Research › Search › Judgment

Delhi High Court · body

2007 DIGILAW 1182 (DEL)

KIRAN v. STATE

2007-05-31

S.N.AGGARWAL, T.S.THAKUR

body2007
T. S. THAKUR, J. ( 1 ) THERE can be nothing more revolting in a civilized society than custodial killing. It not only violates the law, mocks at the right to life guaranteed to the citizens but scars the soul of the victim and even his family members. The very thought of those charged with the duty of upholding the Rule of law and protecting the life and liberty of the citizens turning assassins, is abhorent. The brutality behind such action is unpardonable by both legal and moral standards. The case at hand is a grim reminder that such things continue to happen and times with impunity. What is disturbing is that it should be happening in Delhi the Capital of this country and despite the declaration of law by the Supreme Court in a long string of decisions to which we shall presently refer: ( 2 ) IN Joginder Kumar Vs. State 1994 (4) SCC 260 , the Court expressed its concern regarding complaints of violation of human rights during and after the arrest and set down the procedural requirement in cases of arrest. ( 3 ) IN Neelabati Bahera Vs. State of Orissa 1993 (2) SCC 746 against the court declared that prisoners in or undertrials are not denuded of their fundamental rights under Article 21 and that it is only such restrictions, as are permissible be law, which can be imposed on the enjoyment of the fundamental rights by such person. "it is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty to him is rather precious. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. " ( 4 ) ISSUES relating to custodial torture and compensation to the victims was examined at great length by the Supreme Court in D. K. Basu Vs. State of West bengal AIR 1997 SC 610 . Their lordships quoted with approval the following lines from Adriana P. Bartow about what is torture. "torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also such intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself. " adriana P. Bartow" ( 5 ) THE Court held that although India has made a specific reservation against award of compensation to victims of unlawful arrest or detention while ratifying International Convention on Civil and Political Rights, 1966 (IPCCPR), yet that reservation had lost its relevance in view of the law laid down by the supreme Court in a number of cases awarding compensation for infringement of the fundamental right to life guaranteed to the citizens. Reference was made by their lordships with approval to Rudal Shah Vs. State of Bihar 1983 (4) SCC 141 , bhim Singh Vs. State of Jammu and Kashmir 1984 (Supp.) SCC 504 and Saheli Vs. Commissioner of Police Delhi 1990 (1) SCC 422 . The Court summed up the juristic basis for grant of relief by way of compensation to the victims or his family in the following words. State of Bihar 1983 (4) SCC 141 , bhim Singh Vs. State of Jammu and Kashmir 1984 (Supp.) SCC 504 and Saheli Vs. Commissioner of Police Delhi 1990 (1) SCC 422 . The Court summed up the juristic basis for grant of relief by way of compensation to the victims or his family in the following words. "the claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 21 and 226 of the constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalizing the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. and "thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed and effective and sometimes perhaps the only suitable remedy for redressal of established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to publish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit. " ( 6 ) TIME now to set out a few facts: ( 7 ) LATE Sh. Hari Om was involved in a case under Section 61 (1) read with section 14 of the Excise Act and facing trial before a Court at Karkardooma court in Delh. He was granted bail but on 18th September, 2000 when he appeared before the Court along with his surety, the latter made an application for his discharge. The Court allowed that application, canceled the bail bonds of the accused Hari Om and remanded him to judicial custody in Tihar Jail to which place he was moved in the evening. As per the practice prevalent in the jail he was medically examined which recorded a history of the deceased taking alcohol of and on without any history or symptoms of withdrawal. The doctor who examined him noted in the register, that is maintained for the purpose, that there was no fresh injury on his body. As per the practice prevalent in the jail he was medically examined which recorded a history of the deceased taking alcohol of and on without any history or symptoms of withdrawal. The doctor who examined him noted in the register, that is maintained for the purpose, that there was no fresh injury on his body. Three old wounds on the body, one of which was on his right elbow, the second on the back and the third on his leg, were, however, noted. His B. P. at 160/80 and pulse rate at 84, appeared to be normal. The doctor noticed nothing abnormal in his condition. Even so, the unfortunate prisoner passed away on 21st September, 2000 barely two days after he was admitted to the jail and while still in judicial custody. A postmortem conducted by a Board of Doctors noticed the following eighteen injuries on his body: i) Black brown abrasion on the top of right shoulder. ii) Multiple black brown abrasion of the front on left leg lower third. iii) Black brown abrasion of the front of left knee. iv) Brown contusion on lateral aspect of left shoulder. v) Black brown abrasion on the lateral aspect of left arm middle. vi) Multiple abrasion (reddish brown) on the front of nose area. vii) Brown contusion on the lower third right arm, reddish brown. viii) Multiple black brown abrasion on the back of right elbow. ix) Multiple black brown abrasion on the front and medial aspect of right knee area. x) Black