* in the high court of delhi at new delhi reserved...

Crl.A.Nos.112/2000 & conn. of 61

$~R-13 to 16 (Part-B)

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 27th

August, 2015

% Date of Decision : 19th

October, 2015

+ CRL.A. 112/2000

MAHIPAL ..... Appellant

Through Mr. Ajay Burman, Mr. Aditya

Swarup Agarwal, Mr. Karan Burman, Mr.

Karan Sidhu, Mr. Harshit Khurana & Mr.

Amritesh Raj, Advocates.

versus

STATE OF DELHI ..... Respondent

Through Ms. Aashaa Tiwari, APP along with

Inspector Harendra Singh, P.S. Welcome &

ACP (Retd.) M.S. Mattoo.

CRL.A. 135/2000

SUNIL KUMAR ..... Appellant

Through Mr. M.L. Yadav & Mr. Lokesh

Chandra, Advocates.

versus

STATE ..... Respondent





CRL.A. 148/2000

NEERAJ KUMAR ..... Appellant

Through Mr. Ajay Burman, Mr. Aditya

Swarup Agarwal, Mr. Karan Burman, Mr.

Karan Sidhu, Mr. Harshit Khurana & Mr.

Amritesh Raj, Advocates.

versus





CRL.A. 202/2000

ANAND PRAKASH ..... Appellant

Through Mr. N. Hariharan, Sr. Advocate

with Mr. Varun Deswal, Mr. Siddharth S.

Yadav, Mr. Vaibhav Sharma & Mr. Sahil

Paul, Advocates.

versus






CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

HON'BLE MR. JUSTICE R.K.GAUBA

R. K. GAUBA, J:

1. The spectre of "custody death" raises its ugly head yet again in

the case at hand, bringing under cloud the claim of our polity that the

State guarantees, to one and all, a civil society truly wedded to the

normative of rule of law.

2. The four appellants stood trial in the court of additional sessions

Judge in Sessions Case no. 73/96 on the basis of the report under

section 173 of the Code of Criminal Procedure, 1973 ("CrPC"),

submitted on conclusion of investigation into the first information

report ("FIR") no. 72/92 of the police station Welcome, on the charge

for offences punishable under section 342 read with section 34 of

Indian Penal Code, 1860 ("IPC"), section 330 read with section 34 IPC

and section 302 read with section 34 IPC, the gravamen being that, in

furtherance of their common intention, they had wrongfully confined

Darshan Singh, after having picked him up on the night intervening

10th and 11th of March 1992 from his house no. K- 463 New

Seelampur, Delhi, assaulting him intentionally and causing injuries to

him in order to extract a confession to such an extent as to result in his

death. By judgment dated 15 February 2000, the trial Court held the


appellants guilty, as charged. By order dated 22 February 2000, each of

the appellants was awarded imprisonment for life with fine of Rs.

2000/- for offence under section 302/34 IPC, rigorous imprisonment

for one year with fine of Rs. 500/- each for offence under section

342/34 IPC and rigorous imprisonment for 5 years with fine of Rs.

1000/- each for offence under section 330/34 IPC. It was directed by

the trial Court that in case of default in payment of fine, the appellants

would undergo rigorous imprisonment for 2 years, simple

imprisonment for 2 months and simple imprisonment for one year

respectively on the three counts. Benefit of section 428 CrPC was

accorded and it was directed that the substantive sentences shall run

concurrently.

3. Through the criminal appeals at hand, the convicted persons

have assailed the judgement and the order of sentence.

4. It is not disputed that the four appellants were members of Delhi

Police, posted at the relevant point of time in Anti Auto Theft Squad

(AATS) of North East District. The AATS was headed by Inspector

Shakti Singh (PW 15). Its office was located near the office of Deputy

Commissioner of Police of the area. Since questions have been raised

in such regard, it must be mentioned here that the building from where

the office of AATS was functioning was distinct from the properties

where the police stations named Seelampur and Welcome were

located. Though, it may also be added here that all these units of Delhi

police were not much distant from each other. The AATS had a total

staff strength of 11 police personnel, including one Inspector (PW 15),

2 sub inspectors, one assistant sub Inspector, one head Constable and 6


constables. The appellant Mahipal (criminal appeal no. 112/2000),

accused no. 3 (A3) before the trial Court, was posted as head

Constable. The other three appellants namely Anand Prakash (criminal

appeal no. 202/2000), accused no. 1 (A1) before the trial Court, Sunil

Kumar (criminal appeal no. 135/2000), accused no. 2 (A2) before the

trial Court, and, Niraj Kumar (criminal appeal no. 148/2000), accused

no. 4 (A4) before the trial Court, were working as Constables.

5. Certain facts concerning Darshan Singh (hereinafter referred to

variously by his name or as "the victim" or "the deceased") have also

emerged as indisputable. He was son of Prem Pal (PW 3) aged about

21 years, unmarried, reasonably tall (170 cm) and average in build. He

was residing in house no. K-463, New Seelampur, Delhi. Munna Lal

(PW 4) describes him as his nephew. Since the parentage of PW4 is

different from that of PW 3, it appears that both of them hailing from

same brotherhood were distantly related. PW4 ran a shop of denting

and painting (of motor vehicles) in Bihari Colony. He had employed

the victim in his shop for some time but for about six months prior to

the events which are subject matter of the case, he (the victim) had

come to be employed in some other shop in similar work. Vikram

Singh (PW2) is younger brother of PW3 and, therefore, Chacha to the

victim. He also lived in the same area, in separate house (K-449).

Beena (PW1) is the wife of another brother (Ram Niwas) of PW2 and

PW3, she being a resident of a separate house (A-463) in the same

locality.

6. Santosh (PW7) wife of Roshan Lal resides in the same area, in a

house in another block (house no. K-155). Her family included her 3


sons named Bobby@Ramesh, Des Raj (PW5) and Dharam Pal (PW6).

The evidence of the three members of this family, namely PW5, PW6

and PW7, is relied upon by the prosecution to corroborate the word of

other witnesses as to the involvement of the appellants in the crimes

qua the deceased, though restricted to the extent of he (the deceased)

having been picked up from his house around the same time when

PW5 and PW6 were also statedly taken away by certain police

personnel from the house in which they were living during the relevant

period.

7. The prosecution case also refers to Mohan Nursing Home &

Hospital (hereinafter referred to as "the nursing home"), located in

property described as 790, Indra Chowk, Delhi – 110053, not far away

from the office of AATS. Dr Mohan Lal (PW12) is the proprietor of

this nursing home. The evidence indicates that during the relevant

period he was assisted by, amongst others, Dr VK Jain (PW25) and Dr

GD Rathi. Dr GD Rathi was not examined at the trial but the

prosecution relied upon the evidence of PW12 and PW 25 in the

context of events that had occurred in the afternoon of 16 March 1992

wherein the victim was brought to the nursing home in injured

condition by certain police officials.

8. The fact that Darshan Singh went missing sometime on the night

of 10th and 11

th March 1992 has been brought out by the prosecution,

with virtually no contest from the defence, through the mouthpiece of

PW1, PW2, PW3 and PW4.


9. The trial Court record shows that when the statements of Beena

(PW1) and Vikram Singh (PW 2) were recorded on 7 October 1996,

the learned trial judge had followed the earlier practice of preparing a

simultaneous record of the deposition of the witnesses in vernacular

(Hindi) in addition to the English translation. When the record was

requisitioned for purposes of these appeals, the registry of this court

inadvertently assumed (at the time of preparation of the paper books)

the vernacular part of the depositions of the said witnesses as evidence

given by different individuals. Thus, while preparing the

compilation/paper books, the vernacular versions of the said witnesses

were denoted as statements of PW20 and PW21 respectively.

Ordinarily, in case of doubt, the Court should be looking at the

vernacular record of the oral testimony of the witnesses, but, in the

case at hand, we find, as pointed out by the learned counsel for the

appellants, that the said part of the record is incomplete. The English

version is authentic and veritable. The Hindi version clearly misses on

several parts of the questioning or the responses thereto and, thus,

cannot be relied upon. Therefore, with the consent of all sides, we

exclude from consideration the vernacular record of the depositions

attributed to PW1 and PW2, shown in the paper books as the

depositions of PW 20 and PW 21.

10. Amongst the above-mentioned witnesses (PW1, PW2, PW3 and

PW4), all related to the victim, the evidence of PW1 is the most direct;

the testimony of the remaining being more relevant in the context of

what is stated to have followed in the days to come. The deposition of

PW1 is that she was outside her house at about 2 or 3 AM on the night


intervening 10th and 11th of March 1992, helping her infant daughter

in easing at the drain outside, when she saw four persons in civil

clothes, knocking at the door of the house where the victim was living

and then taking him away. This part of her deposition has remained

unchallenged. The fact that Darshan Singh was taken away in this

manner would have come, in due course, in the knowledge of the other

three witnesses from her can be reasonably inferred. After all, no other

witness (immediate relative or local resident) has come forward to

share better information in such regard. Though PW1, in the course of

her testimony in the Court, tried to claim that the persons who had

picked up Darshan Singh and taken him away in the wee hours of 11

March 1992 were police officials, given the position she took on 17

March 1992, by when the victim had been located, her assertion on the

subject of identity of the persons who were involved must be presumed

to be based on what she may have heard from other relatives rather

than her own knowledge, their identities i.e. name etc. being unknown

to her at that stage. To bring clarity to this issue at this very stage, we

need refer only to the FIR (Exh. PW 17/A), registered by SI Kartar

Singh (PW 17), at 5:40 PM on 17 March 1992, on the basis of rukka

(Exh. PW 23/A), in turn, founded on the statement (Exh. PW 1/A)

made by PW1 herself sometime before 4:50 PM on 17th March 1992

before the investigating officer. The bare perusal of the FIR leaves no

room for debate that PW1 was not at all familiar or acquainted with the

identity of the persons i.e. their names with whom Darshan Singh had

accompanied out of his house in the early morning hours of 11th March


1992, not at least till the time the case was being registered at her

instance.

