Ram Singh vs Union Of India & Ors.
2010 Latest Caselaw 1447 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             W.P.(C) 519/2006

                                        Reserved on : 14th January 2010
                                        Decision on : 16th March 2010


      RAM SINGH                                             ..... Petitioner
                             Through Mr. Kedar Yadav with
                             Mr. Markandey Gupta and
                             Ms. Pooja Rai, Advocates


                    versus


      UNION OF INDIA & ORS                   ..... Respondents
                    Through Mr. Rohit Madan with
                    Mr. Arvind Gopal, Advocate for R-1 to R-5


      CORAM: JUSTICE S. MURALIDHAR

      1. Whether reporters of local paper may be allowed
         to see the judgment?                                        No

      2. To be referred to the reporter or not?                      Yes

      3. Whether the judgment should be referred in the digest? Yes

                              JUDGEMENT

1. The prayer in this petition is for a direction to the Respondents to award

a sum of Rs.10 lakhs as compensation to the Petitioner whose son Raju

Bhandari, aged 22 years, and driver of a truck/trailer, was shot dead at

point blank range by Respondent No.6 Constable Anil Kumar on 13 th

September 2003 at about 11.30 p.m.

2. The facts of the case are best elicited from the charge sheet that has

been filed in the FIR No.507 of 2003 registered at Police Station Sangam

Vihar arising out of the above incident in which Respondent No.6 has

been arraigned as an accused and charged with the offence under Section

302 IPC.

3. The facts as narrated in the charge sheet read as under:-

"It is respectfully submitted that on 13.9.2003 about S-50 Control room informed at police Post Pul Prahladpur P.S. Sangam Vihar, that Constable Anil No.2132/SD has informed that I am posted at P.S. Okhla and was going to take food from C.C.I. Picket, one unknown truck hit me at Lal Quan Chowk. I fell down by the side. I had a rifle which was fired, motorcycle is under the truck and the truck driver got bullet injury. From HC Kishan Chand No.1325/PCR a call was recorded vide DD No.30 at 12.08 p.m. and which was entrusted through Constable Mahabir No.3381SD to ASI Satbir Singh who along with ASI and Constable Mainuddin No. 1902/SD reached at MB Road, near Kaya Mandir Lal Quan, where a trailer No. HR-38A-7098 under which a motorcycle No. DL 2SF-9837 Kawasaki Bajaj, ahead a truck Trailer No. HR-38H-1875 and ahead from that HR-38D-7231 were found in accident condition. Both the trucks trailer collided with each other due to hit by truck trailer No. HR-38A-7098. A young boy was found dead at the left side of trailer No.HR38-A-7098. He had got two bullet injuries on his body, one near ribs at right side and another under shoulder at left side. The first injury seems like an entry wound and the second, an exit wound. The dead person was identified from his driving license, found in his pocket as driver Raju Bhandari S/o Sh. Ram Singh R/o Banwara, Champawat Distt. Haldwani, Uttaranchal, aged 21 years. Constable Anil Kumar No.2132/SD from P.S. Okhla Industrial Area, whose duty was at CCI picket, found at the spot and told that trailer No. HR-38A-7098 had tried to hit him from side at red light MB road, Lal Quan. Then he chased in order to stop it and at about 11.45 PM he tried to stop the abovesaid trailer at Lal Kuan, Near Kaya Mandir, (at

