{"id":247675,"date":"1990-01-12T00:00:00","date_gmt":"1990-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gauri-shanker-sharma-etc-vs-state-of-u-p-etc-on-12-january-1990"},"modified":"2015-01-25T09:47:35","modified_gmt":"2015-01-25T04:17:35","slug":"gauri-shanker-sharma-etc-vs-state-of-u-p-etc-on-12-january-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gauri-shanker-sharma-etc-vs-state-of-u-p-etc-on-12-january-1990","title":{"rendered":"Gauri Shanker Sharma Etc vs State Of U.P. Etc on 12 January, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gauri Shanker Sharma Etc vs State Of U.P. Etc on 12 January, 1990<\/div>\n
Equivalent citations: 1990 AIR 709, 1990 SCR (1)\t 29<\/div>\n
Author: Ahmadi<\/div>\n
Bench: Ahmadi, A.M. (J)<\/div>\n
           PETITIONER:\nGAURI SHANKER SHARMA ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P. ETC.\n\nDATE OF JUDGMENT12\/01\/1990\n\nBENCH:\nAHMADI, A.M. (J)\nBENCH:\nAHMADI, A.M. (J)\nFATHIMA BEEVI, M. (J)\n\nCITATION:\n 1990 AIR  709\t\t  1990 SCR  (1)\t 29\n 1990 SCC  Supl.  656\t  JT 1990 (1)\t  6\n 1990 SCALE  (1)9\n\n\nACT:\n    Indian  Penal  Code<\/a>: Sections 201<\/a>, 218<\/a>,  304<\/a>  and  330-<\/a>-\nDeath  in  police  custody--To be seriously  viewed  by\t the\nCourt.\n\n\n\nHEADNOTE:\n    Three police personnel were charged with offences  aris-\ning  out  of the death of one Ram Dhiraj  Tiwari  in  police\ncustody. Rafiuddin Khan (accused No. 1) was the Sub  Inspec-\ntor  of Police Station Kure Bhar, Shamsher Ali (accused\t No.\n2)  was a Beat Constable, and Gauri Shankar Sharma  (accused\nNo. 3) was the Head Moharrir.\n    The prosecution version was that AI directed A2 and\t two\npolice\tchowkidars, to apprehend Ram Dhiraj,  deceased,\t who\nwas  a\tsuspect\t in a dacoity case.  Pursuant  thereto,\t Ram\nDhiraj\twas  arrested from his residence  on  19.10.1971  at\nabout  11.00  a.m. and brought to the  police  station.\t The\nprosecution case against A1 was that he was responsible\t for\nhaving beaten the suspect Ram Dhiraj in the presence of\t two\nother constables, whose identity was not established,  which\nresulted  in as many as 28 injuries to which  he  ultimately\nsuccumbed. It was also alleged that A1 had demanded a  bribe\nof  Rs.2000 to desist from meeting out third degree  punish-\nment to the suspect. The case against A3 was that he  delib-\nerately\t and  wilfully posted false entries in\tthe  General\nDiary to help A1.\n    The\t defence  version  on the other hand  was  that\t the\ndeceased was arrested on 20.10.1971 by A2 and his companions\nfrom  near a culvert in the village and he was beaten up  by\nthem as he resisted arrest.\n    The\t Trial\tCourt accepted the prosecution\tversion\t and\nconvicted  A1 under section 304 (Part II) section 330<\/a>,\tsec-\ntions 201 and 218\/34 and 161, IPC<\/a>, and under section 5(1)(d)<\/a>\nread with section 5(2)<\/a> of the Prevention of Corruption\tAct,\n1947.  Accused No. 2 was acquitted of all  charges.  Accused\nNo. 3 was convicted under sections 201<\/a> and 218<\/a>, IPC<\/a>.\n    The\t High Court, however, accepted the  defence  version\nthat  A1  was not at the police station on  19.10.1971\ttill\n7.30  p.m. The High Court found that the  three\t prosecution\nwitnesses were not eye witnesses\n29\n30\nto  the incident and hence their story about beating in\t the\npolice station and the demand of bribe could not be  accept-\ned.  The High Court accepted the evidence of DW\t 1,  Jaswant\nSingh,\tStation\t Officer, Machilishahr Police  Station,\t who\nclaimed\t to  have  come\t to  Kure  Bhar\t Police\t Station  on\n19.10.1971  for investigation of another offence.  According\nto  DW 1, AI was not at the police station till\t about\t7.30\np.m.\n    While dismissing the appeal filed by accused No. 3,\t and\nallowing  the State appeal against the acquittal of  accused\nNo.  1, and restoring his conviction recorded by  the  trial\ncourt by setting aside his acquittal by the High Court, this\nCourt,\n    HELD:  (1)\tBoth the courts have recorded  a  concurrent\nfinding of fact that the deceased was arrested on 19.10.1971\nat  about 11.00 a.m. from his village Khajapur.\t That  means\nthat  the entry in the general diary that the  deceased\t was\narrested on 20.10.1971 and was brought to the police station\nlater  can  be brushed aside as false. The need\t to  make  a\nfalse entry speaks for itself. [36E-F]\n    (2)\t It is true that PW 5 and PW 8 were the\t brother-in-\nlaw  of\t the deceased and PW 10 his neighbour, but  that  by\nitself,\t without anything more, was not sufficient to  doubt\ntheir  tastimony which receives corroboration  from  medical\nevidence.  