1 S/v Budhi Prakash etc. IN THE COURT OF SHRI S.P.

GARG SESSIONS JUDGE : NEW DELHI : ADDITIONAL

Sessions Case No : 17/2003 State vs (1) Insp. Budhi Prakash ..A-1 s/o Nand Kishore r/o C-13, Sector 12, Police Colony, R K Puram, New Delhi. HC Rajbir ..A-2 s/o Ramanand r/o 40, Ashoka Police Line, Chanakyapuri, New Delhi. Ct. Bachoo Singh ..A-3 s/o Sohan Lal r/o Village naugaya, Post Peepla, District Bharatpur, Rajasthan. Ct. Ramesh ..A-4 s/o Dharam Singh r/o Village Kiloi Khas, District Rohtak, Haryana. DHG Kanwar Pal Home Guard PS Mehrauli FIR No : 9/1996 PS : Mehrauli U/s : 304/34 IPC JUDGMENT Accused Insp. Budhi Prakash (A-1), HC Rajbir Singh (A2), Ct. Bachoo Singh (A-3), Ct. Ramesh (A-4) and DHG Kanwar Pal (A-5) (since PO) were arrested by the police of PS Mehrauli vide FIR No : 9/96 and were challaned to the court for trial for the ..A-5(since PO)

(2)

(3)

(4)

(5)

contd..../-

2 S/v Budhi Prakash etc. commission of the offence punishable U/s 304/34 IPC. In nut shell, the prosecution case is as under : 2. On 2/1/1996 at about 11.30 PM DD No. 86B PS Mehrauli was recorded on the basis of a call from PCR which was regarding apprehension of a thief who had stolen a stereo at Saidulazab, M B Road, opposite D Block. This DD No. 86B was entrusted to A-2 for necessary action. A-2 along with A-3, A-4 and A-5 proceeded to the spot where PCR police handed over suspect Indal Singh (since deceased). A-2 recorded the statement of the car owner Ravinder Singh. It was disclosed by him that deceased Indal Singh was found committing theft of stereo of his car along with his accomplice who managed to escape. Indal Singh was given beatings by the crowd gathered there. On the basis of the statement, A-2 got registered case vide FIR No : 8/96 U/s 379/34 IPC at PS Mehrauli on the intervening night of 2/3-1-1996. A-2 sent Indal for medical examination to AIIMS through A-3 and A-5. Indal was medically examined vide MLC No. 516/96 on 3/1/96 at 1.17 AM. Indal was formally arrested by A-2. A-2 put Indal in the lock up of PS Mehrauli at 2.45 AM vide DD No. 34A dated 3/1/96. 3. Further case of the prosecution is that on 3/1/96 at about 9.45 AM, Indal was found vomiting in the lock up. Duty Officer informed A-2 who again sent Indal to AIIMS for his medical examination and treatment through Ct. Dilip Singh and DHG Om contd..../-

3 S/v Budhi Prakash etc. Prakash vide DD No. 5A. At 10.59 AM, Indal was declared

brought dead at the OPD of AIIMS and MLC No. 573/96 was prepared to that effect. Duty Ct. at AIIMS informed PS Mehrauli vide DD No. 8A dated 3/1/96. This DD was again entrusted to A-2 for further necessary action. 4. Further case of the prosecution is that on receipt of DD No. 8A, A2 along with A-3 and A-4 reached at AIIMS and collected MLC of the deceased Indal. A-2 made endorsement on DD No. 8A and got a case U/s 304/34 IPC registered. The investigation of this case was taken over by A-1. SDM Hauz Khas was informed about this incident. Ms. Asha James, the then SDM Hauz Khas conducted inquest proceedings U/s 176 CrPC in regard to the death of the deceased Indal in police custody. Postmortem on the dead body of the deceased was conducted by a Board of doctors comprising of Dr. D N Bhardwaj, Dr. G K Chaubey and Dr. O P Murti on 4/1/96. During postmortem of the deceased, 20 injuries in all were found on his person. These injuries were on the hands, legs, thighs, face and abdomen etc. of the deceased. All the injuries were opined antemortem caused by blunt force. Cause of death was deferred till the receipt of report of chemical analysis of the viscera. 5. Viscera was sent to CFSL for chemical analysis. Subsequent opinion of the Board of doctors was sought after receipt of the contd..../-

4 S/v Budhi Prakash etc. CFSL report and the Board opined that immediate cause of death was asphyxia as a result of choking from aspiration of gastric contents subsequent upon shock from antemortem injuries 1 to 20. All the injuries No. 1 to 20 were opined antemortem in nature, recent in duration and caused due to impact of hard blunt force, object/surface. Injuries were collectively opined sufficient to cause death by causing shock in the ordinary course of nature. 6. During investigation, further clarifications were sought by the IO from the concerned doctors on different aspects. During

investigation, the statements of the concerned witnesses were recorded. The report U/s 176 CrPC prepared by the SDM was also collected. Necessary sanctions were taken from the concerned authorities ie Home Department, Government of Delhi and Director, D G Home Guard. After completion of the investigation the police of PS Mehrauli filed challan against the accused persons for the commission of the offence punishable U/s 304/34 IPC for causing custody death of the deceased Indal in the court of Ld. MM. 7. After complying with the provisions of section 207/208 CrPC, the Ld. MM committed the case to the court of sessions. 8. After hearing the Ld. Addl. PP for the state and Ld. defence counsels for the accused persons, charge U/s 304/34 IPC was ordered to be framed against the accused persons by my ld. contd..../-

5 S/v Budhi Prakash etc. predecessor vide order dated 5/3/2003. The accused persons pleaded not guilty to the charge and claimed trial. 9. To bring home its case, prosecution examined witnesses PW 1 Dr. Rajiv Kumar, PW 2 Dr. D N Bhardwaj, PW 3 Dr. O P Murti, PW 4 Rupesh Chand, PW 5 Ravinder, PW 6 ASI Nand Ram, PW 7 Niranjan Singh, PW 8 HC Joginder Singh, PW 9 Burfi Devi, PW 10 Manglaya, PW 11 Ct. Datatrey, PW 12 Balraj, PW 13 Sunder Lal Yadav, PW 14 Madanvir Singh, PW 15 Ct. Dilip Singh, PW 16 Jugvinder Singh, PW 17 ASI Jamadar Ali, PW 18 N K Prasad, PW 19 HC Jai Singh, PW 20 Dr. Raghuraj Singh, PW 21 Ct. Shyambir, PW 22 Ramji Pandey, PW 23 Dr. D N Bhardwaj, PW 24 Ct. Vijaypal Singh, PW 25 Dr. T D Dogra, PW 26 SI Bhim Sen. PW 27 SI Jaipal Singh, PW 28 Ct. Laxmi Narain, PW 29 S K Singh, PW 30 Mansa Ram, PW 31 S C Patny, PW 32 Insp. Gurbax Lal Mehta, PW 33 Insp. Ved Prakash Arya and PW 34 Insp. S S Rathi. 10.Statements of the accused persons were recorded U/s 313 CrPC. The accused persons denied their involvement in the commission of the offence. Plea of the accused persons is that they have been falsely implicated in this case. 11.Plea of A-1 is that he has been falsely implicated in this case. He was not present at the PS on the day of incident. The deceased was not interrogated by him. Deceased was not produced before him. contd..../-

6 S/v Budhi Prakash etc. 12.Plea of A-2 is that he has been falsely implicated in this case. The IO of this case could not apprehend the real culprits from the mob who gave beatings to the deceased at the spot while committing theft of the stereo. He has been falsely implicated in this case after a gap of four years due to pressure from the superior authorities. The investigation carried out is not fair. He did not interrogate the deceased Indal or gave any beatings to him. 13.Plea of A-4 is that he has been falsely implicated in this case due to recording of his name falsely in DD No. 86B. He did not even see the face of the injured/deceased Indal. No ruqqa was brought by him. 14.Plea of A-3 is that he has been falsely implicated in this case. He was not present in PS on the day of incident. The deceased was not interrogated by him. 15.DW 1 Ct. Suresh Kumar was examined in his defence by A-3. DW 2 Vivek was examined in defence by A-2. 16.I have heard the Ld. Addl. PP for the state. I have also heard the Ld. defence counsels for all the accused persons. I have also heard Ld. counsel for the mother of the deceased. I have gone through the evidence adduced on record. I have also gone through the written arguments placed on record. 17.Contention of the Ld. Addl. PP for the state is that the prosecution has proved its case against all the accused persons contd..../-

