* IN THE HIGH COURT OF DELHI AT NEW DELHI + Death Sentence Reference No.01/2007 Reserved on: 20th August, 2007 Date of Decision : 05 th March, 2008 STATE ....Petitioner Through :Mr. Sunil Sharma, APP for the State. Mr. J. P. Dhanda, Adv. for the complainant. Versus R.P. TYAGI ....Respondent Through : Mr. R. N. Sharma, Adv. With Crl.Appeal No.38/2007 R.P. TYAGI ....Appellant Through : Mr. R. N. Sharma, Adv. versus STATE & ANR. ....Respondent Through : Mr. Sunil Sharma, APP for the State. Mr. J. P. Dhanda, Adv. for complainant. Death Sentence Ref.01/2007 page1 of173 * CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE P.K. BHASIN 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes % JUDGMENT 05-03-2008 : MUKUL MUDGAL, J. 1. Death Reference 01/2007 arises out of the impugned judgment dated 13th December, 2006 delivered by the learned Additional Sessions Judge, Karkardooma Courts, Delhi, by which the accused R.P. Tyagi posted as the SHO at the relevant time, was convicted under Sections 302/342/120-B IPC. Further, by his order dated 15th December, 2006 accused R.P. Tyagi was sentenced to death. 2. The Death Reference and the Appeal of the convicted accused R.P. Death Sentence Ref.01/2007 page2 of173 Tyagi were taken up together for hearing and after hearing Mr. Sunil Sharma, Additional Public Prosecutor for the State and Mr. R. N. Sharma, the learned counsel for the accused, both the matters are now to be governed by this common judgment. 3. In order to appreciate the arguments advanced by the learned counsel for the appellant and the learned counsel for the State, it is necessary to notice at the outset the main evidence relied upon by the prosecution and accepted by the learned trial court for convicting the appellant. Then we would ourselves analyze and assess the worth of that evidence for satisfying ourselves whether the prosecution has been able to prove its case beyond reasonable doubt or not, since it was held by the Hon'ble Supreme Court in State of Tamil Nadu v. Rajendran (1999)8 SCC 679 that when a Death Reference is made by a court to the High Court for confirmation the High Court has to satisfy itself whether a case beyond reasonable doubt has been made out against the accused for imposition of the extreme penalty of death Death Sentence Ref.01/2007 page3 of173 and for that the proceedings require a re-appraisal and reassessment of the entire facts and law so as to arrive at its independent conclusion. In an earlier case also reported as Jumman and Ors. v. State of U.P. (1991)1 SCC 752, it was held by Hon'ble Supreme Court while dealing with a death penalty case as under: "12. In fact the proceedings before the High Court are a reappraisal and the reassessment of the entire facts and law in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such being the case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law above-mentioned it is for the High Court to come to an independent conclusion of its own.” 4. The brief facts of the case as per the prosecution sans unnecessary details are as follows: a) On 16th August 1987, it was the Janmasthmi festival, when constable Death Sentence Ref.01/2007 page4 of173 Rishi Pal, posted at police station Vivek Vihar, was deputed at Police post Chota Bazar, Shahdara Delhi. b) At about 9.20 pm someone told Rishi Pal about two anti-social persons who were extorting money at the point of knife at Circular Road, Shahdara, Delhi, who thereinafter went to the spot. c) Subsequently, information was received in the police station Vivek Vihar that constable Rishi Pal had been stabbed by two persons and, consequently, the police rushed to the spot. d) The police recorded the statement of constable Narender and on the basis of his statement, FIR No.294/87 under Sections 307/353/186 IPC was recorded at Police Station Vivek Vihar. It was revealed that constable Rishi Pal was stabbed by Mahender Kumar and Ram Kumar, both of whom had fled from the spot and were absconding. e) The Police launched a manhunt to trace the culprits but they did not find Death Sentence Ref.01/2007 page5 of173 them in and around the locality. The police officers, in the rage of anger, picked up family members and neighbours of Mahender Kumar and Ram Kumar and confined them at the Police Station Vivek Vihar. The family members and neighbours were harassed and beaten and were asked to produce the absconding duo Mahender Kumar and Ram