RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO.491 OF 2001 (Old No.2064/1993) Sudhir Kumar Wason ……… Revisionist Versus (1) The State (2) I.C. Sharma, Inspector, P.S. Rudrapur ……….Opposite Party Dated: October 14, 2009 Mr. J.S. Virk, Adv. for the revisionist Mr. G.S. Sandhu, Govt. Adv. for the State Mr. D.K. Sharma & Mr. K.S. Rautela, Advs. for respondent no.2 HON. DHARAM VEER, J. This criminal revision has been preferred by the revisionist/complainant under Sections 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) against the judgment and order- dated 29.10.1993 passed by the III Addl. Sessions Judge with the prayer to convict and sentence the opposite party no.2/accused-I.C. Sharma. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief the prosecution case is that injured/ revisionist Sudhir Kumar Wasan (P.W.1) was taken from his shop Diamond Drycleaners, Rudrapur on 26.2.1987 by the accused S.I. V.C. Gautam & S.I. Parvez Mian at about 6:00 PM and was lodged in the lock up at P.S. Rudrapur. The above-said two police sub-inspectors asked him to pay Rs.10,000/- as demanded by the respondent no.2-I.C. Sharma, In- charge of the same P.S. Rudrapur. Even on the revisionist’s asking, no intimation was sent to the members of his family. At about 10:00 AM on the next day i.e. on 27.2.1987, revisionist’s brother Yashpal (PW2) met him in the lock up where he handed over the keys of shop to his brother. Even then accused S.I. V.C. Gautam & S.I. Parvez Mian demanded Rs.10,000/- from the revisionist’s brother for releasing the revisionist. When the revisionist was not released, his wife Smt. Saroj Wason sent a telegram (Ex.Ka-3) to the Superintendent of Police, Nainital on 27.2.1987 at 12:00 PM with the averments that her husband Sudhir Wason was illegally detained in the P.S. Rudrapur since 6 PM of the last day and prayed that her husband may be got released. When the demand was not met he was taken out from the lock up and he was beaten at about 6-6:30 P.M. on the same day i.e. on 27.2.1987 by S.I. V.C. Gautam & S.I. Parvez Mian (accused). Respondent No.2-Inspector I.C. Sharma also came there who too hit the complainant from the rope of the handcuff which hit on his left eye. When the revisionist felt pain, he requested the police personnel to provide him the medical aid but no medical aid was provided to him rather accused S.I. V.C. Gautam himself applied some ointment into the revisionist’s eye and again lodged him into the lock up. On the morning of 28.2.1987, when the revisionist was being taken in a Jeep towards Haldwani by the police then the accused S.I. Parvez Mian came on a motorcycle and got the jeep returned to Rudrapur saying that if the revisionist is produced in jail or before a judge, it would require medical examination which will put them into trouble. Accused S.I. Parvez Mian also suggested for getting the revisionist bailed out from the court of Munsif Magistrate, Rudrapur. Accordingly, the revisionist was taken in a jeep to the court of Munsif Magistrate, Rudrapur and there while he was retained in the jeep itself, his orders for bail were obtained from the court of Munsif Magistrate, Rudrapur. It was then at about 6 PM of 28.2.1987, the revisionist was released and then only he came to know that he was booked in the case crime No.92/1987 u/s 377/511 IPC (in that case revisionist Sudhir Wason was acquitted by the court of CJM, U.S, Nagar dated 18.10.2004 in Crl. Case No.1032/2004). Immediately after his release he sent a telegram to S.P. Nainital with the averments that he was arrested by the police of Rudrapur on 26.2.1987 at about 6 PM where Marpit was committed with him by the police and he sustained injuries on his body and left eye. It was further stated that the police by illegally detained him under custody for two days; produced him in the court of Munsif Rudrapur on 28.2.1987 from where he was released on bail. The telegram is Ex.Ka- 1. Thereafter, the revisionist/ injured went to Haldwani for his medical treatment as well as for treatment of his left eye. The medical examination on the person of revisionist was conducted on 28.2.1987 at 8:30 PM by P.W.5 Dr. Virendra Kumar Dixit and the injury report prepared is Ex.Ka-5. The medical officer advised the injured/revisionist for the treatment of his left eye from Ophthalmic Surgeon. Thereafter, he went at the Sitapur Eye Hospital but the doctor was not available there. Thereafter, he had gone for the treatment of his eye to the All India Institute of Medical Sciences (AIIMS), New Delhi where his eye, which