the place of occurrence) but he fell down from the motorcycle and as result his rifle fired and hit the driver of trailer, as a result he died. A driver of trailer bearing No. HR-38H-1875 named Sohan Lal S/o Sh. Pachati Das, R/o Gaon Dholi Thari, Kharba Thana, Bansoor, Distt. Alwar, Rajasthan, found at the spot and he told that while he was sleeping at his trailer along with his cleaner Banwari Lal S/o Sh. Rameshwar Swami, R/o Village Nirka, P.S. Shahpura, Distt. Jaipur, Rajasthan a trailer No. HR-38A-7098 hit his trailer as a result he got up and when came down he saw the driver of trailer No.HR-38A-7098 dead at seat and blood was oozing. Constable Anil was standing below. Besides the driver of trailer, nobody was present there at that time, the rifle of constable Anil Kumar, was checked and one round was found fired and nine alive round were found in Magazine, no eyewitness was found at the spot, as per inspection of spot/dead body, and from injury, the statement of constable Anil Kumar is false and after consideration of all the conditions, it is found an offence under Section 302 IPC. Therefore, a complaint is being sent at P.S. to register a case through constable Mahavir No. 3381/SD. SHO is present at the spot. After registration of the case, a request was sent to the crime team further investigation of the case. The crime team reached the spot with photographer. The photograph of the spot was taken on the instruction of the Inspector who was present with the crime team. The sample of the blood from the soil as well as from the sirka, test control and from the body have been taken with the help of cotton and the custody of the rifle bullet No. 8545DP Body No. 26860 NE and which contained one empty cartridge and nine cartridge in magazine were taken from the custody of Constable Anil by police. Meanwhile one Mr. Diwan son of Rati Ram R/o Village Salasigi P.S. & Distt. Pithoragarh Uttaranchal who has claimed to be a cleaner of the truck having registration No. HR 38 A 7098, came at the spot and gave his statement that he is resident of the aforesaid

address and working on the truck No. 70-98 with Mr. Raju Bhandari as cleaner. At midnight when we were going from CCI picket in his truck driven by Raju Bhandari the police officials had stopped the truck and put the truck on the side near the barrier on the road. Due to this there was very less space remained. One truck collided with one bearer. The police officials have given warning to stop the truck to Mr. Raju Bhandari but he did not stop the truck. After that we has seen that one constable have been chasing us on one motorcycle and when truck reached MB Road near Kaya Mandir two trucks also stood there and Raju Bhandari put the truck behind the trucks and did not switch off the engine of the truck and motorcycle which was driven by Constable hit the truck. Constable Anil Kumar whose name has been known lost temper and he had picked a rifle from his back and hit the driver. After that the driver immediately hit by bullet fell down and truck hit the other trucks and I in fear ran away from the place of the incident. I informed my employer and when my employer reached the place of occurrence where a number of policemen were already present and Constable Anil Kumar was also present who had killed the truck driver Raju Bhandari with his rifle by hitting a bullet must be proceeded under the law. Ct. Anil was arrested after collecting evidence. He is also in the judicial custody and on the instance of witnesses Dewan the rough sketch of the place of incident was prepared. The dead body, after postmortem from AIIMS, was given to their relatives and the sample of blood and the cloths which have been taken from the body and rifle alongwith bullet have seized and sent to FSL Laboratory Malviya Nagar, New Delhi which report have not been taken yet. After getting the report will be filed in the court. After statement of the witnesses the truck and the motorcycle have also been taken in custody and which after inspection have been released on superdari. The statement of accused Anil Kumar has been recorded in which he stated the

reasons why he hit with his service rifle to truck driver Raju Bhandari having registration No. HR-38A-7098 in which the deceased died. Postmortem report number 981/03 from doctor stated the reason of death "in this case in Hoamorologic shock as a result of antemortem fire arms projectile injury fired from close range which is sufficient to cause death in ordinary cause of nature. From statement of witnesses there is sufficient evidence against the accused Anil Kumar Column No. 3 which have been taken on the file and Anil Kumar has been charged from the evidence of the witnesses column No. 6 under Section 302 IPC and who is still in judicial custody and the witnesses be summoned."

