22 of the

Constitution. In CBI v. Dharampal Singh & Anr.; 123 (2005)

DLT 592, learned Single Judge of this Court has observed that

every act of a policeman of beating and torturing a person is

not covered by any protection nor does it form a part of his

duties. Thus, the plea has only been stated to be rejected in

view of the settled legal position on this account.

26. On the merit of the case, it is really not in dispute that

the deceased had no injuries when he was picked up by the

police. It is, in fact, the own admission of the respondent as is

apparent from the statement recorded under Section 313 of

Cr.P.C. PW-1/HC Narinder Singh has also categorically stated

that there was injury on the deceased when he was brought to

the police station. It has, however, been stated that the

deceased looked in a weak physical condition.

27. The deceased had a history of being a TB patient but

had been fully cured. This fact is established by the testimony

of PW-4/Vaisakh Singh (brother-in-law of the deceased). Not

only that, the medical evidence and the testimony of PW-

19/Dr.R.K.Sharma, shows that when the post mortem on the

dead body of the deceased was conducted, the deceased was

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found not infective and did not have any complications except

a minor one which is common in cases of TB in stages of

recovery. PW-17/Dr.U.C.Dhawan, on the basis of the OPD

card of the deceased, opined that likelihood of the deceased

dying on account of TB was very remote. The cause of death,

as opined by PW-19/Dr.R.K.Sharma, is coma as a result of head

injury which was ante-mortem in nature inflicted by application

of a blunt force and sufficient in the ordinary course of nature

to cause death.

28. The respondent has admitted that the deceased was

throughout in his custody. The deceased was without injuries

when his custody was taken over by the respondent. Injuries

on the dead body of the deceased have been found in the post

mortem report, which has been proved by PW-

19/Dr.R.K.Sharma. It was thus for the respondent to explain

how so many injuries could have been caused, details of which

have been set out in para 18 above.

29. It is the case of the respondent that the deceased died

because of hitting his head in the gypsy against the angle iron.

The gypsy was driven by PW-12/Kamta Pandey, who though

was declared hostile, part of his testimony can be segregated

from the remaining. He has categorically stated that there

was no question of applying brakes as he did not cross any

speed brakes or level crossings and was not driving fast. He

was also categoric that head of no one struck against the

angle iron during the journey.

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30. The case diary recorded by the respondent thus

becomes material and this case diary has been proved as

ExPW16/B. There was some controversy during the course of

hearing about whether a particular aspect had been put to the

respondent in his statement under Section 313 of Cr.P.C. We

recorded an additional statement of the respondent under

Section 313 Cr.P.C. as follows:

"Question: It is in evidence against you that Case Diary ExPW16/B was recorded by you on 20.09.1986 wherein you have noted that the deceased felt unwell, you stopped the gypsy and went to fetch water and that when you came back you found that the deceased had toppled over from the seat onto the floor of the gypsy and the other police constables were trying to put the deceased back on the seat. The said constables informed that despite their best efforts, the deceased fell down head forward on to the floor and had become unconscious. What have you to say?

Ans: I have seen the case diary ExPW16/B. It has been recorded in my hand and signed by me. I have correctly written the facts in the case diary."

31. The aforesaid shows that as per the respondent, the

deceased felt unwell, the gypsy was stopped and the

respondent went to fetch water and when he came back, the

deceased had toppled over from the seat onto the floor of the

gypsy and the other police officials were trying to put the

deceased back to the seat whereafter he became unconscious.

This fact is recorded in the case diary ExPW16/B in the own

hand of the respondent and the respondent has admitted to

the same. The story of the iron rod hitting the head of the

deceased is clearly make-belief and an endeavour by the

respondent to cover up the injuries sustained by the deceased

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on account of beatings given to him during custodial

interrogation.

32. We may also notice that insofar as the medical condition

of the deceased is concerned, it has been stated that he was a

person of weak physique. PW-16/ACP Rajbir Singh, SHO of the

local police station at the time of incident, has deposed that he

had asked the respondent to handle the deceased with care

because he was a man of weak physique. Thus, if a picture is

sought to be portrayed of the deceased dying because of weak

health, that was a fact not unknown to the respondent. Not

only that, it was specifically brought to his notice by PW-16.

PW-1/HC Narinder Singh has also deposed to the general weak

condition of the deceased.

33. It is no doubt true that some of the ocular witnesses

have turned hostile, but the treatment meted out to the

suspects during interrogation is available from the testimony

of PW-13/Zile Singh who was also working with Ms.Sumati Jain.

