Delhi Custodial Death Case-Police office R.P. Tyagi Convicted

7/31/2019 Delhi Custodial Death Case-Police office R.P. Tyagi Convicted

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IN THE COURT OF SH. RAJENDER KUMAR : ADDITIONALSESSIONS JUDGE : KARKARDOOMA COURTS : DELHI.

S. C. no.1/06

Tika Ram Vs. (1) R.P. Tyagi (2) Tej Singh (3) Gurdass Ram (4)

K.P. Singh (5) Surender Pal (6) Jagdish (7) Kanwar

Lal (8) Narender (9) Dr. A.K. Verma (10) Narender

Gupta (11) Chander Kumar Sharma (12) Manoj

Kumar

U/s. 168/201/217/218/302/325/323/343/347/120B/34 IPC & 24

D.P. Act

Complaint Case no. 98/1987

PS. Vivek Vihar

Pr. :- Sh. Zenul Abedeen, APP for State. All accused persons on bail except accused R.P.Tyagi who is in J/C.Sh. Sanjay Gupta advocate for accused R.P. Tyagi.Sh. Mukesh Kalia advocate for accused Tej Singh.Sh. S.K. Ahluwalia adv. for accused Gurdas Ram.Sh. Jai Gopal Garg advocate for accused K.P. Singh,

Narender, Chander Kumar Sharma and ManojKumar.Sh. Arvind Kumar advocate for accused Surenderand Kanwar Pal.Sh. R.S Juneja advocate for accused Ct. Narenderand Ct. Jagdish.Sh. N.K. Sharma advocate for accused Dr. A.K.Verma.

JUDGMENT

1. On 16.08.1987, it was festival of Janamsthmi. ASI Rishi Pal

(DW1) posted in PS Vivek Vihar, was deputed at Chhota Bazar,

Shahdara. At about 9.20 p.m., some one told him about two

antisocial persons who were extorting money on the point of a


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knife at Circular Road. Ct. Rishipal (as he then was) went there

and if this witness is believed, he found one Mahender and Ram

Kumar there. On being challenged, both of latters started

grippling with him. Ram Kumar stabbed him in chest and

Mahinder Kumar gave him beatings after snatching his own

danda. An FIR No. 259/87 was registered in this regard, on the

statement of Ct. Narender in PS Vivek Vihar.

2. In the intervening night of 24 and 25 August 1987 both of

said two accused were admitted in SDN hospital having

sustained injuries ostensibly by beating. Mahender was shifted

to LNJP hospital where he died on 25/08/1987. As it appeared

an unnatural death, area SDM S.S Rathore (Pw1) conducted

inquest about cause of his death, on being nominated by ADM

Head Quarter. Sh. S.S Rathore (Pw1) was transferred from the

post of SDM. Sh. Parimal Rai (Dw 7) next SDM, submitted his

report Ex.Dw7/A, after recording statements of several witnesses.

3. SDM Sh. S.S Rathore found involvement of the police in

that crime and recommended registration of FIR against the

police of PS Vivek Vihar for offence U/S 304 IPC. Police did not

lodge any FIR. Sh. Parimal Rai (Dw7) again conducted inquest

and did not agree with his predecessor. He reached a conclusion

that Mahender Kumar had sustained injuries on being beaten by

the public. It did not satisfy family members of deceased


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particularly his father. The latter left no door unknocked in

bringing the law into motion. Same filed several complaints to

various authorities from Prime Minister, Home Minister, Lt.

Governor of Delhi, Commissioner of Police to local SDM and

editors of most of newspapers. A member of MCD, Satish

Aggarwal (Pw2) also talked to SHO on behalf of complainant.

Ultimately a case FIR no. 59/88 was registered for offence

punishable U/s 304/34 IPC . This case was sent to concerned

MM, KKD, Delhi as 'untraced' which was accepted by the then

MM Sh. Z.S Lohat (Pw 29) by his order dated 07.07.89. Father of

deceased Sh. Tika Ram preferred to file a complaint U/s 190 Cr

PC.

4. Ld MM, Karkardooma Court, Delhi found a prima facie

case against all of accused including some other persons and

summoned the same to face trial in this case. The accused

persons were charged by this court on 30.4.01 for which they

pleaded not guilty and claimed trial.

5. In order to prove its case, prosecution examined 48

witnesses in total. The accused persons in their statements

recorded U/s 313 Cr PC when the incriminating evidence on

record was put to them denied its correctness. They examined 12

witnesses in defence. Accused Dr. A K Verma examined himself

as DW11.


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6. I heard ld counsels appearing on behalf of all the parties

in detail.

7. Accused R.P. Tyagi, Gurdass Ram, SI Tej Singh, Surender

Pal, Narender, K.P. Singh, Jagdish and Kanwar Pal were employed

with Delhi Police while Dr. A.K. Verma was employed with MCD

as a doctor at the time of incident. It is contended by Ld counsels

representing said accused that being public servants not

removable from their office, save by or with the sanction of

concerned Government, cognizance of offence could not have

been taken against aforesaid accused persons. Similarly Section

140 of Delhi Police Act had barred taking of cognizance against

police persons i.e accused mentioned above, except instituted

within three months after the date of the act, which has not been

done in this case.

8. Though Ld MM, Delhi had taken note of provisions of

sanction by concerned Govt. while summoning the accused. Sh.

Sanjay Gupta advocate reminded me about an order of our High

Court dated 06.12.95 where citing a mandate of the apex court

given in case titled as Prof. Sumer Chand Vs Union of India JT

1993 (5) 189 his lordship J.K. Mehra, J, directed this court to

consider the effect of Section 140 of D. P. Act in the light of

pronouncement of the Hon'ble Supreme Court in case of Sumer


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Chand Vs. Union of India reported in JT 1993 (3) 189. This

court was also required to examine whether it was a continuous

offence and when did limitation start running in this case.

9. It is also the plea of ld. defence counsels that after sending

the case for investigation to police U/S 156 (3) Cr. P. C., ld. MM

could not have resorted to inquiry U/S 202 Cr. P. C. by calling

complainant and his witnesses to be examined in court, as has

been done by ld. MM in this case.

10. All these issues have been considered in detail at the

time of initiation of trial and by order dated 07.4.01, it was

decided by this court that no such sanction was called for in this

case as actions alleged against the accused persons were not in

discharge of their official duties and that proceedings of ld. MM

in holding inquiry U/S 202 Cr. P. C., was also not illegal in any

way.

11. When an issue has already been decided, there appears

no propriety to discuss the same again. I find support in my

opinion from a case titled as Lalta Prasad Vs State of UP 1970

Criminal Law Journal 1270 where it was held by the apex court of

India that when an issue of fact has been tried by a competent

court on a former occasion and a finding of the fact has been

reached in favour of accused, such a finding would constitute an

estoppel or res judicata against the prosecution, not as a bar to


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the trial and conviction of the accused for a different offence but

as precluding the reception of evidence to disturb that finding of

fact when the accused is tried subsequently. This finding was up

- held by the apex court itself in case Masud Khan Vs State of UP

AIR 1974 SC 28. It was again observed by the Supreme Court in

case A R Antuley Vs R.S Nayak that this code (Criminal

Procedure Code) ought to recognise the distinction between

finality of judicial order qua the parties and the reviewability for

application to other cases.

12. Deceased Mahender Kumar was got admitted in SDN

hospital on 24.8.87 by Ct. Rattan Lal no. 576 E. Dr. A.K. Verma

(now accused) who also examined himself as Dw11, examined

said patient and pointed out 13 external injuries on said patient

well described in MLC Ex.Pw6/A. Dr. Bishnu Kumar conducted

postmortem upon the dead body of said deceased. The report in

this regard is Ex.Pw36/A. In the opinion of Dr. Bishnu Kumar, the

cause of death in this case was due to 'shock as a result of

multiple injuries all over the body caused by some blunt force

object or surface (Ex. PW36/A)'.