4. Based on the charge sheet, the Additional Sessions Judge, New Delhi

has framed the following charge against Respondent No.6 on 3 rd February

2004 to which Respondent No.6 has pleaded not guilty:

"That you on 13.9.03 between 10.30 to 11.45 p.m., on Mehrauli Badarpur Road, near Kayamala Mandir, Lal Kuan, within the jurisdiction of P.S. Sangam Vihar, (near CCI Police picket barrier near main road light-turn) committed the murder of Raju Bhandari trailor driver with a rifle, fire arm and thereby committed an offence punishable u/s 302 IPC and within my cognizance."

5. A departmental enquiry was instituted against Respondent No.6 under

the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980

[hereinafter "Rules"] in which a detailed report has been prepared. A copy

of the said report has been placed on record. After setting out the facts, the

allegations against the Respondent No.6 have been summarized as under:-

"The above conduct on the part of Constable Anil Kumar, No. 2132/SD (Now 2216/DA) is an act of criminal indiscipline,

carelessness, negligence, dereliction to duty and untenable in a disciplined force rendering him liable to be dealt with departmentally under the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980." (emphasis supplied)

6. In the departmental enquiry, the statements of the PW1, HC Shri Gopal,

PW-2, HC Virender Kumar, PW3, Inspector Satyaveer Dagar, PW-4, ASI

Satbir Singh, PW-5 Sohan Lal, PW-6, Banwari Lal Cleaner, PW-7, Ct.

Bheem Singh and PW-8 Diwan have been recorded. In addition the

statement of Diwan, s/o Rati Ram under Section 161 CrPC has been

adverted to. The said statement as reproduced in the enquiry report reads

as under:-

"Stated that he resides at the above address and worked as a cleaner with driver Raju Bhandari on truck No. HR-38A-7098. That night, at about midnight when Raju Bhandari driving the truck reached C.C.I. picket, the police personnel had set barriers on the road and the truck touched one of the barriers. The police signaled the trailer to stop but the driver did not stop and in the meanwhile he saw the police man who had signaled the truck to stop at the picket was following the truck on a motor cycle. As soon as the truck reached near Kaya Maya Mandir on MB Road Raju Bhandari parked the truck behind two other truck already parked and the engine of the truck was still running. The said constable put his motor cycle in front of the truck but the motor cycle immediately fell down. At this the constable whose name was confirmed as Anil Kumar got enraged and taking off his rifle from his shoulder fired upon the driver and after being hit by the bullet the driver immediately slumped on the driver seat and the truck with engine still running hit the front truck. As he was scared he got down from the truck and ran away and informed his employer and again returned to the spot with the

owner of the truck and found a large number of policemen present at the spot. Ct. Anil Kumar was also present there. The said constable has murdered truck driver Raju Bhandari by firing from his rifle. Legal action be taken against him. R.O.A.C."

7. In the departmental enquiry, on behalf of the defence, DW1 Shri Ganga

Ram, s/o Mohan Lal was examined.

8. The discussion of evidence on record and the conclusion reached in the

inquiry report read as under -

"Discussions of evidence on record

Before commencing the discussion of evidence on record and for a better evaluation of the same the charge can be divided into three different parts as follows:-

1. That the defaulter left the picket (Static point of duty) where he was deployed for duty with his weapon unauthorizedly.

2. That by doing so, he exposed himself and his colleague who was also armed to a grave danger, by taking his rifle alone on the motor cycle.

3. That he fired from his service rifle at the innocent driver Raju Bhandari who lost his life as a result of this.

As regards part 1 of the Charge the same is established beyond doubt in the testimony of 5 PWs.

As regards part 2 of the Charge the same is also established beyond doubt in testimony of PW-1 HC Shiv Gopal who was also performing the picket duty along with the defaulter on the night of the incident.

Part 3 of the Charge which is the serious most and criminal misconduct on the part of the defaulter is also proved beyond doubt.

1) from the testimony of PWS

2) from the circumstantial evidence

3) from the documentary & scientific evidence i.e. the P.M. report, the C.F.S.L. reports and other related documents.

As such whatever the provocation might have been the defaulter Ct. Anil Kumar No. 2216/DAP is responsible for causing the death of innocent driver Raju Bhandari by firing from his service rifle.

