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PETITIONER: KASHMERI DEVI

       Vs.

RESPONDENT: DELHI ADMINISTRATION & ANR.

DATE OF JUDGMENT25/04/1988

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) KANIA, M.H.

CITATION:  1988 AIR 1323            1988 SCR  (3) 700  1988 SCC  Supl.  482     JT 1988 (2)   293  1988 SCALE  (1)977

ACT:      Constitution  of   India,  1950:   Article   136-Police investigation-Credibility  of-Death   in   police   custody- Allegations of  murder and  torture against police officers- Court finding that efforts made to protect and shield guilty police officers-Trial  court directed  to have  thorough and proper investigation by C.B.I.      Criminal Procedure  Code, 1973: Section 173(8)-Death in police custody-Allegations  of torture  and  murder  against police officers-Supreme  Court finding  that efforts made to protect and  shield guilty  police officers-Trial magistrate directed to have proper and thorough investigation by C.B.I.

HEADNOTE:      The appellant  was the widow of a tonga driver who died in police  custody. It  is alleged that on the fateful night of  22/23.8.1986   two  sub-inspectors  accompanied  by  two constables visited  the  house  of  one  Sudesh  Kumar,  and started beating  him. On  hearing his  shrieks his  maternal uncle  Gopi   Ram,  the  tonga  driver  tried  to  intervene whereupon the policemen are alleged to have beaten him also. Both of  them were  arrested taken  to the  police  station, stripped of  their clothes  and beaten  with iron  rods. The tonga  driver  succumbed  to  his  injuries  at  the  police station. Thereafter,  a post  mortem was  conducted and  the dead body  was cremated  without  handing  it  over  to  the appellant.      The aforesaid  incident  caused  consternation  in  the locality, and  a mob  surrounded the police station to lodge its protest  against the death of the tonga driver in police custody.  Undaunted  the  police  registered  a  case  under Sections 147-149  and 353/332  I.P.C. against the brother of the deceased and others as they were members of the mob.      Sudesh Kumar  filed a  written complaint naming the two sub-inspectors and  the constables  as responsible  for  the death of  his maternal  uncle  which  was  registered  under Section 302/342  I.P.C. No  action was however taken against those officers.  After some  time the  case was converted to Section 304 I.P.C. for purpose of investigation. 701      The appellant  approached the  High  Court  by  a  writ

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petition   under    Article   226   for   transferring   the investigation of the case from the Crime Branch of the State Police to  the Central Bureau of Investigation. The Division Bench, however, dismissed the petition.      Disposing of the Appeal, this Court, ^      HELD: 1.  The police  have not  acted in  a  forthright manner in investigating the case registered on the complaint of Sudesh Kumar. [704C-D]      2. The  circumstances available  on record  prima facie show that  effort has  been made  to protect  and shield the guilty officers  of the  police  who  are  alleged  to  have perpetrated the  barbaric offence  of murdering  Gopi Ram by beating and torturing. [704D]      3. The  appellant had  been crying  hoarse to  get  the investigation done  by an  independent  authority  but  none responded to her complaint. [704D-E]      4. The  Additional Sessions Judge while considering the bail application  of one  of  the  Constables-Jagmal  Singh, considered the  autopsy report  and observed that the Doctor had postponed  giving his  opinion regarding  the  cause  of death although the injuries were antimortem. [704D-E]      5.  The   Sessions  Judge  referring  to  a  number  of circumstances observed  that the  investigating officer  had converted the case from Section 302 IPC to 304 IPC on flimsy grounds within  hours of  the registration  of the case even without waiting for the post mortem report and that it was a prima  facie  case  of  deliberate  murder  of  an  innocent illiterate poor  citizen of  Delhi  in  police  custody  and investigation was partisan. [704E-F]      6. In  the interest of justice it is necessary to get a fresh investigation made through an independent authority so that the truth may be known. [704H]      7. The  trial court  before whom  the charge  sheet has been submitted  shall  exercise  its  powers  under  Section 173(8)  Cr.   P.C.  to   direct  the   Central   Bureau   of Investigation for  proper and  thorough investigation of the case. On issue of such direction the C.B.I. will investigate the case  in an  independent and objective manner and submit additional charge  sheet if  any  in  accordance  with  law. [705A-B] 702