Kumar. f) Ultimately on 24th August 1987 at 7.45 am (approximately), both Ram Kumar and Mahender Kumar were produced in the Police Station Vivek Vihar and, consequently, their family members and neighbours were let off. g) The Police subjected Mahender and Ram Kumar to severe beatings and showed their arrest at 2.00 pm though they were produced in the Police station at 7.45 am on 24th August 1987. h) On account of the beatings, Ram Kumar and Mahender sustained grievous injuries and were taken to Swami Dayanand Hospital, Shahdara, where they were examined by Dr. A. K. Verma, and seeing the serious Death Sentence Ref.01/2007 page6 of173 condition of Mahender, he was referred to Lok Nayak Jai Prakash Narain Hospital (hereinafter referred to as the “LNJPN Hospital”). i) On 25th August 1987, Mahender died in LNJPN Hospital on account of injuries sustained by him due to the beatings given by the police. j) Shri S.S. Rathore SDM conducted inquest proceedings and after recording the statement of witnesses, recommended registration of a case against police officials of police station Vivek Vihar for offence under Section 304 IPC. Despite this order, no case was registered. Shri S.S. Rathore was then subsequently transferred from the post of SDM. k) Another SDM, namely, Shri Parimal Rai then conducted further inquest proceedings and submitted his report, in which he gave a finding that Ram Kumar and Mahender were subjected to beatings by members of public which resulted in the death of Mahender. l) Ultimately, due to pressure and upon an order of the Lieutinent Death Sentence Ref.01/2007 page7 of173 Governor of Delhi, a case bearing No.59/1988 for an offence punishable under Section 304/34 IPC was registered on 11th February 1988. m) This case after investigation was sent to the concerned Metropolitan Magistrate, Karkardooma Court, as “Untraced”. The request of ACP, Gandhi Nagar, to close the investigation in this regard was accepted by the then Metropolitan Magistrate Shri Z.S. Lohat by his order dated 7th July 1989. He further affirmed his order on an application moved by Ram Kumar on 8th July 1989. n) Finding no alternative, Shri Tika Ram, father of the deceased Mahender, preferred to file a complaint case in the court of learned Metropolitan Magistrate and the present appeal is occasioned by the order of conviction recorded subsequently. o) The Metropolitan Magistrate, Karkardooma Court, Delhi, found a prima facie case against the accused R. P. Tyagi under Sections 302 / 34/ 120B/ 325/ Death Sentence Ref.01/2007 page8 of173 323/ 342/ 343/ 167/ 201/ 217/ 218 IPC and Section 124 of the Delhi Police Act, Sub Inspector Tej Singh under Sections 323/ 342/ 343/ 167/ 201/ 218/ 219/ 120/ 211/ 109/ 114/ 120B/ IPC, Inspector K. P. Singh under Sections 167/ 201/ 217/ 218/ 119/ 120/ 211/ 109/ 120-B IPC and Section 120 of the Delhi Police Act. p) The learned Additional Sessions Judge convicted the accused R.P. Tyagi under Sections 302/342/120-B IPC, K.P. Singh under Section 217 IPC and Tej Singh under Sections 218/201 IPC. q) The convict R. P. Tyagi was awarded death sentence as per the judgment and order dated 13th December, 2006 passed by the learned Additional Sessions Judge in the trial court. 5. The prosecution in order to establish its case examined the following 48 witnesses-: 1A. PW1 S.S. Rathore deposed that he was assigned with the inquest Death Sentence Ref.01/2007 page9 of173 proceedings by a letter on 25th August 1982. He went to LNJP hospital the same day but did not conduct the proceedings as the relatives of the deceased were not available. He further deposed that on the morning of 26th August 1987, he recorded the statements of Raj Kali, Manohar Lal, Kishan Chand, Rajinder Prasad, Prem Wati, Ram Kumar, Tika Ram and Rakesh. After recording the statements he examined the dead body of Mahender Kumar and prepared the death report which is marked as Ex.PW1/K. Thereafter, he ordered for the registration of the case. He allowed the photographs of the dead body to be taken in his presence. He further deposed that there were signs and marks of beatings over the entire body including soles of feet. He deposed that he was thereafter transferred for a new posting. On being cross examined by the counsel for the accused K.P. Singh, he confirmed that he had made the order of registration of the case without going through the post mortem report because the case was prima facie made on