JUDGMENT
R.S. Sodhi, J.
1. Criminal Appeal No. 192 of 1995 seeks to challenge the
judgment and order dated 26.9.1990 of the Special Judge in Session Case No. 40/
1994 whereby the learned Judge held appellants, Jasbir Singh Malik and Chhabi Lal
Bhardwaj, guilty for the offence punishable under Sections 342 and 304 Part-II, IPC
read with Section 34, IPC while R.S. Yadav was held guilty under Section 218, IPC.
Further by order dated 30.9.1995 the learned Judge sentenced Jasbir Singh Malik to
pay a fine of Rs. 3,50,000/- under Section 304 Part-II and Section 342, Part-II and Section 342, IPC and in
default of payment of fine to undergo RI for two years; Chhabi Lal Bhardwaj was
sentenced to pay a fine of Rs. 2,00,000/- and in default of payment of fine to undergo
RI for one year while R.S. Yadav was sentenced to pay a fine of Rs. 20,000/- and in
default of payment of fine to undergo RI for six months.
2. The facts of the case are that CBI registered a case pursuant to the order of
the Supreme Court in W.P. No. 728/91 filed by Smt. Veer Bala, wife of Joginder
Kumar, the deceased. In the FIR it was alleged by Veer Bala that:
“her husband late Joginder Kumar on learning about a threatening call, had
gone to Police Station Model Town on 21.8.1990 along with one Parshotam
Garg. Joginder Kumar was taken to Samrat Hotel, New Delhi for verification
of the threatening call, at about 8.30 p.m. On 22.8.1990, Veerbalal had received
a telephone call from the Duty Officer of P.S. Model Town, Delhi informing
her that her husband Jodginder Kumar had been admitted to Hindu Rao
Hospital. On reaching Hindu Rao Hospital, she was informed that her
husband had been brought dead at 5.30 a.m. Smt. Veerbala alleged that her
husband had died in police custody as his body bore marks of severe
beatings.”
3. Investigation taken up by the CBI resulted in filing of challan wherein it was
mentioned that:
“Inspector Jasbir Singh Malik was functioning as Station House Officer at
Police Station Model Town from July, 1990 to 24th August, 1990. Accused
Chabbi Lal Bhardwaj remained deployed as Sub Inspector at P.S. Model Town from
February, 1989 to 24.8.1989. Accused Ishwar Singh was working as Head
Constable at Police Station Model Town from February, 1990 to January, 1991
and Head Constable Ashok Kumar was functioning as Head Constable at
Police Station Model Town from December, 1988 to February, 1991. R.S.
Yadav functioned as Sub Divisional Magistrate, Kingsway Camp, Delhi from
May, 1989 to June, 1991 and was responsible for conducting inquest under
Section 176, Cr.P.C. in cases of deaths in police custody including cases
referred by Police Station Model Town, Delhi.
The Investigations further revealed that at about 3 p.m. on 21.8.1990, an
anonymous telephone call was received at the residence of Joginder Kumar
by his wife Veerbala. The caller enquired ‘Joginder Kumar ghar par hai’? to
which she informed that he was in office and asked for caller’s identity. The
caller, without disclosing his identity, threatened that if she was interested in
the well-being of her husband, she should send him to room No. 311 of Samrat
Hotel to settle the matter which related to the murder of Gautam Prakash. She
informed Joginder Kumar through his colleague in his office. Joginder Kumar
came back to his residence at about 4.30 p.m. On knowing the facts of the
phone call, Joginder Kumar contacted Purshotam Garg, his close friend,
whose younger brother Gautam Prakash was shot dead and case RIR No. 201/
90 had been registered in that regard at P.S. Model Town. It was agreed
between the two that the matter would be taken up with Police Station Model
Town.
A little after 5 p.m. on 21.8.90, Joginder Kumar came to E-314, M.C.D. Colony,
Azadpur, Delhi, residence of his father, along with his wife and children. At
about 5.45 p.m., Purshotam Garg came there along with his relatives Jai
Prakash and K.K. Gupta. Joginder Kumar accompanied them. At that point
of time, Joginder Kumar was in his normal state of health without any injuries
on his person.