13. When a person dies in the custody of police due to injuries

ostensibly caused by beatings and there were severe allegations

of torture against the police, in such circumstances, it was for the

police to explain the injuries suffered by such deceased. It was not


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sufficient for the accused in whose custody the deceased was,

merely to deny claim of torture. Police had to establish that

injuries found on the body of such person were caused not by

them but by someone else. May I refer here a recent case titled as

State of Rajasthan Vs KashiRam 2006 IX AD SC (561). The

respondent / accused was tried for murder of his wife,

relationship between them was not cordial. There were instances

of respondent assaulting deceased and treating her with cruelty,

prosecution established that deceased was last seen alive in her

house and that Pw2 had seen her as well as the accused in their

rented premises. It was proved that two doors of the house were

found locked in the morning, the respondent made only a bald

denial of all the incriminating circumstances put to him and had

no explanation to offer. In these circumstances, it was held by

the Supreme Court of India that the respondent having been

seeing last with the deceased, the burden was upon him to prove

as what happened thereafter, since those facts were within his

special knowledge.

14. In another case of murder and matrimonial cruelty titled

as Trimukh Maroti Kirkan Vs. State of Maharashtra 2006 IX AD

(S.C) 81 it was held by the apex court :-

If an offence takes place inside the privacy of a house and in such circumstances where theassailants have all the opportunity to plan andcommit the offence at the time and in


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circumstances of their choice, it will beextremely difficult for the prosecution to leadevidence to establish the guilt of the accusedif the strict principle of circumstantialevidence, as noticed above, is insisted uponby the Courts and that law does not enjoin aduty on the prosecution to lead evidence of such character which is almost impossible tobe led or at any rate extremely difficult to beled.

15. It is plea of accused persons that said Mahender Kumar

had died due to injuries caused by public. An information in this

regard was recorded in police station Vivek Vihar as DD9/A. FIR

59/88 was registered about said incident in PS Vivek Vihar. After

investigation, the case was sent as untraced. The request of ACP

Gandhi Nagar to close investigation in this regard was accepted

by Sh. Z.S Lohat, the then MM, KKD, Delhi vide his order

Ex.Pw29/A.

16. On the other hand, as per prosecution, it was police of PS

Vivek Vihar by which deceased Mahender was beaten to death. It

is also alleged that certain police persons posted in said Police

station abducted family members of said deceased, confined

them in police station and tortured the same in order to compel

them to produce deceased Mahender Kumar and Ram Kumar in

police station. Mother of deceased Smt. Rajkali (Pw9) deposed on

oath that on the day of Janmashtmi, four police officials of PS

Vivek Vihar namely SHO R.P. Tyagi, Surender, Narender and


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Mukesh Kumar (PO) came to her house and asked her regarding

whereabouts of Mahender and Ram Kumar. When she showed

her ignorance about said fact those police persons started hurling

abuses at her. She was directed by them to search said Mahender

Kumar and Ram Kumar and produce them to police station.

Thereafter, aforesaid police persons took her and her daughter in

law Premwati in police station. They were confined in lockup.

Aforesaid police persons also lifted sister and mother of Ram

Kumar from their house and brought to police station Vivek

Vihar. It is again deposed by this witness that at about 7.00 am

her sons namely Mahender, Kishan Chand alongwith Jassu and

Rajender, both of their neighbours and one more person whose

name she did not recollect produced Mahender and Ram Kumar

in police station and further that accused R.P. Tyagi told them

that unless and until Ram Kumar and Mahender are produced

they will keep them confined in police lockup. Accused R.P.

Tyagi also stated to her that he will kill her son Mahender Kumar.

He (R.P. Tyagi) gave her beatings with lathi as a result of which

she sustained severe injuries on her fingers. He (R.P. Tyagi) used

filthy language for her and her daughter in law. Further it is

clarified by the same witness that when her son Kishan Chand

produced Mahender and Ram Kumar in police station, accused

R.P. Tyagi went to them and asked accused Jagdish to release


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them (PWs) from police station. It is further explained by this

witness that after being released they kept standing outside police

station. They also requested accused R.P. Tyagi to allow them to

see Mahender and Ram Kumar. The latters were taken by the

police officials inside police station and they had started giving

beatings to them, due to which both of them (Mahender and

Ram Kumar) were crying.

17. PW9 also verified her statement recorded by SDM

Ex.Pw1/B. In her cross examination by APP it is admitted by this

witness that she was beaten by police at her residents as well as in

police station, she was asked to give birth to one more Mahender

on which she replied that it was not her age to bear a child. Again

it is disclosed by this witness that SHO (R.P. Tyagi) had stated to

her that he had already committed three murders and took her in

a room, misbehaved and insulted her there. This witness again

told to court that in the morning of 25.8.87 she went to JPN

Hospital along with tea for serving it to her son Mahender but was

not allowed to go there. The latter died on 25.8.87 at about 4.00

pm and she raised suspicion upon police for his death.

18. Rajender Prasad (brother of deceased Mahender Kumar)

who was examined as Pw12 reminded about an incident when he

was lifted from his house by the police and was taken to the house

of his in laws at Mangolpuri where his brother Mahender Kumar


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station for two days and during this period he was given beatings

by the police.

20. About the incident of 24.08.1987 it is deposed by this

witness that on this day at about 7.00 a.m. he along with his

brother Manohar Lal and Kishamn Chand was searching for

Mahinder and Ram Kumar, his brother Rajender (same name),

Jassu met them. They were looking about said Mahinder and

Ram Kumar. Both of latters arrived there from Ghaziabad side.

All of them requested both of latters to surrender before the

police so that their parents and relatives and other persons be

released. They agreed on the assurance that police will not kill

them. They hired a TSR and reached police station. He along

with Manohar Lal, Kishan Chand, Jassu and Rajender produced

Mahender and Ram Kumar to police at about 7.45 am. On seeing

both of them police officials started shouting. SHO R.P. Tyagi and

other police persons came out and rushed to reporting room

where they had surrendered. SHO (R.P. Tyagi) directed them to

leave the police station. His mother and mother of Ram Kumar

requested police to talk with said Ram Kumar and Mahender but

they were not allowed to do so. All of them left police station but

stood outside boundary wall of same. After few minutes they

heard sound of weeping by Mahender and Ram Kumar. They

wanted to enter in the police station but were not allowed by the


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police. Manohar Lal (Pw13) and his wife Premwati (Pw14) also

verified the fact of lifting of Tika Ram and said Manohar Lal by the

police.

21. Rakesh Kumar (Pw10), Govind Ram (Pw11), Pappu

(Pw18), Sondal (Pw20), Subhash (Pw21), Sukhbiri (Pw33) and

Jamman Lal (Pw34) also deposed about the police having taken

them to police station and inquired about said Mahender Kumar

and Ram Kumar. Pw10, Pw11 and Pw21 mentioned above also

deposed about their beatings by the police. Jamman Lal (Pw34)

deposed that apart from his wife Sukhbiri and daughter Omwati,

two of his sons namely Ram Lal, Dhrampal and one of their

relatives namely Mormukat and a cousin Narain Dass were also

lifted by the police. All of them were being taken in the morning

and released in the evening. All this happened for 4-5 days. This

witness identified his signatures on statement Ex.CW34/A. When

examined by Ld MM at the time of pre-summoning evidence

Manohar Lal (Cw 26), Kishan Chand (Cw 27) and Rajender (Cw 5)

tautologiesd the story as told by Rajendre Prasad (CW9). Though

not verified the same when examined in court, during trial.