Unless  there are sound grounds to  reject  their\nevidence  it would not be proper to brush aside\t their\tevi-\ndence on the specious plea that they are interested witness-\nes. [37F-G]\n    (3) It is difficult to understand how the learned  Judge\ncould persuade himself to accept the evidence of DW 1 on the\nspecious  plea that if he did not tell the truth he ran\t the\nrisk of losing his job. The High Court should have  realised\nthat cases are not unknown where police officers have  given\ninaccurate accounts to secure a conviction or to help out  a\ncolleague from a tight situation of his creation. [41B]\n    (4)\t The  High  Court should have realised\tthat  it  is\ngenerally difficult in cases of deaths in police custody  to\nsecure\tevidence against the policemen responsible  for\t re-\nsorting to third degree methods since they are in charge  of\npolice\tstation records which they do not find difficult  to\nmanipulate as in this case. It is only in a few cases,\tsuch\nas the present one, that some direct evidence is  available.\n[41F-G]\n    (5) After carefully considering the reasons given by the\nHigh  Court  for setting aside the conviction  of  AI,\tthis\nCourt is satisfied beyond any manner of doubt that the\tHigh\nCourt had completely misdi-\n31\nrected\titself\tand hence interference by this\tCourt  under\nArticle 136<\/a> of the Constitution, was justified. [42A-B]\n    (6) The offence is of a serious nature aggravated by the\nfact  that it was committed by a person who is\tsupposed  to\nprotect the citizens and not misuse his uniform and authori-\nty  to\tbrutally assault persons in his\t custody.  Death  in\npolice\tcustody\t must be seriously viewed for  otherwise  we\nwill  help take a stride in the direction of police raj.  It\nmust  be curbed with a heavy hand. The punishment should  be\nsuch as would deter others from indulging in such behaviour.\nThere can be no room for leniency. This Court does not think\nit would be justified in reducing the punishment imposed  by\nthe trial court. [42D-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 111
\nand 477 of 1979.\n<\/p>\n
    From  the  Judgment\t and Order dated  19.4.1978  of\t the
\nAllahabad High Court in Criminal Appeal No. 661 of 1975.
\n    N.P. Midha and B.D. Sharma for the Appellant in Crl.  A.
\nNo. 111 of 1979.\n<\/p>\n
    Prithvi Raj, Prashant Choudhary and D. Bhandari for\t the
\nRespondent in Crl. A. No. 111 of 1979 and Appellant in\tCrl.
\nA. No. 477 of 1979.\n<\/p>\n
    M. Qamaruddin and Mrs. M. Qamaruddin for the  Respondent
\nin Crl. A. No. 477 of 1979.\n<\/p>\n
The Judgment of the Court was delivered by
\n    AHMADI, J. In Criminal Case No. 3 of 1975, three persons
\nwere  put  up for trial before the  learned  Special  Judge,
\nSultanpur (U.P.). The case arose out of the death of one Ram
\nDhiraj\tTiwari\tin police custody. Accused No.\t1  Rafiuddin
\nKhan (Respondent in Criminal Appeal No. 477 of 1979) was the
\nSub-Inspector  of Police Station Kure Bhar in District\tSul-
\ntanpur\tat all material times during the commission  of\t the
\ncrime.\tAccused\t No. 2 Shamsher Ali  (since  acquitted)\t was
\nposted\tat the said police station as Beat Constable No.  3.
\nHis  companion Accused No. 3 (Appellant in  Criminal  Appeal
\nNo.  111 of 1979) was the Head Moharrir of the\tsaid  police
\nstation.  Crime\t No. 71 of 1971 under Section 395<\/a>,  IPC<\/a>\t was
\nregistered at the said police station on 25.5. 1971 concern-
\ning a dacoity committed at Village Khara within
\n32<\/span>
\nthe jurisdiction of the said police station. In that connec-
\ntion one Jagdamba was arrested on 20.9.1971. During interro-
\ngation\tby  AI the said suspect is alleged  to\thave  made.a
\nconfessional  statement involving Ram Dhiraj Tiwari. On\t the
\nbasis of this information A 1 directed A2 and Ram Jas (PW 6)
\nand Harakh, both police chowkidars, to apprehend Ram  Dhiraj
\nand  produce  him before him. Pursuant thereto\tA2  and\t his
\ncompanions  apprehended\t Ram Dhiraj from  his  residence  in
\nvillage\t Khajapur on 19.10.1971 at about 11.00 a.m.  in\t the
\npresence of his mother Kamaraji (PW 7), sister’s husband Ram
\nNiranjan Misra (PW 8) and labourer Jiyalal (PW 9). After his
\narrest Ram Dhiraj was brought to police station Kure Bhar at
\nabout 4.00 p.m. on the same day and handed over to A1. PW  8
\nand Ram Baran Dubey (PW 10) are stated to have followed\t him
\nto the police station. It is alleged that soon charge of A1,
\nhe  was given a severe beating with lathi and dandas  by  A1
\nand two constables, whose identity is not established,\twith
\na view to extracting a confessional statement from him. When
\nPW  8  and PW 10 tried to intervene., A1 demanded a  sum  of
\nRs.2000\t from them to refrain from ill-treating Ram  Dhiraj.