Conclusion

Hence the charge against the defaulter Ct Anil Kumar No. 2132/SD (Now 2216/DAP) stands fully proved."

9. Learned counsel for the Petitioner states that the above enquiry report

itself substantiates the claim of the Petitioner that in the course of his

official duty, Respondent No.6 caused the murder of the Petitioner's son

at point blank range. The deceased was the only bread earner for the

Petitioner and the other children of the Petitioner. At the time of the filing

of the writ petition on 12th December 2005 the situation was that the

Petitioner being a poor person had no source of income at all, his two

daughters were of marriageable age, two other sons were minor and

unemployed. Counsel for the Petitioner has relied upon the judgments of

the Supreme Court in Chairman, Railway Board v. Chandrima Das 2000

CRI. L.J. 1473 and the judgment of this Court in Surender v.

Commissioner & Secretary NCT & Ors. 2005 [3] JCC 1595.

10. On behalf of the Respondents, it is submitted that the State cannot be

held vicariously liable for the negligence of its employees. Reliance is

placed upon the judgment in Kasturilal Ralia Ram Jain v. State of Uttar

Pradesh AIR 1965 SC 1039. Further it is submitted on the strength of the

decision in N. Nagendra Rao & Co. v. State of Andra Pradesh (1994) 6

SCC 205, the negligence of the employees while performing the functions

such as administration of justice, maintenance of law and order and

repression of crime cannot be fastened on the State any liability "since

Respondents 1 to 5 have been discharging obligations under the sovereign

functions, the instant writ petition for grant of compensation may not be

directed against them". According to the Respondents 1 to 5, it is the

Respondent No.6 who had committed the crime "in his personal capacity

and is liable to face legal consequences and that "State is not liable for any

of the tortuous acts done by officers in his personal capacity and the State

claims sovereign immunity. Reliance is also placed on the judgment of the

Supreme Court in Achutrao Haribhau Khodwa v. State of Maharashtra

AIR 1996 SC 2377.

11. The facts are really not in dispute in the instant case. In any event, this

court proposes to rely only upon the facts as found substantiated by the

Respondents themselves after full-fledged inquiries. There are two

documents which have been placed on record for this purpose. One is the

charge sheet which is the result of a detailed investigation by the police.

On that basis, charges have been framed against Respondent No.6 under

Section 302 IPC. Then there is a very detailed report of departmental

enquiry. It narrates the facts, the allegation, the analysis of the evidence

and the conclusion. This report establishes on a preponderance of

probabilities, that the negligence and dereliction of duty charges against

the Respondent No.6 stand established beyond doubt. The charge as set

out in the report of the departmental enquiry is in three parts. The report

concludes that "part three of the charge which is the serious most and

criminal misconduct on the part of the defaulter is also proved beyond

doubt". This part of the charge relates to the Respondent No.6 leaving the

picket "where you were deployed for duty with your weapon

unauthorizedly, exposing your colleague who was also armed grave

danger but also exposed yourself to danger by traveling along with rifle

alone on your private motor cycle. Secondly, you fired from your service

rifle at the innocent driver Raju Bhandari who lost his life on such a petty

issue." The charge which has also been held to be proved beyond doubt is

that the conduct of Respondent No.6 "is an act of criminal indiscipline,

carelessness, negligence, dereliction to duty and untenable in a disciplined

force rendering him liable to be dealt with departmentally under the

provisions of the Delhi Police (Punishment & Appeal) Rules, 1980".

12. In view of the above categorical findings, this Court is unable to

accept the submissions made on behalf of the Respondent State that

Respondent No.6 was acting in his personal capacity.

