Mohammad Yasin vs State (N.C.T. Of Delhi) & Ors

at 1.30 pm on 4.8.1999 and he was taken to the ESI 5

Hospital at 3.10 pm on the same day where he was

declared brought dead.

9. The appellant relied on the directions given by this

court in D.K. Basu v. State of West Bengal (1997) 1

SCC 416 and submitted that the respondents had

violated these directions. In Basu's case, the court

observed that "the custodial death is perhaps one of the

worst crime in a civilized society governed by the rule of

law. The rights inherent in Articles 21 and 22(1) of the

Constitution require to be jealously and scrupulously

protected. Expression of life or personal liberty in Article

21 includes right to live with human dignity and thus it

would include within itself a guarantee against torture

and assault by the States or by its functionaries".

10. The instant case pertains to the custodial death.

This court examines such cases with extreme care and

cautions. Despite the fact that the matter has been

examined by the High Court, this court also issued notice

to the respondents and examined the matter de novo.

Pursuant to the notice of this court, T.N. Mohan, DCP

(HQ) in the office of Commissioner of Police, I.P. Estate, 6

New Delhi filed an affidavit. In the affidavit, it is

mentioned that the deceased was a proclaimed offender

and a bad character of the police station Okhla Industrial

Area, Phase-I and was wanted by police in as many as

nine cases, the details of which are as under:

1. FIR No.783/97 under Sections 407/379/411/120 IPC, PS Okhla Industrial Area.

2. FIR No.798/97 under Sections 407/379/411/120 IPC, PS Okhla Industrial Area.

3. FIR No.804/97 under Sections 407/379/411/120 IPC, PS Okhla Industrial Area.

4. FIR No.805/97 under Sections 407/379/411/120 IPC, PS Okhla Industrial Area.

5. FIR No.828/97 under Sections 407/379/411/120 IPC, PS Okhla Industrial Area.

6. FIR No.818/98 under Sections 407/379/411/120 IPC, PS Okhla Industrial Area.

7. FIR No.855/97 under Section 380 IPC, PS Okhla Industrial Area.

8. FIR No.947/98 under Section 380 IPC, PS Okhla Industrial Area.

9. FIR No.33/99 under Sections 380/411 IPC, PS Okhla Industrial Area.

7 11. It is mentioned in the counter affidavit that after

receiving the information, it was decided to send a police

party from Delhi to the district Gurgaon for the arrest of

Mohd. Yunus @ Anees and in this connection a team was

constituted and the necessary permission to go out of

Delhi was obtained from the Additional Deputy

Commissioner of Police, South Delhi. After taking

required necessary permission, the police went to

Gurgaon. It is submitted that, apart from being involved

in a large number of criminal cases, Mohd. Yunus @

Anees was a proclaimed offender, bad character of

Bundle `A" and a desperate criminal. Mohd. Yunus was

arrested at about 1.30 pm on 4.8.1999 with the help of

Afroz. Mohd. Yunus struggled to set himself free and

while running away he fell down and sustained two

bruises. The dimensions of the injuries are as under:

"(i) Abraded bruise of 1.4 x 1 cm over (L) side face below eye 1 cm.

(ii) Abraded bruise 3 x 2 cm over front part of chin below lip."

8 Mohd. Yunus was however, overpowered and

apprehended. When the van crossed Haryana-Delhi

Border, he complained of uneasiness and discomfort,

therefore, he was immediately rushed to the nearest ESI

Hospital where he was declared brought dead.

12. In the counter affidavit, it is mentioned that despite

the admitted position that the deceased Mohd. Yunus

had a past history of heart ailments, the appellant has

deliberately suppressed this information from the court

and on the contrary it was asserted that the deceased

was completely hale and hearty. It is further submitted

that the appellant has made a statement before the Sub-

Divisional Magistrate wherein in no uncertain terms he

stated as under:

"Yunus got heart attack about eight months back and bye-pass surgery was performed. At that time, I was at Mumbai. This bye-pass surgery was arranged by Afroz. This was told to me over telephone, in Mumbai, by Afroz seven to eight months before."

13. It is mentioned in the counter affidavit that

directions issued by this court in D.K. Basu (supra) have

been followed in true spirits. It is also mentioned that 9

according to the opinion of doctors, a normal heart

weighs around 240-300 grams whereas the heart of the

deceased was 460 grams and had the high risk of sudden

death with or without provocation. Such a grossly

enlarged and overweight heart does not happen in a day

or two but it will take at least 5 to 10 years which in itself

indicates a long heart ailment which is supported both by

the medical evidence as well as the categorical statement

of the appellant himself.

14. It is also stated that the distance between the place

of arrest and the ESI hospital is 96 kms. One and half

hour driving time is absolutely normal, therefore, the

allegation that the delay of one and half hour shows that

the deceased was first taken to some place where he was

tortured and injuries inflicted due to which he died, is

not only false but preposterous.

15. We have heard the learned counsel for the parties at

length and perused all relevant documents in detail.

Mohd. Yunus died in the police custody. The Sub-

Divisional Magistrate has made a comprehensive inquiry.

In the inquiry report, it is mentioned that he reached at 10

the All India Institute of Medial Sciences (AIIMS)

mortuary around 11.30 pm in the night of 4.8.1999 and

inspected the dead body of the deceased Yunus @ Anees.