\nThereupon  PW 8 went to Village Pure Neelkanth\tthree  miles
\naway  to fetch Bindeshwari Prasad Shukla (PW 5) the  husband
\nof Ram Dhiraj’s eider sister. On the arrival of PW 5 at\t the
\npolice station, A1 is alleged to have repeated his demand of
\nRs.2000. Since the bribe was not paid A1 and his two compan-
\nions  renewed the torture with vengeance which\tlasted\ttill
\nabout 9 or 10 p.m. As a result of the merciless beating\t Ram
\nDhiraj\twas badly injured. It is alleged that the fact\tthat
\nhe  was apprehended from his village and was brought to\t the
\npolice station on 19.10.1971 was not entered in the  general
\ndiary  register\t but a false entry was posted  in  the\tsaid
\ngeneral diary register regarding his arrest on the next\t day
\ni.e.  20.10.1971, at about 6.00 a.m. from near a culvert  in
\nvillage\t Hanna-Harora  by  A2 and his  two  chowkidars.\t The
\ndefence version was that as he tried to resist arrest A2 and
\nhis  two  companions  beat him up as a result  of  which  he
\nsustained  the injuries in question. Another entry was\tmade
\nin  the\t same general diary on the same\t day  purporting  to
\ntransfer Ram Dhiraj to police station Sadar for admission to
\nthe  District Jail. General Diary Entry No. 14 was  made  to
\nshow that Ram Dhiraj was sent from Sardar police station  at
\nabout  12.15 noon for admission to the District Jail  as  he
\nhad  sustained injuries. It, however, transpired later\tthat
\nRam Dhiraj died at about 4.00 p.m. on the same day while  he
\nwas  being taken to the residence of one of the\t Magistrates
\nat  Sultanput  for remand. On his demise his dead  body\t was
\ntaken  to Kotwali Sultanpur where an entry No. 30  regarding
\nhis  death was made in the general diary at about 4.20\tp.m.
\nOn 21.10.1971 an inquest
\n33<\/span>
\nwas  made on the dead body and thereafter the dead body\t was
\nsent  for post mortem examination. PW 1 Dr. Mitra  performed
\nthe autopsy and found as many as 28 ante-mortem injuries  on
\nthe body of the deceased.\n<\/p>\n
    The prosecution case against A1 was that he was  respon-
\nsible for having beaten the suspect Ram Dhiraj in the compa-
\nny of two others which resulted in as many as 28 injuries to
\nwhich  he ultimately succumbed. It was also alleged that  he
\nhad  demanded a bribe of Rs.2000 to desist from\t meting\t out
\nthird  degree punishment to the suspect. He was,  therefore,
\ncharged under Section 304<\/a>, 330<\/a>, 201<\/a>, 218<\/a>\/ 34<\/a>, I.P.C<\/a>.,  while
\nhis  companion\tA3 was charged under Section  201<\/a>  and\t218<\/a>,
\nI.P.C<\/a>.\tAll  the three accused persons\tdenied\tthe  charges
\nlevelled against them and claimed to be tried. They  however
\ndid not deny the fact that Ram Dhiraj died in police  custo-
\ndy.  The  case set up by A 1 was that he was away  from\t the
\npolice\t station  between  5.00\t p.m.  and  7.30  p.m.,\t  on
\n19.10.1971  and, therefore, the allegation that he had\ttor-
\ntured Ram Dhiraj is fabricated and wholly false. A2 admitted
\nthe  fact that Ram Dhiraj was arrested outside\this  village
\nhouse  at  Khajapur  on 19.10.1971 and was  brought  to\t the
\npolice station Kure Bhar on the same day at about 4.00\tp.m.
\nHe,  however, denied having caused any injury to him  during
\narrest.\t A3  denied the prosecution allegation that  he\t had
\ndeliberately and wilfully posted false entries in the Gener-
\nal Diary to help A 1.\n<\/p>\n
    The\t learned Special Judge before whom the accused\twere
\ntried came to the conclusion that the deceased was  arrested
\nfrom his residence on 19.10.1971 as alleged by the  prosecu-
\ntion  and not from near the culvert of village\tHanna-Harora
\non 20.10.1971; that no beating was given to him at the\ttime
\nof his arrest and that he was beaten in police station\tKure
\nBhar  where  he\t was taken on 19.10.1971  itself  after\t his
\narrest\tby  A1\tand two other constables who  could  not  be
\nidentified. He also found that the fact that he was  brought
\nto  the police station on 19.10.1971 was  deliberately\tsup-
\npressed and A3 omitted to perform his duty by not posting an
\nentry in that behalf in the General Diary and instead  post-
\ning  a\tfalse  entry No. 10 (Exh. Ka 13) on  the  next\tday,
\n20.10.1971.  He also found that a false entry was posted  in
\nthe  diary to show that he was sent to Sadar police  station
\nwhere he died before admission to jail. Lastly he found that
\nA2 had counter-signed the general diary entry No. 10 without
\nknowing\t the  contents thereof. On facts found\tproved,\t the
\ntrial  court  convicted A1 under Section 304 (Part  II)\t and
\nsentenced  him to suffer Rigorous Imprisonment for 7  years,
\nunder  Section\t330<\/a>  and sentenced him\tto  suffer  Rigorous
\nImprisonment  for 3 years, under Section 201<\/a> and 218<\/a>\/34<\/a>\t and
\n161<\/a> I.P.C. and
\n34<\/span>
\nunder Section 5(1)(d)<\/a> read with Section 5(2) of the  Preven-
\ntion  of Corruption Act<\/a>, 1947 and sentenced him to  Rigorous
\nImprisonment  for  2 years on  each  count–all\t substantive
\nsentences  to run concurrently. A2 was acquitted of all\t the
