W.P.(C) No. 5520 of 2007 Page 1 of 26 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C) No. 5520 of 2007 & CM No. 5655 of 2008 SAROJ RANI ..... Petitioner Through: Mr. Sunil Kumar with Mr. Rajveer Bansal and Mr. Anurag Kasana, Advocates. versus GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondents Through: Ms. Avnish Ahlawat, Advocate for R-1 & R-2. Mr. Amitabh Marwah, Advocate for R-3. CORAM: JUSTICE S. MURALIDHAR 1. Whether reporters of local paper may be allowed to see the order? Yes 2. To be referred to the reporter or not? Yes 3. Whether the order should be referred in the digest? Yes JUDGMENT 03.06.2010 1. The Petitioner is the wife of late Vinod Kumar and is the mother of two small children aged 8 years and 3 years respectively. Vinod Kumar was arrested by the Delhi Police on 9th June 2007 and was sent to judicial custody in Tihar Jail on 10th June 2007. He died on 12th June 2007 while in Tihar Jail. This petition seeks compensation for his death from both the Delhi Police as well as the Tihar Jail authorities. Events leading to the petition 2. This Court in the first instance proposes to set out the versions of the events leading up to Vinod Kumar‟s death as narrated in the counter affidavit of the Tihar Jail authorities (Respondent No.2) and the Delhi Police (Respondent No.3). W.P.(C) No. 5520 of 2007 Page 2 of 26 3. According to the Delhi Police, Vinod Kumar used to work as a labourer, cleaning sewage lines. He was an alcoholic for the last five years. He used to consume locally brewed alcohol as he could not afford branded alcohol available in the market. It is claimed that even in the past Vinod Kumar had been prosecuted for drinking in public and creating nuisance. Reference is made to FIR No. 619 dated 18th August 2006 which was registered against him in that connection. 4. On 9th June 2007, one Smt. Krishna, wife of late Baburam, resident of T- 2553, Gali No. 21, Baljit Nagar filed a complaint that Vinod Kumar had stolen her water meter and was verbally abusing her in public. Ranbir Singh, Assistant Sub-Inspector of police station Patel Nagar was sent to the said address. On his way to the spot, the Police Officer is stated to have found that a large crowd had caught hold of Vinod Kumar and was in the process of bringing him to the police station. Accordingly, Vinod Kumar was arrested at police station Patel Nagar under Section 107 read with 151 CrPC on 9th June 2007 at 8 pm vide DD No. 30A dated 9th June 2007. 5. It is stated that “as per procedure” Vinod Kumar was sent to the Deen Dayal Upadhyay Hospital („DDU Hospital‟) wherein upon examination the doctor opined that there was no evidence of any fresh external injury over his body. A copy of the said report has been enclosed with the affidavit. 6. It is stated that Ranbir Singh, ASI thereafter went to the house of Vinod Kumar to inform about his arrest. It is claimed that the Petitioner refused to sign the arrest memo stating that she was already aware of Vinod Kumar‟s W.P.(C) No. 5520 of 2007 Page 3 of 26 arrest. It is stated that despite knowing about the arrest, the Petitioner took no steps to procure bail for him. It was claimed that Vinod Kumar was kept in police lock-up and produced before the Special Executive Magistrate („SEM‟) on 10th June 2007. Since there was no person to stand surety for Vinod Kumar, the SEM directed him to be sent to judicial custody for a period of 14 days. 7. As a consequence, according to the Delhi Police, Vinod Kumar was deposited in the Tihar Jail at around 5 pm on 10th June 2007. It is stated that he died on 12th June 2007 at 5.15 pm. Upon receiving this information, Mr. Jai Hind Singh, Sub-Inspector was deputed to Tihar Jail to investigate the matter and to assist the Inquiry Officer Shri Deepak Garg, Metropolitan Magistrate („MM‟). It is stated that the MM conducted inquest proceedings under Section 176 CrPC after which he directed that a case be registered and investigation be carried out under Section 302 IPC. It is stated that the MM recorded statement of inmates of Tihar Jail and the concerned doctor. It is claimed that no allegation regarding violence of any kind being perpetrated upon Vinod Kumar was made. 8. On 14th June 2007, a board comprising three doctors was constituted to conduct a postmortem. The findings of the postmortem were that the nature of death was homicide and that “though the bruises are simple in nature individually, but cumulatively can be dangerous to life for any individual; PM findings are consistent with assault caused to deceased.” It is stated that after the postmortem was concluded some of the body parts like kidney, brain, spleen etc. were preserved for histopathology and blood for the W.P.