had been damaged in the aforesaid beating, had to be removed there, the medical report prepared by Dr. Rajpal at AIIMS is Ex.II. 4. Thereafter, the revisionist filed a writ petition in the Hon’ble Supreme Court of India mentioning the above-said incident therein with the prayer to issue writ of mandamus to direct the Central Bureau of Investigation to investigate into the matter and tender a report in accordance with law and further to issue writ order or direction directing that respondents no.5- S.I. Sharma, P.S. Rudrapur, Nos.6 & 7 –S.I. V.C. Gautam & S.I. Parvez respectively and/or respondent no.4-S.P. Nainital or his or their agents or assigns in office be prohibited from harassing, threatening or intimidating the petitioner or members of his family and further to provide due and adequate protection to the petitioner/revisionist and members of his family. On this writ petition, the Hon’ble Supreme Court on 7.9.1988 ordered as under: - “The learned District Judge, Nainital will look into this apparent discrepancy and find out the correct position. He will also make a report on the aforesaid points after hearing the parties if he considers it proper and forward the same to this Court within four weeks from today” 5. In compliance of the above-said order dated 7.9.1988, District Judge, Nainital vide his report dated 5.4.1989 submitted his report to the Hon’ble Supreme Court. After considering the report of District Judge, Nainital and hearing the counsel for the parties, Hon’ble the Supreme Court passed the following order on 8.1.1990: - “An Order was passed by this Court on 7.2.1988. Pursuant to the order the learned District & Sessions Judge, Nainital has made a report. That report has been considered by us. In view of the observations and findings made in the said report, we direct that this report be considered as an information and proceedings on the basis of that information be tried in the District & Sessions Court by some other learned Judge being a Judge of the said Court instead of the same learned Judge who has entertained the matter previously, against respondents concerned and will dispose of the matter within a period of eight weeks from taking up the matter. Parties concerned are directed to appear before the Court of District & Sessions Judge with their respective counsel as soon as possible. The Writ Petition is disposed of.” 6. Thereafter, the learned Sessions Judge, Nainital has passed the order on 9.4.1990 and sent all the papers along with the report dated 5.4.1989 of District Judge, Nainital and the order of the Hon’ble Supreme Court dated 8.1.1990 for taking the cognizance in the matter on the basis of the report dated 5.4.1989 of D.J., Nainital and also for proceeding in accordance with law to Chief Judicial Magistrate, Nainital, as the Magistrate is empowered to take cognizance in the case u/s 190(1)(c) of Cr.P.C. 7. Learned CJM, Nainital has committed the case to the court of Sessions on 3.5.1990 as required u/s 323 Cr.P.C. Learned Sessions Judge has transferred the case to the Addl. Sessions Judge for disposal according to law vide order dated 14.5.1990. 8. Learned II Add. Sessions Judge, Nainital on 22.5.1990 framed the charge against the accused V.C. Gautam & Parvez Miyan and also against the respondent no.2- I.C. Sharma under Section 342 IPC. The charge was read over and explained to them who pleaded not guilty and claimed to be tried. Further on the same day against the respondent no.2 co-accused I.C. Sharma, charge u/s 325 IPC was framed. This charge was also read over and explained to him who pleaded not guilty and claimed to be tried. Charge u/s 325 r/w Section 34 IPC was also framed against the accused V.C. Gautam & Parvez Miyan on the same day. The charge was also read over and explained to them who pleaded not guilty and claimed to be tried. 9. To prove its case the prosecution has examined P.W.1 Sudhir Kumar Wason, complainant and injured; P.W.2 Yashpal Singh, brother of the injured; P.W.3 Smt. Saroj Wasan, wife of injured Sudhir Wason: P.W4 Dr. Raj Pal, who treated the injured at AIIMS, P.W.5 Dr. Virendra Kumar Dixit, who medically examined the injured in Govt. Hospital, Haldwani and P.W.6 Inder Pal, Adv. Oath Commissioner. 10. After that the statements of the accused V.C. Gautam & Parvez Mian and that of respondent no.2 I.C. Sharma were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form who have denied the allegations made against each of them. In oral evidence the accused had got examined D.W.1 Mohd. Raza, D.W.2 H.C. Mohd. Tahir and D.W.3 Mahipal Singh Chauhan, Central Nazir. In documentary evidence, the accused had produced Ex.Kha-1 copy of complainant to Prime Minister of India, Ex.Kha-2 copy of report lodged by Yazdani and Ex.Kha-3 & Ex.Kha-4 which are the copies of Chik FIR and copy of G.D. registered against Sudhir Kumar Wason by Yazdani. 