7 S/v Budhi Prakash etc. beyond the shadow of reasonable doubt. There is nothing to disbelieve the positive testimony of the prosecution witnesses. There is no substance in the contention of the Ld. defence counsel that no injuries were caused by the accused persons to the deceased. The medical report prepared by the doctors fully proves the involvement of all the accused persons in using third degree methods while the deceased Indal was in police custody. 18.On the other hand, Ld. defence counsels for the accused persons have vehemently argued that the prosecution had failed to prove its case against any of the accused persons beyond the shadow of reasonable doubt. There are material contradictions and

discrepancies in the testimonies of the prosecution witnesses which make it unsafe to convict the accused persons. The prosecution witnesses have made vital improvements in their testimonies before the court. Material prosecution witnesses have not supported the prosecution on material facts and have not deposed against any of the accused persons. They were got declared hostile by the Ld. Addl. PP for the state. 19.It is further argued that deceased Indal was apprehended by the public persons while committing theft of a stereo from the car. He was given severe beatings by the crowd present there. The PCR officials who had reached at the spot soon after the apprehension of the deceased have categorically deposed that the crowd had contd..../-

8 S/v Budhi Prakash etc. given severe beatings to the deceased at the spot. Deceased Indal was arrested in case FIR No : 8/96 for the commission of the offence punishable U/s 379/34 IPC and was brought up at the PS. He was duly got medically examined by Dr. Rajiv Kumar. Thereafter he was put up in the lock up. None of the prosecution witnesses present at the PS on duty at the lock up have deposed if the deceased was given beatings by any of the accused persons during his presence at the lock up. Rather the deceased was found hail and hearty by the constables on duty at the lock up. 20.It is further argued that the accused persons had no occasion to cause beatings to the deceased for the petty offence. By causing his death, no purpose of the accused persons to investigate the said case was going to serve. The deceased was apprehended by the crowd and he was given severe beatings there. There was no occasion for the police officials to give further beatings to the deceased who was involved in a petty case of theft. 21.Further plea of the Ld. defence counsels for the accused persons is that in his medical examination, the deceased was found to have consumed liquor. It were winter days. Clothes of the deceased were smeared with mud. Deceased was having a dark skin. He was casually medically examined by Dr. Rajiv Kumar. Clothes of the deceased were not removed to find out the injuries sustained by him at the hands of public. Deceased was not kept contd..../-

9 S/v Budhi Prakash etc. under observation by Dr. Rajiv Kumar. In the MLC prepared by Dr. Rajiv Kumar, the injuries found on his person could not be detected due to his dark skin. 22.It is further stressed that postmortem report did not support the case of the prosecution regarding cause of death of the deceased. Cause of death of the deceased was not the injuries sustained by him. Rather cause of death of the deceased has been opined as asphyxia as a result of regurgitation of gastric contents resulting in blockage of air passage. Since the deceased had consumed liquor, the injuries caused by the public during winter days had caused regurgitation. Vomiting by the deceased was due to consumption of alcohol by him. The antemortem injuries were opined by the doctors not beyond 24 hours duration. It also supports the case of the accused persons that no injuries were caused to the deceased during his presence at the lock up and he was given injuries found on his person at the time when he was apprehended by the public while committing theft of the stereo. 23.It is further argued that the accused persons were public servants. No valid sanction U/s 140 D P Act was obtained by the prosecution for proceeding against them. 24.Ld. defence counsels for the accused persons have relied upon the authorities reported in : 1. Sharad Birdhichand Sarda vs State of Maharashtra contd..../-

10 S/v Budhi Prakash etc. AIR 1984 SC 1622 2. Mahender Singh Dhantwal vs M/s Hindustan Motors Ltd. AIR 1984 SC 1673 3. State of Haryana vs Ram Singh AIR 2002 SC 620 4. K K Verma vs State of J and K and others AIR 2002 SC 628 5. Awdhesh and others vs State of Madhya Pradesh AIR 1988 SC 1158 6. Jeevraj Bhai Vrajlal Patel vs State of Gujarat and others 1988 Cr.L.J 1160 7. State of UP vs Krishna Gopal and another AIR 1988 Supreme Court 2154 8. Chandu Lal Chandraker vs Puran Mal and another AIR 1988 Supreme Court 2163 25.I have considered the arguments of the Ld. Addl. PP for the state and Ld. defence counsels for all the accused persons. 26.The case of the prosecution is being discussed as under : A. ARREST/CUSTODY OF THE DECEASED There is no dispute that deceased Indal was arrested by the police of PS Mehrauli and a case vide FIR No : 8/96 U/s 379/34 IPC was got registered on 3/1/96 at 12.05 AM by A-2 at PS Mehrauli. II. There is however, controversy as to how and where the said case vide FIR No : 8/96 was recorded. Contents of the ruqqa, the copy of which has been placed on record reveals that the ruqqa in the said case was sent by A-2 on 3/1/96 at 12.05 AM. The ruqqa was prepared by A-2 on the statement made by one Ravinder Singh who disclosed to A-2 that at about 10.45 PM, he along with his cousin Yoginder Singh had come on the road while taking stroll.

contd..../-

11 S/v Budhi Prakash etc. They found that a boy, whose name was ascertained Indal, had stolen stereo make 'Pioneer' and three cassettes from the car. Indal handed over the stereo and the cassettes to his associate who fled away from the spot. Indal was apprehended at the spot. The crowd present there had given beatings to Indal. In the ruqqa, A-2 wrote that on receipt of DD No. 86B Ex.PW22/A he along with A-4 and A-3 reached at the spot ie village Saidulazab, H.No. 19. There they met complainant Ravinder Singh. Indal was produced before them. Indal was under the influence of liquor. Statement of Ravinder Singh was recorded. Prima facie offence U/s 379/34 IPC was found to have been committed. Duty Officer was requested to register a case U/s 379/34 IPC. III.PW 6 ASI Nand Ram, working as Duty Officer appeared in the witness box and stated that on that day ie 2-3/1/1996 at about 12.30 midnight, he received a ruqqa from HC Rajbir (A-2) through Ct. Ramesh (A-4) and on the basis of the same, he registered the case and after registration of the FIR, he handed over the original ruqqa and copy of FIR to the said Constable. The photocopy of the FIR recorded by him is Ex.PW6/A. Registration of the FIR was also entered in DD no. 34A, copy of which is Ex.PW6/B. The witness was not cross examined on this aspect. IV.The contents of the ruqqa prepared by A-2 in getting the case vide FIR No : 8/96 U/s 379/34 IPC against Indal (since deceased) have contd..../-

12 S/v Budhi Prakash etc. not at all been supported by the other prosecution witnesses. There is nothing on record to show if A-2 on receipt of DD No. 86B had reached at the spot or that he had recorded the statement of the complainant there and had got the present case registered by sending ruqqa through A-4. PW 5 Ravinder Singh himself has appeared as a witness before the court. He has falsified the version given in the contents of the ruqqa by A-2. This witness PW 5 Ravinder Singh has deposed that on the intervening night of 1/2-1-96 atabout 9.30 PM, he had gone at Temple situated at Saket near petrol pump. After performing Pooja, he came to his uncle Yoginder Singh at Saidulazab. They were sitting there and came out of the house at about 10.15 PM. Then they saw PCR van and 10/15 people. He came to know from the public that stereo of vehicle No. DL8C4516 was stolen. He started looking inside the vehicle. By that time PCR officials took away the accused in their vehicle. Then he along with Yoginder Singh and Niranjan Singh went to PS Mehrauli to lodge report about his stolen stereo. His signatures were obtained after noting down his name and address on the blank papers. He came back to his house at about 1 or 1.30 AM night. The police officials had written his name and address on blank papers and had also obtained his signatures. On the next day, in the newspaper he read that a thief had died in police custody. contd..../-