(C) No. 5520 of 2007 Page 4 of 26 chemical analysis. The body was handed over to Vinod Kumar‟s relatives on 14th June 2007 which was subsequently cremated by them. The stand of the Respondents 9. In the affidavit filed in this Court on 5th January 2008, it was stated by the Respondents that the police was investigating the death of late Vinod Kumar. It was further stated that the histopathology and blood analysis report were awaited. It was claimed that the procedure will take “another minimum period of six months” and that “only after the same are received it could be finally ascertained as to what was the cause of death of late Vinod Kumar.” The Delhi Police disowned any liability whatsoever for the death of Vinod Kumar. It is further denied that Vinod Kumar was brought to the DDU Hospital “to save their necks”. It is further added that the postmortem report was “not admitted as being totally correct” and that “a board has been constituted to examine the findings of the postmortem report”. 10. The affidavit of the Tihar Jail authorities is at variance with the above affidavit. According to them, Vinod Kumar was admitted to the Tihar Jail at 5 pm on 10th June 2007 where he was medically examined. It was found by the duty doctor that Vinod Kumar was an alcoholic and he was accordingly referred to the hospital/Drug De-addiction Centre („DDC‟) in Jail No. 7 for treatment. He was admitted in Jail No. 7 on 10th June 2007 late in the evening. He was lodged at the DDC on 10th June 2007 and promptly referred to the Central Jail Hospital at Central Jail No. 3 on 11th June 2007 at 7.35 am with complaints of abnormal and aggressive behavior. After being diagnosed thus by the Medical Officers at the Central Jail Hospital, it is claimed that W.P.(C) No. 5520 of 2007 Page 5 of 26 “during his entire stay in the jail, the late Vinod Kumar remained in the hospital/DDC.” 11. According to Tihar Jail authorities since Vinod Kumar was displaying abnormal and irrational behaviour and was becoming violent since 6 am, he had to be administered a sedative and had to be transferred to the main hospital (Central Jail Hospital) within the jail premises at 7.40 am on 11th June 2007. It is claimed that his pulse rate was very high and blood pressure was 130/100, when he was administered the sedative. It is claimed that he did not respond to the treatment. The admission and summary record sheet has been appended to the affidavit. 12. It is then claimed that since Vinod Kumar continued to display abnormal and irrational behaviour, he was referred to the DDU Hospital at Hari Nagar at 8.15 am on 11th June 2007. At the casualty ward in the DDU Hospital, the vitals of Vinod Kumar were checked and it was found that his blood pressure and pulse rate were high. He was referred to the Psychiatric OPD of DDU Hospital where he was diagnosed with alcohol dependence and was given treatment accordingly. He returned to the Central Jail Hospital at 12.45 pm on 11th June 2007. It is claimed that the treatment advised by the Psychiatric OPD of DDU Hospital was administered to late Vinod Kumar. 13. It is then claimed that Vinod Kumar continued with his abnormal behaviour “due to alcohol withdrawal symptoms.” He was again referred to DDU Hospital at 5.15 pm. This time he was checked by a Medical Specialist who opined that since late Vinod Kumar continued to display W.P.(C) No. 5520 of 2007 Page 6 of 26 abnormal behaviour and that there was no indoor facility available at DDU Hospital, he should be referred to the Lady Hardinge Medical College („LHMC‟). Notwithstanding this advice, Vinod Kumar was sent back to the Central Jail Hospital. When he returned to the Jail Hospital at 9.30 pm, Vinod Kumar was stated to be irritable, shouting and violent. Therefore he was again administered a sedative and also I. V. Fluid. He was stated to have taken dinner and at that time his vitals were within normal limits. He was examined at 12.40 am on 12th June 2007. He was again found to be irritable and given sedatives. Thereafter Vinod Kumar went to sleep. It is then stated that “he was again examined at 2.20 am and was found sleeping comfortably on his bed and his vitals were within normal range and when the doctor went to check Vinod Kumar at 5.15 am he was found dead.” 14. In the above circumstances, it is submitted that due care was taken by the Jail authorities of late Vinod Kumar and “he was not physically harmed in any way.” It is again maintained that the Tihar Jail authorities cannot be held liable and that “until the investigation is not concluded, it might be difficult to ascertain the cause of death.” 