11. It would be proper that we refer to the evidence about the events

prior to 16th March 1992 (that is after Darshan Singh had been taken

away) later. The evidence on record clearly shows that Darshan Singh

was brought to the nursing home on 16th March 1992 by two police

constables. Though the testimonies of PW12 and PW25, the two

doctors connected with the nursing home, do not mention any specific

date, their depositions read alongside that of the other witnesses

(particularly the father of the victim) unmistakably show 16th March

1992 to be the date on the afternoon of which Darshan Singh was seen

by independent witnesses being escorted at that time by two police

officials. The evidence of the two doctors of the nursing home is not

supportive to the prosecution case as to the identity of the two police

officials who had come with the victim to the nursing home to be given

medical aid. However, their testimonies (half-hearted and seemingly

very hesitant) do confirm the prosecution charge that Darshan Singh

was in critical and perilous condition with multiple injuries when

brought to the nursing home. In this context, we may refer, inter-alia,

to the oral testimony of PW12 and PW25, as indeed that of PW-2, PW-

3 and PW-4, besides the documentary evidence in the nature of post-

mortem examination report (Exh. PW-18/A).

12. While on the subject, we are constrained to observe here that the

manner in which the case was investigated, and later prosecuted by the

State, has left much to be desired. There are a number of aspects which


need to be quoted to illustrate this point. At this stage, we restrict to

only two of them.

13. The victim had been taken to a nursing home. We presume -

since nothing has been shown to the contrary - that the nursing home

was being run lawfully. A patient in life and death situation had been

brought to a nursing home. In normal course, upon receiving a patient

with such injuries requiring urgent medical treatment, to which the

victim fell and ultimately succumbed to on the next day, the nursing

home would have prepared the requisite clinical notes documenting the

injuries noticed, the course of treatment advised and administered.

Even details like “brought by” etc. were withheld and not brought on

record. The evidence further shows, as we shall see in due course, that

the victim was shifted on 17 March 1992 by a police official (PW 29),

evidently on account of official intervention, from the nursing home to

a government hospital i.e. Lok Nayak Jai Prakash Narain Hospital

(hereinafter referred to as "the hospital"), where he eventually died that

very day. While permitting the patient to be thus shifted from the

nursing home, some formalities in the records of the facility must have

been made. After all, the custody and care of a patient, in critical

condition, was being taken over by a police official. It is not the case of

any of the doctors connected with the nursing home that they were not

in know and had not maintained details of treatment, payment

received, persons who were issuing instruction etc. It is not even

claimed that the victim was being shifted against medical advice. Thus,

the minimum formality and record maintenance that was bound to have

been followed while admitting and thereafter allowing the patient to be


moved from the nursing home would be preparation of papers, ideally,

with the copies of the nursing home records showing the course of

treatment given, which should have been collected and filed in the

court. Shockingly, the investigating officer did not show any interest in

collecting such documentary evidence. The records of the nursing

home, if seized and presented as evidence, would have thrown better

light on the condition of the victim at the stage of his first medical

examination in the nursing home.

14. When PW 29 had brought the victim to the hospital, he dutifully

communicated compliance with the instructions to the police station

Welcome where it was logged vide DD no. 11-A (referred to in the

trial Court record as document 'Mark-A'), at 3:45 PM on 17 March

1992. We are not much bothered about the fact that the daily diary

entry was not strictly proved. Given the period of seven years that had

gone by (PW 29 was examined on 6th

July 1999), the possibility of the

daily diary register having been weeded out needs to be kept in mind.

What is definitely of concern, however, is the fact that in the hospital,

at the time of admission and upon transfer from the nursing home,

Darshan Singh had been examined and MLC had been prepared noting

the injuries with which he had been brought in. The MLC undoubtedly

was an important piece of evidence. Yet, the prosecution seems to have

made no sincere efforts to prove it at the trial. Copy of the document

filed on record shows it was prepared by Dr. Sanjeev Dixit of the

Hospital. The said doctor had reportedly left the hospital and as per

report dated 06.07.1999 of the Investigating Officer (PW 30), the

doctor was no longer living at the available address. This was taken as


sufficient reason to close the evidence of the prosecution on same date.

No thought was given to have the MLC proved by another doctor of

the hospital who may be acquainted with the writing or signatures of

the doctor in question.

15. In the overall facts and circumstances of the case, the lapses of

the above nature seem to be too many for comfort. A view will have to

be taken, albeit at the stage of conclusion, as to what may have gone

wrong and where, and more importantly, how and in what manner

evidence and material should be read and interpreted.

16. Mercifully, in addition to the oral testimony of the witnesses

mentioned above, the autopsy report (Exh. PW 18/A) documented the

manner in which Darshan Singh had been subjected to physical

assaults over the preceding days. As many as 23 injuries were found on

his dead body by Dr SK Khanna (PW 18), who had carried out the

post-mortem examination in the mortuary of Maulana Azad Medical

College on 18 March 1992. The autopsy doctor noticed black eye on

both sides with bleeding from the right nostril. He noted the following

external injuries: –

(1) Contusion (Reddish blue) on the mucosol aspect of

lower lip near the left angle of mouth – 2 x 1 cm.

(2) Abrasion with brown scab, outer back of right

shoulder 1 x 0.5 cm.

(3) Contusion (Reddish-blue) on the whole of back and

ulnar aspect of right fore-arm – 26 x 9 cm


(4) Contusion (reddish blue dorsum of right hand over

the base and proximal phalanx of right thumb – 8 x

2 cm

(5) Contusion (reddish blue) over back of proximal

phalanx of right middle and ring fingers – 5 x 2 cm

(6) Abrasion with brown scab lower, radial aspect of

right forearm front – 4.5 cm proximal to the wrist –

2x1.5 cm, rectangular in shape.

(7) Contusion (brown) over inner aspect of right knee

11 x 5 cm

(8) Contusion (reddish blue) upper back of right leg –

10 x 9 cm

(9) Contusion (reddish blue) lower back of right leg –

13 x 9 cm

(10) Multiple abrasions with brown scab on the

lower part of right leg – 2 x 1.5 cm

(11) Abrasion with brown scab over middle front

of right foot 8 x 2 cm

(12) Contusion (green to purple) inner aspect of

right foot and sole 17 x 9 cm

(13) Abrasion with brown scab, over the tip of 2nd

toe of right foot near the nail – 1 x 0.5 cm

(14) Abrasion with brown scab over the tip of 3rd

toe of right foot near the nail – 0.5 x 0.3 cm

(15) Contusion (purple to green) on the inner

aspect of left foot and sole 27 x 6 cm

(16) Abrasion with brown scab, inner aspect of

left foot 2 cm proximal to the big toe – 3 x 1.5 cm

(17) Abrasion with brown scab, over lower front

of left leg 3 x 2.5 cm


(18) Abrasion with brown scab, outer aspect of

left little toe – 0.3 to .3 cm

(19) Contusion (reddish-blue) lower back of left

leg – 12 x 12 cm

(20) Contusion (brown) front of left knee – 14 x

11 cm

(21) Contusion (reddish – blue) back of left wrist

and hand extending upto proximal inter-

phalangeal joints 15 x 12 cm

(22) Contusion (reddish – blue), palm of left

hand 7 x 6 cm

(23) Abrasion with brown scab 3.5 x 1.2 cm,

upper part of left side of chest

17. The internal examination of the dead body led to the following

important findings: –

Abdomen

Peridinium– NAD

Stomach – contains greenish fluid and semi-indigested

food material about 300 ml walls congested.

Trachea and larynx – contain small amount of mucosol

material walls – congested

Chest

Coller bones – no fracture

Ribs – no fracture

Lungs – congested, edematous weight Right – 950 gm

Left - 850 gm

Head


Scalp – Extravasation of blood present in the frontal

region or both the sides

Skull – no fracture

Brain-meninges

Suborachnoid haemorrhage present over both the

frontal poles.

Maninges – congested

Brain – oedematous – weight 145 gm

Few petechial haemorrhages presentation both the

cerebral hemispheres frontal, terminal and parietal

poles

18. PW 18, the autopsy doctor, did not give final views

immediately. In the autopsy report, he recorded his opinion as under: -

No definite opinion can be given regarding the cause

of death at this stage. Usual viscera has been

preserved for chemical analysis to rule out forgoing

poisoning.

All the injuries are ante-mortem in nature and have

been caused by blunt force impact.

Injuries No.1,3,4,5,8,9,19,21 and 22 appear to be 1 – 3

day old.

Injuries No.2,6,7,10,11,13,14,16,17,18, 20 and 23

appear to be 2 – 4 days old.

Injuries No.12 and 15 appear to be 5 – 6 days old.

19. The viscera report (Exh. EW 16/E), affirmed on oath by Dr KS

Chhabra (PW 16) of Central Forensic Science Laboratory (CFSL),

however, ruled out the possibility of poisoning. The matter was


thereafter taken again to the autopsy doctor, Dr SK Khanna (PW 18),

for his final opinion with regard to the cause of death. PW 18 recorded

his "subsequent opinion" (Exh. PW 18/B) dated 11th June, 1993, stating

that, in his view, the cause of death was cerebral damage consequent

upon blunt force to the head of the victim.

20. Only two points were raised during the cross-examination of the

autopsy doctor with regard to the correctness of his final opinion

regarding the cause of death. The first issue was with regard to the

availability of the application made on 21st April, 1993 by the

investigating agency seeking his final opinion in the light of the report

of CFSL. Secondly, the defence pointed out to the witness that he had

taken two months‟ time in giving his opinion, suggesting that he had

just toed the line of the investigation. The witness explained that he

had retained the application on his record and further that he had been

on vacation for a period of one month. In our opinion, the non-

availability of the letter of request dated 21st April, 1993 submitted to

the autopsy doctor is inconsequential. It is not a document without

which the subsequent opinion cannot be read. Mere reference to the

said letter of request in the subsequent opinion is sufficient to complete

the chain of correspondence at that point of time. Gap of two months

has been properly explained.