13 S/v Budhi Prakash etc. V. This witness was cross examined by the Ld. Addl. PP for the state after he was got declared hostile. VI.In the cross examination by the Ld. Addl. PP for the state, the witness stated that he had informed the SDM that the police Insp. who had noted down his name, address and telephone number and had obtained his signatures on blank papers was Rajbir (A-2) (the name of which he noted down from the number plate). VII.In the cross examination by the Ld. defence counsels for the accused persons, the witness denied that he told the SDM that when he reached near the car, he saw that the crowd had surrounded the thief and the thief was being given beatings by fists and kick blows. He further asserted in the cross examination that he had not written the complaint. Only his name and address was noted down. This witness volunteered to add that his signatures were taken on a blank paper. VIII.Perusal of the statement of this witness reveals that he has not supported the prosecution regarding the contents of the ruqqa on the basis of which FIR no : 8/96 was got registered by A-2. No suggestion was put to this witness in the cross examination by the Ld. counsel for A-2 that A-2 had reached at the spot or that there A-2 had recorded the statement of this witness and only thereafter A-2 got the present case registered. There is nothing to disbelieve the positive testimony of this independent witness. contd..../-

14 S/v Budhi Prakash etc. IX.The contents of the ruqqa further stand falsified when the officials from the PCR who reached at the spot soon after the incident did not support the case of the prosecution in case FIR No : 8/96. X. PW 8 HC Joginder Singh was posted as Ct./Gunman in PCR having No. 3135 PCR and was on duty in E-41 from 8 PM to 8 AM. In his testimony before the court this witness deposed that at about 11.10 PM they received an information regarding

apprehension of a thief at D block, M B Road. At about 11.30 PM, they reached at the spot and found a person who on inquiry disclosed his name Indal. There were many public persons present there. They immediately informed the local police through control room. They waited there for about 30 minutes for the local police. When local police did not arrive, they again informed the control room telling that local police had not arrived there. Thereafter with the permission of the control room, they shifted Indal to PS Mehrauli and handed over him to A-2 at PS Mehrauli. Three persons from the spot had also accompanied them to the PS. Owner of the maruti car whose stereo was stolen was one of them. After handing over Indal to A-2, they came back to their point. XI.The facts narrated by this official witness were not controverted in the cross examination by the accused persons. No suggestion was put to this witness in the cross examination that A-2 along with police officials had reached at the spot or that A-2 had recorded contd..../-

15 S/v Budhi Prakash etc. the statement of PW 5 Ravinder Singh and had sent the ruqqa through A-4 to the PS. No suggestion was put to this witness in the cross examination that the PCR officials had not brought Indal to the PS and his custody was not handed over to A-2 at the PS. XII.Similar is the testimony on this aspect of another PCR official PW 17 ASI Jamadar Ali. He has also corroborated the testimony of PW 8 Joginder Singh on all material facts and has deposed that when the local police failed to reach at the spot, they took Indal to the PS and handed over the custody of Indal to A-2. XIII.Other prosecution witnesses have also controverted the contents of the ruqqa in case FIR No : 8/96. DD No. 86B Ex.PW22/A was recorded regarding receipt of a call through wireless operator about apprehension of a thief. PW 22 HC Ramji Pandey has testified that this DD No. 86B Ex.PW22/A was recorded by his Munshi. After recording the same the true copy of the DD entry was handed over to A-2 who left for the spot along with A-4, A-3 and A-5. XIV.PCR record also falsifies the story concocted by A-2 in case FIR No : 8/96. Rather it stands established that Indal was

apprehended at the place where stereo from the car belonging to PW 5 Ravinder Singh was found stolen. PCR officials reached at the spot. They informed the local police about the apprehension of the thief. Instead of attending the call of PCR, none from the local contd..../-

16 S/v Budhi Prakash etc. police reached at the spot. PCR officials were forced after

consultation with control room, to shift Indal to PS Mehrauli where custody of Indal was handed over to A-2 at the PS Complainant along with his friends also reached at PS Mehrauli. However, there is nothing on record to show that his statement was recorded or that any case was got registered by A-2 against Indal at that time. Complainant PW 5 Ravinder Singh has specifically deposed that his signatures were taken on blank papers. It seems that the blank papers on which the signatures of complainant Ravinder Singh were obtained were fabricated subsequently to show the preparation of ruqqa and registration of a case in case FIR No : 8/96. The fact remains that Indal came into custody of A-2 after he was handed over by the PCR officials at PS Mehrauli on the intervening night of 1-2/1/1996 at about 11.40 PM. The fabrication of ruqqa in case FIR No : 8/96 points an accusing finger against the accused. B. INJURIES ON THE PERSON OF INDAL AT THE TIME OF HIS ARREST It has further come on record that after Indal was apprehended and his custody was handed over to A-2 and before he was allegedly put up in the lock up of PS Mehrauli, he was got medically examined. Application Ex.PW1/DA was written by A-2 to CMO AIIMS to get Indal medically examined. Indal was sent for

contd..../-

17 S/v Budhi Prakash etc. medical examination through A-3 and A-5 in case FIR No : 8/96. Indal was medically examined by PW 1 Dr. Rajiv Kumar on that night at about 1.17 AM. PW 1 Dr. Rajiv Kumar in his testimony before the court has deposed that on the intervening night of 2/3-11996, he was posted in the casualty department of AIIMS and was working as Junior Resident, Surgery. On that night at about 1.17 AM, he examined one Indal Singh brought by Ct. Suresh Kumar from PS Mehrauli. He examined the injured and found no external injury. He found smell of alcohol and prepared his MLC No. 516/96 dated 3/1/96. The MLC prepared by him is Ex.PW1/A. II. This witness was cross examined by the Ld. counsels for the accused persons. In the cross examination on behalf of A-2, PW 1 Dr. Rajiv Kumar stated that he did not remember as to how much time was taken by him to examine the patient. There was no external bleeding on the patient. The patient was kept under observation as per their usual practice. One of the reasons for

keeping the patient under observation was because of smell of alcohol on the patient. He did not remember what clothes the patient was wearing at that time. He did not remember whether he examined the patient after removing his clothes or otherwise. As per the records available to him, in the alleged history there was mention that the person was caught stealing and beaten by the public. To the court question the witness revealed that the history contd..../-

18 S/v Budhi Prakash etc. was given by the Constable who brought the witness for examination. III.In the cross examination on behalf of A-1 the witness stated that patient who is intoxicated of alcohol may have nausea and vomiting. The witness denied the suggestion that he did not prepare the MLC Ex.PW1/A after thorough examination of the patient or that he prepared the MLC On 4/1/96. He further denied the suggestion that the patient died due to his negligence because he did not keep him under observation and did not provide necessary treatment. The witness further denied the suggestion that he casually examined the patient. IV.The testimony of this expert witness who medically examined Indal at the request of A-2 at the first instance after his apprehension is significant. Indal was medically examined when he was in police custody in case FIR No : 8/96 by this witness at 1.17 AM (night). At that time this witness did not find any external injury on the person of the deceased. He did not find if the deceased was bleeding from any external injury. The testimony of this witness inspires confidence as this witness had no motive to fabricate the contents of the MLC Ex.PW1/A. None of the close relations of the deceased was present at the time of his medical examination. V. Other prosecution witnesses examined in this case have also contd..../-