At the Police Station Model Town, Joginder Kumar was interviewed by
Inspector Jasbir Malik accused and R.K. Verma, the then A.C.P.,
Kingsway Camp and it was decided that J.S. Malik would lead a police party
along with Joginder Kumar and other police staff to Samrat Hotel for
verification of the threat. Accordingly, Inspector J.S. Malik, accused left the
police station at 8.20 p.m. on 21.8.1990 along with the police officials and
Joginder Kumar and returned to the police station at about 9.45 p.m. Entry to
this effect was recorded by Inspector J.S. Malik, accused and there was no
mention that Joginder Singh had any injuries on his person. Other officials
accompanying the raiding party also stated before the C.B.I. that Joginder
Kumar had no injuries on his person.
In the case diary dated 21.8.1990 in respect of FIR No. 201/90 written by
accused C.L. Bhardwaj under the signature of accused J.S. Malik, it was
recorded that after arrival at the police station, Joginder Kumar suspected one
or two persons who could have given the threat and he was handed over to
accused ASi Sri Bhagwan for further action regarding verification of threat in
consultation with accused Si C.L. Bhardwaj. Joginder Kumar was taken by Sri
Bhagwan ASi to his office room in the police station and was interrogated
there by him and Si C.L. Bhardwaj. Head Constable Ishwar Singh and Head
Constable Ashok Kumar also joined them. A fictitious story was set up that
Joginder Kumar informed that he did not want to go home during the police
party in the morning. Thus he was allowed to stay in the police station against his
Will forcibly during the night intervening 21st and 22nd August, 1990.
At about 4.55 a.m. on 22.8.1990, Si C.L. Bhardwaj recorded D.D. entry No. 24-
A mentioning therein that Joginder Singh (Kumar), who had received threat
of his involvement in FIR No. 201/90 had stayed in the room of ASi Sri
Bhagwan for accompanying the police in the morning. At about 4.50 a.m. ASi
Sri Bhagwan came to his room and found that Joginder Kumar was lying
unconscious. The ASi informed accused Si Chabbi Lal Bhardwaj (referred to
as accused C.L. Bharadwaj hereinafter), who went to the room of ASi Sri
Bhagwan and found Joginder Kumar unconscious. Accused C.L. Bhardwaj
also recorded that Joginder Kumar was being taken to Hindu Rao Hospital
with the assistance of ASi Sri Bhagwan, Head Constable Ishwar Singh and
Head Constable Ashok Kumar and the facts were brought to the knowledge
of SHO, Inspector J.S. Malik.
At Hindu Rao Hospital, M.L.C. in respect of Joginder Kumar was prepared by
Dr. S. Venkata Raman showing him as brought dead at 5.30 a.m. on 22.8.1990.
The M.L.C. showed that he was brought to the hospital by Si C.L. Bhardwaj.
On 22.8.1990, R.S. Yadav accused, the then S.D.M., Kingsway Camp prepared
the death report (Unnatural death by violence) under Section 176, Cr. P.C. on
the dead body of Joginder Kumar, R.S. Yadav accused described in the death
report that the body of Joginder Kumar had marks of small injuries on the
upper side of the right hand and left had near the outer side of the wrist and
oozing of blood from the nose, whereas the post mortem report prepared by
Dr. L.T. Ramani of Civil Hospital, Delhi reflected as many as seven external
injuries of different sizes and shapes at different parts of the dead body. The
external injuries, as per the post mortem report were ante-mortem and had
been caused by application of blunt object.
Inquiry in the death of late Joginder Kumar was conducted by R.S. Yadav,
accused and in his report dated 27.2.1991, he subscribed to the fabricated story
of the accused that Joginder Kumar had stayed in the police station during the
night between 21st and 22nd August, 1990 of his own. He also examined two
public men as witnesses introduced by C.L. Bhardwaj accused to support
their fake story that they had heard Joginder Kumar telling accused police
officials at 10 p.m. on 21.8.1990 that in view of the threat, he would prefer to
spend the night in the police station. However, the said two persons, namely
Allah Rakha and Suresh Kumar had denied the version in their statements
recorded under Section 164, Cr.P.C. by Shri R.K. Gauba, Metropolitan
Magistrate, Delhi. Accused R.S. Yadav also falsely agreed with the version of
the accused police officials that the injuries on the person of Joginder Kumar
had been caused by fall in the process of shifting him from the room of ASi Sri
Bhagwan to the Maruti Gypsy. It is alleged that Smt. Veerbala, wife of Joginder
Kumar and other relatives of the deceased had repeatedly pointed out various
injuries on the person of Joginder Kumar, but inspite of that, accused R.S.