\ncharges\t levelled  against him. A3 was,\t however,  convicted
\nunder Sections 201<\/a> and 218<\/a> I.P.C. and was ordered to  suffer
\nRigorous  Imprisonment for 2 years on each count.  The\tsub-
\nstantive  sentences were ordered to run\t concurrently.\tBoth
\nthe  convicted accused preferred Criminal Appeal No. 661  of
\n1975  in  the  High Court. The State did  not  question\t the
\nacquittal of A2. The High Court accepted the defence version
\nthat  A1  was not at the police station on  19.10.1971\ttill
\n7.30 p.m. as proved through DWI and DW2 and, therefore,\t the
\nprosecution version was unacceptable. It also found that the
\nthree prosecution witnesses PW5, PW8 and PW 10 were not\t eye
\nwitnesses to the incident and hence their story about  beat-
\ning in the police station and the demand of bribe cannot  be
\naccepted. It lastly held that A 1 could not be held  respon-
\nsible for the omission to post an entry in the general diary
\nabout  the arrival of the deceased to the police station  at
\n4.00  p.m. as he himself had returned to the police  station
\nat  7.30 p.m. On this line of reasoning the High  Court\t al-
\nlowed  A1’s  appeal  and set aside  the\t conviction  on\t all
\ncounts.\t The High Court, however, maintained the  conviction
\nof A3 but reduced the sentence to Rigorous Imprisonment\t for
\n6 months.\n<\/p>\n
    Criminal  Appeal  No.  111 of 1979 is  preferred  by  A3
\nquestioning his conviction while Criminal Appeal No. 477  of
\n1979 is preferred by the State questioning the acquittal  of
\nA1. As both these appeals arise out of the same judgment. We
\nthink  it  would be convenient to dispose them\tof  by\tthis
\ncommon judgment.\n<\/p>\n
    The\t fact that Ram Dhiraj died of injuries\treceived  by
\nhim  after his arrest and while he was in police custody  is
\nnot  seriously disputed. The prosecution version is that  he
\nwas beaten in the police station on 19.10.1971 by A1 and his
\ntwo companions after he was arrested from his residence\t and
\nbrought\t to the police station. The defence version  on\t the
\nother  hand is that the deceased was arrested on  20.10.1971
\nby A2 and his two companions from near a culvert in  village
\nHanna-Harora  and  he was beaten up by them as\the  resisted
\narrest.\t Of course A2 has denied this in his  statement\t re-
\ncorded under Section 313<\/a> of the Criminal Procedure Code.  Be
\nthat as it may, both the prosecution as well as the  defence
\nversion suggest that the deceased had received a beating  at
\nthe  hands of the police after his arrest. The\tevidence  of
\nPW1, Dr. Misra shows that the deceased had received as\tmany
\nas  28 injuries. by some blunt weapon or weapons  which\t re-
\nsulted in his death due to
\n35<\/span>
\nshock  and haemorrhage on the afternoon of 20.10.197 1.\t The
\ntrial  court  has come to a firm conclusion that  these\t in-
\njuries\twere  caused to the deceased in the  police  station
\nafter  his  arrest.  The High Court  also  opines  that\t the
\n“number\t of  injuries speaks that most probably he  had\t not
\nreceived  those injuries only during arrest and that he\t was
\nsubjected to severe assault sometime after his arrest”. Even
\nthis halting.. finding recorded by the High Court shows that
\nboth the courts felt that the deceased was seriously  beaten
\nwhile  in  police custody. The fact that Ram Dhiraj  died  a
\nhomicidal death is, therefore, rightly not contested  before
\nus.\n<\/p>\n
    Having  regard to the rival versions, the crucial  ques-
\ntion which must be answered is regarding the date, time\t and
\nplace  of  arrest. It is not in dispute that an\t offence  of
\ndacoity\t at village Khera was registered at  Police  Station
\nKure  Bhar on 25.5.1971.  One Jagdamba was arrested in\tthat
\nconnection on 20.9.1971. A1 was investigating that crime. In
\nthe  course  of interrogation by A1, Jagdamba is  stated  to
\nhave revealed the name of Ram Dhiraj as his accomplice.\t The
\nevidence  of PW 6 Chowkidar Ram Jas is that A1 had  directed
\nA2 to arrest Ram Dhiraj and produce him before him. A2, PW 6
\nand  Chowkidar Harakh then went to fetch Ram Dhiraj. In\t the
\nabsence\t of  any specific information, the  first  place  to
\nvisit to locate the wanted man would be his residence. PW  6
\nalso  deposed  that the police party went in search  of\t the
\ndeceased  to his village and apprehended him from  near\t his
\nresidence.  However, the evidence of PW 6 was challenged  on
\nthe ground that he had in his statement before M.M.  Swarup,
\nExecutive  Magistrate, affirmed the defence of AI  that\t the
\ndeceased  was  apprehended from near a\tculvert\t in  village
\nHarma-Harora  on 20.10.1971. The learned trial\tJudge  nega-
\ntived this contention as the certified copy of the statement
\nsaid  to have been made to M.M. Swarup in an  enquiry  under
\nSection 176<\/a> of the Code of Criminal Procedure was inadmissi-
\nble in evidence since the said enquiry could not be  equated
\nto  a judicial proceedings and was, therefore,\tinadmissible
\nin  evidence. He was of the view that the same could not  be
\nadmitted  in evidence under Section 90<\/a> of the Evidence\tAct.