19 S/v Budhi Prakash etc. supported the findings recorded by PW 1 Dr. Rajiv Kumar in his MLC. Nothing has come on record to show if at the time of medical examination by PW 1 Dr. Rajiv Kumar, the patient Indal was having all the injuries detailed subsequently in the postmortem report. VI.PW 8 HC Joginder Singh from PCR who had reached at the spot on receipt of call at about 11.10 PM deposed about apprehension of a thief at D block, M B road. They reached at the spot at about 1.30 AM. No injuries were caused to Indal by any public person at the spot in the presence of this witness. This witness merely deposed that they had informed the control room that the person apprehended was given beatings by the public persons. This witness did not reveal in his deposition before the court that when he reached at the spot he found Indal to have sustained external injuries. Only in the cross examination on behalf of A-1, the witness admitted that they got information that one thief had been apprehended and he was in injured condition. However this witness himself did not explain if he saw any visible injuries on the person of Indal. This witness did not remove Indal to hospital for any medical treatment. Had Indal sustained serious injuries due to the alleged beatings given by the public at the spot or the condition of Indal was serious, this witness along with other police officials must have removed him to the hospital at the first contd..../-

20 S/v Budhi Prakash etc. instance. It has come on record that Indal was not removed to hospital by PCR officials. Rather they waited for the local police to arrive for about 30 minutes and when the local police failed to reach at the spot, as per the directions from the control room, the PCR officials shifted Indal to PS Mehrauli in their PCR van. VII.PW 17 ASI Jamadar Ali another official in the PCR van in his statement before the court did not state if he saw any public person giving beatings to Indal. He also did not state if he saw any serious external injury on the person of Indal at that time. He merely stated that injured had told him that he was having gum chot and he was in pain. He requested A-2 to get the medical examination of the thief conducted as he was having gum chot and was under intoxication. VIII.In the cross examination also, the witness claimed that the thief had suffered gum chot and was complaining of pain (karah raha tha). He had not seen any lathi or danda in the hands of the public persons present at the spot. When they reached at the spot Indal was sitting under a tree and little support was given to him for putting him in the vehicle as he was under the influence of liquor. IX.The testimonies of both these PCR officials corroborate the contents of the MLC Ex.PW1/A prepared by Dr. Rajiv Kumar where he did not find any external injuries on the person of the contd..../-

21 S/v Budhi Prakash etc. deceased at that time. X. Plea has been taken by the Ld. counsels for the accused persons that the deceased was given beatings by public persons and he was not thoroughly examined by PW 1 Dr. Rajiv Kumar. The injured was of 'sanwala' complexion and was smeared with mud. His clothes were not removed to find out the injuries sustained by him at the hands of the public. XI.When custody of Indal was handed over at PS Mehrauli to A-2 by the PCR officials, A-2 did not bring to the notice of the PCR officials regarding the number of injuries sustained by him. In his application Ex.PW1/DA he did not mention the details of the injuries which were visible on the person of the deceased. Had there been external physical injuries, A-2 must have noted the same in his application or in the ruqqa. In that eventuality he must have shifted Indal to the hospital immediately and would not have waited till about 1 AM night to get him medically examined. XII.Case of A-2 in the ruqqa in case FIR No : 8/96 is that on receipt of DD No. 86B, he along with other police officials reached at the spot. However at that time he did not deem it fit to register any case against any public person for the beatings allegedly given by them to Indal at that time. A-2 is the person who after Indal was declared brought dead by the doctor on the next day after his apprehension, got the present case U/s 304/34 IPC registered for contd..../-

22 S/v Budhi Prakash etc. the injuries caused to Indal by the public persons who had at the time of his apprehension. A-2 has failed to explain in the statement recorded U/s 313 CrPC as to why a case for causing serious injuries to Indal was not got registered against the public persons allegedly giving beatings to Indal. There is nothing on record to show if during investigation of case FIR No: 8/96, A-2 the IO in the said case made efforts to ascertain the name of any such person who had allegedly given beatings to the deceased and to apprehend them. Only after Indal expired during police custody, A-2 preferred to get register case U/s 304/34 IPC in which subsequently he himself became an accused. XIII.Nothing has come on record to find out if Indal was given beatings, if so, by whom and to what extent at the time of his apprehension. The prosecution witnesses examined by the prosecution have talked about giving of beatings to Indal but none of them disclosed the name of any such public person who had allegedly given beatings to him. No such person was apprehended at any time during investigation of the case FIR No 8/96 or investigation of this case. PW 5 Ravinder the owner of the vehicle and the stolen stereo in this case reached at the spot when the PCR people had already reached. In his deposition before the court, he stated that when they came out of the house, they saw PCR people and 10/15 public persons. From the public persons contd..../-

23 S/v Budhi Prakash etc. present there he came to know that the stereo of his vehicle was stolen from his vehicle No. DL8C4516. He started looking inside his vehicle. By that time the PCR officials took away accused in their vehicle. This witness did not state if he was informed by the public persons present at the spot that Indal was given beatings by the public persons or that any of the public persons was armed with any saria, iron rod or danda. In the cross examination by the Ld. defence counsel for A-2, the witness denied the suggestion that when he reached near the car, he saw that the crowd had surrounded the thief and the thief was given beatings by fists and kick blows. It is not the case of the prosecution that PW 5 Ravinder, an interested witness in the recovery of the stolen stereo gave beatings to Indal. As observed above, this witness did not get his statement recorded regarding theft of his stereo and his signatures were obtained by A-2 on blank papers. XIV.PW 4 Rupesh Chand has been examined. In his statement before the court, he stated that when he stopped his car at about 10.30 or 11 PM, a crowd was present at Saidulazab. When he inquired as to why the crowd was there, he saw that one man was lying who was being beaten by the public. There were 15/20 persons. He saw few people beating that person with the help of dandas. Some persons were giving him beatings with fists and kicks. They also gave leg blows. He told the people not to give contd..../-

24 S/v Budhi Prakash etc. beatings to that person. This witness however did not state if Indal had sustained any visible injuries on his person due to beatings given by the public persons. He did not state if any particular person among the crowd had given beatings to Indal. Had the beatings given by the public persons been serious, PW 4 Rupesh must have removed that person to hospital. Nothing has come in the testimony of this witness if Indal was taken by him to the hospital or that he intervened to save Indal. The presence of this witness at the spot has not been established with any cogent proof. Nothing has come on record to show how the presence of this witness came into knowledge of the IO at the spot. The

testimony of this witness has not been corroborated on any material aspects by the other prosecution witnesses examined by the prosecution. No iron rod, danda etc. was recovered with whom Indal was allegedly given beatings by the public. XV.PW 7 is Niranjan Singh. This witness has also deposed that Indal was given beatings by the public. When he came after hearing the noise, he saw 40/50 people to have surrounded a person and were giving him good beatings with sticks and iron rods. He shouted at the crowd to stop the beatings. He asked his cousin Madanvir who also came out of his house to ring 100 to call the police. PCR van came after 20/30 minutes. In the meantime the person who was given beatings by the crowd took 30/40 steps and he informed contd..../-

25 S/v Budhi Prakash etc. him that the police had been called and he should not run away. PCR van reached at about 11.40 PM or 12 midnight. After waiting for 15/20 minutes when the local police did not arrive, he asked the PCR officials to take the said person to the PS. PCR officials took that person to PS Mehrauli. He along with Ravinder Singh and Joginder Singh also went to the PS in the maruti car of Ravinder. PCR officials took that injured to the reporting room PS Mehrauli. They all sat in the reporting room. They remained present there till 2.40/3 AM. The injured was got medically examined and was brought back to the PS. XVI.The testimony of this witness reveals that Indal was given beatings by the public but this witness did not explain the extent of injuries sustained by Indal. This witness did not talk if Indal sustained any external injuries on his person or that he had bled from the injuries sustained by him. This witness also did not

name any particular person who had given beatings to the deceased. This witness did not bother to remove the injured to the hospital. A-2 the IO of case FIR No : 8/96 did not bother to examine this witness in the said case to proceed against any public person for the alleged injuries caused to Indal. Statement of this witness was not recorded by A-2 in case FIR No : 8/96. This witness himself did not assert to have given any beating to Indal. XVII.PW 16 Joginder Singh who had accompanied PW 5 Ravinder to contd..../-