21. Mr RK Mishra (PW 22) was posted as Sub Divisional

Magistrate (SDM), Shahdara and the area where the offences statedly

occurred fell in his jurisdiction. He was informed on 18th

March, 1992

by the Deputy Commissioner of Police (North East) about the death of

Darshan Singh whereupon he had entered upon enquiry in terms of the


provision contained in section 176 CrPC. PW 22 (SDM) proved the

report (Exh. PW 22/A) which had been finalised by him on conclusion

of the inquest proceedings. The report noted that the autopsy doctor

had not been able to give any definite opinion in spite of finding that

the victim had suffered 23 ante-mortem injuries but concluded that, in

his (SDM's) opinion, the death had occurred due to the six injuries

which had been mentioned in form no. 35. The report referred to the

case registered, and under investigation, with the crime branch of Delhi

Police and the fact of the appellants having been placed under

suspension, arrested and charges (of murder) framed against them.

22. The object and purpose of inquest proceedings is merely to

ascertain as to whether a person has died under unnatural

circumstances, or if it was an unnatural death and, if so, as to what was

the cause of death. Inquest report cannot be treated as primary or

substantive evidence. The opinion given in such report cannot be

termed as final adjudication of the matter for the simple reason the

questions regarding details as to how the deceased was assaulted or as

to who had assaulted him or under what circumstances the assault took

place are beyond the scope of the inquest proceedings [Madhu @

Madhuranatha & Another vs. State of Karnataka, (2014) 12 SCC 419

and Baldeo and another vs. State of U.P., 2004 Crl. L.J. 2686].

23. The inquest report, inter alia, also referred to the statements of

the various witnesses examined by the SDM in the course of his

enquiry, such witnesses including the relatives or neighbours of the

victim, some of whom have been examined at the trial by the

prosecution leading to the impugned judgement. The sum and


substance of the version of the said witnesses before the SDM,

however, cannot be relied upon by the prosecution. They are not

substantive evidence for purposes of the criminal trial. Such

statements, of course, were in the nature of previous statements of the

corresponding prosecution witnesses. They could be used for

contradicting or discrediting the witnesses during cross-examination in

the proceedings before the trial Court. The defence made no such effort

during the trial. Without formal record of their respective depositions

being brought before the trial Court and without the witnesses being

confronted with their previous statements before the SDM, the

summary of what they may have said before the SDM during inquest

proceedings cannot be read against the appellants. Thus, we exclude

from consideration the material on the basis of which the SDM had

concluded the inquest proceedings. For similar reasons, the

conclusions reached, or the impressions gathered, by the SDM on such

material must also be kept out of purview. After all, the purpose of the

inquest proceedings was to find the cause of death and not probe as to

who were the persons responsible.

24. But, it must be noted here that the inquest report denotes one

interesting fact. It mentions, at least at two places, that the supervisory

police officers, including the one posted as the Deputy Commissioner

of Police (DCP) had visited the nursing home alongside the PCR staff

and, further, that the DCP and the Asst. Commissioner of Police (ACP)

had recorded the statement of the victim during his treatment in the

nursing home. The prosecution relies upon the report of the SDM. It

cannot wish away the fact that formal statement of the victim was


actually recorded by the senior police officers when they had visited

the nursing home to call on him. Since the trial Court record, and the

police file, shows that the investigating officer of the case was not able

to record statement of the victim, such statement as was recorded

earlier by the DCP/ACP would be the last statement formally made by

the victim before he died and, consequently, be his dying declaration.

It does not call for much imagination to say that the statement in

question was a crucial evidence to bring out the sequence of events

from the time the victim was picked up from outside his house till his

admission in the nursing home, particularly about the purpose for

which he had been picked up, the manner in which he was treated

during the interregnum and identity of the persons who were

responsible for the injured state in which he had been found.

25. The investigating agency showed no interest whatsoever in

collecting the aforesaid statement of the victim made from the nursing

home bed before the DCP/ACP or including it in the list of reliance in

the charge-sheet. At the hearing on these appeals, we had asked learned

counsel representing the State but it was clarified that the said

document was not to be found in the trial Court record or in the

corresponding files of police or prosecution. Given the nature of the

allegations on which the case at hand came for trial before the Court,

wherein the investigating officer was probing a case involving charge

of custody death, we do not need much imagination to infer the reasons

for this glaring omission.

26. It is clear from the evidence of PW-2, PW-3 and PW-4 that they

did not have a clue, initially, as to what had happened to the victim.


Given the sequence of events narrated in the evidence, they would

have learnt, on information given by PW1, about he having been taken

away in the late hours of the night intervening 10th and 11th March

1992 from his house. PW1, as already noted, is in no position to

identify the persons involved. She mentioned this in her first statement

to the investigating officer on 17th of March 1992, on the basis of

which the FIR was registered. PW-2, PW-3 and PW-4, on their part,

confirmed that Darshan Singh could not be seen around after he had

been taken away in the presence of PW1, who had informed PW-2

about this happening and who, in turn, had informed PW 3, the father.

These three witnesses speak about their efforts to trace Darshan Singh

and having gathered information about him possibly being in the

custody of the police. They speak about their visits first to the police

station Seelampur and then to the police station Welcome, both located

close by, but with no success. It has come out in the evidence of these

witnesses that a definite information about Darshan Singh being in the

custody of Anand Prakash @ Anand Tyagi (A1) came their way,

courtesy the input received from a local boy Kale @ Dharampal (PW

6), who along with his brother Desraj (PW 5) had also been taken away

by police officials around the same time as Darshan Singh (the victim).

27. Desraj (PW 5) and Dharampal (PW 6), in their respective

testimonies, confirmed that police officials, some in plain clothes and

others in uniform, had come to their doorstep enquiring about their

brother Bobby @ Ramesh and, upon they explaining that they had no

connection with the person required by the police, both of them were

taken away to the police station. According to them, they were


detained in the police station and released only the next day. Both of

them confirm that at the time of their detention in the police station,

Darshan Singh was seen by them sitting in another room. That was the

last time they would see Darshan Singh uninjured, hail and hearty.

28. The charge sheet had relied on the evidence of the above two

witnesses (PW5 and PW6) to prove the connection of the four

appellants with the detention of Darshan Singh in the police station

around the same time they were present in the building. Both these

witnesses, however, were reluctant to confirm. They disowned the

statements under section 161 CrPC attributed to them indicating a

specific role to the appellants in not only the detention of both of them

with Darshan Singh, and certain others, but also physical assaults and

ill-treatment (being “chained”) in police custody at their hands. They

refused to identify any of the appellants as the persons involved in

what was clearly an unlawful detention.

29. The fact that the taking away of the two witnesses (PW5 and

PW6) to the police station and their detention overnight was not lawful

is confirmed by the evidence of their mother Santosh (PW 7) who had

been vigilant enough to resort to the remedial action including filing of

an application for bail and sending of a telegram expressing concern

about the welfare of her sons. The copies of these documents were

seized during the investigation from her, vide seizure memo (Exh. PW

13/B). The copy of the telegram (Mark-Y) was shown to KB Thukral

(PW-28), an official of the Telegraph office of the Department of

Telecommunication at Shahdara. The said witness would not state

anything beyond confirmation that the copy of the telegram had been


issued by the Superintendent in charge of the Telegraph office at

Kashmere Gate. Though the office which issued the copy was not

called upon to depute an official to strictly prove it, the confirmation

by PW-28 that it had been officially issued provides sufficient

corroboration to the word of Santosh (PW 7) about she having sent a

telegram from the GPO (which is located at Kashmere Gate) to the

ACP.

30. On conjoint reading of the evidence of PW 3, PW 5, PW 6 and

PW 7, it emerges as a proved fact that PW 5 and PW6 had been picked

up by the police around the same time when Darshan Singh was taken

away from the same neighbourhood. The evidence of these two

individuals, in particular, leaves no room for doubt that Darshan Singh

was seen by them in the captivity of the police, though in another

room, when they were being questioned by the police officials in the

police station. It requires not much imagination to conclude that PW 5

and PW6 were let off on the afternoon of next day of being picked up,

which would mean 12th March 1992, presumably on account of the

protests being made around the time by their mother (PW 7) in the

form of telegram to the ACP and application for bail in the Court. It

may be added that the very fact that the said two persons were released

close on the heels of the telegram being sent by their mother, also

moving the Court for release on bail confirms that the detention of the

persons thus picked up by the police staff on the night intervening 10th

and 11th

March, 1992 had not been made officially nor formally

recorded and, thus, was wholly unauthorised and consequently

unlawful. Indeed, no document or record has been produced at the trial


as could show that the persons detained, which would include the sons

of PW 7 (i.e. PW 5, PW6 or, for that matter, their brother Bobby @

Ramesh) and the victim (Darshan Singh) were lawfully detained.

31. Thus, Prem Pal (PW 3), the father of the victim, must be

believed when he said that he had learnt about the detention of his son

Darshan Singh in the police station from Dharampal (PW 6), known to

the former by the name of Kale, in the evening of the release from

custody of the latter. In the result, a definite clue regarding his

whereabouts came the way of the members of the family of the victim

in the evening of 12th March, 1992. It is on the basis of this information

that PW 3, accompanied by PW 2 and PW 4, had gone to the place of

detention to locate the missing person. The father of the victim (PW 3)

testified that he had met Anand Prakash @ Anand Tyagi (A1) to

enquire about his son when the latter confirmed that his son (Darshan

Singh) was with him and told him to come in the evening.

32. According to PW3, Anand Prakash @ Anand Tyagi (A1) had

called him two or three times but in spite of the repeated entreaties he

was not allowed to see his son. The testimony of PW 3 is corroborated

by Vikram Singh (PW2) and Munna Lal (PW 4). As mentioned earlier,

both are close family members of the former. Both stated that they had

accompanied PW 3 and had also met Anand Prakash (A1) several

times and it was confirmed in the said meetings that the victim was in

his custody. Though none of these witnesses ever personally saw

Darshan Singh in the custody of A1, or for that matter of the other

appellants, in the police station, the conversation in which A1 engaged

them at the time of their visits to him to enquire about the victim


corroborates the prosecution case, and the word of PW 5 and PW6

noted earlier, that Darshan Singh was in the control or custody of

police personnel which in the factual matrix include obviously A1.

33. According to PW4, Anand Prakash (A1) had stated that Darshan

Singh was involved in cases of theft and had been taken to the Civil

Lines area and would be released. There is no record of any specific

criminal case of theft or otherwise registered by the police or under

investigation with AATS in which the name of Darshan Singh or, for

that matter, of any other individual who may also have been picked up

with him during the relevant period, may have figured.