22. It is contended by Ld defence counsels that depositions

of aforesaid witnesses given before the court of Ld MM at pre-

summoning stage cannot be relied upon. Sh. Sanjay Gupta

advocate has also strong objection as incriminating evidence


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adduced at pre-summoning stage was put to the accused in their

statements recorded U/S 313 Cr. P. C. In view of ld counsel,

statements of witnesses recorded by Ld MM during inquiry U/s

202 Cr PC cannot be relied upon as the accused had got no right

to cross examine such witnesses at that time. A case titled as

Sashi Jena & Ors. Vs. Khadal Swain & Anr. 2004 (1) CAR (SC) 156

is strongly relied upon by ld counsel here. Their lordships of

Supreme Court pointed out three pre-requisites, where evidence

given by a witness in a judicial proceeding is admissible in a

subsequent judicial proceedings. Relevant extract of this

authority is reproduced as under:-

From a bare perusal of the aforesaidprovision(section 33 of Indian Evidence Act), it would appear that evidence givenby a witness in a judicial proceeding orbefore any person authorized to take it isadmissible for the purpose of proving in asubsequent judicial proceeding or in a laterstage of the same judicial proceeding, thetruth of the facts which it states in itsevidence given in earlier judicialproceeding or earlier stage of the same judicial proceeding, but under provisothere are three pre-requisites for making the said evidence admissible in subsequentproceeding or later stage of the sameproceeding and they are (i)that the earlier

proceeding was between the same parties:(ii) that the adverse party in the firstproceeding had the right and opportunity to cross examine; and (iii) that thequestions in issue in both the proceedings were substantially the same, and in theabsence of any of the three pre-requisitesafore-stated, Section 33 of the Act would


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not be attracted.

23. Hon'ble Judges also cited a case titled as V.M. Mathew

Vs.V.S. Sharma & Ors. AIR 1996 Supreme Court 109 in which it

was laid down that in view of the second proviso, evidence of a

witness in a previous proceeding would be admissible under

Section 33 of the Act only if the adverse party in the first

proceeding had the right and opportunity to cross examine the

witness.

24. A minutia of Section 33 of said act and findings given in

said case, would make it clear that Ld defence counsel has

misconstrued the mandate of apex court. Section 33 of Indian

Evidence Act is reproduced here under as:-

Relevancy of certain evidence forproving, in subsequent proceeding, thetruth of facts therein stated.- Evidencegiven by a witness in a judicialproceeding or before any personauthorized by law to take it, is relevantfor the purpose of proving, in asubsequent judicial proceeding, or in alater stage of the same judicialproceeding, the truth of the facts whichit states, when the witness is dead orcannot be found, or is in capable of giving evidence or is kept out of the way

by the adverse party, or if his presencecannot be obtained without an amountof delay or expense which, under thecircumstances of the case, the Courtconsiders unreasonable.

Provided.- that the proceeding wasbetween the same parties or their


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representatives in interest|:that the adverse party in the firstproceeding had the right andopportunity to cross examine: that thequestions in issue were substantially the same in the first as in the secondproceeding

Explanation- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

25. When this entire section is read together, it becomes

explicit that this provision prescribes the conditions under which

statements by persons as mentioned therein given in a judicial

proceedings become relevant. This section does not say anything

about such statements given by persons, who are alive or whose

presence in court can be secured easily. In this way, depositions

of PW's, made before Ld. MM in this very case but did not stick to

their earlier statements, have not become irrelevant or

inadmissible in view of Section 33 of Indian Evidence Act.

26. True, this provision makes deposition of complainant

Tika Ram given before Ld MM, Delhi irrelevant as the second pre-

requisite cited above was not fulfilled. The adverse party i.e

accused persons having got no opportunity to cross examine said

witness. But the statements of witnesses who appear in court in

subsequent proceedings and whose earlier deposition can well be

tested on the touch stone of cross examination by adverse party


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cannot be thrown away like waif.

27. The witnesses mentioned above were examined by Ld

MM on oath. Same were again examined in this court during

trial. Section 137 of The Indian Evidence Act, 1872 prescribes

three forms of examination of a witness as:-

Examination-in-chief .-The examination of a witness by the party who calls him shall becalled his examination-in-chief.Cross-examination .-The examination of a witness by the adverse party shall be called hiscross examination.Re-examination .-The examination of a witness, subsequent to the cross examinationby the party who called him, shall be called his

re-examination.

28. CWs mentioned above were called and examined before

Ld MM by the complainant. It was their 'examination in chief'.

Similarly, same were again summoned in this court and re-

examined by the complainant/ prosecution. In view of aforesaid

definition, this cannot be called as 're-examination', not being

subsequent to cross examination. Said witnesses had not been

cross examined till then by any of accused. In this way, it

remained their 'examination in chief' again. The Indian Evidence

Act, 1872 nowhere envisages examination in chief of same witness

twice or thrice in the same proceedings of a case even at different

stages in court. It has also not been made mandatory that

'examination in chief' should always be in the presence of adverse


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party. Considering all this, mejudice when 'examination in chief'

of these witnesses had already been recorded and that by a court,

there was no need to record their 'examination in chief' again.

Such witnesses could have been cross examined by the accused

on their depositions already recorded by ld. Metropolitan

Magistrate. Moreover, Section 80 of The Indian Evidence Act

obliges the court to presume a document purporting to be a

record or memorandum of the evidence, or of any part of the

evidence given by a witness in a judicial proceeding, taken in

accordance with law and purporting to be signed by any Judge or

Magistrate as genuine and that statements purporting to be made

by the person signing it, are true and that such evidence,

statement or confession was duly taken.

29. What to say of a deposition recorded by a court, it was

held by our own High Court in case Sumer Singh and Ano. Vs.

State and Ors. 130 (2006) DLT 430 , that the investigation officer

recorded the statements of the prosecution witnesses U/S 161 Cr.

P. C., it has to be presumed that he correctly recorded their

statements.

30. On this reason, I think statements of said witnesses

recorded by Ld MM were also relevant and examinations of said

witnesses recorded during trial are in continuity of same

proceedings. This was a case initiated on a complaint. It does


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not sound well to say that it was a statement recorded at the

summoning stage and to be thrown away when accused are

summoned, or that it was a deposition to determine the charge

against accused, not of any worth when charge is determined or

same witness has to take oath of true deposition third time at trial

when every time, he has deposed before a proper court of justice.

In view of section 80 of Indian Evidence Act, discussed above,

each of said statements can be presumed to be true.

31. It is again the plea of Ld defence counsels that many of

Pws turned hostile. As per Sh. Sanjay Gupta advocate there were

lot of improvements in their statements and in this way no

reliance can be placed upon the depositions of such witnesses.

Ld counsel cited following authorities on this point :-

1. Mohd. Iqbal Vs. State 1998 (2) CCC (SC) 58

2. Anil Kumar Vs. State 2000 (4) Crimes 283 (SC)

3. Tarun @ Gautam Vs State 2000 (4) Crimes 260 SC

4. State Vs Rajendra Singh 1998 (3) CCC (SC) 93

5. Jag Narain Prasad Vs State 1998 (2) CCC (SC) 45.

32. In all these precedents, the apex court has cautioned the

trial courts about reliability of witnesses whose depositions suffer

from heavy improvements. For example, in case Jag Narain

Prasad Vs State (SUPRA) one witness tried to make an important

improvement by stating that one of accused had a pistol in his


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hand at the time of incident, no other witness had stated like that.

In such a circumstance, it was held that deliberate improvement

made by a witness indicate that he was not an impartial and

truthful witness and had tried to falsely implicate him by

ascribing a positive role to him that he was carrying a pistol at the

time of incident.

