PETITIONER: GAURI SHANKER SHARMA ETC. Vs. RESPONDENT: STATE OF U.P. ETC. DATE OF JUDGMENT12/01/1990 BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) FATHIMA BEEVI, M. (J) CITATION: 1990 AIR 709 1990 SCR (1) 29 1990 SCC Supl. 656 JT 1990 (1) 6 1990 SCALE (1)9 ACT: Indian Penal Code: Sections 201, 218, 304 and 330-- Death in police custody--To be seriously viewed by the Court. HEADNOTE: Three police personnel were charged with offences aris- ing out of the death of one Ram Dhiraj Tiwari in police custody. Rafiuddin Khan (accused No. 1) was the Sub Inspec- tor of Police Station Kure Bhar, Shamsher Ali (accused No. 2) was a Beat Constable, and Gauri Shankar Sharma (accused No. 3) was the Head Moharrir. The prosecution version was that AI directed A2 and two police chowkidars, to apprehend Ram Dhiraj, deceased, who was a suspect in a dacoity case. Pursuant thereto, Ram Dhiraj was arrested from his residence on 19.10.1971 at about 11.00 a.m. and brought to the police station. The prosecution case against A1 was that he was responsible for having beaten the suspect Ram Dhiraj in the presence of two other constables, whose identity was not established, which resulted in as many as 28 injuries to which he ultimately succumbed. It was also alleged that A1 had demanded a bribe of Rs.2000 to desist from meeting out third degree punish- ment to the suspect. The case against A3 was that he delib- erately and wilfully posted false entries in the General Diary to help A1. The defence version on the other hand was that the deceased was arrested on 20.10.1971 by A2 and his companions from near a culvert in the village and he was beaten up by them as he resisted arrest. The Trial Court accepted the prosecution version and convicted A1 under section 304 (Part II) section 330, sec- tions 201 and 218/34 and 161, IPC, and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. Accused No. 2 was acquitted of all charges. Accused No. 3 was convicted under sections 201 and 218, IPC. The High Court, however, accepted the defence version that A1 was not at the police station on 19.10.1971 till 7.30 p.m. The High Court found that the three prosecution witnesses were not eye witnesses 29 30 to the incident and hence their story about beating in the police station and the demand of bribe could not be accept- ed. The High Court accepted the evidence of DW 1, Jaswant Singh, Station Officer, Machilishahr Police Station, who claimed to have come to Kure Bhar Police Station on 19.10.1971 for investigation of another offence. According to DW 1, AI was not at the police station till about 7.30 p.m. While dismissing the appeal filed by accused No. 3, and allowing the State appeal against the acquittal of accused No. 1, and restoring his conviction recorded by the trial court by setting aside his acquittal by the High Court, this Court, HELD: (1) Both the courts have recorded a concurrent finding of fact that the deceased was arrested on 19.10.1971 at about 11.00 a.m. from his village Khajapur. That means that the entry in the general diary that the deceased was arrested on 20.10.1971 and was brought to the police station later can be brushed aside as false. The need to make a false entry speaks for itself. [36E-F] (2) It is true that PW 5 and PW 8 were the brother-in- law of the deceased and PW 10 his neighbour, but that by itself, without anything more, was not sufficient to doubt their tastimony which receives corroboration from medical evidence. Unless there are sound grounds to reject their evidence it would not be proper to brush aside their evi- dence on the specious plea that they are interested witness- es. [37F-G] (3) It is difficult to understand how the learned Judge could persuade himself to accept the evidence of DW 1 on the specious plea that if he did not tell the truth he ran the risk of losing his job. The High Court should have realised that cases are not unknown where police officers have given inaccurate accounts to secure a conviction or to help out a colleague from a tight situation of his creation. [41B] (4) The High Court should have realised that it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for re- sorting to third degree methods since they are in charge of police station records which they do not find difficult to manipulate as in this case. It is only in a few cases, such as the present one, that some direct evidence is available. [41F-G] (5) After carefully considering the reasons given by the High Court for setting aside the conviction of AI, this Court is satisfied beyond any manner of doubt that the High Court had completely misdi- 31 rected itself and hence interference by this Court under Article 136 of the Constitution, was justified. [42A-B] (6) The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authori- ty to brutally assault persons in his custody. Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency. This Court does not think it would be justified in reducing the punishment imposed by the trial court. [42D-E] JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 111
and 477 of 1979.
