* IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.Appeal No. 11/2007 Reserved on: 20 th August 2007 Date of Decision : 5 th March, 2008 TEJ SINGH .... Appellant Through Mr. Mukesh Kalia, Adv. Versus STATE & ANR. .... Respondents Through Mr. Sunil Sharma, APP for the State. Mr. J. P. Dhanda, Adv. for complainant. 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 Crl. A.11/2007 Page 1 of 52 3. Whether the judgment should be reported in the Digest? Yes % JUDGMENT 05-03-2008 : MUKUL MUDGAL ,J . 1. The trial court had rendered the impugned judgment dated 13 th December, 2006 by which the accused SHO, R.P.Tyagi along with SI Tej Singh and Inspector K.P. Singh were convicted. The appellant in the present appeal SI Tej Singh was sentenced to three years rigorous imprisonment and to pay a fine of Rs.25,000/- for his conviction for an offence punishable under Section 218 IPC and in default of payment of fine the appellant was directed to undergo three months simple imprisonment. In addition to it, the appellant was further sentenced to three years rigorous imprisonment and to pay a fine of Rs.10,000/- for offence punishable under Section 201 IPC and in default of payment of Crl. A.11/2007 Page 2 of 52 fine he was further directed to undergo three months simple imprisonment and sentences awarded to the said convict were ordered to run concurrently with a benefit of Section 428 Cr.P.C. 2. The brief facts of the case as per the prosecution sans unnecessary details are as follows: a) On 16 th August 1987, it was the festival of Janmasthmi, constable Rishi Pal posted at police station Vivek Vihar was deputed at Police post Chota Bazar, Shahdara Delhi. b) At about 9.20 pm some one told Rishi Pal about two anti social persons who were extorting money at the point of knife at Circular Road, who thereinafter went to the spot. c) Subsequently information was received in the police station Vivek Vihar that constable Rishi Pal has been stabbed by two persons and consequently the police rushed to the spot. Crl. A.11/2007 Page 3 of 52 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 in Police Station Vivek Vihar. It was revealed that constable Rishi Pal was stabbed by Mahender and Ram Kumar, who had fled from the spot and were absconding. e) The Police launched a manhunt to trace the culprits but they did not find them in and around the locality. The police officers in anger picked up family members and neighbours of Mahender and Ram Kumar and confined them at Police Station Vivek Vihar. The family members and neighbours were harassed and beaten and were asked to produce the absconding duo Mahender and Ram Kumar. f) Ultimately on 24 th August 1987 at 7.45 am (approximately), both Ram Kumar and Mahender were produced in the Police Station Vivek Vihar and their family members were let off. Crl. A.11/2007 Page 4 of 52 g) The Police subjected Mahender and Ram Kumar to severe beatings and showed their arrest at about 2.00 pm from Surajmal Park, though they were produced in the Police station at about 7.45 am on 24 th August 1987. h) On account of the beatings Ram Kumar and Mahender sustained grievous injuries and were taken to SDN Hospital, Shahdara, where they were examined by Dr. A. K. Verma and seeing the serious condition of Mahender, he was referred to Lok Nayak Jai Prakash Narain Hospital (hereinafter referred to as the “LNJPN Hospital”). i) On 25 th August 1987, Mahender died in LNJPN Hospital on account of injuries sustained by him due to beatings 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 an offence punishable under Section 304 IPC. Despite this order, case was not Crl. A.11/2007 Page 5 of 52 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 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 Lt. Governor of Delhi, Case No.59/1988 for an offence punishable under Section 304/34 IPC was registered on 11 th 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 investigation in this regard was accepted by the then Metropolitan Magistrate Shri Z.S. Lohat by his order dated 7 th July 1989. He further affirmed his order on an application moved by Ram Kumar on 8 th July 1989. Crl. A.11/2007 Page 6 of 52 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 SHO R. P. Tyagi under Sections 302 / 34/ 120B/ 325/ 323/ 342/ 343/ 167/ 201/ 217/ 218 IPC and Section 