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Thane cops told to compensate victim of third-degree

The Thane district and sessions judge P V Kakade held the Thane police, jail authorities and medical officers responsible for the death of a youth and ordered compensation of Rs 100,000 to the bereaved family.

In an enquiry conducted by the district court, the judge also called suggested stringent actions against erring policemen, jail and medical authorities and said that not only should the officers and staff be placed under suspension but that the compensation amount should be recovered from them.

Policemen from the Naupada police station had picked up Jitendra Tiwari, youngest of three sons of a city vegetable vendor, in December. While in custody he developed complications and died soon after admission to the J J Hospital.

Tiwari's mother, Vimladevi Tiwari, filed a petition in the high court and Justice A V Savant and Justice T K Chandrashekhar Das held Assistant Commissioner of Police A S Deshabrater was responsible for the unauthorised and illegal detention of the victim. The court ordered the government of Maharashtra and the police officer to pay Rs 10,000 to the victim's mother as compensation and to pay the cost of the petition.

As regards the cause of death, the high court directed the Thane district court to hold a judicial enquiry into the circumstances and the cause of death of the victim. It also directed that if any officials were found guilty of omission resulting in the death of the victim, the lower court could determine and order compensation to the petitioner.

Vimladevi Tiwari told the court that on December 5,1997 at about 11.30 am, while she and Jitendra were selling vegetables from their handcart, two police constables came up and called him away for interrogation in connection with some quarrel near her house a few days ago.

In her petition, she said she tried to meet her son at the police station. But the policemen at various police stations refused to reveal his whereabouts. Then on December 23, 1997, at about 3 pm, a policeman sent a message that her son was very serious and admitted to the J J hospital. She also received a telegram on the same day from the superintendent of Thane central jail, informing her that her son was seriously ill and had been admitted to the J J Hospital at Bombay.

According to her, Jitendra was hale and hearty and had no disease or trouble whatsoever when he was taken away by the police. She said she went to the J J Hospital, and found she couldn't even communicate with her son, who was bordering on unconsciousness. He died on December 25, 1997.

In her petition, Vimladevi claimed the death of her son may have occurred due to physical violence visited upon him in the respondents' custody. Therefore, she wanted the court to treat this as a case of custodial death.

She said that since her son was in the automobile painting business, earning around Rs 3,000-4,000 per month, she was entitled to a compensation of Rs 250,000 from the respondents.

Admitting the writ petition, the Bombay high court held that Tiwari's detention was illegal and that the responsibility of illegal detention fell on respondent ACP Deshbrathar, who was working as the executive magistrate at the relevant time. It ordered the state of Maharashtra and the ACP to jointly pay the compensation of Rs 100,000 to the petitioner along with the cost of the petition.

The records showed that police constables Naik Kaloge, and Patil had taken the victim into custody, that head constable More of the Naupada police station was the investigating officer and that sub-inspectors Geete, Borate and Ghadge, were in charge of the police station at the relevant time.

The medical evidence in the case consisted of material from five doctors -- Dr Baviskar, head of the Thane central jail hospital, Dr Phatak, the jail medical officer who initially treated the victim, Dr Vaze, the Thane civil hospital medical officer who referred him to J J Hospital, Dr Joglekar, who treated the victim till his death, and Dr Ghadge who performed the post-mortem.

The judge, in his judgement, held that the evidence had sufficiently established the cause and circumstances leading to Jitendra's death in custody. It also held that it has been proved that death was due to ill-treatment, assault and subsequent neglect of his health.

The judge said that on December 6, 1997 the victim had been taken out of the lock up around noon to be produced before the executive magistrate, but was actually produced before the magistrate only at 3.45 pm, that all procedural requirements under the relevant provisions of the CrPC had been completed within a short span of about two hours and he was sent to prison at 5.40 pm. The date of his case and period of remand was fixed till December 18, 1997.