34. It has come in the statement of PW4 that Darshan Singh was ill

treated during the confinement by the police personnel, basing his

version to this effect on the information he gathered from the victim at

the time of meeting him in the nursing home, quoting him stating that

besides being beaten badly by the police, upon him asking for water,

urine would be poured into his mouth. We could ignore this part of the

evidence as extortionate in absence of confirmation, but it is apparent

and unmistakable that the victim was tormented and tortured.

35. As per the case for the prosecution, during his interaction with

the relatives of the victim (then in unlawful confinement), Anand

Prakash (A1) had asked them to pay to him illegal gratification.

Noticeably, in their court testimony, none of these witnesses spoke

about this to be the desire or demand expressed by A1. The learned

Counsel for the appellants submitted that the motive attributed to the

accused persons having not been proved, the case could not end in


conviction. We're not persuaded to accept this argument. If the

allegations of the victim having been compelled to accompany the

accused persons, and having been confined thereafter, stand proved the

question of motive behind such acts of commission pales into

insignificance. As we shall note, in due course, the law is well settled

that the burden to explain in such fact-situation would shift on to the

police personnel who are in the dock on the charge of custody death.

36. It, however, clearly emerges from the statements of PW2, PW3

and PW4 that none of them is in a position to identify any of the

appellants other than Anand Prakash (A1). They identify the latter

because they had met him in the course of their efforts to locate

Darshan Singh who had been missing from 11th

March, 1992 and who

had been seen by two boys from the same locality also picked up

around the same time though released after one day. Questions were

raised during the course of their statements about omission on the part

of the investigating officer to arrange test identification parade (TIP).

We, however, do not find any merit in this line of questioning because

there is ample evidence available to corroborate the testimony of these

three witnesses about the connection of A1 and others with the acts

relating to the illegal confinement of the victim and the way he was

treated resulting in his death. Most important corroborative evidence is

the testimony of Inspector Shakti Singh (PW 15) which we may

presently take note of.

37. As mentioned earlier, PW 15 was the senior most officer in the

team of police personnel deputed during the relevant period to man the

AATS. He was the officer in charge and would be responsible for


directing the affairs of the team, allocating duties to the officials placed

under his control and supervising the enquiries or investigations

undertaken besides reporting to the superior officers. Before we take

note of his testimony against the appellants, it needs to be mentioned

here that this witness himself was a suspect at one stage of the probe

into the unnatural death of Darshan Singh. This is clear from a variety

of facts. After all, being the officer at the helm of AATS, he had some

responsibility to shoulder as to how the men under him acted or

behaved. As pointed out by the defence, during the course of

arguments, after the FIR had been registered, at a stage when there was

still hope for Darshan Singh to survive, PW 15 made himself

unavailable to the senior police officers and had to be marked absent

from duty in the daily diary register (DD no.3 dated 18th March, 1992)

of the unit (AATS) which he had been heading till then. Pertinently, he

applied for anticipatory bail which, it appears, was granted. He

admitted in the course of his statement that departmental action under

the disciplinary rules was taken against him in the context of the

unnatural death of Darshan Singh and, having been found guilty of

misconduct, on the charge of "negligence", he was awarded major

penalty in the form of loss of the service of five years.

38. It was vociferously argued by the learned Counsel for the

appellants that given the above facts, evidence of PW15 deserves to be

discarded outright since it was coming from a tainted source, an

individual who could possibly have been himself the perpetrator. We

do not agree.


39. There is nothing in the statements of any of the material

witnesses, particularly those related to the victim or others from the

same locality, as would support the argument that PW 15 might have

had a role in what had happened to Darshan Singh from the time he

was taken away from his house till he was seen by him in the office of

AATS on the morning of 16th of March 1992. While it is true that this

witness was responsible for the day-to-day affairs of AATS and

manage the duties of the police personnel deputed under him, it has to

be borne in mind that no evidence suggests that Darshan Singh was

confined in the office of AATS or brought there on any day prior to

16th March 1992. On the contrary, the evidence of the other two

persons (PW 5 and PW6), contemporaneously confined, shows that the

individuals picked up on the night of 10th and 11th March 1992 had

been taken to the premises of a police station. In other words, prior to

PW 15 coming across Darshan Singh in the premises where the office

of AATS was located (which would be the morning of 16th March

1992), the victim had not been seen by any witness other than the said

two persons anywhere other than the police station.

40. True, PW 15 had the overall responsibility. But it cannot be

stretched to the level of accountability for the acts of commission or

omission on the part of the police officials under his control at places,

or in connection with affairs, other than those relatable to the duties of

AATS. As the evidence of this witness (which we shall take note of

hereinafter) itself demonstrates, he was indeed negligent in the exercise

of his supervisory responsibility inasmuch as he, having come to know

about the critical state of Darshan Singh, failed to take the necessary


steps not only to ensure that he was given proper medical aid but also

to enquire as to the circumstances in which he had suffered the

extensive injuries. An injured man was seen lying in the premises of

the office he was heading at the time. It was his duty, not only moral

but also official, to take charge of the situation. The matter, having

come to his notice, required to be documented (the least possible action

as per normal police procedure being an entry in the daily diary

register) and a detailed report made to the supervisory officers in the

hierarchy. He failed to live up to the expectations of the office held and

instead, by his own account, was busy entertaining some personal

guests.

41. For the neglect in the discharge of his official duties, PW15 has

already been dealt with by the appropriate disciplinary authority in the

department which he was serving at the relevant point of time. We

cannot assume, not the least because the appellants so argue, that

PW15 was party to the whole incident only because he was the official

in charge of the office of AATS at the time. The role of the appellants,

particularly A1, has come up in the evidence of other witnesses who

had no personal axe to grind or out to settle any past scores. They are

witnesses who would be interested more in bringing to book the

persons responsible for the untimely death of their dear one rather than

falsely frame others who had no role to play. In these circumstances,

the testimony of PW15 serves the purpose of corroboration and fills in

the gap in the narrative of the sequence of events given by the relatives

(PW 2, PW 3 and PW 4) who, for obvious reasons, suffered the

handicap of not being privy to the facts in entirety since they had not


been allowed by the then custodian to meet the victim in captivity. If

PW 15 actually had had a role, the appellants – at least A1 against

whom there is direct evidence – would have taken the defence that they

had been acting in the discharge of their duty as per directions of their

superior (i.e. PW 15). Thus, there is no reason as to why PW 15 should

be treated as an accomplice. But we agree that, given the allegations he

faced in the departmental proceedings, his evidence requires to be

subjected to closer scrutiny than any other witness.

42. PW 15 deposed about the events in the office of AATS on the

morning of 16th March 1992. He had reached the office at about 9:30

AM. He saw Darshan Singh lying in injured condition in the courtyard

of the premises. He stated that the four appellants, who were posted

under him in AATS, were present at the scene and further that the

victim had been brought to the office by them. According to him, he

had enquired and was told by Anand Prakash (A1) that the injured

person (the victim) was involved in a number of robberies. On being

asked about the serious injuries seemingly suffered by the victim, A1

only responded by stating that he (the victim) had been brought by the

appellants in said condition "just then". The witness stated that his

enquiry of the roznamcha munshi (DD writer) had confirmed that the

victim had been brought in only 15 minutes prior to his arrival.

Interestingly, PW 15 would also add that he had questioned the injured

"boy" to be told by him that the person sporting a beard, pointing

towards A1, had beaten him. The witness confirmed, and the defence

did not resist, that A1 actually sported a beard during the relevant

period. Be that as it may, PW 15 further testified that he had directed


the injured person to be taken to the hospital and that pursuant to his

command, appellant Anand Prakash (A1) and appellant Sunil Kumar

(A2) had gone out to arrange a three-wheeler scooter. He stated that the

victim had been taken to the hospital by A1 and A2 while he got busy

with his personal guests. He testified that it was on the next day, i.e.

17th March 1992, on return at about 2:30 PM from Patiala House

Courts, he learnt that the victim had been taken by the said two

appellants (A1 and A2) to the nursing home rather than to the hospital

as directed by him. He added that he had then gone to the nursing

home but did not find any of the appellants present there. He claims

that he had returned to the office and given a complaint in writing

against the appellants to the senior police officers. He has also stated

that he had found the appellants were not available on duty in the

office of AATS and, thus, marked their absence (DD no. 8 recorded at

3:30 PM on 17.01.92) in the daily diary register of AATS.

43. Indeed, the police record shows that the statement of this witness

(PW 15) under section 161 CrPC (PW 15/DA) was recorded on

20.05.92, which is about two months after the registration of the FIR.

The defence has argued that the version of PW15 as reflected in the

said document was one which could not be taken on its face value

inasmuch as given the suspicion of his own involvement in the episode

at that time, the witness had had sufficient time to reflect and would

have tailored his statement to ensure that it was self-exculpatory and

designed to point the needle of suspicion towards others.

44. We agree that given the chronology in which the events would

have occurred and the investigation proceeded, PW15 had sufficient


time for reflection, and to take advice, and accordingly offer to co-

operate with the investigative process in such a manner that possibility

of his own implication could be warded off. But then, it is also to be

remembered that PW15 was not available to the investigating officer

earlier since he was busy taking care of his own welfare, inter alia, by

applying for anticipatory bail and explaining his position to his

departmental superiors. The delay in recording of his statement under

section 161 CrPC, by itself, cannot be the reason why his testimony

should not be acted upon. He was the person at the helm. He is,

therefore, the best person to give an inside view. In our opinion, if he

was a witness prone to falsehood, it would have been easier for PW 15

to dissociate himself totally by taking the position of ignorance. Since

the police records and registers, particularly those maintained at

AATS, are silent about the taking away of Darshan Singh from his

house or his illegal confinement thereafter that would be a simpler way

for PW 15 to divert attention from himself. It is a matter of some

satisfaction that PW 15, having first indulged in gross neglect of his

responsibilities, came clean by owning up that Darshan Singh had been

brought to the office of AATS within his knowledge, in his personal

presence, in seriously injured state.