15. A number of directions were issued by this Court on 7th February 2008 calling for the learned MM to place a copy of the report before this Court by the next date of hearing. The DCP (West) was also asked to place before the Court the result of the investigation into FIR No. 37 dated 25th June 2007. The learned MM sent a copy of the postmortem report in a sealed cover on 15th March 2008. On 6th February 2009, the Delhi Police also filed a further affidavit enclosing copy of the cancellation report dated 29th January 2009. W.P.(C) No. 5520 of 2007 Page 7 of 26 16. The report of the Review Board constituted to review the postmortem report dated 18th August 2008 confirmed that the death was homicidal. In its written statement dated 19th November 2009, the Delhi Police took the following stand: “This Respondent most respectfully submits that in view of the concurrent findings of two Medical Boards that the injuries sustained by the late Vinod Kumar have been sustained by him around 24 to 36 hours prior to his death, when he was in the custody of the jail authorities and not in police custody. At the time of handing over the late Vinod Kumar to the jail authorities, there was no injury upon him as would also be evident from the medical report of Deen Dayal Hospital and the fact that no injury was recorded on the person of the late Vinod Kumar at the time of his admission into the jail. As such, this Respondent cannot be held liable for the death of late Vinod Kumar and consequently, no damages can be awarded against this Respondent.” 17. The Petitioner filed a brief synopsis on 27th August 2009 pointing out that although the postmortem found several injuries over the body of Vinod Kumar, in the records of either the DDU Hospital or the Tihar Jail, this is not reflected. Further, although the Jail authorities were advised to take Vinod Kumar to LHMC, they instead took him back to the Jail Hospital. The learned MM who inspected the dead body of Vinod Kumar before the postmortem on 12th July 2007 while conducting the inquest proceedings found that there were multiple injuries on the body of the deceased. A copy of the report of the MM has been placed on record by the Delhi Police. It is further pointed out that when the Petitioner was referred to the DDU W.P.(C) No. 5520 of 2007 Page 8 of 26 Hospital at 8.15 pm on 11th June 2007, his pulse rate was 160 and blood pressure was 130/100. It is claimed that there is overwriting on both the pulse rate and the blood pressure. At 12.40 pm when Vinod Kumar returned to Tihar Jail his pulse rate was 84 per minute and blood pressure was 124/86. It is pointed out that it is surprising that pulse rate and blood pressure reduced while coming from Tihar Jail to the DDU Hospital which is a journey of 10 minutes. It is surmised that the deceased might have been beaten-up in the Tihar Jail and just to save their skin, the Respondents were concocting a story. On the basis of the above pleadings, a compensation in the sum of Rs.20 lakhs is sought. In addition, a direction to grant the Petitioner employment on compassionate ground is sought. Analysis of facts and submissions 18. The above submissions have been considered. Certain facts are not in dispute at all. These include the fact that the Petitioner‟s husband Vinod Kumar was first arrested on 9th June 2007 and despite being held under a bailable provision, was kept in police lock-up because the Petitioner herein was too poor to even furnish a surety. As a result, Vinod Kumar was remanded to judicial custody for 14 days to Tihar Jail. The medical examination of Vinod Kumar at Tihar Jail states that “no evidence of external fresh injuries over body” was found. The time indicated in the above report of medical examination of Vinod Kumar at DDU Hospital is 7.45 pm on 9th June 2007. He was then kept in lock-up the whole of the night of the 9th and brought to the Tihar Jail only at 5 pm on 10th June 2007. The medical examination at this time concluded that Vinod Kumar was an alcoholic. A copy of the status report dated 10th June 2007 has been enclosed W.P.