brown abrasion on the front middle of right leg. xi) Reddish brown contusion on the left anterior superior iliac spine. xii) Reddish abrasion on the back of left side chest. xiii) Multiple black brown abrasion on the right scapular region. xiv) Multiple black brown abrasion on the left scapular region. xv) Black brown abrasion on the back of chest at thoracic third region. xvi) Black brown abrasion on the back of lower third left leg. xvii) Abrasion (brown) on the left gluteal region, upper lateral quadrant. xviii) Brown abrasion of the closure of left wrist. ( 8 ) AFTER receipt of Viscera Report to the effect that there was no poison in the viscera, Medical Board opined that Hari Om had died as a result of shock caused by multiple injuries mentioned above present all over his body. xviii) Brown abrasion of the closure of left wrist. ( 8 ) AFTER receipt of Viscera Report to the effect that there was no poison in the viscera, Medical Board opined that Hari Om had died as a result of shock caused by multiple injuries mentioned above present all over his body. The age of the injuries was proximate to the period of his detention. Then came an inquiry by the Sub Divisional Magistrate who held that although there was no ocular evidence about the deceased having been tortured in the jail by anyone, yet since the deceased had multiple injuries mentioned in the postmortem report, the matter required to be investigated further as to how the said injuries were caused resulting in his death. Investigation of the case entrusted to Police station Hari Nagar and then to the Assistant Commissioner of Police led no where. With no hope of any succour from any quarter, the widow of the deceased turned to judiciary for intervention. She addressed a communication to the chief Justice of this Court praying for action against the jail authorities for causing the death of her husband and for award of suitable compensation to the widow and to the minor child left behind by the deceased. The communication narrated the sequence of events leading to the deceased being sent to judicial custody by the Court and his eventual death in the jail. ( 9 ) THE communication was registered as a writ petition and proceedings commenced on the basis thereof. By an order dated 11th August, 2004, this Court directed a full fledged inquiry by the District Judge into the circumstances leading to the death of the deceased Sh. Hari Om. The District Judge conducted an inquiry and submitted a report in which he concluded that Hari Om had died because of injuries caused to him during the time he was in jail. The District judge observed: "i have no doubt in my mind that Hari Om died because of injuries caused to him during judicial custody,. e. when he was in jail. All the injuries which were found on his person at the time of post mortem were those injuries which caused his death and had been inflicted upon him after his admission to the jail. He died in custody inside Tihar Jail because of the injuries caused to him in the jail. e. when he was in jail. All the injuries which were found on his person at the time of post mortem were those injuries which caused his death and had been inflicted upon him after his admission to the jail. He died in custody inside Tihar Jail because of the injuries caused to him in the jail. " ( 10 ) THE respondents have filed their objections to the reports submitted by the District Judge in which they inter alia stated that the conclusion drawn by the District Judge is wholly unwarranted. The respondents contended that the medical checkup of the prisoner at the time of his initial admission was only general in nature. It was not a detailed examination as is sought to be made out in the District Judge"s report. The deceased was according to the respondents admitted to the jail casualties ward on 19th September, 2000 at 11. 00 AM where he was examined by the doctors. On 20th September, 2000, in the afternoon, he was shifted to Behavioural Therapy Ward of the jail as his condition stabilized, where the doctor on night duty gave him an injection as he complained of insomania and showed violent behavior. On 21st September, 2000 at 6:15 AM, the emergency duty doctor referred him to Casualty of Deen Dayal upadhyay Hospital since he had become unconscious and was passing urine and stool in bed. The prisoner had, according to the respondents, stayed in the jail ward hardly for a night. The finding recorded by the District Judge was, therefore, legally unacceptable according to the respondent. ( 11 ) WE have heard learned counsel for the parties and perused the record. The District Judge has given detailed reasons while coming to the conclusion that the injuries found on the body of the deceased could have been caused only inside the jail which injuries eventually led to his death. That conclusion, in our opinion, does not suffer from any perversity as indeed the circumstances, that have been brought on record, leave hardly any option for the Court except to hold that the injuries were sustained by the deceased only after he was admitted to the jail. That conclusion, in our opinion, does not suffer from any perversity as indeed the circumstances, that have been brought on record, leave hardly any option for the Court except to hold that the injuries were sustained by the deceased only after he was admitted to the jail. The first and the foremost circumstance which we may, in this regard, recall is the fact that the medical examination of the deceased at the time of his admission to the jail on 18th September, 2000 showed only three old wounds on his body with all other parameters reported normal. If that version be correct, as we believe it is, there is no explanation from the respondents as to how the Board of Doctors conducting the postmortem found eighteen injuries on his body. It is not the case of the respondents that the