45. Undoubtedly, the report in writing given by PW15 to the senior

police officers at the supervisory level has not been shown the light of

the day in the trial. We must presume, however, that PW 15 would

have submitted a report to his seniors inasmuch as the evidence clearly

shows that the senior police officers came to be proactively involved

on 17th March 1992 and, as shown by the inquest report, even visited


the nursing home at the time when the victim was still admitted there.

Given the chronology of events, this would not have been possible

save for information given by PW 15. But, for the omission to gather

the necessary evidence about formal report, PW15 cannot be blamed.

This was the job of the investigating officer. He should have collected

the official note given by the officer-in-charge of AATS (PW 15) and

made it a part of the documentary proof of what was

contemporaneously reported. It is trite that the default of the

investigating officer ought not to be a reason to disbelieve a witness

who sounds truthful.

46. We are mindful of the fact that PW 15 has made some effort to

go beyond his original account in the statement under section 161

CrPC. Illustratively, in the Court he spoke about his enquiry of the

victim as to the author of injuries evincing fingers being pointed at A1;

enquiry from the DD writer confirming arrival of the injured in the

office of AATS only 15 minutes prior to he coming to the office; the

information about the suspicion of involvement of the victim in the

robbery cases being sourced from A1; and, his own preoccupation with

his personal guests at the time - all such facts as were conspicuously

absent in his statement under section 161 CrPC. The variations, or

improvements (if they can be so called), however, in our judgement,

are not such as could render his word totally incredible. They are

definitely not contradictions going to the root of the case. The witness

had nothing to gain by these additions to his original version. The

exchange with A1, as mentioned in the Court, only adds to what was

otherwise clearly stated about the role of the latter. The confirmation


by the DD writer may be ignored because it would be in the nature of

hearsay, the official in question himself not having been examined, but

these were records maintained in normal course and a part of official

record written contemporaneously.

47. We find no good reasons as to why the testimony of PW 15

should be disbelieved to the extent it confirms that it is the appellants

who had brought the victim to the office of AATS on the morning of

16th March 1992 in seriously injured state and further that upon PW 15

questioning he was told by A1 that the victim was a suspect in robbery

cases. The evidence of this witness also confirms that upon him

directing the victim to be taken to hospital for medical aid, A1 and A2

took him away in a three-wheeler scooter, not to a government hospital

as instructed, but to a private nursing home. PW 15, negligently

considerate to his workmates as he was, learnt about this non-

compliance in the afternoon of the next day.

48. Dr Mohan Lal (PW12), the owner of the nursing home, has

deposed that the two police officials who had brought the victim to his

establishment had left the place while the patient (the victim), then

unconscious, was being treated. He has further stated that the victim

had regained consciousness around 2 or 3 AM on the night in question

and during his small conversation with the attendant he had provided

the address. Till then, his particulars were not available. PW 12 had

sent an employee of the nursing home to the address provided. This

precisely is the version of the relatives of the victim who deposed that

upon being informed by the "boy" from the nursing home they had

finally learnt regarding the whereabouts of the missing person (the


victim) and, thus, proceeded to the said place and met him. We do

observe that PW-12 knew and was aware of the identity of the two

police officers but has withheld and concealed this information.

49. There is a slight discrepancy in the evidence as to the time when

the family had received the information from the messenger sent by the

nursing home. If we go by the word of PW 12, it could not have been

at any time prior to 2 or 3 AM of 17th of March 1992 since it is only

by such time as per the witness that the victim was able to

communicate. But, PW2 and PW3 created confusion by pegging the

time of receipt of the information from the nursing home employee to

11:30 PM (of 16.03.92) and 1 AM (of 17.03.92) respectively. In our

opinion, this contradiction cannot detract from the fact that, in the

given fact-situation, the family would not have come to know as to the

location of the victim except by the message received from the nursing

home. There is no reason why PW 12 should be disbelieved about he

taking the initiative of sending the information to the family upon

learning the particulars of the unconscious patient who had been

brought to his nursing home by the two police officials and knowing

the victim‟s serious condition and even senior police officers paying

visits. It is correct the medical records of the nursing home have not

been seized or made available. Thus, the time when the victim would

have regained consciousness or who had given identity and details of

the victim cannot be cross checked. It is possible that PW 12 was

speaking about the time when the victim was in a position to tell his

own particulars by some guesswork. But then, the greater possibility is


that PW 2 and PW 3 are telling the time of the visit of the messenger

from the nursing home also by guesswork.

50. Nothing turns on the discrepancy in the time. What is consistent

in the statements of these witnesses is the fact that the family having

learnt that Darshan Singh was in nursing home, it rushed to meet him

there. The testimony of PW 2 and PW 3 in this regard is corroborated

by that of PW1 and PW4. Their version would be more credible and

reliable.

51. Placing reliance on Maruti Rama Naik vs. State of Maharashtra,

AIR 2003 SC 3884, it is the argument of the defence that the conduct

of the witnesses (PW1, PW2, PW3 and PW4), who are related to the

victim was most unnatural and, therefore, cannot be relied upon. The

learned counsel on their behalf submitted that even though these

witnesses claimed knowledge about the victim having been taken away

on the night of 10th /11

th March, 1992, and having been illegally

confined thereafter, they did not lodge any protest anywhere. Drawing

parallel with the case of Santosh (PW7) whose sons (PW5 and PW6)

had also been taken away and similarly confined around the same time,

it is pointed out that Prem Pal (PW3), the father of the victim, at least,

should have undertaken similar exercise by either moving the

competent court or approaching some superior police officer for

intervention. It is submitted that since no such measures were taken,

the possibility that the abduction or wrongful confinement of Darshan

Singh (victim) may have been engineered by someone other than

police staff cannot be ruled out. The appellants argued that the

evidence of Inspector Shakti Singh (PW15) only shows that the victim


had been brought by them in injured conditions to the office of AATS

on the morning of 17.03.1992. The submission is that since there is no

evidence showing the location where the victim had been wrongfully

confined prior to the said event, it cannot be concluded that the

appellants were responsible for his confinement or the state in which

he had been brought to the office of AATS.

52. We do not agree. These arguments ignore and are contrary to

the facts proved and established. These arguments are based on half

reading of the evidence. The facts and circumstances proved, as noted

above, when seen in their entirety form a chain complete in itself. The

victim had been taken away by a group of persons in the dead of night

from his house. He was seen going away with them, apparently not

lodging any protest. The fact that two other persons from the same

locality were also similarly picked up by the police staff is too

significant a circumstance to be ignored. The similarity of the two

actions leads to the irresistible conclusion that each of them including

Darshan Singh (victim) had been taken away by the police personnel

against similar backdrop. The fact that PW5 and PW6 saw Darshan

Singh (victim), in confinement under the control of police personnel, at

the same place where they were detained and the fact that when Prem

Pal (PW3) with his relatives met Anand Prakash (A-1), he confirmed

that Darshan Singh (victim) was in his custody and further the fact that

Darshan Singh (victim) was brought on the morning of 16.03.1992 in

critically injured state to the office of AATS, are such circumstances as

together join the dots and complete the chain unerringly pointing

towards the complicity of Anand Prakash (A-1), in the entire episode.


The conduct of the other appellants vis-à-vis the victim at the time of

enquiry by Inspector Shakti Singh (PW15) on the morning of

16.03.1992, is direct evidence confirming their complicity with Anand

Prakash (A-1) in the acts of commission or omission committed

against Darshan Singh (victim).

53. The relatives (PW1, PW2, PW3 and PW4) of the victim are

illiterate persons, seemingly resource-less and from very poor strata of

the society. They would not have been in position to take recourse to

legal remedies, or even been aware, as to what possible steps they

could have taken to secure the release of Darshan Singh (victim). In

fact, for quite some time, they were not even aware, as to his

whereabouts. When they learnt about he being held in captivity by

police personnel, all they could think of, or do, was to visit police

stations and meet Anand Prakash (A-1), one of the police personnel

involved. The failure on their part to lodge any protest in the court, or

with the superior police officers, in these circumstances, cannot affect

their credibility.

54. All the witnesses connected to the victim (PW1, PW2, PW3 and

PW4) have spoken about visiting the nursing home and finding the

victim under treatment there. All of them, save for the father (PW 3),

deposed about interacting with the victim and being told that he had

been beaten badly by police officials. The version of the father (PW 3)

is somewhat different. He (PW-3)was not allowed to meet and had to

go to the office of A1 and thereafter return to the nursing home with

his brother, A1 also giving company. PW3 restricted himself to

testifying that he had to bring in political pressure – called a local


politician – whereafter police officials from the crime branch had come

to the nursing home and his son was shifted to the government hospital

where he expired.

55. The case was registered on the basis of rukka (Exh. PW 23/A),

sent by ASI Ram Sidh (PW 23), through Head Constable Pramod

Kumar (PW 9), from the hospital at 4:50 PM on 17.03.92. The FIR

(Exh. PW 17/A) was recorded by SI Kartar Singh (PW 17) at 5:40 PM

on the same day. Thus, the case was initially investigated by PW 23.

Inspector VP Kohli (PW 26), the SHO of police station Welcome took

over the case from him for one day (18.03.92) and thereafter the

investigation was made over to the crime branch where it was handled

eventually by Inspector (later ACP) Mahinderjit Singh (PW 30) with

effect from 23.03.92, though for some period it remained with

Inspector Bhagwan Singh Dahiya, who himself has not been examined

but reference to his said role has come in the evidence of SI Harbhajan

Singh (PW 11).

56. The investigation did not see much progress when the case was

with PW 23. He had prepared site plan (Exh. PW 23/B) which is not of

much assistance as it only depicts the layout of the houses of the

locality where the deceased was living showing the position of his

house vis-a-vis that of PW1. On information coming in from the

hospital about the death of the victim (DD no. 26-B) on 18.03.92, he

had converted the case into one involving offence under section 302

IPC. It is for this reason that the investigation was then taken over by

the SHO from him. PW 26, on his part, had taken the necessary steps

to get the inquest proceedings conducted. After the post-mortem


examination of the dead body, he had handed over the same to the next

of kin vide formal receipt (Exh. PW 26/A). The investigation was then

transferred to the crime branch on 19.03.92. PW 30 has broadly

narrated the steps taken by him during the investigation including the

formal arrest of A1, after personal search (Exh. PW 30/A), and his

disclosure (Mark 'Z ') during interrogation. Of course, the disclosure

statement attributed to A1 cannot be used against him, it being

inadmissible in terms of section 25 of the Evidence Act. PW 30

explained that the other accused had already been granted anticipatory

bail.