Yadav made a gross under statement of the injuries in order to save the other
accused persons from punishment.
A reference was made to Dr. Bishnu Kumar, Medical Superintendent, L.N.J.P.
Hospital, Delhi for forming a Board of Forensic Experts for giving opinion
about the cause of injuries and death of late Joginder Kumar. The Board
consisting of Dr. Bishnu Kumar, Dr. George Paul and Professor S.K. Khanna
of the Department of Forensic Medicine of the hospital, vide report dated
23.1.1993 opined that the seven external injuries could not be caused by blunt
object/surface. The Board also opined that the injuries on the inner part of the
left arm and inner middle part of the right arm could only be caused when the
arms would have been in abducted position. Disagreeing with the cause of
death being ischaemic heart disease as given in the post mortem report, the
Board opined the cause of death as vasco-vogal attack consequent upon
sustaining the injuries. It is alleged that accused C.L. Bhardwaj and Sri
Bhagwan also made false entries in the records of the police station to show
their departures from the police station to suit their convenience.”
4. Charge under Section 304, IPC read with Section 34 and under Section 342
read with Section 34, IPC was framed against the accused-Jasbir Singh Malik, Shri
Bhagwan, Ishwar Singh and Ashok Kumar while a separate charges under Section
218/109, IPC were framed against Chabbi Lal Bhardwaj and R.S. Yadav.
5. The prosecution examined 24 witnesses in support of their case. Learned
Counsel for the appellants as also learned Counsel for the State-CBI took me
through the record of the case at great length. It was argued before me that
admittedly the deceased was in the police station on 21.8.1990/22.8.1990 from
where he was taken to the hospital where he was declared ‘brought dead’.
6. The question that has been posed for my consideration is whether, in the
facts and circumstances of this case, the affiances, as charged, is made out or not.
Goint by the admitted facts that Joginder Kumar came to the police station to make
a complaint of a phone call received by his wife and that the complaint was taken
up for investigation by Jasbir Malik who took the deceased to Samrat Hotel
and on return passed on the case to Chhabi Lal Bhardwaj who could take assistance
of Sri Bhagwan. In the night intervening 21.8.1990/22.8.1990, Joginder Kumar
preferred to stay in the police station being afraid of going back home on account
of the phone call which he had received which fact is borne out from the material
on record. However, when Joginder Kumar was taken to the Hindu Rao Hospital
on 22.8.1990 at 5.30a.m., he was declared ‘brought dead. Inquest on the body of the
deceased was conducted by R.S. Yadav, the SDM.
7. At around 3.00 p.m. on 22.8.1990 Dr. T.L. Ramani conducted post mortem
on the body of the deceased-Joginder Kumar. Blood and viscera of the deceased was
preserved for Chemical analysis. Dr. Ramani in the post mortem report, Ex. PW 21/
A, found seven external injuries, which, in the opinion of the Doctor, were ante
mortem caused by blunt force application and were not sufficient to cause death in
the ordinary course of nature. Opinion regarding cause of death was withheld till
the report of the Chemical analysis on the viscera was received. In the subsequent
report on post mortem report, Ex. PW 21/B, the Doctor opined that in view of the
fact that the viscera report is negative for any poison, injuries were not sufficient to
cause death and were simple in nature. There were definite signs in the heart
suggesting coronary artery occlusion. Death, in his opinion, was due to ischaemic
heart disease. The Investigating Agency thought it proper to seek a further opinion
on the postmortem, therefore, referred the matter to a Board of Experts. The opinion of the Experts can be summed up to mean that no definite opinion could be given
regarding the exact cause of death but the possibility of the deceased having vasco-
vagal attack consequent upon sustaining injuries could not be ruled out. It is this
difference in opinion amongst the Medical Experts that led to the belief that the
injuries which, according to the Doctor, had been caused within 24 hours of the
death, could be caused while the deceased was in the police custody.
8. It is the admitted case before me that the deceased was not an accused in the
case FIR No. 201/90 under Section 302, IPC, Police Station Model Town, but had
come to the police station specifically with a complaint that his wife, Veerbala, PW
17, had received a threatening phone call on 21.8.1990 at 3.00 p.m. The caller had
asked PW 17 to send Joginder Kumar to Room No. 311, Samrat Hotel to settle the
matter relating to the murder of Gautam Prakash. This information was given to
Joginder Kumar by PW 17 at around 4.30 p.m. At around 8.20 p.m. on 21.8.1990,
Inspector Jasbir Singh Malik took Joginder Kumar to Samrat Hotel and thereafter
brought him back to the police station. This is deposed to by PW 2, Kapoor Singh.