124 of the Delhi Police Act, SI 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 main accused R.P. Tyagi under Sections 302/342/120-B IPC, K.P. Singh who at the relevant time was a sub-inspector under Section 217 IPC and the appellant herein Tej Singh under Section 218/201 IPC. Crl. A.11/2007 Page 7 of 52 3. The trial court while dealing with the case of the appellant in Paragraph 59 and 60 of its judgment held as follows: “59. Accused SI Tej Singh investigated said case (FIR 294/87). He prepared documents shown as 'personal search memo' Ex.PW40/DCS, disclosure statements purporting to be made by Mahinder Kumar Ex.PW 40/DC3, by Ram Kumar Ex.PW40/DC4, seizure memo of knife Ex.PW40/DC6, sketch of knife Ex.PW40/DC1 and personal search memo of Ram Kumar Ex.PW40/DC5. Accused Tej Singh admitted to have prepared all these documents in his statement recorded u/s 313 Cr.P.C. It is well proved on file that Mahinder Kumar and Ram Kumar appeared in police station on their own and not arrested from Surajmal Park as shown in that case. It is not proved on file that said Mahinder Kumar and Ram Kumar gave any such disclosure statement or after their arrest any personal search of them was taken or any such knife was recovered from possession of any of them from that place. These facts if true were within the special knowledge of police. It was held by the apex court in case titled as State of Rajasthan v. KashiRam (supra) burden to prove such fact was upon the accused which were within his special knowledge. It was for this accused to establish all these Crl. A.11/2007 Page 8 of 52 facts being specially within his knowledge but no such evidence was led in this regard. 60. As stated earlier it is well proved that none of said accused was arrested from said spot at Surajmal Park and all those documents were false. Accused Tej Singh is hence convicted for offence of preparing false documents knowing that by doing so, he will save some persons from legal punishment and with that intention gave information about offence which he knew to be false, all punishable u/s 218 IPC.” 4. The learned counsel for the appellant, Mr. Mukesh Kalia submitted as follows :- (i) It is the case of the prosecution that the appellant Tej Singh Verma was the Investigation Officer of the case FIR No. 294/87, Police Station Vivek Vihar, Delhi registered under Sections 307/186/353/34 IPC in which the deceased Mahender and co-accused Ram Kumar were wanted as accused. (ii) The charge framed against the appellant is that he prepared the documents, i.e., DD No.7/A and 9/A dated 24 th August 1987 and the Crl. A.11/2007 Page 9 of 52 other documents in his official capacity. Hence, it is the admitted case of the prosecution that whatever was done by the Appellant was in discharge of his official duty. But, the Appellant was prosecuted without taking any sanction from the competent authority. (iii) The learned counsel for the appellant strengthened his arguments on three fold basis:- (a) Qua the morning incident: The counsel for the appellant submitted that nothing incriminating has been attributed by the 48 prosecution witnesses including Raj Kali, Manoj and Narender to suggest that the appellant had any knowledge about the morning incident, wherein the prosecution claimed that the deceased was produced in the P.S. by his relatives. More so, nothing incriminating has been attributed to the Appellant to connect him with the morning incident. Crl. A.11/2007 Page 10 of 52 (b) Receipt of information and formation of raiding party at Police Station : In regard to the submission made by the counsel for the appellant towards Receipt of information and formation of raiding party at Police Station, he submitted that as per the case of the prosecution, the role of the Appellant started only after the receipt of DD No.7/A dated 24.8.1987 at 2.05 P.M. when information was handed over to the Appellant by a Duty Officer SI Surender Singh in the presence of PW/47 H.C. Daya Ram and thereafter the appellant along with the other staff proceeded towards Suraj Mal Park Road No.58. The counsel for the appellant submitted that it was SI Surender, Duty Officer, who had reduced in writing DD No.7/A and further had assigned this DD No.7/A to the appellant for investigation/enquiry, which was also admitted by PW/47 HC Daya Ram. Crl. A.11/2007 