57. SI Harbhajan Singh (PW 11), then posted in SIT crime branch

had assisted the then investigating officer (Inspector Bhagwan Singh

Dahiya) by getting the barrack where A1, A2 and A3 were residing at

the time inspected by the crime team and fingerprint expert. But since

nothing came out of such efforts, inasmuch as no incriminating

evidence based on the inspection of the crime team has been relied

upon, the same is inconsequential. PW 11 also spoke about he going on

21.03.92 to the office of the AATS (North-East) and taking into

possession the duty register for the period 01.01.92 to 17.03.92 and the

daily diary (roznamcha) for the period 17.02.92 to 21.03.92, as per

formal seizure memo (Exh. PW 11/A). The two registers were proved

by him as Exh. P-1 and Exh. P-2 respectively.

58. It is necessary to refer to the two registers – the duty register

(Exh. P-1) and the daily diary register (Exh. P-2) to note some of the

relevant entries and, also for purposes of examining the defence of two

of the appellants based on the entries contained therein.


59. As mentioned above, the second register (daily diary register)

covers the period 17.02.92 to 21.03.92. The first thing which needs to

be noted is, and all sides agree, that this register (Exh. P-2) does not

contain any information that may have been subject matter of interest

leading to the need for interrogation of the victim, or for that matter the

other two boys (PW 5 and PW6), for any specific case under

investigation or even from the perspective of the possibility of

developing intelligence of general or specific nature in terms of the

ordinary police practice. Further, the register does not contain any

entry, not even a remote one, reflecting the visit of any of the police

personnel, of AATS (where this record was maintained), to the locality

where the victim and the others were residing on or about 10th and

11th March 1992 or thereafter. It does confirm the leave of absence of

one appellant for certain period for which we may first refer to the duty

register (Exh. P-1).

60. The duty register (Exh. P-1) covers a large period but, in the

case at hand, we need focus mainly on the entries for the period 10th

March 1992 onwards. These entries, we must observe, do confirm the

fact of the four appellants being deputed as staff of AATS for North-

East district headed by PW15. The sheets allocated for each date are

utilised to mention the staff strength, the particulars of personnel

reporting for duty on each given day, the status of leave of absence or

medical rest and, more importantly, the duties assigned. The entries for

the dates 10th to 13th March 1992 and 17th March 1992, show Head

Constable Mahipal (A3), Constable Anand Prakash (A1) and Constable

Niraj (A4) to be forming a separate group (out of two such groups)


deputed for "Trape (sic) duties" (apparently meaning "trap duties").

On 16th March 1992, again Head Constable Mahipal (A3) and

Constable Niraj (A4) with another (Constable Ravinder Kumar)

constituted a group for similar duty. On 14th and 15th March 1992,

Head Constable Mahipal (A3) is shown to be not on duty being away

with "permission". No one was assigned the trap duties on these two

days.

61. The fact that Head Constable Mahipal (A3) was off duty for two

days (Saturday the 14th and Sunday the 15th March 1992), as shown in

the duty register (Exh. P-1), is confirmed by the daily diary register

(Exh. P-2). The DD entry no. 11 recorded at 06:05 PM on March 1992

logged the permission given to him to be absent from duty for two

days. He logged his return vide DD no. 6 recorded at 9 AM on 16th

March 1992.

62. The duty register (Exh. P-1) also shows that Constable Niraj

(A4) was additionally assigned the duties of DD writer in the AATS

from 8 PM on 10th and 15th March 1992 to 8 AM of next day.

Similarly, Constable Sunil Kumar (A2) was on duty as DD writer in

the AATS from 8 AM to 8 PM of 11th March 1992 and from 8 PM of

12th to 14th March 1992 to 8 AM of following days.

63. It is trite that in a criminal trial, it is the duty of the prosecution

to prove its case beyond or reasonable doubts and mere suspicion

cannot take the place of proof [Sarwan Singh Rattan Singh vs. State of

Punjab, AIR 1957 SC 637 and Datar Singh vs. State of Punjab, 1975

SCC (Cri.) 530]. It is equally well settled [Sharad Birdhichand Sarda


vs. State of Maharashtra, 1984 SCC (Cri) 487), that in a case based on

circumstantial evidence, prosecution seeking finding of guilty against

the accused, must establish the following :-

(i) the circumstances from which the conclusion of guilt is to

be drawn must or should be and not merely „may be‟ fully

established,

(ii) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they

should not be explainable on any other hypothesis except

that the accused is guilty,

(iii) the circumstances should be of a conclusive nature and

tendency,

(iv) they should exclude, every possible hypothesis except the

one to be proved, and

(v) there must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in

all human probability the act must have been done by the

accused.

64. The appellants have referred to Dev Raj Arora vs. State, 2012

(2) JCC 1045, Chander Shekhar vs. State of NCT of Delhi, 2011 (3)

JCC 2053 and Ganesh Gogoi vs. State of Assam, (2009) 7 SCC 404, to

plead prejudice on the ground that the questioning of appellants under

Section 313 CrPC was improper, in that facts which had not even been

proved, were put as incriminating evidence. Reference was made

particularly to question nos. 1, 7, 9 and 10 in the statement of Niraj


(A4) wherein role has been attributed to him which, as per the

evidence, actually pertains to Anand Prakash (A1) or to Sunil (A2),

with similar errors having crept in the corresponding questions put to

Mahipal (A3). We agree that the trial court should have been careful in

framing the questionnaire for the stage of statement under section 313

CrPC by separately focussing on the evidence specific to each accused

and not using a common template for all of them. We, however, do not

think that this would cause irreparable prejudice as, for final

evaluation, the evidence has been considered only to the extent it

incriminates a particular accused.

65. From the evidence led by the prosecution, as summarised above,

the following facts and circumstances can safely be said to have been

established beyond the pale of all doubts:

(i) During the relevant period, i.e. March 1992, the appellants

were members of Delhi Police, posted in Anti Auto Theft

Squad (AATS) of the North-East district, its office being

located near the office of the Deputy Commissioner of Police

(DCP) of the district, in close vicinity of two police stations

viz. Seelampur and Welcome;

(ii) The AATS had a total staff strength of 11 police personnel,

out of which Inspector Shakti Singh (PW 15) was the senior

most and in-charge of AATS, the others including the

appellant Mahipal (A3) holding the rank of Head Constable

and the other three appellants, namely Anand Prakash (A1),

Sunil Kumar (A2) and Niraj Kumar (A4) working as

Constables;


(iii) During substantial part of the period in question (10th to

17th march 1992), Head Constable Mahipal (A3) with

Constables Anand Prakash (A1) and Niraj (A4) constituted a

group, formally organised, deputed by the officer in charge

of AATS (PW 15) to be responsible for trap duties - the

documentary evidence showing this also reflecting that

Constable Niraj (A4) was assigned the additional duty of DD

Writer in AATS for certain specific durations on some of

these dates and, further, that Head Constable Mahipal (A3)

had remained off duty for 2 days i.e.14th and 15 March

1992;

(iv) The victim (Darshan Singh) son of Prem Pal (PW 3), aged

about 21 years, was gainfully engaged assisting his employer

in the work of denting and painting (of motor vehicles) in

Bihari Colony and was residing in house no. K-463, New

Seelampur, Delhi in close vicinity of the hoses where his

father (PW3) or his father's brothers, including Vikram

Singh (PW2) lived;

(v) At about 2 AM of 11 March 1992, Darshan Singh (the

victim) was picked up from his house by 3 or 4 persons in

civvies and taken away within the sighting of Beena (PW1),

the wife of Ram Niwas, another brother of PW2 and PW3,

she being a resident of another house (A-463) in the same

locality;

(vi) PW2 with his brother (PW 3) and cousin Munna Lal (PW4),

upon learning about the above event from PW-1 tried to


locate his son but with no immediate success;

(vii) Des Raj (PW5) and Dharam Pal (PW6), both sons of Santosh

(PW7) wife of Roshan Lal residing in house no. K-155 in the

same locality were also contacted by the police staff on the

pretext of search of their brother Bobby@Ramesh and, upon

they showing ignorance as to his whereabouts, they were

also taken away from their house around the same time and,

as a result of the efforts made by their mother (PW 7) it was

revealed that they had been picked up by the police

personnel and detained by the police staff in police station

Seelampur;

(viii) During the period of their detention in the police station Des

Raj (PW5) and Dharam Pal (PW6) came across Darshan

Singh (the victim), also kept in the police station, though in a

different room;

(ix) Santosh (PW7) lodged protests as to the unlawful detention

of her sons, Des Raj (PW5) and Dharam Pal (PW6), by

sending a telegram to the ACP in the early morning hours of

12th March 1992 and also moving an application for release

of her sons on bail in the Court, in the wake of which Des

Raj (PW5) and Dharam Pal (PW6) were released by the

police officials who had taken them away;

(x) Prem Pal (PW 3), the father of the victim, learnt about the

detention of his son by the police in the evening of 12 March

1992 from Des Raj (PW5) and Dharam Pal (PW6), and on

that basis contacted Anand Prakash (A1), meeting him


several times, accompanied by Vikram Singh (PW2) and

Munna Lal (PW4), when Anand Prakash (A1) confirmed to

him that Darshan Singh (victim) was in his custody, though

not allowing Prem Pal (PW 3), or his relatives, to see or meet

the victim, inter alia, on the pretext of he having been sent

away somewhere;

(xi) On 16 March 1992, at about 9:30 a.m., Inspector Shakti

Singh (PW 15) reached the office of AATS and found

Darshan Singh (the victim) lying in the courtyard in a

seriously injured condition, and upon enquiry learnt from the

appellants, who were present in person, that he had been

brought there by them;

(xii) Inspector Shakti Singh (PW 15) instructed the appellants to

take Darshan Singh (the victim) to the hospital for medical

care and treatment but, instead of complying with the said

direction, appellant Anand Prakash (A1) and appellant Sunil

Kumar (A2) took him in a three-wheeler scooter to Mohan

Nursing Home, a private facility run in a nearby locality by

Dr Mohan Lal (PW 12);