26 S/v Budhi Prakash etc. the PS testified in his deposition before the court that he along with PW Ravinder came out of his house after hearing the noise. When he came outside he saw that one person had been caught by the public and it was disclosed that the said person had stolen the stereo. After sometime the PCR came and took the injured

with them to the PS. This witness was not cross examined by the Ld. defence counsels for the accused persons. So the testimony of this witness has remained unchallenged and unrebutted. In his statement before the court this witness did not support the version given by PW 4 Rupesh and PW 7 Niranjan. This witness did not state if there were any public persons present at the spot or that they were informed by the public persons present there that Indal was given beatings by the crowd who was armed with danda, lathis and iron rod etc. XVIII.PW 12 Balraj has given the number of persons present at the spot giving beatings to Indal as 60-70. He has also stated that the injured was given beatings with danda, lathi and rod. When he inquired from the said persons, the crowd told him that the person was being given beatings because he was a thief. His cousin Niranjan Singh was present there. PCR reached at the spot after 5-10 minutes. He saved the person from the crowd and shifted him in the rear seat of the gypsy of the police. Thereafter the police gypsy took that person. contd..../-

27 S/v Budhi Prakash etc. XIX.Testimony of this witness also does not disclose the name of any person who had given beatings to the deceased. Again this witness has not clarified as to what exact injuries were caused on the person of the deceased by the crowd. This witness did not inform the police or shifted the injured to the hospital. XX.PW 13 Sunder Lal Yadav in his testimony before the court stated that on 2/1/96 at about 10,30/10.45 PM, when he came out of his house for a walk, he saw a crowd in front of the house of Madanvir. The crowd was giving beatings to one person. In the meantime PCR was called and PCR took that person with them. Again in the testimony of this witness, there is nothing to infer if Indal had sustained visible injuries or that his condition was precarious due to the injuries caused to him by the public. XXI.PW 14 Madanvir Singh merely stated that he had informed the police about a thief to have been caught hold. This witness did not state if Indal was caused any beatings by the public at large. This witness was not cross examined by the Ld. defence counsels for the accused persons. No suggestion was put to this witness in the cross examination if Indal had sustained any visible external injuries on his person due to the beatings given by the public persons. XXII.On scanning the testimony of all the above public witnesses regarding giving of beatings to Indal, it stands established that contd..../-

28 S/v Budhi Prakash etc. none of them has named any such person in the locality to have caused injuries to Indal. None of them has claimed himself to have caused injuries by giving beatings to Indal. No such person who had allegedly given beatings to Indal was found present on the arrival of the PCR at the spot. No such public person was apprehended by the PCR officials while giving beatings to Indal. No weapon whatsoever like lathi, danda or iron rod was recovered with which Indal was given beatings by the crowd. The incident had taken place at about 10.30 or 10.45 PM on 2/1/96. It were winter days. The crowd is not expected to gather at that odd hours to give beatings to the injured particularly when no such beatings are claimed to have been given by the prosecution witnesses who have been examined by the prosecution. The interested witnessed to whom the car or stereo belonged did not claim to have caused any injuries to Indal. Had such a large crowd been present at the spot duly armed with lathis, danda and iron rod as deposed by some of the prosecution witnesses, they would not have allowed associate of the deceased Indal to run away from the spot. They would not have allowed the associate of the injured/accused Indal to flee away with the stolen stereo and cassettes. No such stereo or cassettes are stated to have been recovered in case FIR No : 8/96. There is nothing on record to infer if co-accused of Indal was arrested in case FIR No : 8/96. The incident of theft had contd..../-

29 S/v Budhi Prakash etc. taken place on a road. The alleged crowd is not expected to arrange lathis, dandas and iron rods in such a short time to cause injuries on the person of Indal at that time. Nothing has come on record in the testimony of all these PWs if they had seen any visible external injuries on the person of Indal. They have not deposed if injured had bled from the injuries or any blood had fallen on his clothes or at the spot. All these witnesses were examined only in inquest proceedings after the registration of the present case. None of them came forward prior to the registration of the case to state causing of injuries by the public persons to the injured at the time of theft of the stereo. Moreover nothing has come on record to show that injuries, if any, sustained by Indal were so serious to prove fatal. Had it been so, PCR officials or the complainant in case FIR No : 8/96 must have removed Indal to hospital for his medical treatment. Rather it is the case of the prosecution that PCR officials took Indal to PS Mehrauli after waiting for the local police to reach at the spot after about 20 minutes. Thereafter custody of Indal was handed over to A-2 at PS Mehrauli. Even there Indal was not sent for medical examination immediately. He was admittedly got medically examined at AIIMS at 1.17 AM. Had the condition of Indal been critical due to merciless beatings given by the crowd at about 10.30 PM, the police of PS Mehrauli must have rushed him immediately to the contd..../-

30 S/v Budhi Prakash etc. hospital even without getting case vide FIR No : 8/96 registered. It seems that some of these witnesses have been introduced subsequently. XXIII.It has further come on record that even during the period Indal remained at PS Mehrauli, he was not found to have suffered any serious injuries. None of the prosecution witnesses from the PS Mehrauli has deposed if at any time prior to 9.45 AM on 3/1/96 Indal was found to be critical due to the injuries sustained by him. XXIV.PW 6 ASI Nand Ram in his cross examination by the Ld. Addl. PP for the state stated that Indal was kept inside the lock up and he had not seen any mark of injury on the body of the injured. PW 17 ASI Zamadar Ali has merely talked that the injured had suffered gum chot and was complaining of pain. PW 21 Ct. Shyambir did not depose if Indal had sustained any serious injuries on his person when he was put in the lock up at about 2.45 AM. XXV.Above discussion reveals that Indal had not sustained serious injuries on his person at the hands of public which could not have been detected during his medical examination by PW 1 Dr. Rajiv Kumar. Had the deceased been given any beatings as deposed by some of the PWs with iron rods etc., PW 1 Dr. Rajiv Kumar must have detected the same and mentioned the same in the MLC prepared by him on the intervening night of 2-3/1/1996 at about contd..../-

31 S/v Budhi Prakash etc. 1.17 AM. The findings regarding the medical examination of Indal given by PW 1 Dr. Rajiv Kumar can't be faulted. Rather his findings have even been corroborated by the testimony of the prosecution witnesses referred above. None of them has deposed of sustaining of any external visible injury by Indal. C. INJURIES ON THE PERSON OF DECEASED AT THE TIME OF DEATH Indal was kept in custody of PS Mehrauli during night. On the next morning, he was found vomiting in the lock up. PW 19 HC Jai Singh has stated in his examination in chief before the court that he was posted as HC and was working as Duty Officer from 8 AM to 4 PM on 3/1/96. At about 8 AM he took charge. At that time PW 3 Laxmi Narain told him that one person present inside the lock up was vomiting and was not feeling well. He called A-2 and directed him to take that person to hospital. Departure entry DD No. 5 Ex.PW19/A was recorded in this regard. A-2 sent Indal in a TSR in the custody of Ct. Dilip Singh and DHG Om Prakash to AIIMS. At 12.20 noon duty Ct. Tejpal informed him that accused Indal was declared brought dead by the doctor at AIIMS. He recorded DD No. 8A Ex.PW19/B in this regard and handed over that DD to A-2. At 12.05 PM, he received ruqqa from A-2 through A-3 and on the basis of the ruqqa, he recorded formal FIR No : 9/96, the carbon copy of which is Ex.PW19/C.

contd..../-

32 S/v Budhi Prakash etc. II. The testimony of this witness reveals that at about 8 AM, Indal was found vomiting and was immediately removed to AIIMS where he was declared brought dead. III.Postmortem on the dead body of the deceased was got conducted on 4/1/96. Postmortem on the dead body of the deceased was conducted at the request of Ms. Asha James, the then SDM by medical board consisting of PW 2 Dr. D N Bhardwaj, PW 3 Dr. O P Murti and PW Dr. G K Chaubey. IV.PW 2 Dr. D N Bhardwaj in his testimony before the court has proved the postmortem report Ex.PW2/A to have been prepared by them. Injuries No. 1 to 20 of various dimensions detailed in the postmortem report were found on the person of the deceased at the time his postmortem was conducted. All these injuries were opined antemortem external injuries on the body of the deceased. Immediate cause of death was opined as asphyxia as a result of choking after aspiration of gastric contents consequent upon shock from antemortem injury No. 1 to 20 as mentioned in the postmortem report. All the injuries were opined antemortem in nature, recent in duration and caused due to impact of hard blunt object/surface and were opined collectively sufficient to cause death by causing shock in the ordinary course of nature. The doctor proved the report Ex.PW2/B given by them subsequently on receipt of chemical analysis report. Subsequent opinion contd..../-