doctors" examination was careless or cursory resulting in as many as eighteen injuries on the body of the deceased being left unnoticed. Even otherwise such a plea would be meaningless having regard to Rule 475 of Chapter 11 of the Jail manual which inter alia provides that if a prisoner is found to have injuries on his body, he has to be examined by a responsible medical officer and if the examination reveals unexplained injuries not already recorded in the medico legal report accompanying the prisoner, a report shall at once be made to the district Magistrate and Suprintendent of Police and arrangements made to get him examined immediately by the Civil Surgeon of the District. In the case of central Jails, the examination has to be by a medical officer attached to the jail who holds a gazetted rank failing which by the Civil Surgeon of the district. In the case of criminal prisoners, the requirement of examination under the general or special orders of the Medical Officer is prescribed under the Rule who is duty bound to enter or cause to be entered in an admission register or book to be kept by the Deputy Superintendent a record of the state of the prisoner"s health and of any wounds or marks on the person etc. The rule may, at this stage, be extracted gainfully. "475. Prisoners to be examined on admission " Whenever a prisoner is admitted into prison, he shall be searched, and all weapons and prohibited articles shall be stakne from him. The rule may, at this stage, be extracted gainfully. "475. Prisoners to be examined on admission " Whenever a prisoner is admitted into prison, he shall be searched, and all weapons and prohibited articles shall be stakne from him. (Section 24 Act IX, 1894 ). (a) When a prisoner with injuries on his body is admitted into a prison form police custody he shall be examined immediately by a responsible Medical officer. If the examination reveals unexplained injuries not already recorded in the medico legal report accompanying the prisoner a report shall at once be made to the District Magistrate and Superintendent of Police and arrangements shall also be made to have him examined immediately by the Civil Surgeon of the district. In the case of Central Jails the examination shall be conducted by the Medical Officer attached to the Jails provided he holds a gazetted rank failing which by the Civil Surgeon on the district. (2) Every criminal prisoner shall also as soon as possible after admission, he examined under the general or special orders of the Medical officer, who shall enter or cause to be entered in a (Admission Register) book, to be kept by the Deputy Superintendent a record of the state of the prisoner's health, and of any wounds or marks on his person, the class of labour he is fit for if sentenced to rigorous imprisonment and any observation which the Medical officer thinks fit to add. (see para 101) (3) In the case of female prisoners the search and examination shall be carried out by the matron under the general or special orders of the Medical officer (Section 24 Act IX, 1894 ). ( 12 ) IT is evident from the above that the purpose underlying the examination of any prisoner admitted to the jail is to look for injuries on his body and to record the state of his health. In case, unexplained injuries are found to exist, the procedure stipulated in the Rules has to be followed by the officers concerned. Suffice it to say that an onerous duty is cast upon a medical officer conducting the examination which includes the duty to examine the prisoner and record the injuries, if any on his person. In case, unexplained injuries are found to exist, the procedure stipulated in the Rules has to be followed by the officers concerned. Suffice it to say that an onerous duty is cast upon a medical officer conducting the examination which includes the duty to examine the prisoner and record the injuries, if any on his person. It is difficult, therefore, to see how the examination by the medical officer of the jail on 18th september, 2000 could be said to be a general or cursory affair as was sought to be argued by Ms. Mukta Gupta on behalf of the respondents. We would, on the contrary, hold that the Medical Officer conducting the examination had found no injuries on his body except three old wounds on 18th September, 2000 when the prisoner first entered the jail. The presence of eighteen injuries on the body of the deceased reported by the medical team conducting the postmortem presents a totally different story, too eloquent to be lightly ignored. The conclusion of the District Judge that these injuries were inflicted while the prisoner was in jail on the night intervening 18th and 19th September, 2000 cannot be said to be wholly irrational or perverse so as to warrant the rejection of the report submitted by him. ( 13 ) THERE is another aspect to which we must, at this stage refer. The inquiry conducted by the SDM under Section 176 of the Cr. P. C. had noticed the following eight injuries as against eighteen found during postmortem examination. i) Abrasion on the right shoulder. ii) Abrasion on the left leg. iii) Injury on left leg ankle. iv) Injury mark on right knee. v) Mark on arm. vi) Multiple scratch mark on nose. vii) Abrasion on back of right elbow. viii) Abrasion on back of right leg. ( 14 ) WHAT is intriguing, is as to how the three old injuries could become eight injuries by the time the SDM concluded his inquiry and eighteen by the time Medical Board conducted the postmortem. No plausible explanation for this discrepancy has been offered by the respondents before the District Judge or in the course of hearing before us. The District Judge has gone to the extent of holding that the deceased was given sedatives in the jail by the diagnoising him as a case of insomania and violent behavior. No plausible explanation for this discrepancy has been offered by the respondents before the