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IN THE HIGH COURT OF DELHI AT NEW DELHI
S. MURALIDHAR, I.S. MEHTA, JJ.
AVINASH KUMAR - Appellant
Versus
STATE - Respondent
CRL.A. 74, 88, 89, 91, 106, 118 of 2001 & CRL.M.A. No. 2013 of 2001
Decided on : 14-12-2017
The case involves the custodial violence and death of Dalip Chakraborty in 1995. Six policemen belonging to the Special Staff (North-east) of the Delhi Police were convicted for the murder of Dalip Chakraborty. The accused appealed against their conviction. The court examined the medical evidence, the testimonies of eye-witnesses, and the arguments presented by the defense. The court held that the head injury suffered by the deceased was sufficient to cause his death and rejected the defense's argument that the death was due to hypertension. The court also found that the testimonies of the eye-witnesses were reliable and corroborated each other. The court rejected the defense's argument that the accused were falsely implicated. The court held that the accused shared a common intention to commit the offenses and convicted them under Section 34 IPC. However, the court converted the conviction for murder under Section 302/34 IPC to culpable homicide not amounting to murder under Section 304 Part II read with Section 34 IPC since the evidence did not precisely point out which of the accused caused the fatal injuries. The court sentenced each of the Appellants to eight years rigorous imprisonment for the offense under Section 304 Part II IPC and declined to interfere with the sentences and punishments for the other offenses.
Fact of the Case:
Six policemen belonging to the Special Staff (North-east) of the Delhi Police were convicted for the murder of Dalip Chakraborty in 1995. The accused appealed against their conviction.
Finding of the Court:
The court held that the head injury suffered by the deceased was sufficient to cause his death and rejected the defense's argument that the death was due to hypertension. The court also found that the testimonies of the eye-witnesses were reliable and corroborated each other. The court rejected the defense's argument that the accused were falsely implicated. The court held that the accused shared a common intention to commit the offenses and convicted them under Section 34 IPC. However, the court converted the conviction for murder under Section 302/34 IPC to culpable homicide not amounting to murder under Section 304 Part II read with Section 34 IPC since the evidence did not precisely point out which of the accused caused the fatal injuries.
Issues: 1. Whether the head injury suffered by the deceased was sufficient to cause his death? 2. Whether the testimonies of the eye-witnesses were reliable? 3. Whether the accused were falsely implicated? 4. Whether the accused shared a common intention to commit the offenses?
Ratio Decidendi: 1. The court relied on the medical evidence, including the post-mortem report and the testimony of Dr. R.K. Sharma, to conclude that the head injury suffered by the deceased was sufficient to cause his death. The court rejected the defense's argument that the death was due to hypertension, finding that there was no evidence to support this claim. 2. The court found that the testimonies of the eye-witnesses, PW-33 and PW-34, were reliable and corroborated each other. The court noted that the witnesses were consistent in their statements and that their evidence was supported by other evidence, such as the medical evidence and the identification of the accused by the witnesses. 3. The court rejected the defense's argument that the accused were falsely implicated, finding that there was no evidence to support this claim. The court noted that the accused were identified by the eye-witnesses and that there was no evidence of any motive for the witnesses to falsely implicate the accused. 4. The court held that the accused shared a common intention to commit the offenses, based on the evidence that they were all members of the Special Staff (North-east) of the Delhi Police, that they were all present at the scene of the crime, and that they all participated in the assault on the deceased.
Final Decision: The court convicted the accused of culpable homicide not amounting to murder under Section 304 Part II read with Section 34 IPC and sentenced each of them to eight years rigorous imprisonment. The court declined to interfere with the sentences and punishments for the other offenses.
S. Muralidhar, J
Introduction
1.1 Six policemen belonging to the Special Staff (North-east) of the Delhi Police are appealing against their conviction for the murder of Dalip Chakraborty in 1995. He died on 8th August 1995 as a result of the injuries inflicted upon him by the Appellants while he was in their custody on the 30th and 31st July 1995.
1.2 More than two decades ago, the Supreme Court dealt with the issue of custodial violence in all its manifestations. In D.K. Basu v. State of West Bengal (1997) 1 SCC 416 detailed binding guidelines were laid down with a view to preventing instances of custodial violence, which had witnessed a marked increase over the years. The judgment of Dr Justice A. S. Anand (as the learned Judge then was) acknowledged at the outset that:
“Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society."
1.3 In the two decades since, the number of instances of custodial violence and custodial deaths in particular has not shown a decline. In its 113th Report regarding "injuries in police custody", the Law Commission of India (LCI) suggested incorporation of Section 114-B in the Indian Evidence Act, 1872 (lEA). In its 152nd Report in 1994 on 'Custodial Crimes', the LCI dealt with the issues of arrest and abuse of authority by the officials. It referred to the various statutory and Constitutional provisions. Inter alia, in the said report the LCI recommended an amendment to the Indian Penal Code 1860 (IPC), by inserting a new provision for punishing the violation of Section 160 Cr PC. The LCI further recommended inserting sub-section (lA) in Section 41 of the Cr PC for recording the reasons for arrest and Section 50A to mandate relatives being informed of the arrest.
1.4 In its 177th Report in 2001 on the 'Law relating to arrest', the LCI recommended inserting Section 55 A in the Cr PC that would mandate the person "having the custody of an accused to take reasonable care of the health and safety of the accused." The LCI's 185th Report in 2003 was a review of the lEA. There the LCI took note of the decision of the Supreme Court in State of M.P. V. Shyam Sunder Trivedi (1995) 4 SCC 262, where it was observed that deaths in police custody were the "worst kind of crimes in civilized society, governed by rule of law. Men in 'khaki' are not above the law." The Supreme Court in that case further observed:
"Keeping in view the dehumanising aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don't, we hope that the Government and legislature would give serious thought to the recommendation of the Law Commission and bring about appropriate changes in the law...."
1.5 Recently in October 2017 the LCI submitted its 273rd Report on Implementation of 'United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment' through Legislation. it devoted an entire chapter to 'Compensation for custodial torture/death' and after extensively reviewing the case law, concluded that the defence of sovereign immunity is not available to the officials of the enforcement machinery of the state to avoid liability for custodial torture and deaths. It reiterated the recommendation in its 113th and 152nd Reports that Section 114B be inserted in the
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