33 S/v Budhi Prakash etc. Ex.PW2/C was also given by the doctors on the question asked by ACP/SIT, Crimes and Railways Sh. Jaipal Singh regarding duration of the injuries. It was opined that time since death was 30 hours prior to conduction of postmortem as the deceased was brought dead on 3/1/96 at 10.59 AM and postmortem was conducted on 4/1/96 at 4.30 PM. The findings were consistent with that duration. All the injuries were opined antemortem not beyond 24 hours duration. It was further opined in the opinion Ex.PW2/C that in this case approximate duration of production (infliction) of these injuries was about 12 hours prior to death. However, the outer range of 24 hours has also been mentioned in the postmortem report Ex.PW2/B. PW 2 Dr. D N Bhardwaj further proved the subsequent opinions Ex.PW2/D and 2/E given by them subsequently. V. PW 3 Dr. O P Murti also supported the findings recorded in the postmortem report and corroborated the testimony of PW 2 Dr. D N Bhardwaj in all respects. VI.Perusal of the postmortem report and subsequent opinions given by expert doctors PW 2 Dr. D N Bhardwaj and PW 3 Dr. O P Murti reveal that the deceased Indal was found to have sustained injuries numbering 20 detailed in the postmortem report when he was declared brought dead. The burden to prove that these injuries sustained by Indal were not caused during his custody at contd..../-

34 S/v Budhi Prakash etc. the PS was heavily upon the accused persons. As discussed above, nothing has been established on record that all these injuries revealed in postmortem were caused to Indal by the public at the time of his apprehension while committing theft of stereo. None of the prosecution witnesses in their testimonies before the court narrated if all these injuries found on the person of the deceased in the postmortem report were caused by public persons or that death of the deceased was the result of the beatings given by the public. None of these witnesses has deposed if condition of the injured Indal had deteriorated at any time soon after he was given allegedly good beatings by the public. At no stage prior to detection of the deceased vomiting in police custody, he was found by the accused persons to be in critical condition to rush him for medical help at the hospital. VII.PW 2 Dr. D N Bhardwaj and PW 3 Dr. O P Murti have categorically deposed that the injuries sustained by Indal were external injuries and were antemortem in nature and their duration in this case was about 12 hours, though they gave outer range as 24 hours. Indal was in custody of the police during the period the injuries are opined to have been caused to him. VIII.Accused persons have come up with a plea that the injuries caused to the deceased by the public were not noted by PW 1 Dr. Rajiv Kumar who had medically examined him as the complexion contd..../-

35 S/v Budhi Prakash etc. of the deceased was dark or that he was wet and his clothes were not removed or that medical of the deceased was conducted casually by PW 1 Dr. Rajiv Kumar. However, no expert witness has been examined in defence by the accused persons to substantiate their plea. Hypothetical questions have been put to PW 1 Dr. Rajiv Kumar, PW 2 Dr. D N Bhardwaj and PW 3 Dr. O P Murti to which they replied. PW 1 Dr. Rajiv Kumar in the cross examination has clarified that contusion and bruises are the same thing. To some extent the time of bruises and contusion can be ascertained because of change in color. It is possible that some bruises can't be visible in the early/initial stage. He further admitted that it might be more difficult to identify the same contusion on a dark skinned person. It is not possible to see injuries which are covered by clothes. He did not recollect what clothes the patient was wearing. He did not recollect whether he removed the clothes of the patient at the time of initial examination. The witness further stated that stable meant that the vital parameters were normal. The witness denied the suggestion that he did not prepare MLC Ex.PW1/A after examining the patient. No suggestion was put to this witness in the cross examination if the injuries detected during postmortem report were not possible at the time of medical examination of the patient due to his dark skin or due to his being smeared in mud. contd..../-

36 S/v Budhi Prakash etc. IX.PW 2 Dr. D N Bhardwaj along with other members of the Board categorically opined that immediate cause of death was asphyxia as a result of choking from aspiration of gastric contents consequent upon shock from antemortem injuries No. 1 to 20 as mentioned in the postmortem report. All these injuries were opined collectively sufficient to cause death. The findings recorded by the expert doctors in their postmortem report have remained unchallenged and unrebutted. No suggestion was put to this doctor in the cross examination that the injuries No. 1 to 20 detailed in the postmortem report were not found on the person of the deceased at the time of conducting his postmortem. Only plea of the accused persons is that the patient suffered these injuries at the hands of public while committing theft of the stereo and these injuries could not be detected by PW 1 Dr. Rajiv Kumar at the time of his medical examination. Again hypothetical questions were put to this witness who has satisfied the queries by giving replies to them in the cross examination. X. PW 2 Dr. D N Bhardwaj disclosed that there were four kinds of abrasions. Abrasions involved destruction of the superficial layer of skin. Abrasion could be produced by fall on the ground, by hard object, fist blow or by blunt object. PW 2 further admitted that visibility of abrasion depended upon complexion of the person. The witness volunteered to add that in a fair skinned person it contd..../-

37 S/v Budhi Prakash etc. could be easily appreciated while a person having dark

complexion, it will not be easily and clearly appreciated. He further admitted that there is color change in abrasion. First it is red and subsequently it changes to blue then gray depending

upon the size, infection etc. Abrasion could draw the direction of the force. He further admitted that in most of the times, bruises are deep specially in those case it might not be possible to locate the impact of the injured. Bruises are more in children and old person. The definite opinion as to which injury was caused by which weapon/object could not be given regarding the consistent of object in this case as there were no patterned bruises. The

types of injuries were possible by mob beatings. XI.Over all testimony of the witnesses reveals that no specific suggestion was put in the cross examination if the injuries found on the person of deceased at the time of a conducting his postmortem were the result of beatings given by the public on 2.1.96 at about 10.30 or 11 pm. No suggestion was put to this witness in the cross examination if the patient could remain hail and hearty after sustaining all these injuries at the hands of public for about 12 hours. No suggestion was put to this witness in cross examination if PW1 Dr Rajiv Kumar was negligent in not recording all these injuries in the MLC Ex PW1/A prepared by him or that PW1 could have missed to record all these injuries in the contd..../-

38 S/v Budhi Prakash etc. MLC due to dark skin of the patient. Mere possibilities suggested by the ld. defence counsels for the accused persons to the witness does not prove that PW1 Dr Rajiv Kumar had casually prepared the MLC of the patient when he medically examined him on 23/1/96 at about 1.17 am. XII.Ld. defence counsel for the accused persons have further argued that cause of death in this case was asphyxia and not the result of

beatings given to the deceased. The asphyxia was

regurgitation of gastric contents resulting in blockage of air passage. Since the deceased had consumed alcohol which had delayed digestion of food material, the undigestable food material had blocked the respiratory passage. PW2 has clearly opined that the undigestable food material in the stomach of the deceased could block the respiratory passage. The undigestable food material in the stomach coupled with vomiting and followed by regurgitation could lead to blockage of passage. Death under these circumstances was opined as death due to asphyxia. XIII.I do not subscribe to this line of arguments addressed by the ld defence counsel for the accused persons. Doctors in their postmortem report have categorically opined that immediate cause of death was asphyxia as a result of choking from aspiration of gastric contents consequent upon shock from antemortem injuries 1 to 20 as mentioned in the postmortem reports. It reveals that contd..../-