From the Judgment and Order dated 19.4.1978 of the
Allahabad High Court in Criminal Appeal No. 661 of 1975.
N.P. Midha and B.D. Sharma for the Appellant in Crl. A.
No. 111 of 1979.
Prithvi Raj, Prashant Choudhary and D. Bhandari for the
Respondent in Crl. A. No. 111 of 1979 and Appellant in Crl.
A. No. 477 of 1979.
M. Qamaruddin and Mrs. M. Qamaruddin for the Respondent
in Crl. A. No. 477 of 1979.
The Judgment of the Court was delivered by
AHMADI, J. In Criminal Case No. 3 of 1975, three persons
were put up for trial before the learned Special Judge,
Sultanpur (U.P.). The case arose out of the death of one Ram
Dhiraj Tiwari in police custody. Accused No. 1 Rafiuddin
Khan (Respondent in Criminal Appeal No. 477 of 1979) was the
Sub-Inspector of Police Station Kure Bhar in District Sul-
tanpur at all material times during the commission of the
crime. Accused No. 2 Shamsher Ali (since acquitted) was
posted at the said police station as Beat Constable No. 3.
His companion Accused No. 3 (Appellant in Criminal Appeal
No. 111 of 1979) was the Head Moharrir of the said police
station. Crime No. 71 of 1971 under Section 395, IPC was
registered at the said police station on 25.5. 1971 concern-
ing a dacoity committed at Village Khara within
32
the jurisdiction of the said police station. In that connec-
tion one Jagdamba was arrested on 20.9.1971. During interro-
gation by AI the said suspect is alleged to have made.a
confessional statement involving Ram Dhiraj Tiwari. On the
basis of this information A 1 directed A2 and Ram Jas (PW 6)
and Harakh, both police chowkidars, to apprehend Ram Dhiraj
and produce him before him. Pursuant thereto A2 and his
companions apprehended Ram Dhiraj from his residence in
village Khajapur on 19.10.1971 at about 11.00 a.m. in the
presence of his mother Kamaraji (PW 7), sister’s husband Ram
Niranjan Misra (PW 8) and labourer Jiyalal (PW 9). After his
arrest Ram Dhiraj was brought to police station Kure Bhar at
about 4.00 p.m. on the same day and handed over to A1. PW 8
and Ram Baran Dubey (PW 10) are stated to have followed him
to the police station. It is alleged that soon charge of A1,
he was given a severe beating with lathi and dandas by A1
and two constables, whose identity is not established, with
a view to extracting a confessional statement from him. When
PW 8 and PW 10 tried to intervene., A1 demanded a sum of
Rs.2000 from them to refrain from ill-treating Ram Dhiraj.
Thereupon PW 8 went to Village Pure Neelkanth three miles
away to fetch Bindeshwari Prasad Shukla (PW 5) the husband
of Ram Dhiraj’s eider sister. On the arrival of PW 5 at the
police station, A1 is alleged to have repeated his demand of
Rs.2000. Since the bribe was not paid A1 and his two compan-
ions renewed the torture with vengeance which lasted till
about 9 or 10 p.m. As a result of the merciless beating Ram
Dhiraj was badly injured. It is alleged that the fact that
he was apprehended from his village and was brought to the
police station on 19.10.1971 was not entered in the general
diary register but a false entry was posted in the said
general diary register regarding his arrest on the next day
i.e. 20.10.1971, at about 6.00 a.m. from near a culvert in
village Hanna-Harora by A2 and his two chowkidars. The
defence version was that as he tried to resist arrest A2 and
his two companions beat him up as a result of which he
sustained the injuries in question. Another entry was made
in the same general diary on the same day purporting to
transfer Ram Dhiraj to police station Sadar for admission to
the District Jail. General Diary Entry No. 14 was made to
show that Ram Dhiraj was sent from Sardar police station at
about 12.15 noon for admission to the District Jail as he
had sustained injuries. It, however, transpired later that
Ram Dhiraj died at about 4.00 p.m. on the same day while he
was being taken to the residence of one of the Magistrates
at Sultanput for remand. On his demise his dead body was
taken to Kotwali Sultanpur where an entry No. 30 regarding
his death was made in the general diary at about 4.20 p.m.