33. If we assess the depositions of witnesses in this case

particularly of Smt. Rajkali (Pw9) a star witness of prosecution, by

cross examining her ld defence counsel brought out certain facts

which had not been recorded by the SDM in the statement of this

witness, which was penned down during inquest proceedings. In

my opinion, it was neither an improvement over some earlier

statements nor contradiction. When a person witnesses some

incident happening before his eyes, the facts of incident get

stored in his memory. No doubt information such stored is

subject to wear and liable to be forgotten after a considerable

time, if not reminded in between. Even otherwise, human

memory is not like a tape. If such a witness is asked to repeat the

incident, it is very difficult for him to reproduce it like a tape

recorder. Several facts got missed and some new imaginations

are likely to creep in. Mind prepares the sketch of any incident

every time afresh, which is natural to get changed.

34. Moreover, statement of said witness given in court was


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brothers. It cannot be presumed that he may not be knowing his

own brothers. Sh. Jamman Lal (Pw34) during his cross

examination by ld APP flatly refused to have given any statement

in the court. On being further cross examined, this witness

identified his signatures on statement Ex.Pw34/A. Jaswant @

Jassu (Pw3) denied having given any statement before the court.

Same also refused about his statement Ex.Pw3/A, though

admitted his signatures on the same at point 'A1'. Sukhbiri

(Pw33) also did not remember as to whether she had given any

statement before the court of MM. Similarly, Anita (Pw39)

refused to have given any statement in the court, though she also

identified her signatures on statement mark Pw39/A at point 'A'.

36. It is apparent that these witnesses told a blatant lie.

Having supported the case of complainant before the court of

MM, Delhi, these witnesses clearly dragged out of their

deposition. At the same time, it is equally true that nothing came

out in cross examination of these witnesses to belie their earlier

depositions except their flat refusal. In a case titled as State of

M.P Vs Badri Yadav and Anr. 2006 (III) AD (SC) 536, the apex

court faced similar problem. Statements of witnesses were

recorded U/s 164 Cr PC. Pw8 and Pw9 filed affidavits stating that

their statements before Magistrate were made under pressure and

that they were tutored by police. These witnesses were again


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examined as Dws. They resiled completely from their previous

statements examined as Pws. In such a situation it was held:-

It therefore clearly appears that their

subsequent statements as Dws were

concocted well and after thought. They were

either won over or under threat or

intimidation from the accused. No

reasonable person, properly instructed in

law, would have acted upon such statements-

-------No complaint whatsoever was made

by Dw1 and Dw2 to any court or to any

authority that they gave statements on

18.12.1990 due to coercion, threat or being tutored by police. This itself could have been

a sufficient circumstance to disbelieve the

subsequent statements as Dw1 and Dw2 as

held by Sessions Judge, in our view rightly.

37. I do not agree with Ld defence counsels stating that no

reliance can be placed upon the deposition of hostile witnesses. It

was held by the apex court in case Sheikh Zakir Vs State of Bihar

AIR 1983 SC 911 that it is not quite strange that some witnesses do

turn hostile but that by itself would not prevent a court from

finding an accused guilty if there is otherwise acceptable evidence in

support of the conviction. The Supreme Court has upheld this

mandate on several occasions, one of such case is State Vs Ram

Prasad Misra & anr. III (1996) CCR 115 (SC) where the court


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observed that-

The evidence of a hostile witness would

not be totally rejected if spoken in favour

of the prosecution or the accused, but can

be subjected to close scrutiny and for

portion of the evidence which is

consistent with the case of the prosecutionor defence may be accepted. The fact that

the hostile witnesses having given the

statements about the facts within their

special knowledge under section 161 Cr

PC recorded during investigation, have

resiled from correctness of the versions in

the statements without giving any reason

as why the IO could record statements

contrary to what they had disclosed shows

that they had no regard for the truth, they

fabricated evidence in their cross

examination to hold the accused which

did not find place in their section 161

statements.

38. It is urged by Ld APP that even if the depositions of

aforesaid witnesses who resiled from their statements recorded

by Ld MM, Delhi at the stage of summoning, are not taken

account of, there is sufficient material on record to establish the

guilt of accused in this case.

39. It is well established till now that accused can be


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convicted on the deposition of even a single witness if same is

found true and it is the quality of evidence and not the quantity

that matters. May I reiterate Pw9 Smt. Rajkali, the mother of

deceased, who deposed in clear and unequivocal terms that she

along with some other witnesses was confined by the police in PS

Vivek Vihar till 24.8.87, when Mahender Kumar and Ram Kumar

appeared in police station. They were asked by the police to leave

police station seeing Mahender and Ram Kumar having

surrendered before police. It is also claimed by said witness that

she saw police beating Mahender Kumar and Ram Kumar at the

time of leaving police station and also that she heard weeping of

both of said Mahender and Ram Kumar while standing outside

the police station. I see no reason to disbelieve testimony of this

witness being a natural witness of incident. It is also stated by this

witness on oath that she was picked up from her house by four

police officials of PS Vivek Vihar, one of them was SHO R.P. Tyagi.

40. Sh. Sanjay Gupta advocate submitted that the witnesses

examined by accused persons are also entitled to be treated at par

with the witnesses examined by prosecution. Ld counsel referred

several authorities in this regard. I have no dispute on this point.

The Supreme Court of India had mandated in case Doodhnath

Pandey Vs State of UP 1981 Criminal Law Journal 618 that

defence witnesses are entitled to equal treatment with those of


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the prosecution and courts ought to overcome their traditional,

instinctive disbelief in defence witnesses, quite often they tell lies

but so do the prosecution witnesses.

41. Ld counsel referred the inquest report submitted by

Parimal Rai (Dw7) about death of deceased Mahender Kumar in

this case. This witness had come to conclusion that deceased

Mahinder Kumar died due to beatings given by public. As

discussed earlier, predecessor of DW7, Sh. S.S Rathore after

examining witnesses had found police torture as cause of death of

said Mahender Kumar. Same had recommended registration of

FIR against police persons. After perusing report Ex.DW7/A I do

not find it carrying much weight, on following reasons:-

(a) The business of Dw7 was to give opinion about cause of

death and not about the person who had caused injury.

(b) Dw7 had not weighed the evidence of witnesses properly.

Same gave more weightage to a particular set of witnesses.

( c) Statements of witnesses upon which Dw 7 relied upon

were recorded much after the incident i.e after about

1 2 months and hence possibility of

manipulation cannot be ruled out. Moreover, the

statements recorded immediately after the incident by

his predecessor were not given due weightage.

42. In a case titled as Ravinder Kumar Vs State of Punjab

Cri. Misc. no.6587 M of 1996 decided on 19.8.96 Death of

deceased in police lock up was not disputed but whether suicidal


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or homicidal was the question. In such a case, it was held by

Punjab & Haryana High Court that custodial death cases are not

ordinary case where onus of proving the charge would always be

on the prosecution. Under such categories of cases though initial

onus to prove the charge would of course lie on the prosecution,

the defence would not be able to shirk their duty during the

course of trial from showing that it was a case of suicidal death

and not murder.

43. On the basis of facts discussed above, It can be presumed

that deceased Mahender died due to beatings given by police in

PS Vivek Vihar. So far as the defence of accused that same was

beaten by public at Surajmal Park, has not been established on

record. On 24.8.87 at 2.05 pm DD 7A was recorded in that police

station as that the police was informed that two bad characters

were attempting to terrorize by threatening to stab the passer-by

persons at Surajmal Park, road no.58. It is contended that after

getting said information, a police team was sent there and

Mahender and Ram Kumar accused of stabbing a police person

were nabbed, who had been beaten by the public. No evidence

was led in this regard in the court and hence this fact remained

unproved. On the contrary, HC Narender Singh (Pw8) who is

stated to have joined said police team having gone Surajmal Park,

denied said fact in court rather stated that on 24.8.87 he was sent


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by SHO R.P. Tyagi to Tis Hazari court along with an application of

SI Tej Singh for his exemption from appearance in court. He

returned from there to police post Anaz Mandi at around 2.00 pm

and that he did not go along with any raiding party and no one

(like Mahender and Ram Kumar) was arrested in his presence.

