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SMT.SHAHIN KHAN & ANOTHER versus 3RD A.D.J.,KANPUR NAGAR & OTHERS

High Court of Judicature at Allahabad

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Smt.Shahin Khan & Another v. 3rd A.D.J.,Kanpur Nagar & Others - WRIT - C No. 1016 of 1995 [1999] RD-AH 28 (27 May 1999)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                       Reserved

Criminal Writ Petition No. 1016 Of 1995

People's Union For Civil Liberties, Uttar Pradesh

                       .........Petitioners

Versus

State of U.P. & others...................Respondents

Present : Hon'ble Mr. Justice Binod Kumar Roy

         Hon'ble Mr. Justice Yatindra Singh

(DELIVERED BY HON'BLE YATINDRA SINGH, J.)

FACTS

1. Lalji Keswarni (the deceased for short) was accused of murdering two persons. One- his own nephew. The other- maternal uncle of the killed nephew. The deceased was arrested. According to family members on the night of 10/11 September, 1995; tortured; beaten in police custody to death on 16th September,  1995. This was reported in the newspapers. It is then the People's Union for Civil Liberties, Uttar Pradesh1 (PUCL in short) has filed the present writ petition. It has annexed those in newspaper reports and has on its basis made allegations. It was prayed that

CBI may investigate the case

Action be taken against erring police officers

And compensation may be awarded to the next kin of the deceased.

2. The State has filed a counter affidavit. They admit the arrest but dispute the time. They say he was arrested on the 11th September, 95 in the afternoon. They admit that he died in the police custody but deny any torture. They admit injuries; they have to. It is so mentioned in the post mortem report. But say injuries are neither cause of the death nor were they caused by police torture. They claim it was not an unnatural death. Considering this a Division Bench of this Court by its order dated 15.05.19972 directed the District Judge, Allahabad to conduct a detailed judicial inquiry by himself or by other Additional District Judge nominated by him.

JUDICIAL INQUIRY AND THE EVIDENCE

3. Sri B.K. Rathi, the then District Judge, Allahabad (now a Judge of this Court) has conducted the inquiry. Sri B.K. Rathi examined

Smt. Kamlesh (PW-1) and Km. Anita (PW-2). They are widow and daughter of the deceased. They have stated that deceased was arrested in the night of 10/11 September 1995 and was beaten by boots and the rods. He died because of the torture.

Sri Udaiveer Singh DW-1, Sri Vijai Kumar Mehrotra DW-3 (Inspector P.S. Naini and Sr. Sub Inspector at the relevant time). They have stated that they were present at the time of the arrest. The deceased received injuries during his arrest and was not tortured.

Sri Ram Bahadur Singh DW-2, Sri Sanjai Singh DW-4 (Head constable, P.S. Naini and Constable P.S. Naini at the relevant time). They have stated that the deceased was arrested on the afternoon of 11th September 1995 and entries in the record were made. He was not tortured in the police lock up.

Dr. Basant Kumar Mehrotra DW-6 Medical Officer PHC, Chaka, Allahabad). (He examined the deceased on 12th September 1995.) He says the deceased was in his senses. There was no injury on the vital part and was referred to the medical college.

Dr. O.P. Vishkarma DW-5 (Medical Officer, Moti Lal Nehru Medical College, Allahabad. He conducted the post mortem.) He has stated that there was no internal injury. The reason of death could not be ascertained, but it appears that he died due to choking of windpipe by coffee coloured liquid. This liquid could be due to excessive drinking.

Sri Phool Chand (DW-7) Sri Vijai Shankar DW-8 & Sri Ram Lakhan DW-9. (These persons were lodged in the police lock up on the same day with the deceased.) They stated that the police did not beat the deceased.

Sri Ram Chandra Keswarni DW-10, Sri Subhash Chandra DW-11 and Sri Bhola Nath DW-15. (They are neighbours of the deceased.) They have stated that the deceased used to consume alcohol and Gaanja. They had met the deceased in the police lock up. He never complained of police torture.  