On 21.10.1971 an inquest
33
was made on the dead body and thereafter the dead body was
sent for post mortem examination. PW 1 Dr. Mitra performed
the autopsy and found as many as 28 ante-mortem injuries on
the body of the deceased.
The prosecution case against A1 was that he was respon-
sible for having beaten the suspect Ram Dhiraj in the compa-
ny of two others which resulted in as many as 28 injuries to
which he ultimately succumbed. It was also alleged that he
had demanded a bribe of Rs.2000 to desist from meting out
third degree punishment to the suspect. He was, therefore,
charged under Section 304, 330, 201, 218/ 34, I.P.C., while
his companion A3 was charged under Section 201 and 218,
I.P.C. All the three accused persons denied the charges
levelled against them and claimed to be tried. They however
did not deny the fact that Ram Dhiraj died in police custo-
dy. The case set up by A 1 was that he was away from the
police station between 5.00 p.m. and 7.30 p.m., on
19.10.1971 and, therefore, the allegation that he had tor-
tured Ram Dhiraj is fabricated and wholly false. A2 admitted
the fact that Ram Dhiraj was arrested outside his village
house at Khajapur on 19.10.1971 and was brought to the
police station Kure Bhar on the same day at about 4.00 p.m.
He, however, denied having caused any injury to him during
arrest. A3 denied the prosecution allegation that he had
deliberately and wilfully posted false entries in the Gener-
al Diary to help A 1.
The learned Special Judge before whom the accused were
tried came to the conclusion that the deceased was arrested
from his residence on 19.10.1971 as alleged by the prosecu-
tion and not from near the culvert of village Hanna-Harora
on 20.10.1971; that no beating was given to him at the time
of his arrest and that he was beaten in police station Kure
Bhar where he was taken on 19.10.1971 itself after his
arrest by A1 and two other constables who could not be
identified. He also found that the fact that he was brought
to the police station on 19.10.1971 was deliberately sup-
pressed and A3 omitted to perform his duty by not posting an
entry in that behalf in the General Diary and instead post-
ing a false entry No. 10 (Exh. Ka 13) on the next day,
20.10.1971. He also found that a false entry was posted in
the diary to show that he was sent to Sadar police station
where he died before admission to jail. Lastly he found that
A2 had counter-signed the general diary entry No. 10 without
knowing the contents thereof. On facts found proved, the
trial court convicted A1 under Section 304 (Part II) and
sentenced him to suffer Rigorous Imprisonment for 7 years,
under Section 330 and sentenced him to suffer Rigorous
Imprisonment for 3 years, under Section 201 and 218/34 and
161 I.P.C. and
34
under Section 5(1)(d) read with Section 5(2) of the Preven-
tion of Corruption Act, 1947 and sentenced him to Rigorous
Imprisonment for 2 years on each count–all substantive
sentences to run concurrently. A2 was acquitted of all the
charges levelled against him. A3 was, however, convicted
under Sections 201 and 218 I.P.C. and was ordered to suffer
Rigorous Imprisonment for 2 years on each count. The sub-
stantive sentences were ordered to run concurrently. Both
the convicted accused preferred Criminal Appeal No. 661 of
1975 in the High Court. The State did not question the
acquittal of A2. The High Court accepted the defence version
that A1 was not at the police station on 19.10.1971 till
7.30 p.m. as proved through DWI and DW2 and, therefore, the
prosecution version was unacceptable. It also found that the
three prosecution witnesses PW5, PW8 and PW 10 were not eye
witnesses to the incident and hence their story about beat-
ing in the police station and the demand of bribe cannot be
accepted. It lastly held that A 1 could not be held respon-
sible for the omission to post an entry in the general diary
about the arrival of the deceased to the police station at
4.00 p.m. as he himself had returned to the police station
at 7.30 p.m. On this line of reasoning the High Court al-
lowed A1’s appeal and set aside the conviction on all
counts. The High Court, however, maintained the conviction
of A3 but reduced the sentence to Rigorous Imprisonment for
6 months.