11. After hearing counsel for the parties and appreciating the material on record, learned III Addl. Sessions Judge, Nainital vide judgment and order dated 29.10.1993 has acquitted the respondent no.2 as discussed above. Against the order, the present revisions has been preferred. 12. Before further discussion it is pertinent to mention the injuries found on the person of revisionist/injured Sudhir Kumar Wason on 28.2.1987 at 8:30 P.M. by P.W.5 Dr. Virendra Kumar Dixit. The following injuries were found in the injury report (Ex.Ka-5):- 1. “Contusion with abrasion on the left side of the periorbital area in an area of 6 cm x 5 cm. Both eyelids are swollen and blacken 2. Left eye congested. Pupils sluggishly reacting to light. 3. Contusion 2 cm x 1 cm with swelling present at bridge of nose 4. Contusion with abrasion left arm upper in an area 30 cm x 10 cm. Colour of contusion is bluish to black 5. Contusion 8 cm x 3 cm on the back, on the left scapular area (colour of contusion bluish to black) Remark-All injuries are caused by some blunt object at about one day old. All injuries are simple except injury no.2 which kept under observation and referred to ophthalmic surgeon for expert opinion.” 13. To prove the above-said report, the prosecution has examined P.W.5 Dr. Virendra Kumar Dixit who stated that on 28.2.1987 he was posted as Medical Officer at Civil Hospital, Haldwani. At 8:30 P.M. of that day, he had medically examined the revisionist Sudhir Kumar and recorded the above-mentioned injuries. He stated that all the injuries seem to have been caused with some blunt object and about one day old and were also simple except injury no.2. For injury no.2, which was kept under observation, the patient was referred to Eye Surgeon for expert opinion. He also prepared the medical report after conducting the examination, i.e. Ex.Ka-5. All the injuries could have possibly be caused on 27.2.1987 in the evening at 6- 6:30 PM. He further stated that these injuries could be caused by beating with some stiff rope. 14. Thereafter, the left eye of revisionist/injured Sudhir Wason was examined at Dr. Rajendra Prasad Centre for Ophthalmic Sciences, New Delhi (AIIMS) by P.W.4 Dr. Rajpal and he found in the report Ex.II as under: - “Perforated sclero-corneal injury C/o Sudden diminution of vision with bleeding from the left eye on the evening of 27.2.1987 after being hit on the left eye by a rope O/E R/E 6/6 WNL L/E V.A.: PL doubtful. Negative Lids- marked swollen both eyelids Blackish discoloration of both eyelids. Conjunctival chemosis with conjunctival hage Corneoscleral perforation, corneo involving horizontol 10 to 2 o’clock extending 3 mm of sclera Cornea hazy whitish, insensitive to touch Irish prolapse in same corneal perforation Anterior chamber shallow Hyphema lens could not be seen Tn- Tenderness +ve Fundus-could not be seen” Likewise, in the discharge slip (Ex.Ka-4) of injured Sudhir Kumar Wason, the medical officer found as under: - “Diagnosis-WNL Corneoscleral peforation with ureal tissue prolapse Vision on admission-Right Eye-6/6 Left Eye-PL negative Fundus-WNL, No Glow Operative procedure done-Evisceration L/E on 7/3/87 by Dr. Shanker” 15. To prove the above-said medical report (Ex.II), the prosecution has examined P.W.4 Dr. Rajpal, Sr. Resident who stated that on 1.3.1987, Sudhir Kumar was admitted in the hospital at 2A bed No.230 under Unit-1. On seeing the card Ex.II, he stated that this is card of Emergency Ward and as per that card, whoever Senior Resident was on duty, he had admitted the patient for removing his eye because it was itself decided in the Casualty that the eye would be removed. Whatever the patient had informed, that was written in that card. The patient had informed that on 27.2.1987 as a result of hitting of rope in his left eye, immediately his vision had lost and blood also oozed out from his eye. He has proved the above-said injuries noted in the report Ex.II. After the admission, the patient remained under his and Dr. Shankar Kumar’s supervision. He also prepared the discharge slip of that patient, i.e. Ex.Ka-4. On the basis of the above-said report, he stated that in view of no useful gain of vision because eye was severally destroyed and by any