The driver of police vehicle who is stated to have had driven the

police team to spot i.e Surajmal Park namely HC Manoj Kumar

(Pw38) deposed that he was deputed as driver on Jeep no. DED

1762 on 24-25 August, 1987. Log book of said vehicle was not

available. This witness when examined before the court of MM

was shown log book. He admitted the entries in the same

marked 'XA' in his own handwriting countersigned by incharge

police post Anaz Mandi. It was disclosed by this witness that on

24.8.87 he performed journey ilaqa gast /patrolling of PS Vivek

Vihar to SDN Hospital Shahdara to Anaz Mandi and back to

police station after taking petrol from Shahdra. The copy of entry

was Ex.Cw13/A. It was further clarified by this witness that he had

seen said Ram Kumar and Mahender Kumar sitting in police

station at 8.00 am on that day i.e 24.8.87 and he had taken both of

said persons to SDN hospital at about 2.00 pm from the police

station, on being directed by SHO R.P. Tyagi. All this falsifies the

version of accused.

44. In this way, it is well proved on the file that deceased


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Mahender Kumar died due to beatings given by police. It is also

clear from the statements of witnesses that it was police of PS

Vivek Vihar who brought and confined relatives of said deceased

namely Rajkali (Pw9), Tika Ram (since deceased), Rakesh Kumar

(Pw10), Govind Ram (Pw11), Rajender Prasad (Pw12), Manohar

Lal (Pw13), Subhash (Pw21), Sukhbiri (Pw33), Omwati, Ram Pal,

Dharampal, Mormukut and Naraindass. Rajkali (Pw9) clearly

mentioned the name of accused R.P. Tyagi who had come to her

house and took her in police station where she was confined.

Though this witness also disclosed the name of Surender,

Narender and Mukesh Kumar. Accused Mukesh Kumar has been

declared as PO. Pw9 could not identify accused Narender and

Surender in court. At the cost of repetition may I point out that

Pw9 also named accused R.P. Tyagi having threatened her in

police station to kill his son Mahender, gave her beatings and also

asked them to leave police station when Ram Kumar and

Mahender were produced in police station. All this establishes

that accused R.P. Tyagi was very much present in the police

station when deceased Mahender was produced / appeared and

they were given beatings. He was incharge of police station.

Photos Ex.Pw5/B-1 to Ex.Pw5/B-14 and Ex.Pw5/B-15 to

Ex.Pw5/B-27 well proved on file from the statement of

photographer Amit Kumar (Pw5) and SDM S.S Rathore (Pw1)


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speak of bastinado, soles of feet of deceased having found

flattened and marked by bruises, such injuries were more

probable in police station than at a public place.

45. In this way, in my opinion, all probabilities lead to only

conclusion that accused R.P. Tyagi having conspired with other

police officials of police station Vivek Vihar had lifted and

confined in the police station aforementioned relatives / known

of deceased Mahender and caused beatings to the latter, which

ultimately resulted in his death.

46. May I refer again Pw9 i.e mother of deceased who

deposed on oath that when she was confined in police station,

accused R.P. Tyagi had stated to her that he will kill her son

(Mahinder Kumar), she was asked to give birth to one more

Mahinder and also that he (R.P. Tyagi) had already committed

three murders. All this shows that accused R.P. Tyagi had fostered

an intention to kill said Mahinder Kumar.

47. Sh. Sanjay Gupta advocate tried to evince that deceased

Mahinder was beaten by SI Ram Kumar (Pw48) in whose custody

patient Mahinder Kumar was in JPN Hospital. As per this witness,

when he relieved HC Ghan Shyam who was on night duty in said

hospital, he found general condition of said injured very critical.

Treating doctor was insisting to discharge him which he opposed.

In view of his critical condition on his request the doctors recalled


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their opinion and altered discharge slip. It is contended by Ld

counsel that patient Mahinder was readmitted in that hospital

and same was referred to orthopedics department where doctor

found some fracture. As per Sh. Sanjay Gupta advocate this

fracture was caused due to beatings given by SI Ram Kumar in his

custody. Otherwise Dr. A.K. Verma who had medically examined

the patient at the time of his admission in SDN Hospital, did not

find any such fracture.

48. I do not find much substance in this contention of Ld

defence counsel. It is clear from MLC Ex.Pw6/A that patient

Mahinder was under sedation. He was not fit for giving

statement, in other words, he was not able to speak. There is

nothing to suggest that any x-ray test was conducted on that

patient at that time to detect any fracture of bones. There is

possibility that said patient had fracture when was brought to the

hospital. If Prof. J.B.Mukherjee is believed, ' it is possible that

there may not be any trace of external bruising even after receipt

of substantial violence, though there may be fracture of underline

bone, rupture of an internal organ' (Forensic Medicine and

Toxicology, by Prof. J.B. Mukherjee page 294). Dr. A.K. Verma,

who examined himself as Dw11 deposed on oath that he had also

suspected fracture on the body of Mahinder.

49. Accused R.P. Tyagi is hence convicted for offence


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record being SHO/I.O in case FIR no. 294/87 knowingly

intending to cause injury to public persons and to save others

from legal punishment punishable U/s 218/120 B IPC, knowingly

disobeying the directions of law, being public servants by

preparing false document punishable U/s 217/120 B IPC and for

instituting criminal proceedings with intention to cause injury to

said Ram Kumar and Mahinder Kumar punishable U/s 211/120 B

IPC.

51. SI Tej Singh was also charged for voluntarily causing hurt

on person of family members of Ram Kumar and Mahinder

Kumar having hatched a conspiracy with other accused,

wrongfully confining family members of said deceased

punishable U/s 323/342/343/120 IPC.

52. It is argued by Ld defence counsel that K.P. Singh was not

accused by complainant, same had taken temporary charge of

police station as previous SHO was suspended by DCP (East). He

had simply signed the challan in case FIR no. 294/87, investigated

by SI Tej Singh and by SI Gurdass Ram. About registration of FIR

on the death of Mahinder Kumar, it is urged that DCP (East)

himself initiated investigation of case in view of power conferred

upon him U/s 36 Cr PC read with section 64 of The Delhi Police

Act. As per Ld. counsel, accused K.P. Singh had directions from

DCP (East) not to take any action in that case on his own, as the


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latter had taken decision after consultation with Police Head

Quarter that FIR will be registered only after receipt of final report

of inquest proceedings.

53. Section 154 (1) Cr PC makes it obligatory for an officer

incharge of a police station (who is SHO in Delhi) to register an

information about a cognizable offence if given orally or to enter

the substance thereof in a prescribed book (register) if given in

writing. This provision is reproduced here for ready reference as-

Information in cognizable cases.-(1) Every information relating to the commission of acognizable offence, if given orally to an officer in

charge of a police station, shall be reduced to writing by him or under his direction, and be readover to the informant; and every suchinformation, whether given in writing or reducedto writing as aforesaid, shall be signed by theperson giving it, and the substance thereof shallbe entered in a book to be kept by such officer insuch form as the State Government may prescribein this behalf.