the basis of the death report prepared by him. Death Sentence Ref.01/2007 page10 of173 (i) He said that it was wrong to suggest that he had deliberately not collected the post mortem report before sending his order for the registration of the case. (ii) He further stated that while making an order of the registration of the case after conducting enquiry under Section 176 Cr.P.C. at the preliminary stage, the complaint of the aggrieved person and the prima facie facts are looked into and the police is directed to register the case and further investigate the matter. (iii) He stated that the endorsement of ADM Headquarter, which is marked as Ex.PW1/M, was not completely visible and it was partly torn, and a document marked as Ex.PW1/A is supported by pasting a paper on its back side. The SHO, Shahdara, Mr. Qamar Ahmed, DCP(East) and DCP (Crime and Railways) did not approach him before his transfer on 28th August 1987 for handing over of the inquest papers. On being cross examined by the learned counsel for the accused Death Sentence Ref.01/2007 page11 of173 R.P.Tyagi: (i) He said that the request which is marked as EX.PW1/D.B for the post mortem was in his hand writing. (ii) He further said that Ex.PW1/D-A was his interim report on the basis of which the order for registration of the case was made by him. (iii) He stated that it was wrong to suggest that he conducted a one sided enquiry in this case and that he was not competent to order for the registration of the case. (iv) He said that it was further wrong to suggest that Ex.PW1/M was made by him in a haste and at the instance of local politicians. He said that he did not notice any mental or physical abnormalities in the witnesses whose statements were recorded by him. 2A. PW2 Satish Aggarwal deposed that he was a member of MCD from Shahdara in 1987. In August 1987, he made a telephone call to the SHO of PS Death Sentence Ref.01/2007 page12 of173 Vivek Vihar Chowki, Farsh Bazar in the morning hours. He could not recollect as to what had he said to the SHO or what was the response of the SHO. However, he deposed that the SHO had told him at that time that a compromise had been arrived at. On being cross examined by the counsel for the accused Shri. K. P. Singh: (i) He admitted that initially he had a very good memory but for the last 5- 6 years he was suffering from 'Sugar' and as such his memory had gone down. (ii) He further said that he had spoken with the SHO, Police Station Vivek Vihar, and that it was possible that Ram Kumar and Mahender might have been in the police post, Farsh Bazar, when he had spoken with the SHO. On being cross examined by the counsel for accused R. P. Tyagi, he said that: (i) It was wrong to suggest that he had not spoken with the SHO on that Death Sentence Ref.01/2007 page13 of173 particular day at any point of time or that phone call was made by him to the police station on being asked to do so by Chiranji Lal. 3A. PW3 Jaswant deposed that about 17 to 18 years back at about 7:30 am when he was returning after answering the call of nature from the side of the railway station, he saw Mahender, Manohar and Kishan. He could not overhear what they were talking. Thereafter, he came back home and went on his duty. On being cross examined by the learned Additional Public Prosecutor, PW 3 said that: (i) It was correct that on 24th August 1987 at about 7:30 am, when he was coming after answering the call of nature along with Rajender he saw Manohar, Rajender, Kishan all brothers of Mahender and Mahender standing near the railway line. On being cross examined by the counsel for accused R.P. Tyagi, he Death Sentence Ref.01/2007 page14 of173 said that: (i) It was incorrect to suggest that he had not seen Rajender, Manohar, Kishan and Mahender talking to each other at any point of time anywhere as deposed. 