surgical intervention, no mode of visual rehabilitation was possible. He further stated that in view of injury in the corneal selrural region with ureal prolapse there was more risk to the other eye to develop sympathetic opthalmitis. Later on we decided to eviscerate the left eye on 7.3.1987. He also proved the card of Emergency Ward in respect of revisionist/injured Sudhir Wason, i.e. Ex.II. 16. P.W.1 Sudhir Kumar Wason, injured witness who stated that respondent no.2- I.C. Sharma and accused V.C. Gautam & Parvez Mian were posted as Inspector & Sub-Inspectors respectively at P.S. Rudrapur in the year 1987. He was having his shop of dry cleaning at Gandhi Park Road, Rudrapur. On 26.2.1987 at about 6 PM, accused V.C. Gautam & Parvez Mian came at his Dry-cleaning shop and informed him that he was called upon by the respondent no.2. He asked as to why he was called upon on which the accused stated that the matter would be disclosed at the police station. On this he went along with the accused V.C. Gautam on his motorcycle at the police station after closing his shop. While he was being taken to the police station, his brother Yashpal met him on the way. On enquiring by his brother, S.I. V.C. Gautam told that Mr. I.C. Sharma had called him (this witness) at the police station and the matter would be disclosed there. After reaching at the police station, he was put behind the bars. When he enquired about the reason of his being locked up, it was disclosed to him that there is order of respondent no.2- I.C. Sharma and he would be free only on paying Rs.10,000/-. He asked them to give intimation to his family members in this regard but no intimation was given. On the next day i.e. on 27.2.1987 at about 10 A.M. in the morning, his brother Yashpal came to the police station and met with the accused V.C. Gautam & Parvez Mian. His brother also met him and he also delivered the keys of the shop to him. He asked his brother to get him released, however he directed his brother not to give Rs.10,000/- to the police. His wife Saroj Wasan also informed to the S.P. Nainital through Telegram about his illegal detention, copy of which is Ex.1. On 27.2.1987 at about 6-6:30 PM, he was taken out in the verandah from the lock up where he was beaten by the accused V.C. Gautam and Parvez Mian by fists and kicks and they also threatened him to face dire consequences for not fulfilling the demand of Rs.10,000/-. Meanwhile, respondent no.2-I.C. Sharma, Inspector also came there. He enquired as to why he was beaten on which the respondent no.2 also started beating him with the rope of the handcuff due to which one rope hit on his left eye as a result of which he received injuries on his left eye. He fell down being unconscious and again he was locked up. When he felt more pain in his eye then he requested the police personnel to provide medical aid for his eye but they did not agree to it. Rather respondent no.2-Inspector I.C. Sharma with the help of accused V.C. Gautam applied some ointment on his eye and made dressing on his eye. On 28.2.1987 at about 9:30 AM he was taken to the court of Munsif Magistrate, Rudrapur from where he was being taken to Haldwani in the police jeep. When they reached near Haldwani, accused S.I. Parvez Mian came on his motorcycle and asked the police personnel to take him back to Rudrapur because if he would be taken to Haldwani before a Judge or in the jail, then his medical examination would be conducted and in that case they would be in trouble. He further stated that respondent no.2-Inspector I.C. Sharma have also settled the things at Rudrapur from where he would be released on bail. Thereafter he was taken to the court of Munsif Rudrapur however he was not produced in the court. At about 5 PM in the evening, the police personnel got his signatures on some papers and thereafter released him. Soon after his release he informed to SP Nainital for his illegal detention and receiving injuries on his eye, i.e. Ex.Ka-1. Thereafter his injuries were medically been examined at Civil Hospital, Haldwani. Since his injuries were serious in nature, therefore, he was advised to consult some eye- specialist. He went to Sitapur Eye Hospital but the doctor was not available there. On the next day he went to Delhi and admitted at All India Institute on 1.3.1987 where medical examination of his eye was done and he was informed that the vision in his left eye had lost. His eye was removed after operation. He further stated that he got his eye lost as a result of the injuries caused to him in the police station. Intimation to this effect he also gave to Delhi Police. Thereafter, he wrote to the higher officials about the atrocities committed with him but when no action was taken, he filed a writ petition before the Hon’ble Supreme Court. The Hon’ble Supreme Court directed for judicial enquiry which was done by the District Judge. On the basis of report of District Judge, this case was directed to be registered by the orders of the Hon’ble Supreme Court. This witness was cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable and inspires confidence. 