39 S/v Budhi Prakash etc. the immediate cause leading to choking from aspiration of gastric contents was consequent upon shock from antemortem injuries. Had the deceased not subjected with antemortem injuries 1 to 20 detailed in the postmortem report, there would have no reason for causing shock resulting in choking of an aspiration of gastric contents to cause death of the deceased due to asphyxia. The ld. defence counsel for the accused persons have failed to state as to what led the deceased to vomit at about 8 am on 3/1/96 when case of the accused persons is that deceased remained alright after he was put up in the lock-up. There is nothing on record to show if condition of the deceased had deteriorated to such an extent during his police custody after he was brought to the PS after his medical examination prompting the police officials to rush him to the hospital. He was casually found vomiting at

about 8 am by PW25 Laxmi Narain and he informed A-2 who sent the deceased for his medical assistance to the hospital through Ct. Dalip. Even at that time A-2 did not bother to remove the injured/deceased to a near by hospital to provide him immediate medical help. XIV.The deceased was in the custody of the police. His death was unnatural, caused by multiple injuries sustained by him. It was the duty of the police to take care of the deceased and to provide him immediate medical assistance. The burden was clearly on the contd..../-

40 S/v Budhi Prakash etc. accused persons to explain how and under what circumstance deceased Indal sustained these injuries and caused his death. Unless a plausible explanation is given by the accused persons which is consistent with their innocent, the obvious inference is that fatal injuries were inflicted in police custody resulting in his death for which the accused are responsible and liable (AIR 1993 S.C. 1960). XV.In the latest case titled Munshi Singh Gautam Vs State of M.P. reported in AIR 2005 S.C. 402, the Hon'ble S.C. has observed : ''Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues------------'' The Hon'ble S.C. further observed in para-8 of the judgment : ''--------The courts are also required to have a change in their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed''. XVI. It is thus very difficult to have flaw-less evidence in custody contd..../-

41 S/v Budhi Prakash etc. death. In the present case also the prosecution seems to be in a

dilemma to prove its own case against the accused persons. On one hand the prosecution has challaned all the accused persons u/s 304 IPC for causing death of deceased Indal. On the other hand they themselves have attempted to adduce evidence on record that injuries to the deceased Indal were caused by the public at the time of commission of theft of stereo by him. Had there been severe beatings by the public to the deceased at the time of his allegedly committing theft of the stereo why the IO of the said case i.e. A-2 did not brother to get any case registered against the persons who allegedly took law in their hands. A-2 got registered case u/s 379 IPC vide FIR No. 8/96 against the deceased but he remained mum to proceed against any person for allegedly causing severe injuries to the deceased. This is the same IO i.e. A-2 who got registered the present case u/s 304 IPC only after Indal was declared brought dead by the doctors at the hospital and he was informed about the death of the deceased. A-2 has failed to explain what led him at that time to register case u/s 304 IPC for the injuries caused to the deceased which proved fatal. It is obvious that by getting the present case registered u/s 304 IPC A-2 wanted to save his own skin. XVII.Allegations of custodial violence in this case are not sham attempts to gain undeserved benefit by the complainant who is a poor lady having no financial means to bring to book the accused contd..../-

42 S/v Budhi Prakash etc. persons. No oblique motive has been imputed to the complainant. Nothing is on record to show if complainant was intimated about the arrest of the deceased in case FIR No. 8/96 or she was informed soon after Indal was found in precarious condition. She was not even informed during the whole night if any public person had given beatings to the deceased. XVIII.The prosecution witnesses examined by the prosecution in fact have failed to prove if severe beatings were given to the deceased by the public. It has not come on record as to which particular person had caused beatings to the deceased. Name of such person has not been inferred so far. There is nothing on record to show if any such person was ascertained or apprehended for the injuries caused to the deceased. In the present case only the complainant or his associates could be interested persons to cause beatings to the deceased at the time of alleged commission of theft of the stereo in the car. However, neither the complainant nor his associates examined by the prosecution claimed to have given beatings to the deceased. Who else had given beatings to the deceased has not been specified by any of them. It was a simple case of theft of stereo where the outsiders/strangers are not expected to gather at the spot and to inflict injuries to a thief. No weapon of offence was recovered from the deceased. No implement used for committing theft was recovered from his possession. So contd..../-

43 S/v Budhi Prakash etc. much so, no stereo was found in possession of the accused. XIX.The accused had motive to subject the deceased with beatings. They were to extract confession from the deceased regarding his associates. Also they were to get information as to where and to whom the deceased had passed on the stolen stereo. That motive seems to have methods. XX.Again I find no support in the arguments of the ld counsel for the accused persons that the injuries found on the person of the deceased were opined to have been caused beyond 12 hours from the time he was declared brought dead. In my view there is no exact evidence on record to show as to when these injuries detailed in 1 to 20 in postmortem report were inflicted. The prompted the accused to use third degree

estimate whereby outer range has been opined by the doctor is not exact. The deceased was not suffering from any external fatal injuries at the time of his medical examination by PW1. It was observed that his condition was not at all serious causing his death due to the beatings allegedly given by the public. It was duty of the accused persons to explain how and under what circumstance deceased sustained all these fatal injuries. XXI.Circumstantial evidence adduced on record by the prosecution fully proves that injuries on the person of the deceased were inflicted during his police custody. contd..../-

44 S/v Budhi Prakash etc. The law relating to circumstantial evidence has been

detailed in the latest case titled Trimukh Maroti Kirkan Vs. State of Maharashtra reported in 2006 IX AD(S.C.)81, the Hon'ble Supreme Court has observed: The normal principle in a case based on circumstantial from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. The Hon'ble Supreme Court further observed in the said judgment that: If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above , is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland Vs. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead contd..../-

45 S/v Budhi Prakash etc. evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it read: (b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket on him, Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. XXII.The facts and circumstances of case Munshi Singh Gautam Vs State of MP (supra) are fully applicable to the facts and circumstances of this case. In the said case deceased Shambhu Tyagi was brought to the PS on the intervening night 19-20/6/84

contd..../-

46 S/v Budhi Prakash etc. to exhort confession. He was given beatings there at the PS as a result of which he died. Thereafter to remove the traces of the crime and conceal the acts, his dead body was thrown near a 'Nala' . In the said case the deceased was found to have sustained injuries which were confined to the skin and upper level of the body. Grievous injuries were not found on vital parts of the body like head, heart,lungs etc. Duration of the injuries were widely variant. The right lung of the deceased was T.B. effected. The combined effect of alcohol and the injuries shortened the period of death and resulted in a quicker death. XXIII.In the present case mere consumption of alcohol by the deceased and infliction of some beatings (if any) at the time of his commission of theft of stereo had no role to cause the death of the deceased particulary when there is nothing to inter if the deceased was suffering from any ailment. XXIV.From the evidence documentary, circumstantial and oral, proved on record I am fully satisfied that injuries were caused to the deceased Indal while he was in police custody. D. ROLE OF ACCUSED Regarding role of A-1 in the commission of the offence, only evidence that has come on record in the present case is that he was working as Additional SHO on the intervening night of 2/3-1-96. Nothing has come on record to show if Indal was interrogated by A-1 contd..../-

47 S/v Budhi Prakash etc. during his custody at the PS. Again there is nothing on record to show if custody of Indal came to A-1 at the PS. Again there is no evidence whatsoever on record to show if A-1 participated in causing injuries to the deceased. II. It has come on record that rukka in case FIR No. 8/96 u/s 379 IPC was shown to A-1. It has also come on record that it was

routine to show rukka to the Additional SHO before registering any case. So mere fact that A-1 had seen the rukka of case FIR NO. 8/96 u/s 379 IPC and on the basis of the same, FIR was registered, in my view is not sufficient to infer the complicity of A1 in the commission of the offence. III.A-1 being Additional SHO of the PS was no doubt had duty to see as to what was happening at the PS during his presence there. He was not there to take rest as reportedly he was in his rest room. Apparently A-1 did not perform his duty and failed to intervene to save the life of a young person. The department/office of A-1 is expected to take necessary action for dereliction of duty as during his presence in PS custody death took place. However, for that A-1 can't be fastened with criminal liability. There is nothing to suggest if A-1 shared common intention with co-accused persons to give beatings to the deceased resulting in his death. No role whatsoever has been imputed by the prosecution witnesses during their statements before the court against A-1 for causing injuries contd..../-