(C) No. 5520 of 2007 Page 9 of 26 with the affidavit. He was referred to the DDC at the Central Jail in Tihar. According to the Jail authorities, there was no recording of any injury on the person of Vinod Kumar even at this stage. He displayed abnormal behaviour for which he was being administered sedatives. He continued displaying abnormal and irrational behaviour and becoming violent and therefore was referred again to the main hospital at the Central Jail at 7.40 am on 11th June 2007 and then to the DDU on 11th June 2007. Apart from these reports indicating high blood pressure and pulse rates, there was no indication of injuries. He, on being brought back to the Central Jail at 12.45 pm, was referred to the Psychiatric OPD at DDU Hospital at 5.15 pm on 11th June 2007. There is yet another report of DDU Hospital of 11th June 2007 which states “alcohol withdrawal symptoms” and “patient is irritable”. He was at this stage referred to LHMC but instead was taken back to the Jail Hospital. No explanation is forthcoming as to why Vinod Kumar was not referred to the LHMC. The whole of 12th June 2007 till his death in the evening on that day Vinod Kumar was found irritable and given sedatives. 19. There is nothing in the narration of either the Delhi Police or the Tihar Jail authorities to show that Vinod Kumar administered injuries to himself during this period. None of the contemporaneous medical records of the Jail hospital notice any injury on his person. However, the examination of his body thereafter depicted a very different picture. 20. After Vinod Kumar was found dead at 5.15 pm an inquest was conducted by the learned MM. The following report of inquest of the learned MM dated 14th June 2007 on the basis of which an FIR was W.P.(C) No. 5520 of 2007 Page 10 of 26 registered indicates that the death was indeed homicidal. The said report reads as under: “The S.H.O. PS Hari Nagar Delhi. One undertrial namely Vinod, S/o Kartar Singh, R/o T- 407 Gali No.1, Baljeet Nagar, Patel Nagar, Delhi was found dead in the casualty ward in the Tihar Jail hospital on 12/06/07 at 5.15 am. He was in fact admitted in jail on 10/06/07 in case DD No. 30A dated 09/06/07 U/s. 107/151 CrPC, PS Patel Nagar, Delhi. Ld. ACMM, Delhi had directed me to conduct inquest proceedings U/s. 176 (1A) CrPC. I had seen the dead body on 12/06/07 in DDU Hospital, Delhi and I had found that there were multiple injuries on the body of the deceased. On my direction post mortem of the deceased was got conducted in DDU Hospital on 14/06/07 and doctors who had conducted the post mortem have clearly mentioned in the post mortem examination report regarding the nature of death as HOMICIDE. You are hereby directed to register an FIR U/s. 302 IPC immediately. The investigation of the case be handed over to DIU (West). DCP/West district is also directed to supervise the investigation of the case as the offence is of very serious nature. Copy of the order be sent to the SHO, PS Hari Nagar as well as DCP/W for compliance.” 21. Since this was the earliest point in time when anyone saw the dead body of Vinod Kumar, the above report of the learned MM is significant. On 12th W.P.(C) No. 5520 of 2007 Page 11 of 26 June 2007 when at the DDU Hospital the learned MM saw the dead body of Vinod Kumar, he found multiple injuries. The immediate earlier medical report is the report dated 11th June 2007 at the DDU Hospital which makes no note of any injury. The records of the Tihar Jail which have been produced state that at 2.20 am “patient is comfortably sleeping on his bed”. If one would read this along with the earliest counter affidavit filed on behalf of the Jail authorities where it is asserted that “at all material times, he remained in hospital and never shifted to Jail barrack where criminals and undertrials are housed”, it is plain that it is the Jail authorities themselves who have to answer how is it that when learned MM saw his dead body on 12th June 2007, he found that “there were multiple injuries on the body of the deceased”. It is on the basis of the report of the learned MM that the case was registered under Section 302 IPC and taken up for investigation. 