The Station House Officer, Police Station Okhla

Industrial Area was also present. Two superficial injuries

were found on the dead body. According to the Board of

Doctors, both the said injuries were simple in nature.

16. It was submitted that immediately after the

incident, on 5.8.1999 at 10.00 am, the information was

sent to the Chairman, National Human Rights

Commission and the copies of the same were sent to the

District Magistrate, Delhi and the Deputy Commissioner

(South) regarding the custodial death. On the same day

a Board of Doctors was constituted for the postmortem,

which comprised the following doctors:

Dr. O.P. Murti, Associate Professor, Department of Forensic Medicine and Toxicology, All India Institute of Medical Sciences (AIIMS).

Dr. D.N. Bhardwaj, Assistant Professor, Forensic Medicine and Toxicology, All India Institute of Medical Sciences (AIIMS). Dr. Alexander Khaka, Specialist for Medicines, Safdarjung Hospital.

11 17. The statements of the relatives of the deceased were

recorded. The statements of a large number of police

official were also recorded. The Board of Doctors in their

final report observed as under:

"To the best of our knowledge and belief we are of considered opinion - Death in this case was due to ventricular arrhythmias consequent to old compromised heart in a person having hypertrophied heart (460 gms.) myocardial fibrosis and atherosclerosis of coronaries. A person having heart weight of 460 gms.

myocardial fibrosis and coronary atherosclerosis have high risk of sudden death with or without provocation."

18. The Sub-Divisional Magistrate after comprehensive

inquiry arrived at the following conclusion:

"After perusal of the entire evidence on record, along with the opinion of the experts (Board of Doctors), the following points were come to the notice.

Anees @ Yunus was a registered Bad Character of Bundle `A' (the register which is maintained for the persons who are under constant and active surveillance) of police station P.S. Okhla Industrial Area wanted in as many as 10 cases. He was declared proclaimed offender by the court of law.

The police team, who brought the deceased from district Gurgaon to Delhi after arresting him were quite bonafide in their action and performed lawful duties arresting the deceased. They had observed all the 12

norms/legal formalities before proceeding out station duty.

The death of Anees @ Yunus had occurred in natural course as per the report of the panel of doctors.

The deceased was having a past history of heart ailment consequent to old compromised heart in a person having hypertrophied heart (460 grams) myocardial fibrosis atherosclerosis of coronaries.

The admission of the deceased in ESI Hospital after he fell unconscious near Badarpur border clearly indicates the sincere efforts of the police team who got him admitted without any loss of time in the nearest possible hospital in order to save his life.

Now the only question is, how the injuries were inflicted on the body of the deceased (Anees @ Yunus) needs explanation. In this regard the panel of doctors who had conducted the postmortem was examined separately and the police team and eye- witnesses. Afroz was also put to cross- examination about the infliction of the injuries. The cause of injuries were explained by them that the accused put resistance at the time of his arrest and in the process the injuries were inflicted which are not willingly, were not sufficient to cause death.

In the light of above, I am of the considered opinion that Anees @ Yunus died due to heart ailment which is explained by doctors in details and categorically opined that the deceased had high risk of sudden death with or without provocation and thus a natural death. I don't find any of the police officer of the team individually or collectively responsible in the death of the deceased Anees @ Yunus and none of them is found guilty."

13 19. It is indeed unfortunate that the deceased died in

the police custody. We have carefully examined this case

from every angle particularly from the angle of his past

criminal record. The police and/or investigating agencies

cannot torture any criminal despite his bad criminal

record.

20. In our considered view, in this case, the

respondents have not violated the directions given by this

court in D.K. Basu's case (supra).

21. The Board of three Doctors gave clear and

categorical finding that the cause of death was due to

ventricular arrhythmias consequent to old compromised

heart in a person having hypertrophied heart (460 gms)

myocardial fibrosis and atherosclerosis of coronaries. A

person having heart weight of 460 gms. myocardial

fibrosis and coronary atherosclerosis has high risk of

sudden death with or without provocation.

22. The Board of Doctors further examined the injuries

and came to the conclusion that all injuries present over

the body were antemortem, recent in duration and were 14

caused by blunt force. All injuries were simple in nature

and were insufficient to cause death individually as well

as collectively in ordinary course of nature.

23. In the instant case, the deceased was arrested at

1.30 pm on 4.8.1999 and he was taken to the ESI

hospital at 3.10 pm on the same day where he was

declared brought dead. The distance between the place

from where the accused was arrested and the ESI

Hospital is about 96 kms., therefore, it seems that from

the point of arrest till the ESI hospital, the deceased was

travelling in the car all the time and on complaint of

uneasiness he was taken to the ESI hospital. We have

carefully examined the matter in great detail and with

extreme care.

24. In view of the report of the Board of Doctors and the

Sub-Divisional Magistrate inquiry, it is difficult to reach

at any other conclusion except that Mohd. Yunus had

died because of his serious heart disease. 15

25. In the facts and circumstances of the case, no

interference is called for. This appeal is accordingly

dismissed.

........................................J. (Dalveer Bhandari)

.........................................J. (Dr. Mukundakam Sharma) New Delhi;

July 30, 2009.