48 S/v Budhi Prakash etc. to the deceased. Hence A-1 deserves benefit of doubt. IV.So far as A-2 to A-4 are concerned, in my view, the prosecution has fully established that all these persons caused beatings detailed in the postmortem report to the deceased Indal during his custody. All the prosecution witnesses have categorically deposed that custody of the deceased remained with these accused persons after he was brought to the PS. PW6 ASI Nand Lal in his examination-in-chief also stated that on the intervening night of 23/1/96 at about 12.30 midnight, he received rukka from A-2 through A-4. As observed above this rukka was fabricated as A-2 with A-4 never reached at the spot where the deceased was apprehended in case FIR No. 8/96. Again this witness PW6 ASI Nand Ram in his examination-in-chief stated that at about 2.40 am Indal was brought to the PS by A-2,A-3 and A-4. There is no cross examination on this aspect. It shows that custody of Indal remained with A-2 to A-4 after he was brought at about 2.40 am at the PS. V. On 3.1.96 when deceased Indal was found vomiting PW19 HC Jai Singh called A-2 and informed him that the deceased was vomiting and was not feeling well. A-2 got sent the deceased to AIIMS through Ct Dalip and DHG Ct Om Parkash. At that time PW19 did not inform A-1. Rather he informed about the deceased vomiting to A-2. It also establishes his (A-2) presence at the PS at contd..../-

49 S/v Budhi Prakash etc. that time. VI.PW19 HC Jai Singh has further testified that at 12.20 noon information regarding death of deceased Indal was received and he recorded DD no. 8A which was again handed over to A-2. A-2 along with A-3 and A-4 reached at AIIMS. Again at about 2.05 PM PW19 HC Jain Singh received rukka from A-2 through A-3 and on the basis of that he recorded formal FIR in the present case which is Ex PW19/C. This fact has remained unchallenged in the cross examination and it shows the presence of A-2 to A-4 at the PS. VII.Similarly PW21 Ct Shyam Vir in his examination-in-chief stated that at about 2.40 am Indal was kept inside the hawalat by A-2 and A-3. PW22 HC Ramji also deposed that after he had recorded DD No. 86B Ex PW22/A which was handed over to A-2 who left for the spot with A-3,A-4 and A-5. VIII.The above facts reveal that the custody of Indal remained with A-2 to A-4. Hence they were having direct nexus for the injuries sustained by the deceased during his custody with them. A-2 and A-3 has failed to explain how and under what circumstance deceased happened to sustain 20 injuries on his different body parts during his custody with them. IX.Conduct of the A-2 and A-3 in fabricating of ruka to save their skin also lends credence to the apprehension of the mother of the deceased for causing his custody death. contd..../-

50 S/v Budhi Prakash etc. X. In view of discussion, I am of this view that prosecution has fully proved the involvement of A-2 to A-4 in the commission of the offence. A-2 to A-4 have failed to give plausible explanation to the incriminating circumstance appearing against them in their statements recorded u/s 313 CrPC. The defence evidence produced by them inspires no confidence. DW1 Vivek examined by A-2 never narrated the facts deposed by him before any authority at any time. Presence of this witness was not suggested to any prosecution witnesses in the cross examination. Testimony of DW1 Ct Suresh has no relevance in view of testimony of expert witness PW1 Rajiv. XI.There is nothing on record to show that prosecution of A-2 to A-4 is bad for not obtaining sanction u/s 140 D.P. Act. The acts of A-2 to A-4 in causing severe injuries to the deceased during police custody were not within their duties. Moreover the prosecution has also proved sanction u/s 197 CrPC duly proved by PW30 Mansa Ram and PW31 S. Patni. E. CONCLUSION In view of my above discussion, I am of this view that the prosecution has established beyond reasonable doubt that injuries to the deceased were caused by A-2 to A-4 during police custody. I am also of the view that the injuries caused to the deceased Indal inflicted by the accused persons numbering 20 on various body contd..../-

51 S/v Budhi Prakash etc. parts of the deceased led to his death. The postmortem report is categorical and has opined the cause of death was shock due to the antemortem injuries inflicted on the deceased. The injuries were inflicted intentionally. A-2 to A-4 can certainly be clothed with the intention that the bodily injuries caused to the deceased were likely to cause his death. The deceased was a young boy aged about 20/25 years. He was not suffering from any ailment/disease to accelerate his death. The injuries proved fatal and caused his death. The prosecution has thus proved on record commission of offence punishable u/s 304 part-1 IPC. A-2 to A-4 are accordingly held guilty for the commission of the offence punishable u/s 304 part-1 IPC and convicted accordingly. II. case. Announced in the open Court on 02/02/2007 Benefit of doubt is given to A-1 and he is acquitted in this

Additional Sessions Judge New Delhi

contd..../-

52 S/v Budhi Prakash etc. IN THE COURT OF SHRI S.P. GARG SESSIONS JUDGE : NEW DELHI : ADDITIONAL

Sessions Case No : 17/2003 State vs (1) HC Rajbir ..A-1 s/o Ramanand r/o 40, Ashoka Police Line, Chanakyapuri, New Delhi. Ct. Bachoo Singh ..A-2 s/o Sohan Lal r/o Village naugaya, Post Peepla, District Bharatpur, Rajasthan. Ct. Ramesh ..A-3 s/o Dharam Singh r/o Village Kiloi Khas, District Rohtak, Haryana. DHG Kanwar Pal Home Guard PS Mehrauli ..A-4(since PO)

(2)

(3)

(5)

FIR No : 9/1996 PS : Mehrauli U/s : 304 (Part I) IPC ORDER ON SENTENCE I have heard the convicts on the point of sentence. Plea of convict A-1 is that he has remained in JC in this case for about four years. He has three small children and no one is there to look after them. Plea of convict A-3 is that he has already remained in JC in this case for about four years. He has a small child aged about 4 years and there is none to look after him. He has aged parents who

contd..../-

53 S/v Budhi Prakash etc. remain ill . Plea of convict A-2 is that he has already remained in JC in this case for about four years. He has poor background. He has wife, three sons and one daughter aged about 15,12,10 and 8 years respectively. All the children are school going. They are being

maintained by his wife while working as labourer. I have considered the prayer of convicts and have gone through the file. On perusal of the file it reveals that the offence committed by the convicts is very serious and grave. The convicts caused the death of a young person aged about 25 years by giving beatings to him in police custody. The deceased was a suspect in a petty theft case. He was tortured with a view to extort information from him. The Hon'ble Supreme Court has time and again reminded restraint against unauthorized process of misuse of law. In the case reported in AIR 1981 SC 625 the Hon'ble Supreme Court has observed : Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State of Official running berserk regardless of human rights. Article 21, with its profound concern for life and limb, will become dysfunctional unless the agencies of the law in police and prison establishments have sympathy for the humanist creed of that article instead of a rough treatment by police for getting information or confession.

contd..../-

54 S/v Budhi Prakash etc. In the case of Gauri Shanker Sharma vs State of UP

reported in AIR 1990 SC 701, the Hon'ble Supreme Court has observed that : The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authority to brutally assault them while in his custody. Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency. We, therefore, do not think we would be justified in reducing the punishment imposed by the Trial Court. However, considering all the facts and circumstances of the case; the fact that the convicts have remained in JC in this case for about four years; the fact that they are not involved in any other similar offence; the fact that they are not previous convicts; the fact that they have small families to look after; the fact that they are the only earning members of their families; the fact that the case of the prosecution is based upon circumstantial evidence and other prayer of the convicts, the convicts are sentenced to undergo RI for seven years with fine of Rs. 5000/- each and failing to pay the fine to undergo SI for three months for the commission of the offence punishable U/s 304 (Part I) IPC. The period already remained by the convicts in JC shall contd..../-

55 S/v Budhi Prakash etc. be counted and set off against their substantive sentence U/s 428 CrPC. Copy of the judgment be given free of cost to the convicts. File be consigned to record room.

Announced in the open Court on 06/02/2007

Additional Sessions Judge New Delhi

contd..../-