\nIn this view the proper course was to call for the  original
\nstatement, confront the witness with the contradictory\tpart
\nand on proof use it as evidence to discredit the witness. We
\nagree  with the learned trial judge that the contents  of  a
\ncertified  copy of the statement recorded under Section\t 176<\/a>
\nof  the Code would not be admissible in evidence unless\t the
\ncontradiction  is  proved by putting it to  the\t witness  in
\ncross-examination  and the maker has had an  opportunity  to
\nadmit  or deny it. In our view it has to be proved like\t any
\nother previous state.meat. The trial judge also opined\tthat
\neven if the statement was admis
\n36<\/span>
\nsible  under Section 90<\/a>, Evidence Act<\/a> that statement per  se
\ncannot\tefface\this substantive evidence in  court  for\t the
\nsimple\treason that at the time of recording of that  state-
\nment  he was under the direct influence of A1 his  superior,
\nand  was,  therefore, not a free agent.\t The  learned  trial
\njudge was, therefore, of the opinion that the  contradiction
\neven  if  proved cannot militate against the  truth  of\t his
\nstatement.  The High Court has endorsed the finding  of\t the
\ntrial court that as PW 6 was a chowkidar under the  adminis-
\ntrative control of A1 he could be prevailed upon to  support
\nthe  defence theory in t, he inquiry under Section 176<\/a>.\t The
\nHigh  Court  also held that the short signature of PW  7  as
\n‘Jassi’\t in the General Diary–Entry No. 10 must  have\tbeen
\nobtained  by A3 to add sanctity to the defence version.\t The
\nHigh Court finally stated that even if absolute reliance  is
\nnot  placed  on\t the evidence of PW 6 in  this\tbehalf,\t his
\nevidence  is  duly  corroborated by the\t evidence  of  other
\nwitnesses, viz., PW 7 Karamraji, PW 8 Ram Niranjan Misra and
\nPW 9 Jai Lal, the mother, brother-in-law and labourer of the
\ndeceased.  These three witnesses have also deposed that\t the
\ndeceased  was  arrested from his village Khajapur  at  about
\n11.00  a.m.  on 19.10.1971. The High Court has\trightly\t ob-
\nserved that barring minor discripancies in their evidence as
\nto dress of members of the police party, presence of others,
\netc.,  there is nothing brought out in their  cross-examina-
\ntion to discredit their evidence in this behalf. The  prose-
\ncution\talso examined PW 3 Baij Nath and PW 4 Mewa Lal,\t who
\nhave their shops near the culvert of village Hanna-Harora to
\nnegative  the  defence version regarding the arrest  of\t the
\ndeceased from there. Therefore, both the courts have record-
\ned  a concurrent finding of fact that the deceased  was\t ar-
\nrested\ton 19.10.1971 at about 11.00 a.m. from\this  village
\nKhajapur.  That\t means that the entry in the  general  diary
\nthat the deceased was arrested on 20.10.1971 and was brought
\nto  the police station later can be brushed aside as  false.
\nThe need to make a false entry speaks for itself.
\n    The\t next question is where, when and by whom  were\t the
\ninjuries inflicted on the deceased. The High Court  observes
\nthat the medical evidence on record shows that the  injuries
\nfound  on  the\tperson of the deceased were  caused  on\t the
\nevening\t of 19.10.1971. In fact according to the High  Court
\nthe medical evidence lends credence to the prosecution\tcase
\nthat the deceased was arrested on 19.10.1971. The High Court
\nholds as under:\n<\/p>\n
“After\tconsidering the injuries of the deceased I have\t not
\nthe  least  doubt in my mind that those\t injuries  were\t not
\ncaused to him during arrest, and that he was beaten some-\n<\/p>\n
37<\/span><\/p>\n
times  after his arrest and before he was sent to jail\tfrom
\npolice station Kure Bhar”.\n<\/p>\n
There is, therefore, no doubt that the High Court reached  a
\nfirm finding that the arrest was made on 19.10.1971 at about
\n11.00 a.m. from village Khajapur and the injuries noticed by
\nthe  medical  officer on the person of the deceased  at\t the
\ntime of the autopsy were inflicted after his arrest and\t not
\nduring the course of arrest.\n<\/p>\n
    Now\t it  is not in dispute that A 1 was serving  as\t the
\nStation\t  Officer  of  police  station\tKure  Bhar  on\t the
\n19\/20.10.197 1. He was in charge of the investigation of the
\ndacoity\t case in which Jagdamba was arrested. It was he\t who
\nhad  interrogated  Jagdamba and had secured  a\tconfessional
\nstatement  from\t him. The information divulged\tby  Jagdamba
\nnecessitated  the arrest of the deceased. It is,  therefore,
\nreasonable  to infer that AI would interrogate the  deceased
\nalso.  Since the arrest was made from village Khajapur,\t the
\npresence  of PW 7, PW 8 and PW 9 at the time of\t the  arrest
\ncannot\tbe  doubted. PW 8 and PW 10 deposed  that  they\t had
\nfollowed  the deceased to the police station after  his\t ar-
\nrest.  PW  8, the brother-in-law of the deceased and  PW  10
\nhave deposed that after the deceased was taken to the police
\nstation he was subjected to third degree treatment by AI and