In his judgement, the judge observed that the victim was produced before the executive magistrate at about 3.45 hrs, several hours after the remand of 24 hours was over. The reason given was that no constable was available to take him to the court since it was the Babri Masjid demolition anniversary. The policemen were all out, it was stated, to ensure nothing untoward happened on the day the masjid in Ayodhya was razed.

Nobody knows, nor there is any evidence on record as to what happened on December 18, 1997, but the fact remains the Jitendra Tiwari was not produced before the court on that day nor was he taken out of jail on that day.

Jitendra Tiwari continued to be in incarcerated without legal authority and, on December 21, 1997, he was taken to the jail hospital after other prisoners said he was complaining of giddiness. The jail's medical officers concluded he was suffering from convulsions and gave him anti-convulsants. They also concluded he suffered from epilepsy since he had Gardinal tablets in his pocket. When his condition became serious, he was taken to the civic hospital.

The medical officer there examined the victim but did not admit him on the grounds that there was no accommodation there for prisoners.

In his judgement, the judge observed that the cause of Jitendra Tiwari's death was found to be pyogenic meningitis.

He said that the evidence of all the concerned doctors who were government servants, except for Dr Joglekar of J J Hospital, clearly reflected the biased, prejudicial and callous attitude towards the patient because he was a prisoner.

The judge further said Dr Joglekar had suggested that the convulsions were due to meningitis. Further, the doctor had stated, that the fracture of Jitendra's bones could have occurred due to the impact of a hard and blunt object.

"I must note here that obviously there is no direct evidence available for us to pinpoint the time or person who assaulted Jitendra Tiwari," the judge stated. "This is plainly due to the reason that no police(man) would come forward to speak against the brotherhood. And therefore, we have to rely upon legal inferences that could be drawn on the basis of circumstances on record."

The judge observed that the Naupada police officers had done their best to cover up for the guilty and even fabricated documents to shield the culprits. However, there was still evidence on record that several acts of commission and omission were committed by the respondents, and that Jitendra Tiwari was assaulted in police custody, resulting in fracture of his nasal bone, which subsequently became infected, resulting in the meningitis that led to his death.

The admissions of the witnesses as well as records of the concerned departments also revealed several acts of omission on the part of the respondents which prevented timely treatment that could have avoided the victim's death.

The first and foremost culpable omission on the part of the Naupada police was in not informing the family of Jitendra Tiwari of his arrest till the time he was taken seriously ill and shifted to J J Hospital on December 21. Even then, only a telegram had been sent, the police station itself took no action. The material time was from the time of arrest of Jitendra Tiwari on December 5 till his judicial custody on the evening of December 6.

Every police officer has tried to shift his responsibility to someone else, even lying under oath that they had informed the family of Jitendra Tiwari about the details of his arrest and his whereabouts.

The court observed there is no record to show that family members had been informed, or that they were present in the court on December 6.

Also there was affidavit before the high court of any constable who went to the house of Jitendra Tiwari and informed them. Despite full opportunity being given, the Naupada police could produce no such evidence. In fact, the officers had even made a false entry in the station diary at a time that PSI Geete was the station house officer.

Below entry No 21 regarding Jitendra Tiwari, there was an addition in small lettering stating that his mother had been informed of his arrest in person. The other entries had a gap between them, the judge noted.

"Due to the obviously doubtful nature of this entry, I called upon the original station diary for my perusal. It clearly shows that... these contents were written subsequently in the said entry," the judge said.

"Therefore, I have impounded the original station diary which is part of this record."

Nobody was ready to speak on oath that the petitioner, mother of Jitendra Tiwari had come to the police station at any time. There is no document on record to show conclusively and authentically that the mother was contacted at any time on December 5 or 6, 1997, he said.

"In my considered view, the police deliberately avoided informing the whereabouts of Jitendra Tiwari to his family members on December 5 and 6, obviously because he was given third degree treatment, was assaulted mercilessly, and that could have given ground for the petitioner to make complaint at this stage.

It may further be noted that had there been any information of whereabouts of Jitendra Tiwari to his family member, they could have arranged for bail and subsequent medical treatment, which ultimately could have saved his life," judge Kakade said.

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