{"id":140666,"date":"2001-08-28T00:00:00","date_gmt":"2001-08-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jasbir-singh-malik-vs-state-cbi-on-28-august-2001"},"modified":"2016-10-02T13:07:37","modified_gmt":"2016-10-02T07:37:37","slug":"jasbir-singh-malik-vs-state-cbi-on-28-august-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jasbir-singh-malik-vs-state-cbi-on-28-august-2001","title":{"rendered":"Jasbir Singh Malik vs State (Cbi) on 28 August, 2001"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">Jasbir Singh Malik vs State (Cbi) on 28 August, 2001<\/div>\n<div class=\"doc_citations\">Equivalent citations: 2002 IIAD Delhi 535, 95 (2001) DLT 747, 2002 (62) DRJ 116<\/div>\n<div class=\"doc_author\">Author: R Sodhi<\/div>\n<div class=\"doc_bench\">Bench: R Sodhi<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>  R.S. Sodhi, J.   <\/p>\n<p> 1.  Criminal Appeal No. 192 of 1995 seeks to challenge the<br \/>\njudgment and order dated 26.9.1990 of the Special Judge in Session Case No. 40\/<br \/>\n1994 whereby the learned Judge held appellants, Jasbir Singh Malik and Chhabi Lal<br \/>\nBhardwaj, guilty for the offence punishable under Sections 342 and 304 Part-II, IPC<br \/>\nread with Section 34, IPC while R.S. Yadav was held guilty under Section 218, IPC.<br \/>\nFurther by order dated 30.9.1995 the learned Judge sentenced Jasbir Singh Malik to<br \/>\npay a fine of Rs. 3,50,000\/- under Section 304 Part-II and Section 342, Part-II and Section 342, IPC and in<br \/>\ndefault of payment of fine to undergo RI for two years; Chhabi Lal Bhardwaj was<br \/>\nsentenced to pay a fine of Rs. 2,00,000\/- and in default of payment of fine to undergo<br \/>\nRI for one year while R.S. Yadav was sentenced to pay a fine of Rs. 20,000\/- and in<br \/>\ndefault of payment of fine to undergo RI for six months.\n<\/p>\n<p> 2. The facts of the case are that CBI registered a case pursuant to the order of<br \/>\nthe Supreme Court in W.P. No. 728\/91 filed by Smt. Veer Bala, wife of Joginder<br \/>\nKumar, the deceased. In the FIR it was alleged by Veer Bala that:\n<\/p>\n<p>  &#8220;her husband late Joginder Kumar on learning about a threatening call, had<br \/>\ngone to Police Station Model Town on 21.8.1990 along with one Parshotam<br \/>\nGarg. Joginder Kumar was taken to Samrat Hotel, New Delhi for verification<br \/>\nof the threatening call, at about 8.30 p.m. On 22.8.1990, Veerbalal had received<br \/>\na telephone call from the Duty Officer of P.S. Model Town, Delhi informing<br \/>\nher that her husband Jodginder Kumar had been admitted to Hindu Rao<br \/>\nHospital. On reaching Hindu Rao Hospital, she was informed that her<br \/>\nhusband had been brought dead at 5.30 a.m. Smt. Veerbala alleged that her<br \/>\nhusband had died in police custody as his body bore marks of severe<br \/>\nbeatings.&#8221;\n<\/p>\n<p> 3. Investigation taken up by the CBI resulted in filing of challan wherein it was<br \/>\nmentioned that:\n<\/p>\n<p> &#8220;Inspector Jasbir Singh Malik was functioning as Station House Officer at<br \/>\nPolice Station Model Town from July, 1990 to 24th August, 1990. Accused<br \/>\nChabbi Lal Bhardwaj remained deployed as Sub Inspector at P.S. Model Town from<br \/>\nFebruary, 1989 to 24.8.1989. Accused Ishwar Singh was working as Head<br \/>\nConstable at Police Station Model Town from February, 1990 to January, 1991<br \/>\nand Head Constable Ashok Kumar was functioning as Head Constable at<br \/>\nPolice Station Model Town from December, 1988 to February, 1991. R.S.<br \/>\nYadav functioned as Sub Divisional Magistrate, Kingsway Camp, Delhi from<br \/>\nMay, 1989 to June, 1991 and was responsible for conducting inquest under<br \/>\nSection 176, Cr.P.C. in cases of deaths in police custody including cases<br \/>\nreferred by Police Station Model Town, Delhi.