4A. PW 4 Chiranji Lal stated that he knew Tika Ram who was resident of his mohalla. On 24th August 1987 at about 8-8:15 am 4-5 mohalla people came to his residence and told him that Tika Ram and others who had been detained had been released from the police station. He stated that on hearing this he went to Satish Aggarwal who was a Nigam Parshad and asked him to make a telephone call in police station Vivek Vihar. On his asking, Satish Aggarwal made the telephone call and told him that he had called the police officer and the boys apprehended would be released after 1-1 ½ hours. He further stated that thereafter he came to know that Ram Kumar and Mahender have been taken to the General Hospital, and from that hospital, they were further sent to Irwin hospital. He stated that he did not know anything more about the case and admitted that statement which is marked as Ex.PW4/A bore Death Sentence Ref.01/2007 page15 of173 his signatures at Point 1. However, he did not recollect as to where this statement was made by him. On being cross examined by the learned Additional Public Prosecutor he said that: (i) On 24th August 1987 at about 8:30 am, a lot of people were coming to the house of the complainant Tika Ram after he was released from the police station to see his condition as he had been beaten up by the police in the police station. 5A. PW 5 Amit Kumar stated that in the year 1987 he was working as a photographer in the shop of Gulshan which was being run in the name and style of M/s Gulshan Studio, Shop No.15, Gandhi Market, Minto Road, Delhi. He recognized the Cash Memo which is marked as Ex.PW5/A as to have been prepared by him. He stated that he had seen the photograph which is marked as Ex.PW5/B-1 to B-14 as been taken by him in LNJPN Hospital. He further stated that he had also seen photographs which is marked as Ex.PW 5/B-15 to Death Sentence Ref.01/2007 page16 of173 B-27 and admitted as having been taken by him only. 6A. PW 6 Dr. S. Patnaik Director of Hospital Administration, MCD, Delhi, stated that where a Medico Legal Case (hereinafter referred to as MLC) comes, the history of the case is given by the patient himself or by the person accompanying him and if the patient is not able to speak the history it is then written in the MLC by the doctor who prepares the MLC. He stated that he had seen the MLC of Mahender, son of Tika Ram, which could be in the hand writing of Dr. A. K. Verma by whom it was signed and who was the Casualty Medical Officer, in SDN Hospital, Shahdara, Delhi. He stated that the signatures at Point A-1 could be that of Dr. A.K. Verma on MLC which is marked as Ex.PW5/A but he could not say that definitely. He further stated that he was a Medical Superintendent in SDN hospital in 1987 and the Dr. A. K. Verma was junior to him. On being cross-examined by the learned APP, he said that: (i) The Certificate of the doctor’s handwriting cannot be certified by him Death Sentence Ref.01/2007 page17 of173 but it is only presumed that 10 years back when he had given the statement, he had given it on the basis of his knowledge and of the record available at that time. (ii) He further stated that it was wrong to suggest that he was deliberately not giving specific reply pertaining to aforesaid questions in order to save the accused. (iii) He stated that Dr. A.K. Verma had worked with him for about nine years and said that it was correct that he had told before the learned MM in his statement Ex. PW6/B that he had brought the office record of MLC No.9879 dated 24 th August 1987 which was in respect of Mahender Kumar, s/o Tika Ram, aged 25 years and which was brought by Constable Rattan Lal on the same day at 4.35 PM. (iv) He stated that in the MLC, Dr. A.K. Verma had mentioned as many as 13 injuries which were blunt and the doctor had also mentioned “patient under sedation, and not fit for statement”. He further states that treatment had been Death Sentence Ref.01/2007 page18 of173 mentioned in the MLC. (v) He further said that he had stated before the learned MM in his statement that the reason of causing the injuries in MLC and application were one and the same. 43 injuries had been recorded in post-mortem report which is marked as Ex. CW21/A whereas 13 injuries had been mentioned in the MLC. (vi) He further stated that he had seen the photocopy of CMO Register which is marked as Ex. CW-18/B, of SDN Hospital in which serial No.2200 of Mahender, 25 years pertaining to MLC No.9879 was mentioned. (i) It is correct that when a patient is sent by police, a statement of injuries is sent along with the patient and that the said injury statement is shown to the examining doctor who signs or initials it as a token of having seen the same. (ii) He stated that the injury statement marked as Exh. 6/A-3 did not bear the signatures of Dr. A.K. Verma or of any other doctor. Death Sentence Ref.01/2007 page19 of173 (iii) He further stated that by transferring the patient to LNJP Hospital, Dr. Verma had certainly subjected his examination