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 280 of 1988.      From the Judgment and Order dated 26.9.1986 of the High Court of Delhi in Crl. W.P. No.361 of 1986.      R.L. Panjwani and R.D. Upadhyay for the Appellant.      S. Madhu  Sudan Rao, N.L. Kakkar and Miss A. Subhashini for the Respondents.      The following Order of the Court was delivered:                          O R D E R      Special leave granted.      This is  an unfortunate  case which  tends to shake the credibility of police investigation and undermines the faith of common  man in  Delhi Police which is supposed to protect life and  liberty of  citizens and  maintain law  and order. There has  been serious  allegations of  murder  by  torture against the police and further about the haphazard manner in which the  investigation against the accused police officers was investigated with a view to shield the guilty members of the Delhi Police.

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    Kashmeri Devi the appellant is the unfortunate widow of Gopi Ram  deceased who  was a  tonga driver.  On the fateful night of  22/23.8.1986 two sub-inspectors accompanied by two constables visited  the house of Sudesh Kumar of Prem Nagar. It is  alleged  that  they  started  beating  Sudesh  Kumar. Hearing his  shrieks his  maternal uncle  Gopi Ram  deceased came to the spot, he tried to intervene whereupon the police men are  alleged to  have giving  him beating also. Gopi Ram and Sudesh  Kumar both were arrested and taken to the Police Station Patel  Nagar  where  they  were  stripped  of  their clothes and  the police  men gave  them serious beating with the help  of iron  rods and  iron rulers. It is alleged that Gopi Ram  succumbed to  his injuries  at the  police station sustained at  the  hands  of  Satish  Kumar  and  Rana  sub- inspectors and  Jagmal Singh  and Romesh constables while in police custody.  It is alleged that thereafter a post mortem was conducted  and the  dead body  of Gopi  Ram was cremated without handing  over the  dead body  to the appellant. This incident  caused   consternation  in  the  locality  and  on 23.8.1986 a mob surrounded the police station to lodge 703 its protest  against the  death of  Gopi Ram deceased at the police hands,  Undaunted the Patel Nagar police registered a cause under  Section 147/148/149/353/332 of the Indian Penal Code  against  Shankar  brother  of  the  deceased  who  was arrested along with others on 23.8.1986 as they were members of the  mob. Sudesh  Kumar who  had been taken to the police station along with Gopi Ram filed a written complaint at the police Station  Patel Nagar on 23.8.1986, making allegations against the  two sub-inspectors  and the constables. In that complaint Sudesh  Kumar alleged  that as a result of beating by police officers his maternal uncle became unconscious and thereafter the  police officers  kept on  beating him at the police station  as a  result of  which he  died. He  further alleged that  the police officers took the dead body of Gopi Ram to  the hospital  from there  they brought it to another hospital, where he was forced to sign blank papers. He named the police officers who were responsible of the death of his maternal uncle.  On that  complaint a  case  was  registered under Sections  302/342 IPC  against the  police officers of Patel Nagar  Police Station  but no action was taken against those officers.  After  some  time  case  was  converted  to Section 304  IPC for purpose of investigation. The appellant Kashmeri Devi  approached the  High Court by means of a writ petition  under   Article  226   of  the   Constitution  for transferring the  investigation of  the case  from the Crime Branch  of   the  Delhi   Police  to   Central   Bureau   of Investigation. Division  Bench of  the High  Court dismissed the writ  petition by  its order dated 26th September, 1986. Thereupon, the  appellant approached  this Court by means of special leave petition.      During the  pendency of the special leave petition this court granted  time to  the  respondents  twice  for  filing counter-affidavit but  the respondents  failed to file their counter affidavit.  Ultimately on  11.4.1988 Kanwaljit Deol, Deputy  Commissioner  of  Police  Head  Quarters  has  filed counter affidavit  setting out a totally different story. He has stated that on 23.8.1986 the police received information that one Gopi of Prem Nagar was brought dead by Sudesh Kumar from Prem Nagar to Ram Manohar Lohia Hospital, New Delhi. On receipt of  the  information  from  the  Hospital  one  sub- inspector of  police went  to Dr. Ram Manohar Lohia Hospital and obtained  medical legal  certificate of  the  deceased’s Gopi Ram.  It is  alleged that  on a  personal search of the deceased’s body  the police  recovered 5  small  packets  of