\n<\/p>\n<p> The Investigations further revealed that at about 3 p.m. on 21.8.1990, an<br \/>\nanonymous telephone call was received at the residence of Joginder Kumar<br \/>\nby his wife Veerbala. The caller enquired &#8216;Joginder Kumar ghar par hai&#8217;? to<br \/>\nwhich she informed that he was in office and asked for caller&#8217;s identity. The<br \/>\ncaller, without disclosing his identity, threatened that if she was interested in<br \/>\nthe well-being of her husband, she should send him to room No. 311 of Samrat<br \/>\nHotel to settle the matter which related to the murder of Gautam Prakash. She<br \/>\ninformed Joginder Kumar through his colleague in his office. Joginder Kumar<br \/>\ncame back to his residence at about 4.30 p.m. On knowing the facts of the<br \/>\nphone call, Joginder Kumar contacted Purshotam Garg, his close friend,<br \/>\nwhose younger brother Gautam Prakash was shot dead and case RIR No. 201\/<br \/>\n90 had been registered in that regard at P.S. Model Town. It was agreed<br \/>\nbetween the two that the matter would be taken up with Police Station Model<br \/>\nTown.\n<\/p>\n<p> A little after 5 p.m. on 21.8.90, Joginder Kumar came to E-314, M.C.D. Colony,<br \/>\nAzadpur, Delhi, residence of his father, along with his wife and children. At<br \/>\nabout 5.45 p.m., Purshotam Garg came there along with his relatives Jai<br \/>\nPrakash and K.K. Gupta. Joginder Kumar accompanied them. At that point<br \/>\nof time, Joginder Kumar was in his normal state of health without any injuries<br \/>\non his person.\n<\/p>\n<p> At the Police Station Model Town, Joginder Kumar was interviewed by<br \/>\nInspector Jasbir Malik accused and R.K. Verma, the then A.C.P.,<br \/>\nKingsway Camp and it was decided that J.S. Malik would lead a police party<br \/>\nalong with Joginder Kumar and other police staff to Samrat Hotel for<br \/>\nverification of the threat. Accordingly, Inspector J.S. Malik, accused left the<br \/>\npolice station at 8.20 p.m. on 21.8.1990 along with the police officials and<br \/>\nJoginder Kumar and returned to the police station at about 9.45 p.m. Entry to<br \/>\nthis effect was recorded by Inspector J.S. Malik, accused and there was no<br \/>\nmention that Joginder Singh had any injuries on his person. Other officials<br \/>\naccompanying the raiding party also stated before the C.B.I. that Joginder<br \/>\nKumar had no injuries on his person.\n<\/p>\n<p> In the case diary dated 21.8.1990 in respect of FIR No. 201\/90 written by<br \/>\naccused C.L. Bhardwaj under the signature of accused J.S. Malik, it was<br \/>\nrecorded that after arrival at the police station, Joginder Kumar suspected one<br \/>\nor two persons who could have given the threat and he was handed over to<br \/>\naccused ASi Sri Bhagwan for further action regarding verification of threat in<br \/>\nconsultation with accused Si C.L. Bhardwaj. Joginder Kumar was taken by Sri<br \/>\nBhagwan ASi to his office room in the police station and was interrogated<br \/>\nthere by him and Si C.L. Bhardwaj. Head Constable Ishwar Singh and Head<br \/>\nConstable Ashok Kumar also joined them. A fictitious story was set up that<br \/>\nJoginder Kumar informed that he did not want to go home during the police<br \/>\nparty in the morning. Thus he was allowed to stay in the police station against his<br \/>\nWill forcibly during the night intervening 21st and 22nd August, 1990.