Criminal Appeal No. 111 of 1979 is preferred by A3
questioning his conviction while Criminal Appeal No. 477 of
1979 is preferred by the State questioning the acquittal of
A1. As both these appeals arise out of the same judgment. We
think it would be convenient to dispose them of by this
common judgment.
The fact that Ram Dhiraj died of injuries received by
him after his arrest and while he was in police custody is
not seriously disputed. The prosecution version is that he
was beaten in the police station on 19.10.1971 by A1 and his
two companions after he was arrested from his residence and
brought to the police station. The defence version on the
other hand is that the deceased was arrested on 20.10.1971
by A2 and his two companions from near a culvert in village
Hanna-Harora and he was beaten up by them as he resisted
arrest. Of course A2 has denied this in his statement re-
corded under Section 313 of the Criminal Procedure Code. Be
that as it may, both the prosecution as well as the defence
version suggest that the deceased had received a beating at
the hands of the police after his arrest. The evidence of
PW1, Dr. Misra shows that the deceased had received as many
as 28 injuries. by some blunt weapon or weapons which re-
sulted in his death due to
35
shock and haemorrhage on the afternoon of 20.10.197 1. The
trial court has come to a firm conclusion that these in-
juries were caused to the deceased in the police station
after his arrest. The High Court also opines that the
“number of injuries speaks that most probably he had not
received those injuries only during arrest and that he was
subjected to severe assault sometime after his arrest”. Even
this halting.. finding recorded by the High Court shows that
both the courts felt that the deceased was seriously beaten
while in police custody. The fact that Ram Dhiraj died a
homicidal death is, therefore, rightly not contested before
us.
Having regard to the rival versions, the crucial ques-
tion which must be answered is regarding the date, time and
place of arrest. It is not in dispute that an offence of
dacoity at village Khera was registered at Police Station
Kure Bhar on 25.5.1971. One Jagdamba was arrested in that
connection on 20.9.1971. A1 was investigating that crime. In
the course of interrogation by A1, Jagdamba is stated to
have revealed the name of Ram Dhiraj as his accomplice. The
evidence of PW 6 Chowkidar Ram Jas is that A1 had directed
A2 to arrest Ram Dhiraj and produce him before him. A2, PW 6
and Chowkidar Harakh then went to fetch Ram Dhiraj. In the
absence of any specific information, the first place to
visit to locate the wanted man would be his residence. PW 6
also deposed that the police party went in search of the
deceased to his village and apprehended him from near his
residence. However, the evidence of PW 6 was challenged on
the ground that he had in his statement before M.M. Swarup,
Executive Magistrate, affirmed the defence of AI that the
deceased was apprehended from near a culvert in village
Harma-Harora on 20.10.1971. The learned trial Judge nega-
tived this contention as the certified copy of the statement
said to have been made to M.M. Swarup in an enquiry under
Section 176 of the Code of Criminal Procedure was inadmissi-
ble in evidence since the said enquiry could not be equated
to a judicial proceedings and was, therefore, inadmissible
in evidence. He was of the view that the same could not be
admitted in evidence under Section 90 of the Evidence Act.