(xiii) When Darshan Singh (the victim) was brought to the nursing

home by two police officials, he was unconscious and in

critical condition, the accompanying police officials leaving

him;

(xiv) Darshan Singh (the victim) regained consciousness during

the night intervening 16th and 17th March, 1992;

(xv) Dr. Mohan Lal (PW 12) had sent the information to victim‟s


family through a messenger;

(xvi) Upon information regarding Darshan Singh (the victim)

reaching the family, Prem Pal (PW 3), accompanied by

Vikram Singh (PW2), Munna Lal (PW4), Beena (PW1) and

others, went to the nursing home and saw him in critically

injured state;

(xvii) Inspector Shakti Singh (PW 15) states that he had learnt in

the afternoon of 17th March 1992 that the appellants had not

abided by his direction of taking the victim to the hospital

and had instead left him in the private nursing home and that

they (the appellants) were not available, he made a report to

the senior police officers and recorded the absence of the

appellants from duty;

(xviii) Upon the information reaching the senior police officers on

the afternoon of 17th March, 1992, the DCP and ACP visited

the nursing home and saw the victim admitted there

whereupon arrangements were made and Darshan Singh (the

victim) was shifted to LNJP Hospital the same day;

(xix) First information report was registered on 17th March, 1992

by SI Kartar Singh (PW-17) and taken up for investigation

for offences under sections 342/323/34 IPC;

(xx) Darshan Singh (the victim) died during treatment in LNJP

Hospital in the afternoon of 17 March 1992;

(xxi) The post-mortem examination on the dead body of Darshan

Singh (the victim) revealed that he had suffered 23 ante

mortem injuries, mostly contusions or abrasions, almost all


over the body, including on the face, upper limbs, lower

limbs, extremities (hands, soles, fingers, toes etc.), nails,

joints (knees and wrists) and the chest region, the internal

examination showing extravasations of blood present in the

frontal region on both sides with subarachnoid haemorrhage

present over both the frontal poles, it also showing a few

petechial haemorrhages presentation in both the cerebral

hemispheres frontal, terminal and parietal poles - some of the

injuries being fresh (1 to 3 days old), some a little older (2 to

4 days old) and yet some more still older (5 to 6 days old),

indicative of constant physical assaults over a prolonged

period, at least six days in duration; and

(xxii) The autopsy doctor (PW 18) was unable to give any definite

opinion regarding the cause of death on the basis of findings

during the post-mortem examination of the dead body. He

recorded that he had preserved the viscera for chemical

analysis to rule out the possibility of poisoning thereby

indicating that he was reserving his final opinion on the

subject of cause of death till the viscera report had come in.

The report of the CFSL (Exh. PW 16/A) was negative on the

possibility of poisoning. Thus, when the matter was taken

back to the autopsy doctor (PW 18), he recorded his final

views (Exh. PW 18/B) stating that, in his opinion, all the

injuries noted in the autopsy report were ante-mortem in

nature, caused by blunt force impact, and that the death had

occurred due to cerebral damage consequent upon force


trauma to the head.

66. It is the submission of the learned counsel for the appellants that

neither the father of the victim nor his uncles nor, for that matter, his

aunt (PW1), knew any of them from before. It is argued that, in this

view, the dock identification by them ought not be accepted, or acted

upon, because the investigating agency had failed to arrange TIP.

Reliance is placed on Raju @ Rajendra vs. State of Maharashtra, 1998

SCC (Cri) 296; Vijayan vs. State of Kerala, 1999 SCC (Cri) 378; State

of H.P. vs. Lekh Raj & another, 2000 SCC (Cri) 147; and State of U.P.

vs. Ashok Dixit & another, 2000 Supreme Court (Cri) 579. We reject

the argument as unmerited. It is mainly Anand Prakash (A-1) who has

been identified by the father and uncles of the deceased. They had met

him in his office on several occasions. During their respective cross-

examination, their ability to identify was never challenged. His

description matches with the physical appearance of A-1. Even

otherwise, the prosecution does not rely only on the evidence of the

said witnesses from the family of the victim on the question of identity.

The testimony of Inspector Shakti Singh (PW15) is of import and

relevance and confirms involvement of A-1.

67. It is the argument of the appellants, other than Anand Prakash

(A-1), that the responses given by him, in answer to the enquiry by

Inspector Shakti Singh (PW15) in the office of the AATS on the

morning of 17.03.1992, in so far as the same carried admissions,

cannot be used as evidence to draw the conclusions against them. In

this context, reference was made to State of A.P. vs. E. Satyanarayana,

(2009) 14 SCC 400, to submit that (so-called) confession was not


documented by Inspector Shakti Singh (PW15) immediately and, thus,

his evidence is rendered suspect. Reliance is also placed on Pancho vs.

State of Haryana, AIR 2012 SC 523, particularly the following

observations (in para 16 of the report) :-

“…Where the prosecution relies upon the confession of

one accused against another, the proper approach is to

consider the other evidence against such an accused and

if the said evidence appears to be satisfactory and the

court is inclined to hold that the said evidence may

sustain the charge framed against the said accused, the

court turns to the confession with a view to assuring itself

that the conclusion which it is inclined to draw from the

other evidence is right. …though confession may be

regarded as evidence in generic sense because of the

provisions of Section 30 of the Evidence Act, the fact

remains that it is not evidence as defined in Section 3 of

the Evidence Act. Therefore, in dealing with a case

against an accused, the court cannot start with the

confession of a co-accused; it must begin with other

evidence adduced by the prosecution and after it has

formed its opinion with regard to the quality and effect of

the said evidence, then it is permissible to turn to the

confession in order to receive assurance to the conclusion

of guilt which the judicial mind is about to reach on the

said other evidence”. (emphasis supplied)


68. Indeed, the law is settled, as expounded in the above-quoted

observation of the Supreme Court, that confession of a co-accused

cannot be the starting point of consideration of the case against the

other accused being jointly tried with him for the same offence. When

the factum of the victim, being in a critically injured state, came to the

notice of Inspector Shakti Singh (PW15), he made an enquiry of all the

four appellants, who were present around the victim in the courtyard of

the office of AATS on the morning of 17.03.1992. The enquiry was

answered by Anand Prakash (A-1). The responses given by him at that

stage were out of his own free will and volition. His status, or for that

matter of the other appellants present with him, at that stage was not

that of accused. Further, the status of Inspector Shakti Singh (PW15)

was not that of a police officer interacting with his colleagures.

Indeed, both sides were police personnel, part of the same unit, the

appellants being subordinate in hierarchy to PW15. The questioning

by Inspector Shakti Singh (PW15) was in the nature of administrative

enquiry. At that stage, he could not even conceive or visualize as to

what possibly may have been the background. The responses given by

Anand Prakash (A-1), indeed carried admissions which confirm the

complicity not only of himself but also of the other appellants who

were present with him at that point of time. His verbal responses are

relevant, but the conduct of the other appellants, in not raising

objection or taking exception to what was said by him in answer to

queries of Inspector Shakti Singh (PW15) is equally relevant against

each of them.


69. Reliance on Md. Ankoos & Ors. vs. the Public Prosecutor (High

Court of H. P.), AIR 2010 SC 566 and Shamshul Kanwar vs. State of

U.P., (1995) 4 SCC 430, by the appellants is misplaced since the

prosecution has made no attempt before us to seek verification of the

statements of prosecution witnesses by reference to the contents of the

case diary, or the statements under Section 161 Cr.P.C. recorded

therein.

70. Death as a result of torture in police custody is indeed one of the

worst kinds of crime in a society governed by Rule of Law that

promises to secure to all its citizens, amongst others, justice, liberty

and equality. Such cases not only pose serious threat to the orderly

civilized society but also are an affront to human dignity. The State, or

its agencies, cannot be party to such acts as undermine the basic rights

enshrined in, and guaranteed by, the Constitution. Thus, whenever

cases of maltreatment of detainees or suspects in custody come to light,

they need to be dealt with appropriately and with the sensitivity which

is due in such matters.

71. Undoubtedly, a police officer when charged with accusations of

crime is entitled to same rights (including that of initial presumption of

innocence) as any other person facing a criminal charge. Further, it is

the obligation of the criminal court adjudicating upon such matter to

carefully examine, as in any other criminal case, to find out whether

the allegations are genuine or not or, to put in clear perspective for

present purpose, as to whether the complainant is feigning it as one of

custodial violence. But, it also needs to be borne in mind that when

custody or illegal confinement is proved beyond doubt, then presence


of physical injuries on the detenue would require an explanation from

the custodian of law as in cases of such nature, direct evidence of

maltreatment, or excess, by police officials vis-à-vis a person in

detention is hard to gather or present before the court. The facts and

evidence is in the special knowledge of the police officer. As observed

by the Supreme Court in Gauri Shankar Sharma vs. State of U.P., AIR

1990 SC 709, it is generally difficult in cases of deaths in police

custody to secure evidence against the policemen responsible for

resorting to third degree methods since they are in the control of the

official record of the police station and, thus, do not find it difficult to

manipulate. Further, cases are not unknown where police official(s)

have given wrong accounts to secure a conviction or to help out a

colleague from a tight situation of his creation.

72. In State of Madhya Pradesh vs. Shyam Sunder Trivedi, JT 1995

(4) SC 445, the Supreme Court administered caution against ignoring

the ground realities and exaggerated adherence to, or insistence upon,

the establishment of proof beyond what is required and necessary.

Onus, once primary facts are established, would shift and require an

explanation. This view was reiterated in Ram Bihari Yadav vs. State of

Bihar, (1998) 4 SCC 517, wherein it was observed thus :-

“ Though the prosecution has to prove the case against

the accused in the manner stated by it and that any act or

omission on the part of the prosecution giving rise to any

reasonable doubt would go in favour of the accused, yet

in a case like the present one where the record shows

that investigating officers created a mess by bringing on

record dying declaration and GD Entry and have


exhibited remiss and/or deliberately omitted to do what

they ought to have done to bail out the appellant who was

a member of the police force or for any extraneous

reason, the interest of justice demands that such acts or

omissions of the officers of the prosecution should not be

taken in favour of the accused, for that would amount to

giving premium for the wrongs of the prosecution

designedly committed to favour the appellant. In such

cases, the story of the prosecution will have to be

examined dehors such omissions and contaminated

conduct of the officials otherwise the mischief which was

deliberately done would be perpetuated and justice

would be denied to the complainant party and this would

obviously shake the confidence of the people not merely

in the law enforcing agency but also in the

administration of justice”.