Page 11 of 52 The counsel for the appellant further submitted that as per DD No.7/A, SI Mukesh Kumar, No.1944/D, Ct. Rattan Lal, No.576/E, Ct. Kanwar Pal, No. 962/E, Ct. Virender, No. 1469/E, Ct. Narender Singh, No. 675/E and Ct. Manoj Kumar were the members of the Raiding Party and proceeded from the P.S. to the spot on the direction of Duty Officer SI Surender and this entry DD No.7/A was admitted by SI Surender to be recorded by him. Out of these members of the Raiding Party, PW/8 Narender and PW/38 Manoj have deposed that they had not gone with the Raiding Party. It is further submitted that no credence can be given to the statement of these two witnesses because circumstances suggest that they are hand in glove with the complainant party and the possibility of bargaining with the complainant cannot be ruled out, despite the fact their names were mentioned in DD No.7/A as the members of the Crl. A.11/2007 Page 12 of 52 Raiding Party. The complainant had not made them accused in his complaint and in a way they were saved by the complainant from being prosecuted in this case and on the other hand they have tried to help the complainant by deposing in favour of complainant against the persons of their own Department and that too in a complaint case where there was no compulsion upon them to depose, and it is further submitted that they were approached by the complainant and then they gave the statement before the Court of Magistrate and thereafter the Trial Court. (c) Beatings given by member of the public : In regard to the last submission of his three fold arguments, counsel for the appellant submitted that when the appellant reached the spot, he had, no doubt, in his mind about the possibility of the deceased Mahender and Ram Kumar being beaten by the public as from the situation assessed by him Crl. A.11/2007 Page 13 of 52 from the spot, where public in a large number was present, which dispersed immediately after seeing the police. The antecedents and past conduct of these two criminals is doubtful as those two criminals were involved in various acts of stabbing, extortion, drug trafficking, rape and assault especially in case FIR No. 155/87 of P.S. Vivek Vihar registered u/s 452/376/506/34 IPC, wherein the deceased Mahender, Ram Kumar and Fateh Singh entered in the house of Smt. Kanti Devi and raped here in her own house in the presence of her husband and her husband after hearing the cries had caused injuries on the person of deceased Mahender and Ram Kumar with a brick despite the fact that they were three in number and armed with deadly weapons like knife etc. Similarly, there are details of FIRs mentioned against these persons wherein they have inflicted the injuries on the public persons as Crl. A.11/2007 Page 14 of 52 well as on the police officials on duty and the possibility also cannot be ruled out of their being involved in similar acts of causing injury and harm to the general public, wherein the matters have not been reported/brought to the notice of the police. The Counsel for the appellant further submitted that it can also be inferred that the anger had developed in the eyes of public against these persons and the victims and aggrieved persons, were waiting for the right opportunity and when much water had flown above their head, they mobilized and gave beatings to Mahender and Ram Kumar to teach them a lesson. (iv) The counsel for the appellant in respect to the question of motive to kill Mahinder submitted that there was no motive for the appellant to kill Mahender and even if one will go by the averments, made by the complainant, then the police had more grievances against Ram Kumar, Crl. A.11/2007 Page 15 of 52 as it was in fact Ram Kumar, who had given the vital blow from knife on the chest of Ct. Rishi Pal and whereas Mahender is said to have only snatched the danda and gave a blow to him by the danda. (v) The counsel for the appellant further submitted that the complainant's family was having so many persons who were involved in criminal activities. They were well-versed with the technicalities of the law, Court procedure, safeguard and remedies, available to them. They were of desperate character involved in including injuries on public persons, police persons, indulging in rape, extortion and drug trafficking. By implicating