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smack from  his pocket. In his affidavit an attempt has been made out  to show  that Gopi  Ram had  died  on  account  of alcohol and  marphine and  not on  account of  any  injuries caused to  him by  the police and in this connection a story has been  set up that Sudesh Kumar had brought the dead body to Dr. Ram Manohar Lohia Hospital and on receiving 704 information from  the Hospital  the police  made recovery of smack from  the the  deceased’s  pocket.  The  affidavit  is completely  silent   about  the   allegations  made  by  the appellant that  the Gopi  Ram and Sudesh Kumar were arrested taken to  the police  station and  Gopi Ram  was  beaten  to death. The  affidavit further  refers to some medical report which purports  to state  that deceased  died on  account of alcohol and marphine. It is further stated that after taking into consideration  the cause  of the  death  given  by  the Doctor, charges  were amended to Sections 323/342/34-IPC and after completing  the investigation challan was prepared and the same  has  been  put  in  the  Magistrate’s  Court.  The affidavit of  Kanwaljit Deol  states that  in the absence of evidence the  story set  up by  Sudesh Kumar  could  not  be substantiated.      After hearing  learned counsel  for the  parties and on perusal of  the record we are satisfied that prima facie the police  have   not  acted   in  a   forthright   manner   in investigating the  case,  registered  on  the  complaint  of Sudesh Kumar.  The circumstances  available on  record prima facie show  that effort  has been made to protect and shield the guilty  officers of  the police  who are alleged to have perpetrated the  barbaric offence  of murdering  Gopi Ram by beating and  torturing. The appellant has been crying hoarse to get  the investigation  done by  an independent authority but none responded to her complaint. The Additional Sessions Judge while  considering  the  bail  application  of  Jagmal Singh, Constable, considered the autopsy report and observed that Doctor  had postponed  giving his opinion regarding the cause of  death although  the injuries  were antimortem. The learned  Sessions   Judge   referring   to   a   number   of circumstances observed  that the  investigating officer  had converted the case from 302 IPC to 304 IPC on flimsy grounds within hours  of the  registration of  the case even without waiting for  the postmortem  report.  The  learned  Sessions Judge further  observed that  it was  a prima  facie case of deliberate murder  of an innocent illiterate poor citizen of Delhi in police custody and investigation was partisan.      We are  in full agreement with the observations made by the learned  Sessions Judge.  As already  noted  during  the pendency of  the writ  petition before  the High  Court  and special leave  petition  before  this  Court  the  case  was further converted  from 304  IPC to  323/34 IPC. Prima facie the police  has acted  in partisan manner to shield the real culprits and the investigation of the case has not been done in a  proper and  objective manner.  We are therefore of the opinion that  in the  interest of justice it is necessary to get  a  fresh  investigation  made  through  an  independent authority so that truth may be known. 705      Since according  to the  respondents  charge-sheet  has already been submitted to the Magistrate we direct the trial court before  whom the  charge sheet  has been  submitted to exercise his  powers under Section 173(8) Cr. P.C. to direct the Central  Bureau of Investigation for proper and thorough investigation of  the case.  On issue  of such direction the Central Bureau of Investigation will investigate the case in an independent  and objective  manner and  it  will  further

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submit additional  charge sheet,  if any, in accordance with law. The appeal stands disposed of accordingly. N.V.K.                              Appeal disposed of. 706