\ntwo  policemen\twhom  they have not  identified.  Both\thave
\nstated on oath that A 1 and his two unidentified  companions
\nbeat the deceased with lathi and danda to extract a  confes-
\nsion  from him and when they entreated A 1 not to  beat\t the
\ndeceased,  he demanded Rs.2000 from them. PW 8 then went  to
\nvillage Desarwa of Pure Nilkanth to fetch PW 5, the  husband
\nof the eider sister of the deceased. On the arrival of PW  5
\nat  the police station he too requested A1 not to  beat\t the
\ndeceased but Ai reiterated his demand for Rs.2000. When\t the
\nwitness\t expressed  his\t inability to meet  the\t demand,  AI
\nresumed\t the ill-treatment to the deceased. It is true\tthat
\nPW 5 and PW 8 were the brother-in-law of the deceased and PW
\n10 his neighbour but that by itself, without anything  more,
\nwas  not sufficient to doubt their testimony which  receives
\ncorroboration  from medical evidence. We are, therefore,  of
\nthe  opinion that unless there are sound grounds  to  reject
\ntheir  evidence it would not be proper to brush aside  their
\nevidence  on  the  specious plea that  they  are  interested
\nwitnesses.\n<\/p>\n
    Even  though the High Court came to the conclusion\tthat
\nthe  deceased  was beaten after his arrest, the\t High  Court
\nrefused\t to place reliance on the direct testimony of  these
\nthree  witnesses  insofar as the involvement of A1  is\tcon-
\ncerned. The first reason assigned is that since
\n38<\/span>
\nthe village of PW 5 is 11 or 12 miles from Khajapur which in
\nturn  is about 10 miles from Kure Bhar, it is  not  possible
\nthat he could have reached the police station by about\t4.30
\np.m.  In  the first place the exact time of arrival  of\t de-
\nceased to the police station is not known. Secondly when the
\nwitnesses spoke about the time-factor they merely  mentioned
\nthe approximate time and not the exact time of PW 8’s depar-
\nture  and  return to the police station with PW 5.  We\tare,
\ntherefore, of the opinion that the evidence of the  prosecu-
\ntion witnesses cannot be thrown overboard on such an  infirm
\nground.\n<\/p>\n
    The\t High Court has also cast doubts on the evidence  of
\nPW 5 on the ground that he told a deliberate lie that  there
\nwas no sentry at the police station to make his entry in the
\npolice station probable. This too appears to us to be a weak
\nreason\tfor  discarding his evidence. His  presence  at\t the
\npolice\tstation is established by the telegram that he\tsent
\nto the superior police officers complaining about the  beat-
\ning given to the deceased. We, therefore, do not think\tthat
\nthe  High  Court  was justified in refusing to\tact  on\t his
\nevidence on this ground.\n<\/p>\n
    In the application Ex. Ka 3 the name of A2 was mentioned
\nas one of the constable who was assisting A1 in beating\t the
\ndeceased  to extract a confession from him. However, in\t the
\nsubstantive evidence the witness did not name A2 but  merely
\nstated\tthat  A1  and two other constables  had\t beaten\t the
\ndeceased.  The\tHigh Cort, therefore, inferred that  he\t had
\nwrongly\t named A2 as one of the assailants in Ex. Ka. 3\t and
\nwas,  therefore,  not a reliable witness. But  both  in\t the
\ntelegram,  and application Ex. Ka. 3 the name of A1 is\tmen-
\ntioned.\t The  omission to name A2 as one of  the  constables
\ninvolved  in the beating cannot absolve A1. We\tare,  there-
\nfore, inclined to think that the High Court was not right in
\nrefusing  to  act  on the evidence of the  witness  on\tsuch
\nconsideration.\n<\/p>\n
    The High Court rejects the evidence of the three  prose-
\ncution witnesses on the ground that the telegram was sent by
\nPW  5 as late as 23.10. 1971. In our opinion the High  Court
\nfailed to appreciate that 19th and 20th were lost in  trying
\nto  secure  the release of the deceased from AI.  After\t the
\nsuspect died on the 20th the next day i.e., 21st was lost in
\npost  mortem examination and securing the dead body  of\t the
\ndeceased  for funeral. His evidence discloses that the\tdead
\nbody was not delivered to him till 4.30 p.m. On that day  he
\nwent to village Khajapur and broke the news of death to PW 7
\nand  other family members. He has deposed that he  sent\t the
\ntelegram only after he received threats from A 1. The  trial
\ncourt has discussed this aspect of
\n39<\/span>
\nthe case in detail and has rightly pointed out that it was a
\ndifficult  decision to take for PW 5 as he may not  like  to
\nincur  the wrath of A1. But when A1 threatened him,  he\t was
\nleft  with no choice but to inform his superiors.  The\tHigh
\nCourt,\twith respect, has failed to properly appreciate\t and
\nassess the situation. After all everyone thinks twice before
\ndeciding  to  make so serious a complaint against  a  police
\nofficer. We do not think there was so serious a delay as  to
\nthrow  out  the\t evidence of the  three\t witnesses  on\tthat
\nground.\n<\/p>\n
    PW\t10’s  evidence has been rejected on a  very  flimsy.