\n<\/p>\n<p> At about 4.55 a.m. on 22.8.1990, Si C.L. Bhardwaj recorded D.D. entry No. 24-<br \/>\nA mentioning therein that Joginder Singh (Kumar), who had received threat<br \/>\nof his involvement in FIR No. 201\/90 had stayed in the room of ASi Sri<br \/>\nBhagwan for accompanying the police in the morning. At about 4.50 a.m. ASi<br \/>\nSri Bhagwan came to his room and found that Joginder Kumar was lying<br \/>\nunconscious. The ASi informed accused Si Chabbi Lal Bhardwaj (referred to<br \/>\nas accused C.L. Bharadwaj hereinafter), who went to the room of ASi Sri<br \/>\nBhagwan and found Joginder Kumar unconscious. Accused C.L. Bhardwaj<br \/>\nalso recorded that Joginder Kumar was being taken to Hindu Rao Hospital<br \/>\nwith the assistance of ASi Sri Bhagwan, Head Constable Ishwar Singh and<br \/>\nHead Constable Ashok Kumar and the facts were brought to the knowledge<br \/>\nof SHO, Inspector J.S. Malik.\n<\/p>\n<p> At Hindu Rao Hospital, M.L.C. in respect of Joginder Kumar was prepared by<br \/>\nDr. S. Venkata Raman showing him as brought dead at 5.30 a.m. on 22.8.1990.<br \/>\nThe M.L.C. showed that he was brought to the hospital by Si C.L. Bhardwaj.\n<\/p>\n<p> On 22.8.1990, R.S. Yadav accused, the then S.D.M., Kingsway Camp prepared<br \/>\nthe death report (Unnatural death by violence) under Section 176, Cr. P.C. on<br \/>\nthe dead body of Joginder Kumar, R.S. Yadav accused described in the death<br \/>\nreport that the body of Joginder Kumar had marks of small injuries on the<br \/>\nupper side of the right hand and left had near the outer side of the wrist and<br \/>\noozing of blood from the nose, whereas the post mortem report prepared by<br \/>\nDr. L.T. Ramani of Civil Hospital, Delhi reflected as many as seven external<br \/>\ninjuries of different sizes and shapes at different parts of the dead body. The<br \/>\nexternal injuries, as per the post mortem report were ante-mortem and had<br \/>\nbeen caused by application of blunt object.\n<\/p>\n<p> Inquiry in the death of late Joginder Kumar was conducted by R.S. Yadav,<br \/>\naccused and in his report dated 27.2.1991, he subscribed to the fabricated story<br \/>\nof the accused that Joginder Kumar had stayed in the police station during the<br \/>\nnight between 21st and 22nd August, 1990 of his own. He also examined two<br \/>\npublic men as witnesses introduced by C.L. Bhardwaj accused to support<br \/>\ntheir fake story that they had heard Joginder Kumar telling accused police<br \/>\nofficials at 10 p.m. on 21.8.1990 that in view of the threat, he would prefer to<br \/>\nspend the night in the police station. However, the said two persons, namely<br \/>\nAllah Rakha and Suresh Kumar had denied the version in their statements<br \/>\nrecorded under Section 164, Cr.P.C. by Shri R.K. Gauba, Metropolitan<br \/>\nMagistrate, Delhi. Accused R.S. Yadav also falsely agreed with the version of<br \/>\nthe accused police officials that the injuries on the person of Joginder Kumar<br \/>\nhad been caused by fall in the process of shifting him from the room of ASi Sri<br \/>\nBhagwan to the Maruti Gypsy. It is alleged that Smt. Veerbala, wife of Joginder<br \/>\nKumar and other relatives of the deceased had repeatedly pointed out various<br \/>\ninjuries on the person of Joginder Kumar, but inspite of that, accused R.S.<br \/>\nYadav made a gross under statement of the injuries in order to save the other<br \/>\naccused persons from punishment.\n<\/p>\n<p> A reference was made to Dr. Bishnu Kumar, Medical Superintendent, L.N.J.P.