In this view the proper course was to call for the original
statement, confront the witness with the contradictory part
and on proof use it as evidence to discredit the witness. We
agree with the learned trial judge that the contents of a
certified copy of the statement recorded under Section 176
of the Code would not be admissible in evidence unless the
contradiction is proved by putting it to the witness in
cross-examination and the maker has had an opportunity to
admit or deny it. In our view it has to be proved like any
other previous state.meat. The trial judge also opined that
even if the statement was admis
36
sible under Section 90, Evidence Act that statement per se
cannot efface his substantive evidence in court for the
simple reason that at the time of recording of that state-
ment he was under the direct influence of A1 his superior,
and was, therefore, not a free agent. The learned trial
judge was, therefore, of the opinion that the contradiction
even if proved cannot militate against the truth of his
statement. The High Court has endorsed the finding of the
trial court that as PW 6 was a chowkidar under the adminis-
trative control of A1 he could be prevailed upon to support
the defence theory in t, he inquiry under Section 176. The
High Court also held that the short signature of PW 7 as
‘Jassi’ in the General Diary–Entry No. 10 must have been
obtained by A3 to add sanctity to the defence version. The
High Court finally stated that even if absolute reliance is
not placed on the evidence of PW 6 in this behalf, his
evidence is duly corroborated by the evidence of other
witnesses, viz., PW 7 Karamraji, PW 8 Ram Niranjan Misra and
PW 9 Jai Lal, the mother, brother-in-law and labourer of the
deceased. These three witnesses have also deposed that the
deceased was arrested from his village Khajapur at about
11.00 a.m. on 19.10.1971. The High Court has rightly ob-
served that barring minor discripancies in their evidence as
to dress of members of the police party, presence of others,
etc., there is nothing brought out in their cross-examina-
tion to discredit their evidence in this behalf. The prose-
cution also examined PW 3 Baij Nath and PW 4 Mewa Lal, who
have their shops near the culvert of village Hanna-Harora to
negative the defence version regarding the arrest of the
deceased from there. Therefore, both the courts have record-
ed a concurrent finding of fact that the deceased was ar-
rested on 19.10.1971 at about 11.00 a.m. from his village
Khajapur. That means that the entry in the general diary
that the deceased was arrested on 20.10.1971 and was brought
to the police station later can be brushed aside as false.
The need to make a false entry speaks for itself.
The next question is where, when and by whom were the
injuries inflicted on the deceased. The High Court observes
that the medical evidence on record shows that the injuries
found on the person of the deceased were caused on the
evening of 19.10.1971. In fact according to the High Court
the medical evidence lends credence to the prosecution case
that the deceased was arrested on 19.10.1971. The High Court
holds as under:
“After considering the injuries of the deceased I have not
the least doubt in my mind that those injuries were not
caused to him during arrest, and that he was beaten some-
37
times after his arrest and before he was sent to jail from
police station Kure Bhar”.
There is, therefore, no doubt that the High Court reached a
firm finding that the arrest was made on 19.10.1971 at about
11.00 a.m. from village Khajapur and the injuries noticed by
the medical officer on the person of the deceased at the
time of the autopsy were inflicted after his arrest and not
during the course of arrest.