\nground. He is the neighbours of the deceased. He was at\t the
\npolice\tstation\t upto 7.00 or 8.00 p.m. and claims  to\thave
\nseen  A1 beating the deceased. His evidence is\trejected  on
\nthe  ground that he was interested in getting the  policemen
\npunished  because the deceased was beaten to death while  in
\npolice custody. It is further stated that all others associ-
\nated  with him are keen to see that somebody  gets  punished
\nfor  the  assault on the deceased. We find it  difficult  to
\ncomprehend  why this witness would falsely involve A1 if  he
\nwas not responsible for the injuries caused to the deceased.
\nThe conduct of this witness is branded as unnatural  because
\nhe  did not go to inform PW 7 and others about the death  of
\nthe  suspect. Since PW 5 and PW 8 were aware of\t the  death.
\nThere was no need for PW 10 to inform the family members  of
\nthe deceased as he would be justified in believing that PW 5
\nand PW 8 must have informed them. We are, therefore, of\t the
\nview that the High Court had rejected the evidence of PW  10
\non thoroughly untenable grounds.\n<\/p>\n
    That brings us to the question whether the alibi set  up
\nby A1 can come to his rescue. In this connection reliance is
\nplaced\ton  the\t evidence of DW 1,  Jaswant  Singh,  Station
\nOfficer, Machlishahr Police Station. He claims to have\tcome
\nto  Kure Bhar on 19.10.1971 for investigation of an  offence
\nunder Section 363<\/a>\/366<\/a> I.P.C. of his police station. He wants
\nus  to believe that he was at the Kure Bhar  police  station
\nfrom  5.00 p.m. to 9.30 p.m. According to him A1 was not  at
\nthe  police station till about 7.30 p.m. Reliance is  placed
\non the general diary entry dated 19.10.1971 to show that A 1
\nhad  left the police station at about 10.30 a.m.  for  Tikar
\nand  had  returned to the police station at 7.30  a.m.\tThis
\nentry  is  proved through DW 2. Now according to DW  1\teven
\nthough\the had come to Kure Bhar for investigation, he\thim-
\nself remained at the police station throughout and sent\t his
\nmen  with A.S.I. (II) of Kure Bhar to  Dilawar-Ka-Purwa\t for
\ninvestigation. He wants us to believe that he came from\t his
\npolice\tstation to investigate a crime but kept\t sitting  at
\nKure  Bhar police station throughout from 5.00 p.m. to\t9.30
\np.m.  Is  this natural conduct? The obvious  reason  for  so
\nstating
\n40<\/span>
\nis to discredit PW 5, PW 8 and PW 10 who have in  unmistaka-
\nble  terms stated that A1 was at the police station and\t had
\nbeaten the deceased. DW 1 stand belied by the general  diary
\nentry made at his police station on 20.10.1971 to the effect
\nthat  on  reaching  Kure Bhar he took A.S.I.  (II)  of\tthat
\npolice\tstation\t and went to  village  Dilawar-ka-Purwa\t for
\ninvestigation  and  returned to his police station  at\t4.00
\np.m.  According to the said entry from\tDilawar-ka-Purwa  he
\nwent  to Sultanpur where he passed the night, left for\tRam-
\nnager  next morning and returned to his police\tstation\t via
\nDurgaganj.  The learned trial judge dealt with this part  of
\nthe defence evidence thus:\n<\/p>\n
“It  is also improbable of belief that once station  officer
\nJaswant Singh had taken care to come to Kurebhar in order to
\nmake  the investigation of the crime of his police  station,
\nhe had leisurely lingered on at PS Kurebhar and not  person-
\nally proceeded to make the investigation of the said case”.
\nThe  learned  trial judge observed that he appears  to\thave
\ncome  forward  to help a member of his own  fraternity.\t The
\nlearned trial judge, therefore, came to the conclusion:
\n“If  general  diary  entries Nos. 15 and 21  may  have\tbeen
\nfalsely incorporated, where is the guarantee that the gener-
\nal diary entry No. 17 which falls in between these, may\t not
\nhave been falsely incorporated”.\n<\/p>\n
The  learned trial judge also felt that it was not  possible
\nto  believe that an important police officer like A 1  would
\nspend  the whole day from 10.30 a.m. to 7.30 p.m.  inquiring
\nabout an application at Village Tiker.\n<\/p>\n
    The\t learned judge in the High Court considers  the\t ap-
\nproach of the learned trial judge unacceptable because:
\n“Sub-Inspector Juswant Singh has stated that he himself\t had
\nstayed at Police Station Kurebhar and had sent other members
\nof  his\t party and an A.S.I. of Police Station\tKurebhar  to
\nDilawar-Ka-Purwa.  The\tmere fact that\tS.I.  Jaswant  Singh
\nhappens\t to  be a Sub-Inspector of Police is  no  ground  to
\nreject his testimony. After all there should be some  reason
\nfor a police officer posted at police station Machlishahr at
\nJaunpur to falsely depose for defending Rafi
\n41<\/span>
\nUddin  Khan appellant. If S.I. Jaswant Singh’s\tevidence  is
\ndisbelieved in the present case, he himself incurs the\trisk
\nof losing his job”\n<\/p>\n
    This  line of reasoning does not commend to us. We\tfail
\nto  understand how the learned judge could persuade  himself
\nto accept the evidence of DW 1 on the specious plea that  if
\nhe did not tell the truth he ran the risk of losing his job.