Sri B.B.Dubey DW-12. (The owner of the tea stall where the deceased was arrested). Baccha lal DW-13 and Sri Daya Shankar Shukla DW-14 (The independent witnesses at the time of arrest.) They have stated that the deceased was arrested in the afternoon of 11 September 1995. He was resisting his arrest and sustained injuries during his arrest.

Sri Rathi also summoned.

Bed head ticket of the deceased (Paper No.10 Kha).

Post-mortem report (paper No. 30 Kha). It was mentioned that cause of death could not be ascertained.

Injury-report (Paper No. 28 Kha).

And Viscera inspection report (paper No. 31 Kha). It was mentioned that there was no poison.  

The relevant GD, F.I.R and other documents.

Sri Rathi in his detailed inquiry report dated 27.09.1997, has held

"The medical evidence alongwith statement of PWs, which I have already referred to show that there was no custodial torture and the victim did not die due to custodial torture...

In this case it does not show that the death of Lalji Keswarni is unnatural...  

The evidence on record shows that it was a natural death."

PETITIONER'S SUBMISSIONS

Sri Ravi Kiran Jain3, Sr. Advocate assisted by Sri K.K. Roy has cited the provisions of police regulations4 and Rulings5 .He has also filed an objection against inquiry report. According to him

The District Judge has misconstrued the scope of the inquiry. There were no two versions.  

In case a person dies in the police custody the burden was upon the State to show that there was no torture and it was not unnatural death. This burden has not been discharged by the State.

OUR FINDINGS

The District Judge has not misconstrued the scope of the inquiry. This is how this Court had put in its order dated 15.05.1997 (quoted in the footnote no.2). The District Judge has merely given the both contentions and has tried to find the truth. He has summoned the relevant papers and examined persons as directed by the order dated 15.05.1997. The inquiry can not be set aside on this ground.

True, if a person dies in the police custody then the burden is upon the State to prove that he did not die due to torture or its negligence. It is for the state to explain the circumstances6. Whether in this case the state has done so or not, is the question before us. The District Judge has negatived the same.  Considering the submissions and the objection filed by Sri Ravi Kiran Jain, we have looked into the entire records7 ourselves. Particularly the post-mortem report (paper no. 30 kha) and also the statement of Dr. OP Vishwarkma, (DW-5) Medical Officer, Motilal Nehru Medical College, Allahabad and Dr. BK Mehrotra, (DW-6) Medical Officer, PHC, Chaka, Allahabad. We have already summarised the relevant part of the document as well as statement of the witnesses. In view of the fact that

No poison was found in the body of the deceased (Viscera inspection report. Paper 31 Kha). Neither there was injury on the vital part (Statement of Dr. Basant Kumar Mehrotra PW-6) nor there was any internal injury, which could have caused the death. (Statement of Dr. O.P. Vishwakarma PW-5).

And boots, as was alleged by Smt. Kamlesh the widow (PW-1) and Km. Anita, daughter (PW-2) could not cause the injuries (Statement of Dr. Basant Kumar Mehtorta DW-6):

And the opinion of Dr. OP Vishwakarma DW-5 that the death could be due to choking of the windpipe because of coffee colour liquid8 and the coffee coloured liquid could be due to excessive liquor:

And the deceased used to consume liquor and Ganja (proved by the statement of, Ram Lakhan DW-9, Ram Chandra Keswarni DW-10, and Subhash Chandra, DW-11):

And the police in view of section 46(2) of Criminal Procedure Code could have and did use sufficient means to effect the arrest.

And the injuries9 on deceased were such that could be caused during his arrest10 on the afternoon of 11.09.199511.

And injuries were caused to the deceased during arrest  (proved by the statement of, Sri BB Dubey, DW-12, Bacha Lal DW-13 and Daya Shankar Shukla DW-14).

We had also come to the same conclusion as that of the inquiry officer that the deceased did not die due to torture in the police custody. The State has discharged the burden. It has explained the circumstances. We approve the inquiry report dt. 27.09.1997.

CONCLUSION

We dismiss the writ petition but without any order as to costs.

Dated :27.05.1999

SKS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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