of injuries as shown in the MLC which is marked as Ex. PW6/A to the opinion and examination of other doctors in LNJP Hospital. In such circumstances, Dr. A.K. Verma had absolutely no chance to conceal injuries on the patient at the time of his examination. (iv) He stated that Mark 6/A-1 was the casualty card which had been prepared by Dr. A.K. Verma when he had transferred the patient to LNJP Hospital. This card mention the treatment and the medicines given to the patient and this prescription of the treatment fulfilled the requirement of mentioning treatment and medicines at the time of his examination in the casualty of SDN Hospital. (v) He further stated that it was possible that when a patient came with multiple injuries and was crying in pain, then some injuries might escape the notice of the doctor. The examination of the dead body at the time of post- Death Sentence Ref.01/2007 page20 of173 mortem would be easier than a clinical examination of the patient when he is alive. In-depth injuries can be found and noted in the dead body more easily than in the live patient. (vi) He further stated that the possibility could not be ruled out that the patient had suffered further abrasions after examination by Dr. A.K. Verma if he was transported or made to travel in a jeep for 1 ½ hour. (vii) He further stated that the post-mortem report Mark 6/A showed that most of the injuries were bruises. At the time of examination, that may have been generalized swellings of a part of the body because of freshness of the injuries. Subsequently, there may be more number of bruises due to internal oozing of blood. In order to find out the correct position of bruises, it is desirable to have a second examination or a day to day examination after initial examination. He further stated that it is correct that there may be bruises which may show up externally even after death due to extra vacation of blood fluid. Death Sentence Ref.01/2007 page21 of173 (viii) He also stated that after seeing MLC which is marked as Ex.PW6/A and post-mortem which is marked as Ex.PW6/A2 injury No.1 of MLC almost covered injury numbers 24, 25, 26 and 27 of the post-mortem report and that injury No.6 almost covers injury numbers 37, 38 and 39 of the post-mortem report. 7A. PW 7 Rajinder, son of Tika Ram, the complainant, had initially supported the prosecution case in his testimony. However, he was later declared hostile. 8A. PW 8 HC Narender Singh stated that he was posted as beat constable in Police Post Anaj Mandi, of the police station Vivek Vihar on 24th August 1987 and he had gone to the Police Station at 8:00 AM to attend a meeting. He found all the officers including SHO R.P. Tyagi, SI Tej Singh, SI Mukesh Kumar, Constable Rattan Lal and Constable Kunwar Pal, Constable Vijender, present there. He further stated that on 24th August 1987, SHO R.P. Tyagi had directed him to take the summons of SI Tej Singh to the Court of Mrs. Anu Death Sentence Ref.01/2007 page22 of173 Prem Shankar Kapoor, Tis Hazari Court. Accordingly, he went to Tiz Hazari court after making his departure entry in the Roznamcha in Police Post Anaj Mandi he submitted the request on summons in the aforesaid court. Thereafter, he went back to Police Police Anaj Mandi at 2:00 pm. He stated that he did not go along with the raiding party and that no one was arrested in his presence. On being cross examined by the learned counsel for the accused Tej Singh, PW 8 stated that it was wrong to suggest that he was a member of a Raiding Party or that he has deliberately changed his stand in order to avoid the prosecution in the complaint lodged by the complainant. On being cross examined by the learned counsel for the accused Constables Narender and Jagdish, PW 8 said that his old Belt No. was 675(East) and that he was under suspension in this very case. However, it was wrong to suggest that he was put under suspension after the enquiry. He stated that there was an endorsement by the SHO, the summons of which he had Death Sentence Ref.01/2007 page23 of173 taken to Tis Hazari. These summons which expressed inability to attend Court on 24th August 1987 were not written by him. He further stated that he came back from the court at 2:00 pm and made his arrival entry in Police Post, Anaj Mandi. He was not a witness in the case in which Ram Kumar and Mahender were made accused. He had gone to Tis Hazari, by bus and had also come back by bus.