number of police officers, they had a motive to put pressure upon the police, so that they can carry on their illegal activities smoothly. It is further submitted that the motive to falsely implicate police officials further gets corroboration from the fact the same was done with a view to get compensation from the state. Crl. A.11/2007 Page 16 of 52 (vi) The learned counsel for the appellant contended that the trial court failed to appreciate that there are various inconsistencies and contradictions among the testimonies of various witnesses which create a serious doubt regarding the veracity of the statements of the witnesses on which the trial court has relied upon. The trial court has also based undue reliance on the prosecution version and totally ignored the case of the defence. The trial court has without any reasons disbelieved the testimonies of the defence witnesses. 5. The learned counsel for the State in order to strengthen the case of the prosecution submitted that Mahender and Ram Kumar were grievously injured as a result of beatings and torture meted out to them by R.P. Tyagi and others and the accused launched a huge cover up in order to justify the injuries sustained by them. As the injuries were numerous and as a result of consequent beatings from R.P. Tyagi and Crl. A.11/2007 Page 17 of 52 others, they devised a method to cover up the injuries sustained by Mahender and Ram Kumar and what followed was a gigantic cover up as under:- (i) At 2 pm on 24 th August, 1987, police is said to have received a call from some unknown person from Surajmal Park complaining that two ruffians were harassing public and consequently DD No. 7A was recorded and a so called team as constituted by R.P. Tyagi was dispatched to the spot. (ii) As per DD No. 7A, the members of the raiding team were SI Tej Singh Verma, HC Narender Kumar, HC Manoj Kumar etc. who were sent to Surajmal Park and there SI Tej Singh Verma alongwith other members of the so called leading party apprehended the culprits, who were being subjected to beatings by the public. (iii) SI Tej Singh Verma in order to cover up the torture and beatings meted out to Mahender and Ram Kumar fabricated documents such as disclosure slip, seizure memo of knife, site plan, Jama talashi memos. Crl. A.11/2007 Page 18 of 52 (iv) SI Tej Singh Verma fabricated the aforesaid documents as the accused persons wanted to show that Ram Kumar and Mahender were present at Suraj Mal Park at 2.05 p.m. In order to save themselves and create evidence of their presence at Surajmal Park. (v) SI Tej Singh Verma also admitted that he has prepared these documents in his statement under Section 313 Cr.P.C. (vi) However, the deeds of SI Tej Singh Verma and SHO of R.P. Tyagi were exposed by none other than their own police officers who were examined in the court as PW8 HC Narender Kumar and PW38, HC Manoj Kumar. 6. After considering the pleas of the counsel for the parties we are of the view that the counsel for the defence has built his case on the fact that at around 2 pm on 24th August, 1987, the police station, Vivek Vihar received a call from some unknown person from Surajmal Park complaining to the police that two ruffians were harassing the public and a police team constituted by R.P. Tyagi was dispatched to the spot. Crl. A.11/2007 Page 19 of 52 The members of the so called leading police party apprehended the culprits, who were being subjected to severe beating by the public. Thereafter, the two arrested persons were taken to the hospital where Mahender died subsequently. However, in our view the prosecution has been able to prove the fact that the story built up by the defence is concocted and based on false predications. The prosecution has been successfully able to complete the chain of events beyond reasonable doubt. 