13. The claim of the State to sovereign immunity, as claimed in the

present case, has long been discarded by the Supreme Court in a series of

pronouncements. In Chairman, Railway Board v. Chandrima Das, the

concept of sovereign immunity has been discussed in a very elaborate

manner. After referring to the pronouncements of the Supreme Court as

well as certain international conventions, the Supreme Court has held

(AIR @ p. 1484):

"42. The theory of Sovereign power which was propounded in Kasturi Lal's case (1966) II LLJ 583 SC has yielded to new theories and is no longer available in a welfare State. It may be pointed out that functions of the Govt. in a welfare State are manifold, all of which cannot be said to be the activities relating to exercise of Sovereign powers. The functions of the State not only relate to the defence of the country or the administration of Justice, but they extend to many other spheres as, for example education, commercial, social, economic, political and even marital. These activities cannot be said to be related to Sovereign power."

14. In Chairman, Railway Board v. Chandrima Das the Railways were

made liable for the criminal act of its employees. In para 43, the Supreme

Court held as under (AIR @ p. 1484):

"43. Running of Railways is a commercial activity. Establishing Yatri Niwas at various Railway Stations to provide lodging and boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of Sovereign power. The employees of the Union of India who are deputed to run the Railways and to manage the establishment, including the Railway Stations and Yatri Niwas, are essential components of the Govt. machinery which carriage on the commercial activity. If any of such employees commits an act of tort, the Union Govt., of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees. Kasturi Lal's decision, (1966) II LLJ 583 SC,

therefore, cannot be pressed in aid. Moreover, we are dealing with this case under Public Law domain and not in a suit instituted under Private Law domain against persons who, utilising their official position, got a room in the Yatri Niwas booked in their own name where the act complained of was committed." (emphasis supplied)

15. The law settled in Chairman, Railway Board v. Chandrima Das has

been reiterated in a number of decisions thereafter, including S.P.S.

Rathore v. State of Haryana & Ors. (2005) 10 SCC 1, Vikram Dhillon v.

State of Haryana & Ors. 2007 (2) SCALE 67.

16. In view of the enunciation of the law hereinbefore, the claim of the

State to sovereign immunity in the present case is hereby rejected.

17. The award of compensation for a constitutional wrong committed by

the State or its employee is recognized in several judgments of the

Supreme Court. Beginning with Rudul Sah v. State of Bihar (1983) 4

SCC 141, the Court has provided this remedy in a series of other cases

including Bhim Singh v. State of Jammu and Kashmir AIR 1986 SC

494; PUDR v. Union of India AIR 1982 SC 1473; Nilabati Behera v.

State of Orissa AIR 1993 SC 1960 and D.K. Basu v. State of West

Bengal AIR 1997 SC 610. This Court too has recognized this in several

decisions, including Master Dheeru v. Govt. of NCT of Delhi 160 (2009)

DLT 759, Sunita v. State of NCT of Delhi 151 (2008) DLT 192, Ram

Kishore v. MCD 2007 VII AD (Delhi) 441, Ashwani Gupta v. Govt of

India & Ors. 117 (2005) DLT 112, Smt. Kamla Devi v. Govt. of NCT of

Delhi & Anr 114 (2004) DLT 57 and Smt. Shyama Devi & Ors. v. NCT

& Ors 78 (1999) DLT 827.

18. The question that remains to be decided is the amount of

compensation that the Petitioner would be entitled to. The claim of

compensation is in the sum of Rs.10 lakhs. The exact earnings of the

deceased have not been indicated. However, going by the minimum wages

for a skilled worker payable in Delhi at the time of the incident, his annual

income works out to Rs.40,515/-. This has been calculated on the basis

that at the relevant time, the minimum wage for a skilled worker in Delhi

was Rs.111/- per day. (It may be noted that with effect from 1 st February

2010, minimum wages for a skilled worker in Delhi have been revised to

Rs.248/- per day).