<br \/>\nHospital, Delhi for forming a Board of Forensic Experts for giving opinion<br \/>\nabout the cause of injuries and death of late Joginder Kumar. The Board<br \/>\nconsisting of Dr. Bishnu Kumar, Dr. George Paul and Professor S.K. Khanna<br \/>\nof the Department of Forensic Medicine of the hospital, vide report dated<br \/>\n23.1.1993 opined that the seven external injuries could not be caused by blunt<br \/>\nobject\/surface. The Board also opined that the injuries on the inner part of the<br \/>\nleft arm and inner middle part of the right arm could only be caused when the<br \/>\narms would have been in abducted position. Disagreeing with the cause of<br \/>\ndeath being ischaemic heart disease as given in the post mortem report, the<br \/>\nBoard opined the cause of death as vasco-vogal attack consequent upon<br \/>\nsustaining the injuries. It is alleged that accused C.L. Bhardwaj and Sri<br \/>\nBhagwan also made false entries in the records of the police station to show<br \/>\ntheir departures from the police station to suit their convenience.&#8221;\n<\/p>\n<p> 4. Charge under Section 304, IPC read with Section 34 and under Section 342<br \/>\nread with Section 34, IPC was framed against the accused-Jasbir Singh Malik, Shri<br \/>\nBhagwan, Ishwar Singh and Ashok Kumar while a separate charges under Section<br \/>\n218\/109, IPC were framed against Chabbi Lal Bhardwaj and R.S. Yadav.\n<\/p>\n<p> 5. The prosecution examined 24 witnesses in support of their case. Learned<br \/>\nCounsel for the appellants as also learned Counsel for the State-CBI took me<br \/>\nthrough the record of the case at great length. It was argued before me that<br \/>\nadmittedly the deceased was in the police station on 21.8.1990\/22.8.1990 from<br \/>\nwhere he was taken to the hospital where he was declared &#8216;brought dead&#8217;.\n<\/p>\n<p> 6. The question that has been posed for my consideration is whether, in the<br \/>\nfacts and circumstances of this case, the affiances, as charged, is made out or not.<br \/>\nGoint by the admitted facts that Joginder Kumar came to the police station to make<\/p>\n<p>a complaint of a phone call received by his wife and that the complaint was taken<br \/>\nup for investigation by Jasbir Malik who took the deceased to Samrat Hotel<br \/>\nand on return passed on the case to Chhabi Lal Bhardwaj who could take assistance<br \/>\nof Sri Bhagwan. In the night intervening 21.8.1990\/22.8.1990, Joginder Kumar<br \/>\npreferred to stay in the police station being afraid of going back home on account<br \/>\nof the phone call which he had received which fact is borne out from the material<br \/>\non record. However, when Joginder Kumar was taken to the Hindu Rao Hospital<br \/>\non 22.8.1990 at 5.30a.m., he was declared &#8216;brought dead. Inquest on the body of the<br \/>\ndeceased was conducted by R.S. Yadav, the SDM.\n<\/p>\n<p> 7. At around 3.00 p.m. on 22.8.1990 Dr. T.L. Ramani conducted post mortem<br \/>\non the body of the deceased-Joginder Kumar. Blood and viscera of the deceased was<br \/>\npreserved for Chemical analysis. Dr. Ramani in the post mortem report, Ex. PW 21\/<br \/>\nA, found seven external injuries, which, in the opinion of the Doctor, were ante<br \/>\nmortem caused by blunt force application and were not sufficient to cause death in<br \/>\nthe ordinary course of nature. Opinion regarding cause of death was withheld till<br \/>\nthe report of the Chemical analysis on the viscera was received. In the subsequent<br \/>\nreport on post mortem report, Ex. PW 21\/B, the Doctor opined that in view of the<br \/>\nfact that the viscera report is negative for any poison, injuries were not sufficient to<br \/>\ncause death and were simple in nature. There were definite signs in the heart<br \/>\nsuggesting coronary artery occlusion. Death, in his opinion, was due to ischaemic<br \/>\nheart disease. The Investigating Agency thought it proper to seek a further opinion<br \/>\non 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<br \/>\nregarding the exact cause of death but the possibility of the deceased having vasco-<br \/>\nvagal attack consequent upon sustaining injuries could not be ruled out. It is this<br \/>\ndifference in opinion amongst the Medical Experts that led to the belief that the<br \/>\ninjuries which, according to the Doctor, had been caused within 24 hours of the<br \/>\ndeath, could be caused while the deceased was in the police custody.