\nThe  leaned trial judge gave sound reasons for\tdisbelieving
\nthe  evidence of DW 1 that he did not stir out of Kure\tBhar
\npolice\tstation from 5.00 p.m. to 9.30 p.m. The\t High  Court
\nfailed to appreciate that on realising that the condition of
\nthe deceased had deteriorated, a false entry was made by  A3
\nat  the behest of A1 to show that (i) the deceased  was\t not
\narrested  on  19.10.1971 nor was he brought  to\t the  police
\nstation\t Kure Bhar by about 4.00 p.m. and (ii) that  he\t was
\nactually  arrested  by A2 from near the culvert\t of  village
\nHanna-Harora  on  20.10.71 and was given  a  beating  before
\nactual arrest, a fact which is denied by A2 in his statement
\nunder  Section\t313<\/a>  of the Code. Thus\tthe  foundation\t for
\nabsolving  himself  from the responsibility of\thaving\till-
\ntreated the deceased was laid. The trail court rightly holds
\nthat  there is no guarantee that entry 17 is  accurate\twhen
\nentries\t 15 and 21 are found to be false. The entry  in\t the
\ncase diary regarding crime No. 28 of Machlishahr recorded by
\nA.S.I.\tBankey Bihari who had accompanied DW 1 clearly\tmen-
\ntions  that when they reached Kure Bhar they met  the  Thana
\nAdhiyakshakh  (i.e. A 1) at about 5.00 p.m. which  negatives
\nthe theory that A1 had left the police station at 10.30 a.m.
\nand had not returned till 7.30 p.m. of 19.10. 1971.  Without
\ncoming\tto grips with the circumstances pointed out  by\t the
\ntrial  court for disbelieving DW 1, the High Court  surpris-
\ningly accepted his evidence as gospel truth only because  he
\nran  the risk of losing his job. The High Court should\thave
\nrealised  that\tcases are not unknown where  police  officer
\nhave given inaccurate accounts to secure a conviction or  to
\nhelp out a colleague from a tight situation of his creation.
\nThe High Court should also have realised that it is general-
\nly difficult in cases of deaths in police custody to  secure
\nevidence against the policemen responsible for resorting  to
\nthird  degree  methods since they are in  charge  of  police
\nstation records which they do not find difficult to  manipu-
\nlate as in this case. It is only in a few cases, such as the
\npresent one, that some direct evidence is available. In\t our
\nview the reasons assigned by the High Court are too weak  to
\nstand judicial scrutiny.\n<\/p>\n
     We\t are aware that so far as A 1 is concerned,  we\t are
\ncalled upon to interfere in an acquittal appeal. Since it is
\nsaid that an acquittal
\n42<\/span>
\nreinforces  the presumption of innocence we  have  carefully
\nconsidered  the reasons given by the High Court for  setting
\naside  the  conviction of A 1. We are satisfied\t beyond\t any
\nmanner\tof doubt that the High Court completely\t misdirected
\nitself.\t We  have  dealt with the facts at  some  length  to
\njustify our interference under Article 136<\/a> of the  Constitu-
\ntion.  Had we not been fully satisfied that gross  injustice
\nwas done because the High Court misdirected itself we  would
\nnot have interfered in exercise of our powers under  Article
\n136<\/a> of the Constitution.\n<\/p>\n
    For the above reasons we dismiss Appeal No. 111 of\t1979
\npreferred  by A3 as we are satisfied that his conviction  is
\ncorrectly  recorded. We allow the State’s appeal No. 477  of
\n1979 and restore the conviction of A1 recorded by the  trial
\ncourt  by setting aside his acquittal by the High Court.  On
\nthe  question of sentence a fervent appeal was made  by\t his
\ncounsel\t that having regard to the passage of time  and\t the
\nchanged circumstances A1 should not be sent to jail and\t the
\nsentence of fine should suffice. We are unable to accede  to
\nthis request. The offence is of a serious nature  aggravated
\nby  the fact that it was committed by a person who  is\tsup-
\nposed to protect the citizens and not misuse his uniform and
\nauthority  to  brutally assault them while in  his  custody.
\nDeath in police custody must be seriously viewed for  other-
\nwise  we will help take a stride in the direction of  police
\nraj.  It  must be curbed with a heavy hand.  The  punishment
\nshould be such as would deter others from indulging in\tsuch
\nbehaviour. There can be no room for leniency. We, therefore,
\ndo  not think we would be justified in reducing the  punish-
\nment imposed by the trial court.\n<\/p>\n
    A1\tis  on bail. Since the trial court’s  order  of\t his
\nconviction and sentence is restored he will surrender to his
\nbail within a week’s time to serve his sentence.
\nR.S.S.\n<\/p>\n
43<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gauri Shanker Sharma Etc vs State Of U.P. Etc on 12 January, 1990 Equivalent citations: 1990 AIR 709, 1990 SCR (1) 29 Author: Ahmadi Bench: Ahmadi, A.M. (J) 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-247675","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGauri Shanker Sharma Etc vs State Of U.P. 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