7. The portions of the testimony of PW 9 Rajkali in the court as a prosecution witness which is relevant is as under- “Smt. Raj Kali deposed that on the day of Janmashtmi, i.e., 16th August 1987 she along with her children and husband was sleeping in her house. On the same night at about 9:00 PM, police officials went to her house and started enquiring about her son Mahender and his friend Ram Kumar. Her family reported that both Ram Kumar and Mahender were not at home and the police officials took them to police station, Vivek Vihar. She stated that Crl. A.11/2007 Page 20 of 52 while she was kept in the police station, her husband and her other sons Manoher Lal, Rajinder, etc. were kept in Police Poost Anaz Mandi. She further deposed that after about a week on 24 th August 1987 at about 7:30 or 8:00 AM she along with Yamuna etc. was released from the police station. When they were coming out of the police station she noticed Mahender Kumar and Ram Kumar present in the police station as well as the presence of her three sons Manohar Lal, Rajinder, and Kishan Chand. She stated that Jassu and Rajinder were also present there and police was shouting out that Ram Kumar and Mahender have been produced in the police station by their relatives. In the meanwhile, when they tried to talk to Mahender Kumar the police officer present there directed them not to talk with them and further asked to them to leave the police station.” Thus, after a perusal of the statements and testimonies of Rajkali before the SDM, as a witness in the complaint case before learned metropolitan magistrate and as a prosecution witness in the trial court, the following conclusive evidence can be relied upon to implicate the appellant. Crl. A.11/2007 Page 21 of 52 The sum and substance of the testimony of PW9 Rajkali, which is worthy of belief is:- a. Mahender and Ram Kumar surrendered in the police station Vivek Vihar between 7.30 a.m and 8.00 am. This testimony is corroborated by the evidence of Constable Manoj Kumar (PW38). b. Rajkali along with her family members and her neighbours were continuously detained by the police and given a beating right from 16th August, 1987 till the date when the deceased, Mahender and Ram Kumar surrendered on 24th August, 1987. c. This testimony is supported by the testimony of PW-10 Rakesh Kumar, PW-11 Govind Ram, PW-12 Rajinder Prasad, PW-13 Manohar Lal, PW-14 Prem Wati, PW-15 Anil Kumar, PW-16 Neetu, PW-19 Krishna, PW-20 Sondai, PW-21 Subash, PW-23 Jamna Devi, PW-31 Om Wati, PW-33 Sukhbiri, PW-34 Jamman Lal, who all deposed to Crl. A.11/2007 Page 22 of 52 the effect that they were summoned to the police station regularly since 16th August 1987 until the surrender of Mahender on 24th August 1987. Though there are embellishments and improvements made in the statements of Rajkali from that made before the SDM Shri SS Rathore who had conducted the first inquest proceedings; in her statement before the Metropolitan Magistrate in the complaint case on 7th December 1991 and in her testimony before the court recorded in Court as PW 9 on 17th July 2004, 24th July 2004, 31st July 2004 and 7th August 2004, we are not completely relying upon the same. We are only relying upon the aforementioned portion of her testimony which has been consistent before the SDM, the Metropolitan Magistrate and as a prosecution witness in the trial court to complete the chain of events, as put up by the prosecution to implicate the appellant which has also been supported by PW 8 and PW 38 who are police personnel themselves and further Crl. A.11/2007 Page 23 of 52 strengthened by the depositions of PW 10 Rakesh Kumar, PW11 Govind Ram, PW 18 Pappu, PW 20 Sondai, PW 21 Subash, PW 23 Jamna Devi, PW 33 Sukhbiri and PW 34 Jamman. 8. Quite apart from the fact that her testimony on the above issues is supported by other witnesses, even the police witness PW38 HC Manoj Kumar and PW8 HC Narender Singh support the case set up by the prosecution about the presence of Mahender and Ram Kumar in the morning of 24th August, 2007 in the police station . There is no reason for at least the police witnesses to depose falsely against their own brethren and the plea of the counsel for the appellant that this was done so as to save themselves as they were hand in gloves with the deceased Mahender Kumar’s father, cannot be accepted as their evidence is supported by the testimony of Rajkali PW 9 and PW 10 Rakesh Kumar, PW 11 Govind Ram, PW 18 Pappu, PW Crl. A.11/2007 Page 24 of 52 20 Sondai, PW 21 Subash, PW 23 Jamna, PW 33 Sukhbiri and PW 34 Jamman Lal, who all deposed to the effect that the deceased Mahender and Ram Kumar were present in the police station Vivek Vihar between 7.30 a.m. and 8.00 a.m. Once the presence of the deceased and his accomplice Ram Kumar in the police station is established in the morning at about 7.30