17. P.W.2 Yashpal Singh stated that Sudhir Kumar Wason is his elder brother. He also identified the respondent no.2 Inspector I.C. Sharma as well as the accused V.C. Gautam & Parvez Mian who were known to him earlier. Respondent no.2-I.C. Sharma was the In- charge of P.S. Rudrapur while the accused were posted as Sub-Inspectors. On 26.2.1987 at about 6 PM, he was standing on the road beneath his house near the spirit shop. He saw that accused V.C. Gautam while taking his brother Sudhir Wason by sitting behind him on his motorcycle while the accused Parvez Mian was coming behind on his own motorcycle. He enquired where they were taking his brother Sudhir then accused V.C. Gautam informed that Inspector I.C. Sharma has called him at Police Station where everything would be disclosed. The accused took his brother at police station. After some time he went to the police station where accused V.C. Gautam & Parvez Mian met him. He enquired from them for taking his brother at the police station on which he was told that Inspector Sharma (respondent no.2) has directed that only on paying Rs.10,000/-, his brother would be released. Then he came back to his house. On 27.2.1987 he again went to P.S. Rudrapur where the accused again met him and again asked him about the arrangement of money. He requested them to meet his brother. He also asked his brother that the accused were demanding Rs.10,000/- on the orders of Inspector Sharma. His brother also told him that the same fact has been told to him by the accused V.C. Gautam & Parvez Mian. His brother refused him to pay the money and said that why he would pay money when he has not committed any crime. His brother handed over the keys of shop to him and then he came back. On 27.2.1987 he came at Munsif Court Rudrapur where he met with his Advocate and informed the entire incident who assured him that his brother would be released on bail. Some papers were prepared by the Advocate and his affidavit was also been prepared which he proved the same i.e. Ex.Ka-2. That affidavit was prepared on 27.2.1987 at about 11 AM. His brother was not produced till 11-11:30 AM. Thereafter he went his home and informed the matter to his sister in law Saroj Wasan that the police persons have neither released his brother nor they are producing him in the court. His sister in law (wife of Sudhir Wasan) said that the matter should be informed to some higher officials. Then he prepared a telegram on behalf of Saroj Wason, i.e. Ex.1. This telegram was sent by Saroj Wasan on 27.2.1987 at 12 PM. On 28.2.1987 he went at Munsif Court Rudrapur and met with the Advocate and informed him about the telegram. Then the Advocate moved an application for bail in which he also mentioned about the telegram. In the evening at 5 PM police persons got signatures of Sudhir on some papers in the Jeep itself and then released him. When he met with his brother Sudhir then he saw that there was injury on his left eye which was swollen and that was also blackish. Thereafter he along with his brother went at post-office from where his brother informed about the matter to SP Nainital through telegram. Then he took his brother at Haldwani Civil Hospital where medical examination on body of his brother was conducted. The doctor advised to consult some eye specialist. Thereafter he took his brother at Sitapur eye hospital but the doctor was not available. On the next day he took his brother at Delhi All India Medical Institute and got his brother admitted. The left eye of his brother was examined and that eye was removed after operation. This witness was cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 18. P.W.3 Smt. Saroj Wasan stated that usually her husband Sudhir Wason come back home at about 8- 8:15 PM. On 26.2.1987 when her husband did not come back till 9:00 PM, then she went at the shop Diamond Drycleaners after locking the house along with her children. On seeing the shop locked, she became worried. Then he went to the elder brother of