PW-13/Zile Singh was subjected to third degree treatment

where he was beaten by two policemen while his legs were

held. The beating continued through day and night and rollers

were rolled on his thighs. His head was struck against the

wall. A threat was held out to him that his wife would be

molested in front of him. Ultimately, he was let off since he

was not responsible but under a threat that he should not say

anything about the treatment meted out to him.

34. In our considered view, once the deceased was without

physical injuries, his health condition albeit not very strong,

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was known to the respondent and the respondent had been

asked specifically to be careful, the various injuries appearing

on the body including head injuries at the time of post mortem

clearly point out towards only one fact alone i.e. the deceased

was subjected to third degree treatment during interrogation,

causing considerable physical injuries on his body which he

could not withstand and died as a consequence of injuries,

more specifically the head injury. The respondent has not

been able to show as to how and from where such injuries

could have been caused and the story of the head being struck

with an iron rod in the jeep is completely belied apart from the

fact that it does not explain the other injuries. PW-12/Kamta

Pandey has deposed that there was no rod or pipe with which

head of the passenger could strike nor was any such brakes

applied by which the head could have struck anything causing

the injury. The respondent in his statement under Section

313 of Cr.P.C. has, in fact, stated that the deceased died

because of his illness.

35. We are thus clearly of the view that the impugned

judgment giving the benefit of doubt to the respondent cannot

be sustained on such clear and unequivocal evidence on

record. The evidence adduced clearly establishes the guilt of

the respondent. No doubt, even if there is slight doubt, the

benefit must go to the accused but the acquittal of a guilty

person would amount to great miscarriage of justice which is

no less than the conviction of an innocent person. The

responsibility lay much more on the respondent being an

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officer of the police and not a layman. Lord Scarman had thus

said "the difference between a police State and a State where

the police are efficient, but democratically controller, is a

mighty thin one." The police has to work efficiently but we are

not a police State where the respondent as a police officer has

liberty to use any method in an endevour to extract a

confession.

36. The next question for determination is what offence the

respondent has committed? The respondent was charged for

the offence of culpable homicide amounting to murder

punishable under Section 302 IPC. From the evidence

discussed above, it is apparent that the deceased died

because of third degree measures resorted to by the

respondent to extract confession/information about the crime

from the deceased. As per the post mortem report and the

testimony of Dr.R.K.Sharma, PW19, the deceased had suffered

9 injuries, most of them being contusions and abrasions on

non vital parts of the body. As per the opinion of Dr.R.K.

Sharma, the deceased died as a result of coma caused

because of the head injury. The doctor did not find any

fracture of the skull. From the nature of injuries suffered by

the deceased, it is difficult to infer whether the respondent had

any intention to cause death of the deceased or to cause such

bodily injury as was likely to cause his death. However, it is

apparent that the respondent unwillingly gave the vital blow

on the head of the deceased or perhaps he struck the head of

the deceased against some hard surface which unfortunately

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resulted in the death of Dayal Singh even if he had no

intention to cause the death, or cause any bodily injuries

resulting in his death. In view thereof and in the background

of the aforesaid facts, we find the respondent guilty for

causing the death of the deceased Dayal Singh. However, the

case of the respondent does not fall within the definition of

murder as defined under Section 300 IPC. Thus we find that

the respondent guilty of culpable homicide not amounting to

murder punishable under Section 304 Part 1 of the IPC.

37. The result of the above discussion is that the impugned

judgment of acquittal is set aside and the respondent is

convicted for the offence of culpable homicide not amounting

to murder under Section 304 Part 1 IPC. As regards the

sentence, the respondent is 63 years old. It is submitted that

he is not maintaining good health and is suffering from

Parkinson's disease. Though old age and physical condition of

the respondent are mitigating factors, yet, we cannot lose

sight of the fact that the respondent was a police officer and it

was his duty to ensure physical well-being of the deceased

while he was in custody. Yet the respondent, in violation of

law, resorted to illegal means of third degree in his endeavour

to extract a confession which, in our considered view, is a

serious offence and needs to be tackled with a firm hand.

Taking into consideration the above referred factors and

overall facts and circumstances of the case, we are of the view

that a sentence of imprisonment for a period of 10 years shall

meet the ends of justice.

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38. We accordingly sentence the respondent to undergo

RI for a period of 10 years and also to pay a fine of Rs.55,000/-

out of which an amount of Rs.50,000/- be paid to the closest

relative of the deceased and in default of payment of fine, he

shall undergo RI for further period of six months.

39. The appellant be taken into custody and sent to jail to

undergo the sentence imposed.

40. The appeal is accordingly allowed leaving the parties

to bear their own costs.

SANJAY KISHAN KAUL, J.

JANUARY 15, 2010                                              AJIT BHARIHOKE, J.
dm

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