Now it is not in dispute that A 1 was serving as the
Station Officer of police station Kure Bhar on the
19/20.10.197 1. He was in charge of the investigation of the
dacoity case in which Jagdamba was arrested. It was he who
had interrogated Jagdamba and had secured a confessional
statement from him. The information divulged by Jagdamba
necessitated the arrest of the deceased. It is, therefore,
reasonable to infer that AI would interrogate the deceased
also. Since the arrest was made from village Khajapur, the
presence of PW 7, PW 8 and PW 9 at the time of the arrest
cannot be doubted. PW 8 and PW 10 deposed that they had
followed the deceased to the police station after his ar-
rest. PW 8, the brother-in-law of the deceased and PW 10
have deposed that after the deceased was taken to the police
station he was subjected to third degree treatment by AI and
two policemen whom they have not identified. Both have
stated on oath that A 1 and his two unidentified companions
beat the deceased with lathi and danda to extract a confes-
sion from him and when they entreated A 1 not to beat the
deceased, he demanded Rs.2000 from them. PW 8 then went to
village Desarwa of Pure Nilkanth to fetch PW 5, the husband
of the eider sister of the deceased. On the arrival of PW 5
at the police station he too requested A1 not to beat the
deceased but Ai reiterated his demand for Rs.2000. When the
witness expressed his inability to meet the demand, AI
resumed the ill-treatment to the deceased. It is true that
PW 5 and PW 8 were the brother-in-law of the deceased and PW
10 his neighbour but that by itself, without anything more,
was not sufficient to doubt their testimony which receives
corroboration from medical evidence. We are, therefore, of
the opinion that unless there are sound grounds to reject
their evidence it would not be proper to brush aside their
evidence on the specious plea that they are interested
witnesses.
Even though the High Court came to the conclusion that
the deceased was beaten after his arrest, the High Court
refused to place reliance on the direct testimony of these
three witnesses insofar as the involvement of A1 is con-
cerned. The first reason assigned is that since
38
the village of PW 5 is 11 or 12 miles from Khajapur which in
turn is about 10 miles from Kure Bhar, it is not possible
that he could have reached the police station by about 4.30
p.m. In the first place the exact time of arrival of de-
ceased to the police station is not known. Secondly when the
witnesses spoke about the time-factor they merely mentioned
the approximate time and not the exact time of PW 8’s depar-
ture and return to the police station with PW 5. We are,
therefore, of the opinion that the evidence of the prosecu-
tion witnesses cannot be thrown overboard on such an infirm
ground.
The High Court has also cast doubts on the evidence of
PW 5 on the ground that he told a deliberate lie that there
was no sentry at the police station to make his entry in the
police station probable. This too appears to us to be a weak
reason for discarding his evidence. His presence at the
police station is established by the telegram that he sent
to the superior police officers complaining about the beat-
ing given to the deceased. We, therefore, do not think that
the High Court was justified in refusing to act on his
evidence on this ground.
In the application Ex. Ka 3 the name of A2 was mentioned
as one of the constable who was assisting A1 in beating the
deceased to extract a confession from him. However, in the
substantive evidence the witness did not name A2 but merely
stated that A1 and two other constables had beaten the
deceased. The High Cort, therefore, inferred that he had
wrongly named A2 as one of the assailants in Ex. Ka. 3 and
was, therefore, not a reliable witness. But both in the
telegram, and application Ex. Ka. 3 the name of A1 is men-
tioned. The omission to name A2 as one of the constables
involved in the beating cannot absolve A1. We are, there-
fore, inclined to think that the High Court was not right in
refusing to act on the evidence of the witness on such
consideration.
The High Court rejects the evidence of the three prose-
cution witnesses on the ground that the telegram was sent by
PW 5 as late as 23.10. 1971. In our opinion the High Court
failed to appreciate that 19th and 20th were lost in trying
to secure the release of the deceased from AI. After the
suspect died on the 20th the next day i.e., 21st was lost in
post mortem examination and securing the dead body of the
deceased for funeral. His evidence discloses that the dead
body was not delivered to him till 4.30 p.m. On that day he
went to village Khajapur and broke the news of death to PW 7
and other family members. He has deposed that he sent the
telegram only after he received threats from A 1. The trial
court has discussed this aspect of
39
the case in detail and has rightly pointed out that it was a
difficult decision to take for PW 5 as he may not like to
incur the wrath of A1. But when A1 threatened him, he was
left with no choice but to inform his superiors. The High
Court, with respect, has failed to properly appreciate and
assess the situation. After all everyone thinks twice before
deciding to make so serious a complaint against a police
officer. We do not think there was so serious a delay as to
throw out the evidence of the three witnesses on that
ground.