54. As described earlier, SDM S.S Rathore after recording

statements of witnesses had given direction to register FIR against

police U/s 304 IPC. It is verified by Sh. S.S Rathore (Pw1) that

thereafter (after examining several witnesses) he ordered for the

registration of the case vide his order Ex.Pw1/M. There is no

denial that accused K.P. Singh had taken charge of SHO PS Vivek

Vihar till then. It is also disclosed by Pw1 that said order was sent

through Dak (post) and necessary entry to this effect was also

made in the relevant register. In such a situation, it can be


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Singh Vs State 54 (1994) DLT 380 (DB) where the Supreme Court

of India had mandated that in our view the legal position is clear

that information being laid before the police about the

commission of cognizable offence, the police has no option but to

register the case, and also a case titled as State of Haryana and

Ors. Vs Bhajan Lal and Ors. 1 (2000) CCR 209 (SC) in which the

apex court has cautioned that-

In case, an officer incharge of a police stationrefuses to exercise the jurisdiction vested in himand to register a case on the information of acognizable offence reported and thereby violatesthe statutory duty cast upon him.

57. No doubt, in view of sub section 3 of section 154 Cr. PC,

the complainant could approach Superintendent of Police in

case, incharge of police station (SHO) had refused to register a

case. But this was not enough to absolve SHO from his statutory

duty. Being head of Police station, SHO was duty bound to bring

law in to motion, whenever information of such a heinous offence

was received by him. To say that 'DCP concerned was already in

action', is also no excuse. There is nothing on record to show that

DCP had forbidden SHO K.P. Singh from taking any action in that

regard.

58. Though FIR about this happening was registered as FIR

59/87 and that on the statement of accused K.P. Singh himself.

But when an order of Lt. Governor of Delhi was communicated


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through the office of Deputy Commissioner, Delhi. This FIR was

registered on 11.2.88 while Mahinder Kumar had died on 25.8.87

in other words, SHO did not register the case for about 5

months despite the fact that a young boy had died unnatural

death and SDM who did inquest, had directed the same to

register a case on next very day i.e 26.8.87. Sh. K.P. Singh in his

statement to Duty Officer told about arrest of Mahinder Kumar

and Ram Kumar in case FIR no. 294/87 in injured condition. It is

proved on record that Mahinder Kumar and Ram Kumar

appeared in police station on their own and were not arrested in

aforesaid case. Accused R.P. Tyagi, SI Tej Singh (IO of that case)

etc had already been suspended due to aforesaid incident. All this

is evident that accused K.P. Singh did not obey direction of law

intending to save other person who were also police persons from

legal punishment. Same is hence convicted for offence

punishable U/s 217 IPC.

59. Accused SI Tej Singh investigated said case (FIR 294/87).

He prepared documents shown as 'personal search memo'

Ex.Pw40/DC2, disclose statements purporting to be made by

Mahinder Kumar Ex.Pw40/DC3, by Ram Kumar Ex.Pw40/DC4,

seizure memo of knife Ex.Pw40/DC6, sketch of knife

Ex.Pw40/DC1 and personal search memo of Ram Kumar Ex.

Pw40/DC5. Accused Tej Singh admitted to have prepared all


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these documents in his statement recorded U/s 313 Cr PC. It is

well proved on file that Mahinder Kumar and Ram Kumar

appeared in police station on their own and not arrested from

Surajmal Park as shown in that case. It is not proved on file that

said Mahinder Kumar and Ram Kumar gave any such disclosure

statement or after their arrest any personal search of them was

taken or any such knife was recovered from possession of any of

them from that place. These facts, if true were within the special

knowledge of police. It was held by the apex court in case titled as

State of Rajasthan Vs KashiRam (SUPRA) burden to prove such

fact was upon the accused which were within his special

knowledge. It was for this accused to establish all these facts being

specially within his knowledge but no such evidence was led in

this regard.

60. As stated earlier it is well proved that none of said accused

was arrested from said spot at Surajmal Park and all those

documents were false. Accused Tej Singh is hence convicted for

offence of preparing false documents knowing that by doing so,

he will save some persons from legal punishment and with that

intention gave information about offence which he knew to be

false, all punishable U/s 218/201 IPC.

61. No other offence is proved against accused K.P. Singh or

accused Tej Singh, both of them are hence acquitted for those


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other offences. Similarly no charge is proved against accused

Gurdas Ram. He is acquitted from all charges.

62. Accused Narender Kumar, Chander Kumar and Manoj

Kumar are stated to have signed afore stated documents i.e

Ex.Pw40/DC1, Ex.Pw40/DC2, Ex.Pw40/DC3, Ex.Pw40/DC4,

Ex.Pw40/DC5 and Ex.PW40/DC6. This fact is admitted by all

these accused in their statements recorded U/s 313 Cr PC. All

these accused persons were charged for offence punishable

U/s120B/109/211 IPC.

63. It is submitted by Ld defence counsel that none of said

accused had any intention to falsely implicate or to cause injury

to anyone. Same were compelled by police to sign aforesaid

documents. Section 211 IPC prescribes for punishment for

instituting or causing to be instituted any criminal proceedings

against a person or falsely charging a person having committed

an offence, with an intent to cause injury to such person.

Similarly, section 120B IPC makes a criminal conspiracy

punishable. It is apparent that both of these offences require a

criminal intention and there is nothing on record to establish that

any of said accused had any such intention. In the same way,

section 109 IPC makes it an offence when someone abets

commission of any act of offence.

64. Section 107 IPC prescribes as when a person can be said


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to abet the doing of a thing as under:-

First.- Instigates any person to do that thing; or

Secondly.-Engages with one or more other person orpersons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of thatconspiracy, and in order to the doing of that thing; or

Thirdly.- Intentionally aids, by any act or illegal omission,the doing of that thing.

65. There is no evidence to show that any of these accused

had ever instigated any police officer i.e co accused in this case or

engaged or the intentionally aided the same in doing of such

offence. Needless to say that as per these accused, same were

compelled to sign said documents by the police. No offence is

made out against any of these accused. All of same i.e accused

Narender Kumar, Chander Kumar and Manoj Kumar are hence

acquitted of all charges framed against them.

66. There is no evidence at all against accused Ct. Jagdish, Ct,

Kanwar Pal, SI Surender Pal and Ct. Narender. No charge levelled

against any of said accused is proved. All of them are hence

acquitted of all charges.

67. This is not in dispute that accused Dr. A.K. Verma had

medically examined Mahinder Kumar and prepared MLC Ex.

Pw6/A and that he had shown thirteen external injuries on the

body of said injured / deceased. Dr. Bishnu Kumar conducted

postmortem on the dead body of same Mahinder. The report


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prepared by Dr. Bishnu Kumar Ex. Pw36/A is proved on file by

statement of Dr. Vinod Kumar Ramtek (Pw36), Medical

Superintendent of LNJP Hospital who identified signature of Dr.

Bishnu Kumar at points A and B. It is also deposed by Pw36 that

he had seen Dr. Bishnu Kumar writing and signing before him

and also that said doctor had already retired and his

whereabouts were not known. Considering same, I think

postmortem report (Ex.Pw36/A) has been proved as per law. Dr.

Bishnu Kumar pointed 43 external injuries on dead body of said

Mahinder.

68. As per prosecution, Dr. A.K. Verma had conspired with co-

accused to prepare false MLC Ex.Pw6/A intentionally to screen

offenders i.e co-accused from legal punishment and that same

had disobeyed direction of law, in this regard to save co-accused.

It is submitted by APP that this accused inspite of citing injuries

properly in said MLC had reproduced the injuries shown by IO of

case, FIR 256/87 in his application Cw21/B, not mentioned the

medicines prescribed for said patient and served some sedative

without mentioning it on prescription slip/ MLC. In the opinion

of Ld APP, all this shows that he was connived with police.

69. On the contrary, it is strenuously refuted by Ld counsel

Sh. N.K. Sharma advocate that his client had any such intention.

Ld counsel also denied accused A.K. Verma having received any


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'injury seat' referred by prosecution.

70. So far as non description of medicines prescribed for said

patient is concerned, Ld counsel cited Modi's Medical

Jurisprudence and Toxicology 22 nd Edition where it is described

that medico legal report consists of three parts namely:-

(1)Introductory of preliminary data, for example full

name, age, address, date, place, time of examination

including identity marks etc.