22. We then have the postmortem report first conducted on 14th June 2007 by a Board of three doctors i.e. Dr. B.N. Mishra, Dr. Anil Shandil and Dr. Manpreet. The injuries found on the body read as under: “Ante mortem injuries dark red to bluish coloured multiple overlapping bruise with and without areas of abrasion, irregular shape, varying in size from ½ x ½ cm to 7 x 3 cm present at both palms, both soles, both side elbow, both side knee, both side ankles and dorsum of foot, both tibial shins, both arms (dorsolaterally), at back of chest & abdomen right side suprailiac and suprailiac spine, left side ear, both lips nose, right side neck, top of left shoulder, left forearm, lt. side hip, lt. side front of chest (just above epigastric area), both side calf with dried up reddish brown cab formation and collection of blood clots (effored blood) dark reddish and simple and W.P.(C) No. 5520 of 2007 Page 12 of 26 about 24 hours to 36 hours in duration, blunt.” 23. The injuries on the head portion were as under: “Sub scalp hematoma, dark reddish, in 3 x 2 cm and 4 x 3 cm NAD respectively at lt. side occipital area & lt. side parietal area with subperiosteal hematoma, lt. side Subdual hematoma all over contusion of brain matter both side occipital & parietal lobe & cerebellus in 1 cm thickness for periphery with suarachoid hematoma correspondingly.” The opinion given was as under: “Cause of death from cumulative effect of multiple injuries (over head, chest, abdomen and various other parts of the body) accused and inflicted to the deceased which is sufficient to cause death in ordinary course of nature. All injuries are ante mortem in nature, cause by blunt force impact and between 24-36 Hours prior to death in duration.” Regarding nature of death, the opinion was as under: “Though bruises are simple injuries individually but cumulatively can be dangerous to life for any individual. PM findings are consistent with assault caused to deceased.” (emphasis supplied) 24. As already noticed in the affidavit of the Delhi Police, they did not straightway accept the above postmortem report and decided to constitute another Board to review the above report. W.P.(C) No. 5520 of 2007 Page 13 of 26 25. At this stage a mention should be made of the inquest documents placed on record which include the unnatural death by violence report dated 14th June 2007 of the learned MM. In Column 10 titled “Injuries or marks of violence the body may have received: Wounds and bruises” the following was noticed by the learned MM: “(i) Injury on left side neck. (ii) Injury on left side shoulder near neck. (iii) Bruises on right side neck. (iv) Injuries marks on left side elbow (v) Injuries marks upon porsom hand (vi) Injuries marks on right hand elbow (vii) Injuries marks on back side (viii) Injuries marks on Buttocks (ix) Injuries marks on right leg & knee of right leg.” 26. The statements recorded of several witnesses during the course of investigation do not also throw light on how Vinod Kumar suffered these injuries while he was in custody. Dr. Sunil Sharma who was posted at the Central Jail No. 7 Dispensary, conducted the first examination on 10th June 2007 and stated that “patient has not given any history of assault/trauma or history of medical significance.” He further states that on examination “I did not find any injury on his body. The only inference one can draw from the above statement is that till he was brought to Tihar Jail, there was no complaint of any injury caused to Vinod Kumar. 27. We now come to the Forensic Science Laboratory („FSL‟) report Ex. 1/A containing stomach and piece of small intestine with contents, kept in sealed jar and Ex. 1/B containing piece of liver, spleen and kidney, kept in a sealed jar. Both were found to contain “Ethyl Alcohol”. However the quantitation W.P.(C) No. 5520 of 2007 Page 14 of 26 of ethyl alcohol was not carried out as blood sample was not provided. The FSL report is dated 25th June 2008. We then come to the report of the Review Board dated 18th August 2008. The three members who constituted this Board were Dr. S.K. Khanna, Director Profession and Head of the Department of Forensic Medicine, Maulana Azad Medical College („MAMC‟), Dr. Upender Kishore, Asst. Professor, Department of Forensic Medicine, MAMC and Dr. Vinay Kumar Singh, Junior Specialist, Department of Forensic Medicine, LBS Hospital. This report narrates the complete history of the case including what was found in the earlier postmortem report. The opinion of the Review Board reads as under: “Opinion of the Review Board: 57 photographs taken at the time of post mortem examination were produced by the I.O. Members of the board examined the photographs & compared them with the injuries mentioned in the post mortem report. Most of the injuries as seen in the photographs are small in size. Many of