19. This Court has, in Kamla Devi v. Govt. of NCT of Delhi [followed in

Ram Kishore v. MCD], adopted a formula to calculate the sum to be

awarded wherein standard compensation for non-pecuniary losses was to

be added to the compensation calculated for pecuniary loss of

dependency. The same method is being adopted in the present case and is

explained hereunder. The Standard Compensation for non-pecuniary

losses in 1989 is taken to be Rs. 50,000 as propounded in Lata Wadhwa

v. State of Bihar (2001) 8 SCC 197. The said sum is required to be

adjusted for September 2003, when the incident took place, based on the

Consumer Price Index for Industrial Workers (CPI-IW), published by the

Labour Bureau, Government of India. With the base year 1982(=100), the

average CPI (IW) for the year 1989 was 171 and the average CPI (IW) for

the year 2003 was 496. Hence, the inflation-corrected value works out to

Rs. 1,45,000/- [50,000 x 496/171]. The Standard Compensation in this

case, thus amounts to Rs. 1,45,000/-.

20. For calculating the compensation for pecuniary loss of dependency,

the multiplier method (multiplier value given in the Second Schedule of

the Motor Vehicles Act, 1988  Yearly income of the deceased less the

amount spent on himself or herself) is used. This has been adopted in

G.M., Kerala SRTC v. Susamma Thomas AIR 1994 SC 1631, Mrs.

Sudha Rasheed v. Union of India 1995 (1) SCALE 77, U.P. State Road

Transport Corporation v. Trilok Chandra (1996) 4 SCC 362, Smt.

Kamla Devi v. Govt. of NCT of Delhi and Ram Kishore v. MCD. The

method of calculating the amount spent on oneself as explained in Smt.

Kamla Devi v. Govt. of NCT of Delhi reads as under:

"This (the multiplicand) is calculated by dividing the family into units - 2 for each adult member and 1 for each minor. The yearly income is then to be divided by the total number of units to get the value of each unit. The annual dependency loss is then calculated by multiplying the value of each unit by the number of units excluding the two units for the deceased adult member."

21. In the present case, the deceased had one widowed sister; two minor

sisters; two minor brothers apart from his father, i.e. the Petitioner. The

value of each unit thus works out to Rs.4,051/- (40,515/10 = 4,051).

Therefore, the multiplicand would be 32,413. Gross annual income - the

value of two units = 40,515-8102 = 32413.) Multiplying it by 17 as per

the Second Schedule to the MVA 1988 gives a figure of Rs. 5,51,000/-

which would constitute the pecuniary compensation payable by the

respondent.

22. Consequently, adding the standard compensation for non-pecuniary

losses and the compensation for pecuniary loss of dependency, the total

compensation payable by the respondent to the petitioner is computed at

Rs. 6,96,000/- (1,45,000 + 5,51,000).

23. The above compensation will have to be divided by the above six

persons in equal portions. Consequently, the Respondents are directed to

deposit in this Court within four weeks, a sum of Rs.6,96,000/- towards

compensation payable for the death of Raju Bhandari and a further sum of

Rs.10,000/- towards costs of this petition, totaling a sum of Rs.7,06,000/-.

After the Respondents deposit the amount as directed, the Registrar

General will issue a notice within one week thereafter to the Petitioner to

appear on a particular date together with each of his children. They will be

identified by proper means before the Registrar General. The above

amount will be divided into six equal shares with the Petitioner being

given a cheque for his share. The widowed sister of the deceased, who is a

major, will be given a cheque for her share. As regards the amounts

payable to the children who are minors, an account will be opened for

each of them with the father as the guardian and the respective amounts

will be deposited in those bank accounts. This is subject to the condition

that the Bank concerned will place the said amounts in fixed deposits in

the names of the respective minor children with the father as guardian.

Only the quarterly interest amount shall be transferred to the savings

account which can be withdrawn from time to time. This arrangement will

continue till such time each of the children attains majority. Thereafter, it

will be open to such child to operate the account himself or herself

without any restriction.

24. With the above directions, the writ petition stands disposed of.

S. MURALIDHAR, J MARCH 16, 2010 ak