(emphasis supplied)

73. Taking a similar view, in Munshi Singh Gautam vs. State of

M.P., (2005) 9 SCC 631, the Supreme Court ruled as under :

“…. The courts are also required to have a change in

their outlook approach, appreciation and attitude,

particularly in cases involving custodial crimes and they

should exhibit more sensitivity and adopt a realistic

rather than a narrow technical approach, while dealing

with the cases of custodial crime so that as far as

possible within their powers, the truth is found and guilty

should not escape so that the victim of the crime has the

satisfaction that ultimately the majesty of law has

prevailed”. (emphasis supplied)

74. Amongst the appellants, A-3 was the senior most in the rank.

He may have availed of leave of absence for two days during this

period. But, this does not mean that he would have had no role in the

episode concerning the victim. As noted earlier, he was, in fact, the

head of the trap team which included A-1 and A-2. A-4 may have


been given the additional duties of DD writer for same days. But, he

was part of the group controlling the custody of the victim when

brought to the office of AATS in the morning of 16.03.1992.

75. Whilst it is true that in the case at hand there are lapses to cover

up and withhold evidence showing the involvement of the appellants

so as to help them, in our view, the same cannot detract from cogent

and reliable evidence about illegal abduction, confinement and torture.

The evidence leaves no room for doubt as to the complicity of the four

appellants in the crime. It is correct that more evidence (e.g. the

statement of the victim recorded by the DCP/ACP; the report of PW15

to his superior officers; MLC of the victim, etc.) could have been

produced. But, the omission on the part of the investigating officer to

gather the requisite material, or the default of the prosecution agency in

leading evidence on the available material, do not bring about a break

in the chain of circumstances. The facts and circumstances which have

been proved are sufficient to join the dots. They unerringly point

towards the culpability of the appellants.

76. The first informant (PW1) may not have known the identity of

the persons who had taken away her nephew (the victim) from his

house in the dead of night on the night intervening 10th

& 11th March,

1992 or her version may have been logged by the recording officer but

the information given by PW5 and PW6 unravelled the mystery. They

had seen the victim in the police custody. The family members of the

victim (PW2, PW3 and PW4), thus, approached A-1 in his office

seeking the release of the victim from custody. A-1 confirmed the fact

that victim was indeed in his custody and control but would not agree


to set him free. The fact that PW15 also saw him in the control of the

appellants on the morning of 16.03.1992 shows that he had continued

to be in their custody till that stage. PW12 may not be ready to

identify any of the appellants as the police officials who had brought

the victim to his establishment. But, given the evidence of PW15,

there can be no doubt that it was two of the appellants who had left him

in the nursing home in critically injured condition. The omission on

the part of A-1 to A-4 in taking the victim to a government hospital in

compliance with the direction of their superior (PW15) was clearly

deliberate and intentional and indulged in with the objective of

avoiding the responsibility and accountability for the condition to

which he had been reduced in captivity.

77. From the above, we unhesitatingly conclude that the

appellants were responsible for the unlawful acts of unjustifiably

taking away the victim from his house on the night of 10th and 11

th

March, 1992 and his illegal detention thereafter till 16.03.1992. In

absence of any theory to the contrary, it has to be assumed that the

victim was in state of good health, when picked up from his house on

the night in question. It is natural corollary that the burden of

explaining as to how he had suffered the injuries (as noted on his body

in the autopsy report) with which he came out of captivity six days

thereafter is that of his captors, i.e. the appellants. The fact that

appellants made no effort to offer any explanation worth the name on

this score, and instead have opted to come up with defence of total

denial, only means the onus has not been discharged by them. Thus,


they are bound to be held accountable for the injuries suffered by the

deceased.

78. The autopsy report shows that the twenty three injuries

suffered by Darshan Singh were not inflicted on one day, or in the

course of one assaults. They are the end result of continued and

prolonged assaults, practically over the entire period of being in

unlawful detention. Having regard to the manner in which the assaults

were directed against him, almost all over his body, with no medical

treatment made available till his condition had deteriorated (to the

extent of rendering him unconscious), what with he having suffered

haemorrhage in both cerebral hemispheres, knowledge that the injuries

which were being inflicted intentionally and voluntarily on such vital

part of his body were such as were sufficient, in the ordinary course of

nature, to cause his death within the meaning of the third clause of

Section 300 IPC must be attributed.

79. In the facts and circumstances, when evidence clearly shows that

all the four appellants were together, and in concert, common intention

on their part to commit acts of commission or omission leading to the

homicidal death of Darshan Singh is bound to be inferred. Thus,

charge for the murder of Darshan Singh, punishable under Section 302

IPC read with Section 34 IPC has been rightly held proved against

them.

80. The proved facts also lead to the irresistible conclusion that the

detention of Darshan Singh from early hours of 11.03.1992 to

16.03.1992 was unlawful and, therefore, wrongful confinement within


the meaning of the penal clause contained in Section 342 IPC. There is

no reason or justification shown for these police officials to have

picked up Darshan Singh from his house or to have kept him in

captivity, concealed from his immediate family members during the

afore-said period. Thus, conviction of the four appellants on the

charge for offence punishable under Section 342 IPC read with Section

34 IPC has been rightly recorded by the trial court in the impugned

judgment.

81. But, in our judgment, conviction of the appellants on the charge

under Section 330 IPC read with Section 34 IPC cannot be sustained.

There is no material indicating that Darshan Singh, or any person

closely connected to him, was wanted or was suspect in any criminal

case pending inquiry or investigation with the police during the

relevant period. Therefore, it cannot be said that he was subjected to

assault or hurt or ill-treatment in the unlawful custody of the four

appellants for the purpose of extorting from him, or from any person

interested in him, any confession or any information which might have

led to the detection of an offence or misconduct. Firstly, it is nobody‟s

case that Darshan Singh, or those connected to him, were custodian of,

or privy to information about any such property, valuable security,

claim or demand as could impel a person to commit assault against him

to secure restoration of such property or satisfaction of such claim or

demand. Thus, ingredients requisite for constituting the offence

provided in Section 330 IPC are missing.

82. In the result, we partly allow the appeals and set aside the

conviction, and the order on sentence, passed against the appellants for


the offence under section 330 read with section 34 IPC. The

conviction and sentences passed for the offences under section 302

read with section 34 IPC and section 342 read with section 34 IPC are

upheld against each of the four appellants.

83. The appellants were released on bail, the sentences against them

having been suspended pending adjudication of the appeals. They are

directed to surrender within fifteen days and undergo sentences

awarded against each of them. We direct the learned Additional

Sessions Judge presiding over the trial court (the Successor Court) and

Station House Officer (SHO) of Police Station Welcome to take

necessary steps to ensure compliance with above directions in

accordance with law.

84. This case of custody death cannot be allowed to conclude only

with award of substantive punishment under the penal law. It is the

obligation of the court to bear in mind the expectation of the victim

(here, the next of kin) for complete justice. We are conscious that

money cannot bring the deceased person back to life but monetary

compensation would undoubtedly apply some balm and tell the victim

that he is not forgotten. Thus, we recommend to the Delhi State Legal

Services Authority to consider award of compensation to the next of

the kin of the victim in terms of Section 357-A CrPC. For such

purposes, a copy of this judgment shall be sent by the registry to the

Member Secretary, Delhi State Legal Services Authority.

85. Before we part with the case, some thoughts about the lapses

noticed above are required to be penned.


86. The cases of custody death we perceive and believe are an

aberration but such instances erode the confidence of the law-abiding

citizenry, or result in loss of faith in the promise inherent in the motto

"With you, for you, always", and sully the image of the organization as

a whole. It is incumbent on part of the functionaries at the helm in the

police department to exercise extra vigil over the conduct of its

personnel, ensuring that they work - invariably and always - within the

bounds of law. The sincerity and commitment of the police force to the

cause of justice is tested when a case of criminal conduct by its

member comes to light. An attempt at cover-up is like shoving the dirt

under the carpet - it persists to soil the environment. Instead, if it is

dealt with firmly and turned into a model not to be emulated, it would

sub-serve dual objectives - punitive and deterrent - and also enhance

the image of the force in the esteem of people at large.

87. A case of participation by a policeman in a crime needs action at

two levels - one, his prosecution in the criminal court and, two,

disciplinary action under the conduct rules applicable to his service.

Both actions necessarily depend on same set of evidence. Utilizing part

of evidence here or part there makes no sense. Withholding of material

evidence (which may have been used in the disciplinary action) from

the criminal court, particularly, gives rise to frivolous arguments of

prejudice or for adverse inference to be drawn. In order that the two

actions are not unduly (or unjustly/unfairly) frustrated by functionaries

sympathetic to the wrongdoer, it is necessary that both are handled

appropriately and under supervision of senior officers.


88. Thus, we suggest that, for future, the Commissioner of Police

must formulate a clear protocol to be followed for dispassionate probe

into allegations of custodial violence or death and the same be put in

public domain to infuse the element of transparency to the process.

The duty of supervision over investigation of such cases involving

members of Delhi Police may be entrusted by the Commissioner of

Police to senior officers like Deputy Commissioner of Police

(Vigilance) for ensuring its thoroughness, the said officer to be

responsible for not only the pursuit of the disciplinary action under the

conduct rules but also coordinating with the prosecution department so

as to take care that the evidence gathered during the probe is brought

out in entirety at the criminal trial.

89. We direct that the registry shall send copies of this judgment to

the Principal Secretary (Home) of the Government of NCT of Delhi

and to the Commissioner of Police, Delhi.

R. K. GAUBA

(JUDGE)

SANJIV KHANNA

(JUDGE)

OCTOBER 19, 2015

* in the high court of delhi at new delhi reserved...

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