PW 10’s evidence has been rejected on a very flimsy.
ground. He is the neighbours of the deceased. He was at the
police station upto 7.00 or 8.00 p.m. and claims to have
seen A1 beating the deceased. His evidence is rejected on
the ground that he was interested in getting the policemen
punished because the deceased was beaten to death while in
police custody. It is further stated that all others associ-
ated with him are keen to see that somebody gets punished
for the assault on the deceased. We find it difficult to
comprehend why this witness would falsely involve A1 if he
was not responsible for the injuries caused to the deceased.
The conduct of this witness is branded as unnatural because
he did not go to inform PW 7 and others about the death of
the suspect. Since PW 5 and PW 8 were aware of the death.
There was no need for PW 10 to inform the family members of
the deceased as he would be justified in believing that PW 5
and PW 8 must have informed them. We are, therefore, of the
view that the High Court had rejected the evidence of PW 10
on thoroughly untenable grounds.
That brings us to the question whether the alibi set up
by A1 can come to his rescue. In this connection reliance is
placed on the evidence of DW 1, Jaswant Singh, Station
Officer, Machlishahr Police Station. He claims to have come
to Kure Bhar on 19.10.1971 for investigation of an offence
under Section 363/366 I.P.C. of his police station. He wants
us to believe that he was at the Kure Bhar police station
from 5.00 p.m. to 9.30 p.m. According to him A1 was not at
the police station till about 7.30 p.m. Reliance is placed
on the general diary entry dated 19.10.1971 to show that A 1
had left the police station at about 10.30 a.m. for Tikar
and had returned to the police station at 7.30 a.m. This
entry is proved through DW 2. Now according to DW 1 even
though he had come to Kure Bhar for investigation, he him-
self remained at the police station throughout and sent his
men with A.S.I. (II) of Kure Bhar to Dilawar-Ka-Purwa for
investigation. He wants us to believe that he came from his
police station to investigate a crime but kept sitting at
Kure Bhar police station throughout from 5.00 p.m. to 9.30
p.m. Is this natural conduct? The obvious reason for so
stating
40
is to discredit PW 5, PW 8 and PW 10 who have in unmistaka-
ble terms stated that A1 was at the police station and had
beaten the deceased. DW 1 stand belied by the general diary
entry made at his police station on 20.10.1971 to the effect
that on reaching Kure Bhar he took A.S.I. (II) of that
police station and went to village Dilawar-ka-Purwa for
investigation and returned to his police station at 4.00
p.m. According to the said entry from Dilawar-ka-Purwa he
went to Sultanpur where he passed the night, left for Ram-
nager next morning and returned to his police station via
Durgaganj. The learned trial judge dealt with this part of
the defence evidence thus:
“It is also improbable of belief that once station officer
Jaswant Singh had taken care to come to Kurebhar in order to
make the investigation of the crime of his police station,
he had leisurely lingered on at PS Kurebhar and not person-
ally proceeded to make the investigation of the said case”.
The learned trial judge observed that he appears to have
come forward to help a member of his own fraternity. The
learned trial judge, therefore, came to the conclusion:
“If general diary entries Nos. 15 and 21 may have been
falsely incorporated, where is the guarantee that the gener-
al diary entry No. 17 which falls in between these, may not
have been falsely incorporated”.
The learned trial judge also felt that it was not possible
to believe that an important police officer like A 1 would
spend the whole day from 10.30 a.m. to 7.30 p.m. inquiring
about an application at Village Tiker.
The learned judge in the High Court considers the ap-
proach of the learned trial judge unacceptable because:
“Sub-Inspector Juswant Singh has stated that he himself had
stayed at Police Station Kurebhar and had sent other members
of his party and an A.S.I. of Police Station Kurebhar to
Dilawar-Ka-Purwa. The mere fact that S.I. Jaswant Singh
happens to be a Sub-Inspector of Police is no ground to
reject his testimony. After all there should be some reason
for a police officer posted at police station Machlishahr at
Jaunpur to falsely depose for defending Rafi
41
Uddin Khan appellant. If S.I. Jaswant Singh’s evidence is
disbelieved in the present case, he himself incurs the risk
of losing his job”
This line of reasoning does not commend to us. We fail
to understand how the learned judge could persuade himself
to accept the evidence of DW 1 on the specious plea that if
he did not tell the truth he ran the risk of losing his job.
