Delhi High Court: The appeals were filed by appellants challenging the judgment of conviction against accused 1 for offences under Sections 365, 34 Penal Code, 1860 (IPC), dated 14-03-2019 passed by the ASJ, Shahdara, Karkardooma Courts, against police officers (accused(s) 2, 4, 5, 6 and 7) for offences punishable under Sections 365, 304, 220, 167 and 34 IPC, acquitting the police officer (accused 3). A Division Bench of Mukta Gupta and Anish Dayal, JJ., upheld the conviction against accused 2, 4, 5, 6 and 7 and held that the Trial Court rightly acquitted the accused 4.
FIR was registered under Section 302 IPC upon the written complaint made by the father of the deceased mentioning that on 1-09-2006., the Noida Police in civil dress took away his son from the village. However, on 02-09-2006, he received information from PS Khurja Dehat that Sonu had committed suicide, but on reaching the place of the post-mortem along with his co-villagers, he saw various injuries on the body of his son including a burn mark near his ear apprehending murder and torture.
After an investigation by CBCID, charge sheet was filed against the accused persons, who were police officials stating that the accused 2 to 7 had taken deceased aged 26 years in civil dress without any justifiable reason from his house in their private vehicle in relation to crime registered under Section 392 IPC at Sector-39, Noida. It was alleged that due to false implication in the robbery case and on account of atrocities caused by the police, the deceased due to physical and unbearable mental stress, allegedly committed suicide and was found hanging in the lockup. Therefore, charge sheet was filed under sections 342/320/306/167/218/34 IPC. A-1 was found involved with police officials in torturing the deceased due to his interest in regarding the transaction of commission of property deals. The charge sheet was, therefore, filed against A-1 under the same provisions.
The Court noted that neither there was any evidence against the deceased nor any authorization to arrest him. The investigating officer was also not present at the time of his arrest and had never met him prior to his death. He was not called at the time of the interrogation of the deceased. Even though the SOG may have the authority to arrest any suspect, it was evident that the arrest of the deceased was without informing the IO and without any diary entry in the said robbery FIR. The IO only gets to know of the arrest much later and by that time he is informed that deceased had allegedly committed suicide. These sequences of events form the basis of a strong foundational circumstance against the accused, buttressing the case of the prosecution.
The Court further noted that the explanation offered by the accused of the delay in lodging deceased in the police station is not acceptable and cannot serve to support the case of the defense. The long time taken from the arrest to the lodging in sector 20 creates a plausible circumstance against the accused and supports the case of the prosecution. The discrepancies point to the fact that the conduct of all the police officials refusing to acknowledge their presence after the lodging of deceased or around that time, leads to a conclusion that the situation in the PS at that time was not fine.
The Court observed that as per the post-mortem report, the doctor regarding the ligature mark that would suggest death by hanging also came in for scrutiny in his cross-examination. Not only did he not examine the ligature material which was not received by him, which throws serious doubt on his opinion and estimation, but he also confirmed that symptoms which are typical in hanging like the tongue being bitten, swollen, or froth at the mouth of nostrils or pulmonary artery and the venae cavae full of dark fluid, being not present. The postmortem report does not mention the blood oozing from injuries on the deceased’s body. The fact that there was bleeding was corroborated by various witnesses. The FSL Report also mentions that there were blood stains on the deceased’s baniyan and underwear.
In State of M.P. v. Shyamsunder Trivedi, (supra); State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 and Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749, the Supreme Court held that if there is evidence to show that the accused has fabricated evidence to absolve himself from the offence, that circumstance will also point towards his guilt. What had happened to the victim after his arrest/abduction by the accused persons was within the special knowledge of the accused persons and having not provided a believable explanation, the court was right in drawing the presumption that the police was responsible for his abduction, illegal detention and death.
The Court concluded that the sequence of events and evidence on record suggested that the deceased was subjected to custodial torture with the knowledge that it was likely to cause death of the deceased but without any intention to cause the death. Therefore, the act of causing bodily injury, as is likely to cause death, would make the accused guilty of offence punishable under Section 304 IPC Part I and liable for a sentence for RI 10 years.
The Court held that the Trial Court has rightly convicted the said accused of the offences and considering that there was no evidence relating to the presence of the accused 4 at the site of abduction, the Trial Court is correct in having acquitted him for lack of evidence.
The Court held that considering that there is no evidence on record to prove that the accused police officers caused injuries to the deceased with an intention that in all likelihood death will ensure, thereby causing the murder of the deceased, it would be difficult to reach a conclusion that the accused police officers would be guilty of offence punishable under Section 302 IPC.
[Pradeep Kumar v. State of UP, 2023 SCC OnLine Del 3648, decided on 26-06-2023]
Advocates who appeared in this case :
Dr. L.S. Chaudhary, Dr. Ajay Chaudhary, Mr. D.S. Chaudhary, Mr. Vishesh Kumar and Mr. Dinesh Kumar Advocate for the Appellants;
Mr. Prithu Garg, APP for the State;
Mr. Divyesh Pratap Singh, Ms. Pratiksha Tripathi, Advs. for the Complainant.
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