District Judge or in the course of hearing before us. The District Judge has gone to the extent of holding that the deceased was given sedatives in the jail by the diagnoising him as a case of insomania and violent behavior. This was, according to him, only to cover up the brutality to which he was subjected in the jail. When his condition deteriorated, he was ordered to be shifted to Deen Dayal Upadhyay hospital where he was declared brought dead. What is noteworthy is that the investigating Officer, investigating the case, had not been able to present an acceptable version of how the injuries were sustained by the deceased. In the totality of the above circumstances, we accept the report made by the District judge that the injuries leading to the death of Late Sh. Hari Om were inflicted upon him while in custody in the Tihar Jail. ( 15 ) THE next question relates to the amount of compensation payable to the petitioner and her children. Relying upon the decision of the Supreme Court in ajab Singh And Anr. Vs. State of U. P. and Anr. 2000 (3) SCC 521 , it was argued by learned counsel for the petitioner that the minimum which the petitioner, in a case of custodial death, would be entitled to is a sum of Rs. 5. 00 lakhs. That was a case where the deceased was earning Rs. 5,000/- per month and had left behind three minor orphans, their mother having pre-deceased their father. According to the petitioner, the deceased in the instant case was earning rs. 4,000/- per month and has left behind a young widow and three minor children to look after. Nothing less than Rs. 5. 00 lakhs could, therefore, meet the ends of justice, argued the learned counsel. ( 16 ) ON behalf of the respondents, it was submitted by Ms. Gupta that there was no evidence regarding the monthly income of the deceased and that the respondents have ex gratia offered to the petitioner a job as a Class-IV employee in the jail in relaxation of the norms regulating such appointments. ( 16 ) ON behalf of the respondents, it was submitted by Ms. Gupta that there was no evidence regarding the monthly income of the deceased and that the respondents have ex gratia offered to the petitioner a job as a Class-IV employee in the jail in relaxation of the norms regulating such appointments. ( 17 ) THE offer of a regular job made to the petitioner-widow appeared to us also to be a more attractive proposition, especially because the petitioner could have a recurring source of income with pensionary benefits to provide for the education of her children. The petitioner was summoned to the Court to verify from her whether she was interested in taking the job with reduced amount of compensation. She came with her children who are in the age group of 5-12 years and her brother but who declined the job offer by the respondents not because the same is not a viable proposition but because of her incapacity to adjust to any job requirement away from her home environs. In the circumstances, therefore, we have no option but to work out a reasonable amount of compensation for the benefit of the affected family. ( 18 ) IN Ajab Singh"s Case, the Supreme Court had awarded Rs. 5. 00 lakhs to the next of kin of the victim who was earning around Rs. 5,00/- per month only. That can, however, be only a broad guideline for this Court to follow. The process by which we arrive at a figure may still have to be based on some objective consideration which we will attempt to enlist in the paras that follow. ( 19 ) IN claims arising out of motor vehicle accidents, the Parliament has now introduced the concept of compensation on no fault basis. While the concept may not be applicable to cases of custodial deaths, we see no reason why the norms on which the amount of compensation is determined can not be borrowed as a guideline for award in such cases. There is a presumptive income of Rs. 18,000/- in all cases where there is no evidence regarding such income. The petitioner was not, however, jobless as he was according to the petitioner earning rs. 4,000/- per month. Even if we were to reduce that amount to Rs. There is a presumptive income of Rs. 18,000/- in all cases where there is no evidence regarding such income. The petitioner was not, however, jobless as he was according to the petitioner earning rs. 4,000/- per month. Even if we were to reduce that amount to Rs. 3,000/- per month and deduct one-third out of the same towards his personal expenditure, the monthly accretion to the family would be in the tune of Rs. 2,000/- per month or rs. 24,000/- per year. The deceased was around 26 year old on the date of his death. A multiple of 16 would take the amount of compensation to Rs. 3,84,000/ -. Addition of a sum of Rs. 16,000/- to that amount towards funeral expenses and loss of consortium would take the amount payable to the petitioner and her children to Rs. 4. 00 lakhs which, in our opinion, would meet the ends of justice subject to any enhancement which the petitioner and her children may claim in private law proceedings, if otherwise entitled against those found responsible for the death. ( 20 ) IN the result, we allow this petition but only in part and to the extent that the respondent, Govt. of NCT of Delhi shall deposit in this Court a sum of Rs. 4. 00 lakhs towards compensation payable to the petitioner and her minor children for the death of late Sh. Hari Om. The Registrar General of this court shall, on receipt of the amount, release in favour of the petitioner-widow a sum of Rs. 50,000/- and invest the balance in a long term deposit for an initial period of 5 years in a bank closer to the place where the petitioner is presently residing. The bank shall have the instructions to release to the petitioner every month the interest accruing on the said amount to be utilized by the petitioner for her sustenance and for the sustenance and education of the three minor children. No costs.