(2)the facts observed on examination

(3)the opinion or the inference drawn from the facts.

71. As per ld counsel, mentioning of prescribed medicines in

MLC was not necessary at all. This fact is also admitted by Dr. S.

Patnayak (Pw6) explaining that MLC Ex.Pw6/A is prepared on the

format supplied to the doctors in their hospital in those days and

there was no column/ space in that format where examining

doctor is required to mention medicines prescribed by him to the

patient.

72. True, Dr. A.K. Verma in MLC Ex. Pw6/A has shown

'patient under sedation' and hence 'not fit for giving statement'.

It is contended by Ld counsel that even if said patient was under

sedation, it is not necessary that he was served with any sedative

and that by Dr. A.K. Verma. It is admitted by Dr.S Patnayak (Pw6)

in his cross examination that 'depending on the depth of shock, a


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patient under shock may sometime appear as if he was sedated.

Explaining the difference of injuries reported by accused Dr. A.K.

Verma in MLC Ex.Pw6/A and in postmortem report of Dr. Bishnu

Kumar Ex.Pw36/A, it is submitted by Ld counsel that patient

Mahinder Kumar was produced by police immediately after the

latter had suffered injuries and Dr. A.K. Verma took no time in

examining the same in order to give treatment expeditiously

while Dr. Bishnu Kumar examined the body when more than one

day's time had lapsed after infliction of those injuries and there

are bruises which emerge on skin after several hours. Ld counsel

referred 'Forensic Medicine and Toxicology by Professor J.B.

Mukharjee' where in the topic 'injuries' it is described that 'Deep

or delayed bruises usually show up not before 24-48 hours or even

later after its infliction. The surface appearance of such bruising

may be misleading, as the external colour change may be slight in

comparison with the amount of blood that has collected in the

deeper tissues.'

73. Ld counsel again cited Modi's Medical Jurisprudence 22 nd

Edition chapter XII, where 'Ecchymosis' is stated as-

Ecchymosis makes its appearance over the seatof injury in one or two hours after the injury. Itmay appear in less time, if the skin injured isvery thin, as in the eyelids and scrotum. Whenecchymosis has occurred in the deeper tissuesor under tense fasciae, it appears on the surfaceat an interval of one or two days or even more,at some distance from the seat of injury


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and then entry was made in register. His priority was to save his

life and hence he examined him even before making entry in said

register. As per Dw11 (accused) superficial bruises appear within

one or two hours of impact. When injuries are more severe,

there is rupture of blood vessels in deep tissues like muscles etc.

It takes the blood following the direction of least resistance and

to show up externally it takes several hours or one or two days

following the impact.

76. No discrepancy appeared in the examination of this

accused.

77. Considering all the facts as discussed above, I find no

reason to believe that accused Dr. A.K Verma was also a complicit

in crime in question or had prepared false MLC of the patient /

deceased Mahinder intentionally. Same is hence acquitted of

charges framed against him in this case.

78. As pointed out earlier, that Rajender (Pw7), Jamman Lal

(Pw34), Jaswant @ Jassu (Pw3) told apparent lie in court. A

separate complaint to ACMM, Karkardooma courts is being sent

with a request to initiate proceedings against them.

Announced in the open court. ( RAJENDRA KUMAR )

On this 13 th day of December, 2006. Additional Sessions Judge

Kkd. Courts, Delhi.


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IN THE COURT OF SH. RAJENDER KUMAR : ADDITIONAL

SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI.

S. C. no.1/06

Tika Ram Vs. (1) R.P. Tyagi (2) Tej Singh (3) K.P. Singh. (5)

Surender Pal (6) Jagdish (7) Kanwar Lal (8) Narender (9) Dr. A.K.

Verma (10) Narender Gupta (11) Chander Kumar Sharma (12)

Manoj Kumar .

U/s. 168/201/217/218/302/325/323/343/347/120B/34 IPC & 24

D.P. Act

Complaint Case no. 98/1987

PS. Vivek Vihar

Pr. :- Sh. Zenul Abedeen, APP for State.Convict RP Tyagi in J/c with Sh. Sanjay Gupta

advocate.Convict KP Singh on bail with Sh. JG Garg

advocate.Convict Tej Singh on bail with Sh. Mukesh Kalia

advocate.

ORDER ;-

1. May it be a scorching heat of May and June or

chilling cold of December and January, one will find every

crossing and corner manned by a man in uniform guiding thetraffic. If you are in some trouble, whatever may be the odd

hour, simply call at phone no. 100, you will find 2 3 pairs of

strong hands in no time for your help. There is a long list of beau


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gestes, as making stranded children and persons of unsound

mind to meet their parents or guardians, to facilitate a free

treatment of abandoned mental patients in Mental Hospitals like

IHBAS. Shahdara, Delhi, which Delhi Police performs as its duty.

Every man in Delhi has reasons to be proud of such police. But

perhaps no system in this world is free from bugs. Delhi police is

also no exception.

2. Sh. RP Tyagi (convict) who was posted as SHO

in PS Vicek Vihar in 1987, has been found guilty of beating one

Mahender Kumar to death having conspired with other staff of

same police station and also wrongfully confining family

members of said deceased in police station, which are offences

punishable U/S 302/342/102B IPC. Ties of brotherhood prevailed

upon another SHO KP Singh (convict), an immediate successor of

said RP Tyagi. He refused to register an FIR having knowledge of

a felony about a cognizable offence and despite directions from

area SDM, to save his fellow beings. He is convicted for offence

punishable U/S 217 IPC. Other police officer of same police

station i.e. SI Tej Singh (convict) in his attempt to give a different

colour to a crime, framed incorrect record of a case file during

investigation of that case in order to save other police officials

from punishment. Same is held guilty for offence punishable U/S

218/201 IPC.


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3. Heard on point of sentence. It is submitted by

Sh. Sanjay Gupta advocate that this is not a rarest of rare case

while ld. APP requests for maximum sentence as prescribed by

law.

4. We are living in a democratic society. Rule of

law is essence of democracy. It gives blood to democratic

system. Torture by a law - enforcing agency is like cancer to that

blood which infects entire democratic system leading to its

awesome end. The convicts in this case are officers of a law

enforcing agency i.e. police, a puncheon of democracy.

5. Section 302 IPC under which accused RP Tyagi

has been convicted, prescribes for death penalty or

imprisonment for life and also fine as punishment for this

offence.

6. By a catena of authorities, it is mandated by the

Apex Court of India that death sentence be awarded in rarest of

rare case. In a case titled as State Vs. Atbir and Others 2006 1

AD (Delhi) 665 it was reminded by my Lords Justice Manmohan

Sarin and Justice Rekha Sharma that 'for the offence of murder,

life sentence is the normal rule with death sentence, an exception

to be imposed in rarest of rare cases. There is no straight jacket

formula to identify rarest of rare case. Same is to be determined

keeping in view the facts and circumstances of each case. '


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in order to remarry for the sake of extractingdowry once again or to marry another woman on

account of infatuation.

(iv) When the crime is enormous in proportion.

For instance when multiple murders, say of all or

almost all the members of a family or a largenumber of persons of a particular caste,

community, or locality, are committed.

(v) When the victim of murder is an innocent child,

or helpless woman or an old or infirm person or a

person vis-a-vis whom the murderer is in adominating position or a public figure generally

loved and respected by the community.