PW 3, SI Sri Bhagwan, has deposed to the effect that after coming back from the
Hotel, Joginder Kumar and Jasbir Singh Malik went to the office of the SHO where
Joginder Kumar raised suspicion in respect of two persons whose names he could
not remember who could possibly had given him the threatening call upon which
SI Sri Bhagwan was asked to verify from Joginder Kumar names of the suspected
persons. SI Sri Bhagwan was specifically told by Jasbir Singh Malik that after
verification Joginder Kumar should be sent home and further proceedings should
be carried out in the morning. Since Joginder Kumar was showing signs of fear,
directions were given to Si Sri Bhagwan that if Joginder Kumar feels any danger, a
Constable should be sent with him to his house. There is no evidence on record to
show that Joginder Kumar was ever taken into custody or that he was required for
any interrogation. On the contrary, it was the compliant of Joginder Kumar which
was being investigated. Admittedly, the deceased did not come home that night
and continued to be in the police station while Sri Bhagwan and Chabbi Lal
Bhardwaj were not in the police station. Chhabi Lal Bhardwaj came in the early
hours but did not meet the deceased. Therefore, the question whether the deceased
had received injuries at the police station or not, remains in the realm of uncertainty.
The Doctor opined that the injuries were caused within 24 hours before death which
means that the injuries could have been caused before the deceased came to the
police station i.e. between 21.8.1990 5.00 p.m and 22.8.1990 5.00a.m. The deceased
came to the police station at 8.40 p.m. on 21.8.1990. In these circumstances, the
possibility that the deceased had received injuries prior to his coming to the police
station cannot be ruled out.
9. The post mortem report reveals that the deceased was wearing a shirt,
trouser, belt and under-wear. The clothes were intact. All injuries except an abrasion
on the nose were found beneath the clothes, apparently not visible without exposing
the body. Since the deceased had remained in the police station immediately prior
to his death, the burden of showing whether injuries were caused in the police
station or not rested on the accused which burden could be discharged by
establishing mere balance of probabilities which, to my mind, has been discharged
by the accused with reference to the ocular and medical evidence. Another aspect
of the matter to which attention can be drawn is the fact that the deceased was
terrified going home in the night and preferred to remain in the police station which
lends one to believe that the deceased probably had been subjected to a beating by
someone prior to his coming to the police station and that he was afraid of going
back home. Added to this was the threatening call received by PW 17. There is no
evidence except for general conjectures that the accused caused injuries to the
person of the deceased or that the injuries were caused in furtherance to any
common intention. Also there is no evidence that the accused had any motive or
mens read to cause injuries to the deceased. The entire case rests on circumstantial
evidence revolving around the deceased having injuries on his person. Seven
simple superficial injuries could have been caused even prior to the deceased
coming to the police station. This cannot be ruled out, in which event it would be
highly speculative to convict appellants herein only on the grounds that they are
policemen and may be injuries were caused by them since the deceased was last in
the police station. There is evidence that the deceased remained in the police station
of his own volition. He was not kept there by force nor was he required to spend
night at the police station. The injuries on the nose could very well have been caused
when the deceased was being put into the policy gypsy while being taken to the
hospital as there must have been panic in the police station seeing the condition of
the deceased-Joginder Kumar in the morning of 22.8.1990 at 5.00 a.m.
10. In the totality of circumstances, I am of the opinion that the ingredients
required to establish an offence under Sections 304 Part-II/342/34, IPC are not
made out. The judgment of conviction is primarily based on conjectures and
surmises. There is no positive evidence to hold the appellants guilty. The chain of
circumstances does not lead to the inevitable guilt of the accused, the possibility of
their being not guilty is as much as their being guilty. I, therefore, find it difficult to
approve the judgment under challenge. Consequently, the same is set aside.
Criminal Appeals 192 of 1995 and 196 of 1995 are allowed. The appellants are
acquitted of all charges. Criminal Appeal No. 18 of 1996, which is an appeal by the
State, is dismissed.
11. Since I have allowed Crl. A. 192 of 1995 and Crl. A. 196 of 1995, the benefits
of this must go to the accused-R.S. Yadav who has to filed an appeal. Consequently,
R.S. Yadav is also acquitted of all charges.