The leaned trial judge gave sound reasons for disbelieving
the evidence of DW 1 that he did not stir out of Kure Bhar
police station from 5.00 p.m. to 9.30 p.m. The High Court
failed to appreciate that on realising that the condition of
the deceased had deteriorated, a false entry was made by A3
at the behest of A1 to show that (i) the deceased was not
arrested on 19.10.1971 nor was he brought to the police
station Kure Bhar by about 4.00 p.m. and (ii) that he was
actually arrested by A2 from near the culvert of village
Hanna-Harora on 20.10.71 and was given a beating before
actual arrest, a fact which is denied by A2 in his statement
under Section 313 of the Code. Thus the foundation for
absolving himself from the responsibility of having ill-
treated the deceased was laid. The trail court rightly holds
that there is no guarantee that entry 17 is accurate when
entries 15 and 21 are found to be false. The entry in the
case diary regarding crime No. 28 of Machlishahr recorded by
A.S.I. Bankey Bihari who had accompanied DW 1 clearly men-
tions that when they reached Kure Bhar they met the Thana
Adhiyakshakh (i.e. A 1) at about 5.00 p.m. which negatives
the theory that A1 had left the police station at 10.30 a.m.
and had not returned till 7.30 p.m. of 19.10. 1971. Without
coming to grips with the circumstances pointed out by the
trial court for disbelieving DW 1, the High Court surpris-
ingly accepted his evidence as gospel truth only because he
ran the risk of losing his job. The High Court should have
realised that cases are not unknown where police officer
have given inaccurate accounts to secure a conviction or to
help out a colleague from a tight situation of his creation.
The High Court should also have realised that it is general-
ly difficult in cases of deaths in police custody to secure
evidence against the policemen responsible for resorting to
third degree methods since they are in charge of police
station records which they do not find difficult to manipu-
late as in this case. It is only in a few cases, such as the
present one, that some direct evidence is available. In our
view the reasons assigned by the High Court are too weak to
stand judicial scrutiny.
We are aware that so far as A 1 is concerned, we are
called upon to interfere in an acquittal appeal. Since it is
said that an acquittal
42
reinforces the presumption of innocence we have carefully
considered the reasons given by the High Court for setting
aside the conviction of A 1. We are satisfied beyond any
manner of doubt that the High Court completely misdirected
itself. We have dealt with the facts at some length to
justify our interference under Article 136 of the Constitu-
tion. Had we not been fully satisfied that gross injustice
was done because the High Court misdirected itself we would
not have interfered in exercise of our powers under Article
136 of the Constitution.
For the above reasons we dismiss Appeal No. 111 of 1979
preferred by A3 as we are satisfied that his conviction is
correctly recorded. We allow the State’s appeal No. 477 of
1979 and restore the conviction of A1 recorded by the trial
court by setting aside his acquittal by the High Court. On
the question of sentence a fervent appeal was made by his
counsel that having regard to the passage of time and the
changed circumstances A1 should not be sent to jail and the
sentence of fine should suffice. We are unable to accede to
this request. The offence is of a serious nature aggravated
by the fact that it was committed by a person who is sup-
posed to protect the citizens and not misuse his uniform and
authority to brutally assault them while in his custody.
Death in police custody must be seriously viewed for other-
wise we will help take a stride in the direction of police
raj. It must be curbed with a heavy hand. The punishment
should be such as would deter others from indulging in such
behaviour. There can be no room for leniency. We, therefore,
do not think we would be justified in reducing the punish-
ment imposed by the trial court.
A1 is on bail. Since the trial court’s order of his
conviction and sentence is restored he will surrender to his
bail within a week’s time to serve his sentence.
R.S.S.
43