\n<\/p>\n<p> 8. It is the admitted case before me that the deceased was not an accused in the<br \/>\ncase FIR No. 201\/90 under Section 302, IPC, Police Station Model Town, but had<br \/>\ncome to the police station specifically with a complaint that his wife, Veerbala, PW<br \/>\n17, had received a threatening phone call on 21.8.1990 at 3.00 p.m. The caller had<br \/>\nasked PW 17 to send Joginder Kumar to Room No. 311, Samrat Hotel to settle the<br \/>\nmatter relating to the murder of Gautam Prakash. This information was given to<br \/>\nJoginder Kumar by PW 17 at around 4.30 p.m. At around 8.20 p.m. on 21.8.1990,<br \/>\nInspector Jasbir Singh Malik took Joginder Kumar to Samrat Hotel and thereafter<br \/>\nbrought him back to the police station. This is deposed to by PW 2, Kapoor Singh.<br \/>\nPW 3, SI Sri Bhagwan, has deposed to the effect that after coming back from the<br \/>\nHotel, Joginder Kumar and Jasbir Singh Malik went to the office of the SHO where<br \/>\nJoginder Kumar raised suspicion in respect of two persons whose names he could<br \/>\nnot remember who could possibly had given him the threatening call upon which<br \/>\nSI Sri Bhagwan was asked to verify from Joginder Kumar names of the suspected<br \/>\npersons. SI Sri Bhagwan was specifically told by Jasbir Singh Malik that after<br \/>\nverification Joginder Kumar should be sent home and further proceedings should<br \/>\nbe carried out in the morning. Since Joginder Kumar was showing signs of fear,<br \/>\ndirections were given to Si Sri Bhagwan that if Joginder Kumar feels any danger, a<br \/>\nConstable should be sent with him to his house. There is no evidence on record to<br \/>\nshow that Joginder Kumar was ever taken into custody or that he was required for<br \/>\nany interrogation. On the contrary, it was the compliant of Joginder Kumar which<br \/>\nwas being investigated. Admittedly, the deceased did not come home that night<br \/>\nand continued to be in the police station while Sri Bhagwan and Chabbi Lal<br \/>\nBhardwaj were not in the police station. Chhabi Lal Bhardwaj came in the early<br \/>\nhours but did not meet the deceased. Therefore, the question whether the deceased<br \/>\nhad received injuries at the police station or not, remains in the realm of uncertainty.<br \/>\nThe Doctor opined that the injuries were caused within 24 hours before death which<br \/>\nmeans that the injuries could have been caused before the deceased came to the<br \/>\npolice station i.e. between 21.8.1990 5.00 p.m and 22.8.1990 5.00a.m. The deceased<br \/>\ncame to the police station at 8.40 p.m. on 21.8.1990. In these circumstances, the<br \/>\npossibility that the deceased had received injuries prior to his coming to the police<br \/>\nstation cannot be ruled out.\n<\/p>\n<p> 9. The post mortem report reveals that the deceased was wearing a shirt,<br \/>\ntrouser, belt and under-wear. The clothes were intact. All injuries except an abrasion<br \/>\non the nose were found beneath the clothes, apparently not visible without exposing<br \/>\nthe body. Since the deceased had remained in the police station immediately prior<br \/>\nto his death, the burden of showing whether injuries were caused in the police<br \/>\nstation or not rested on the accused which burden could be discharged by<br \/>\nestablishing mere balance of