Uoi & Ors. vs Sapna Tyagi
2012 Latest Caselaw 7183 Del

               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.

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

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.

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

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