9. The Apex Court in case Bachan Singh Vs. State

of Punjab AIR 1980 SC 898 noted down aggravating and

mitigating circumstances which ought to be considered while

imposing death penalty upon the accused of murder which are as

under :-

AGGRAVATING CIRCUMSTANCES :-

(a) if the murder has been committed

after previous planning and involves

extreme brutality, or

(b) if the murder involves exceptional


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depravity, or

(c) if the murder is of a member of

any of the armed forces of the

Union or of a member of any police

force or of any public servant and

was committed -

(i) while such member or public servant

was on duty, or

(ii) in consequence of anything done or

attempted to be done by suchmember or public servant in the

lawful discharge of his duty as such

member or public servant whether

at the time of murder he was such

member of public servant, as the

case may be, or had ceased to besuch member or public servant, or

(d) if the murder is of a person who

had acted in the lawful discharge

of his duty under Section 43 of the

Code of Criminal Procedure, 1973

or who had rendered assistance to

a Magistrate or a police officer

after demanding his aid or requiring

his ass istance under Section 37

and Section 129 of the said Code.


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MITIGATING CIRCUMSTANCES :-

(1) that the offence was committed

under the influence of extreme

mental or emotional disturbance,

(2) The age of the accused. If the

accused is young or old, he shall

not be sentenced to death,

(3) The probability that the accused

would not commit acts of criminalacts of violence as would constitute

a continuing threat to society,

(4) The probability that the accused

can be reformed and rehabilitated,

The State shall by evidence provethat the accused does not satisfy

the Conditions (3) & (4) above.

(5) That in the facts and circumstances

of the case, the accused believed

that he was morally justifying incommitting the offence.

(6) That the accused acted under

the duress or domination of

another person.


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(7) That the condition of the accused

showed that he was mentally

defective and that the said defect

impaired his capacity to appreciate

the criminality of his conduct.

Following the guidelines laid down by the Apex

Court in above referred cases, may I assess aggravating and

mitigating factors of this case.

10. It is pointed out by ld. APP that the victim was a

member of scheduled caste. It raises hackles to visualize

how torturous it would have been for deceased Mahender to bear

the pain till his last breathe. Photos proved on file tell, like

voluble informers that every whit of his body was bashed

mercilessly for hours. He was made to die bit by bit writhing in

pain like a halaled animal. Treating Dr. A.K. Verma found him

under sedation immediately after he was brought to hospital.

This MLC tells that he would have been served with some sedative

when pain surpassed his tolerance. Such brutality is foreign even

in animal kingdom. It has shaken the conscience of entiresociety.

11. Deceased Mahender Kumar had surrendered

before the convict R.P. Tyagi for being interrogated in an


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accusation. This is extremity of outrageousness that a hapless boy

was crushed to death by strong police, who were duty bound to

protect human rights of everyone including victim himself.

12. While prescribing a punishment for a convict of

rape, the legislature has provided for a more severe sentence for a

public servant specially police officer U/s 376 (2) IPC when he

commits rape within the limits of a police station to which he is

appointed. Extrapolating same principle, a murder by a police

officer and that of a victim in his custody should be dealt with more

seriously.

13. The factors that convict R.P. Tyagi was officer of

police station and deceased was wanted as an accused in a criminal

case, are not enough to ignore gravity of offence, particularly the

manner i.e brutality, the deceased was subjected to before his

death. Convict also managed to prepare a false record showing the

deceased as having beaten by the public. I find no circumstance,

due to which this convict would have been compelled to commit

crime in question.

14. It is told during arguments that convict R.P.

Tyagi has already been retired from his job and that he was given

promotion also after incident under consideration. No chance to

reform him at this stage. On the other hand if extreme


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punishment is awarded in this case, same may serve as a

deterrent for other such public servants of this armed force duty

bound to protect life and liberty of subjects.

15. Hon'ble Justice VR Krishna Iyer had rightly

observed in a case Raghubir Singh Vs. State of Haryana AIR

1980 SC 1087 that :

We are deeply disturbed by a diabolical

recurrence of police torture resulting in a

terrible scare in the mind of common citizens

that their lives and liberty are under a new peril when

the guardians of law gore human rights

to death. The vulnerability of human rights

assumes a traumatic, torture some poignanecy

when the violent violation is perpertrated by

the police arm of the State whose function is

to protect the citizens and not to commit

gruesome offences against them as has

happened (at present). Police lock up if

reports in newspapers have a streak of credence,

are becoming more and more awesome Cells.

This development is disastrous to each human

rights awareness and humanist Constitutional

order.


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16. The Apex Court deplored the police custody

deaths in case Kishore Singh Ravinder Dev Vs. State of Rajasthan

AIR 1981 SC 625 in following words :-

Nothing is more cowardly

unconscionable

than a person in police custody being beaten

up

and nothing inflicts a deeper wound on our

Constitutional culture than a State official

running berserk regardless of human rights.

17. The Supreme Court has directed the courts in

case Anil Yadav and others Vs. State of Bihar AIR 1982 SC 1008 in

unequivocal terms that it is clear duty for the courts when a case of

this kind is proved, to pass sentence which may have deterrent

effect.

18. Keeping in view all the pros and cons of the case

and circumstances of convict R.P. Tyagi I sentence the latter (R.P.

Tyagi) to death along with fine of Rs. 50,000/- for offence

punishable U/s 302/120 B IPC. In default of payment of fine said

convict is directed to undergo six months rigorous imprisonment.

Out of said amount, a sum of Rs. 25,000/- be paid to the mother of


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deceased (it is told that deceased was unmarried at the time of

his death and father of same has also expired during trial of this

case). Convict R.P. Tyagi be hanged by neck till he is dead. For

offence punishable U/s 342 IPC convict R.P. Tyagi is sentenced to

one year's rigorous imprisonment only.

19. So far as convict K.P. Singh and Tej Singh are

concerned , ld counsels representing said convicts urged the

court to release said convicts after due admonition or on

probation or at least after imposing some fine. Convict Tej Singh

is stated to be still in police service while convict K.P. Singh has

retired . Ld counsels took me through section 360 Cr PC

providing for release of certain convicts on probation.

20. Needless to say, both of these officers were

posted in police station Vivek Vihar at the time of aforesaid

abhorrent incident. Both of them contributed their share in their

own way. There is an old proverb when fence starts eating crop

who will save?. The convicts despite being protectors of human

rights throttled the same cruelly. More powers bring more

responsibilities but these convicts showed a scant regard for the

rule of law or for the human-rights of a citizen. I do not see any

reason to show leniency towards any of these convicts. Convict

K.P. Singh is hence sentenced to one year's rigorous

imprisonment as well as fine of Rs.25,000/- for offence punishable


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U/s 217 IPC. Out of this amount Rs.15,000/- be paid to the mother

of deceased. In default of payment of fine, convict K.P. Singh is

directed to undergo three months simple imprisonment more.

Convict Tej Singh is sentenced for three years rigorous

imprisonment and fine Rs.25,000/- for offence punishable U/s

218 IPC. Out of said amount Rs.15,000/- be given to the mother of

deceased. In default of payment of fine convict Tej Singh is

directed to undergo three months simple imprisonment more.

For the offence punishable U/s 201 IPC this convict (SI Tej Singh)

is sentenced to three years rigorous imprisonment and fine

Rs.10,000/-. In default of payment of fine same is directed to

undergo three months simple imprisonment more.

21. Sentences awarded to said convicts will run

concurrently. The convicts will be entitled to setting of the period

of detention already undergone by them during investigation,

inquiry and trial of this case, in view of section 428 Cr PC.

22. Proceedings of this case along with all

documents including exhibits be sent to the High Court of Delhi

through Registrar General with a request for confirmation of

sentence of death awarded to convict R.P. Tyagi as provided by

Section 366 Cr PC.

23. A copy of this order as well as of judgment be

given to each of convicts free of cost.


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Announced in the open court today i.e 15.12.06.

(Rajender Kumar)

ASJ/KKD/DELHI

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Delhi Custodial Death Case-Police office R.P. Tyagi Convicted

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