probabilities which, to my mind, has been discharged<br \/>\nby the accused with reference to the ocular and medical evidence. Another aspect<br \/>\nof the matter to which attention can be drawn is the fact that the deceased was<br \/>\nterrified going home in the night and preferred to remain in the police station which<br \/>\nlends one to believe that the deceased probably had been subjected to a beating by<br \/>\nsomeone prior to his coming to the police station and that he was afraid of going<br \/>\nback home. Added to this was the threatening call received by PW 17. There is no<br \/>\nevidence except for general conjectures that the accused caused injuries to the<br \/>\nperson of the deceased or that the injuries were caused in furtherance to any<br \/>\ncommon intention. Also there is no evidence that the accused had any motive or<br \/>\nmens read to cause injuries to the deceased. The entire case rests on circumstantial<br \/>\nevidence revolving around the deceased having injuries on his person. Seven<br \/>\nsimple superficial injuries could have been caused even prior to the deceased<br \/>\ncoming to the police station. This cannot be ruled out, in which event it would be<br \/>\nhighly speculative to convict appellants herein only on the grounds that they are<br \/>\npolicemen and may be injuries were caused by them since the deceased was last in<br \/>\nthe police station. There is evidence that the deceased remained in the police station<br \/>\nof his own volition. He was not kept there by force nor was he required to spend<br \/>\nnight at the police station. The injuries on the nose could very well have been caused<br \/>\nwhen the deceased was being put into the policy gypsy while being taken to the<br \/>\nhospital as there must have been panic in the police station seeing the condition of<br \/>\nthe deceased-Joginder Kumar in the morning of 22.8.1990 at 5.00 a.m.  <\/p>\n<p> 10. In the totality of circumstances, I am of the opinion that the ingredients<br \/>\nrequired to establish an offence under Sections 304 Part-II\/342\/34, IPC are not<br \/>\nmade out. The judgment of conviction is primarily based on conjectures and<br \/>\nsurmises. There is no positive evidence to hold the appellants guilty. The chain of<br \/>\ncircumstances does not lead to the inevitable guilt of the accused, the possibility of<br \/>\ntheir being not guilty is as much as their being guilty. I, therefore, find it difficult to<br \/>\napprove the judgment under challenge. Consequently, the same is set aside.<br \/>\nCriminal Appeals 192 of 1995 and 196 of 1995 are allowed. The appellants are<br \/>\nacquitted of all charges. Criminal Appeal No. 18 of 1996, which is an appeal by the<br \/>\nState, is dismissed.\n<\/p>\n<p> 11. Since I have allowed Crl. A. 192 of 1995 and Crl. A. 196 of 1995, the benefits<br \/>\nof this must go to the accused-R.S. Yadav who has to filed an appeal. Consequently,<br \/>\nR.S. Yadav is also acquitted of all charges.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court Jasbir Singh Malik vs State (Cbi) on 28 August, 2001 Equivalent citations: 2002 IIAD Delhi 535, 95 (2001) DLT 747, 2002 (62) DRJ 116 Author: R Sodhi Bench: R Sodhi 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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-140666","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Jasbir Singh Malik vs State (Cbi) on 28 August, 2001 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jasbir-singh-malik-vs-state-cbi-on-28-august-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jasbir Singh Malik vs State (Cbi) on 28 August, 2001 - Free Judgements of Supreme Court &amp; 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