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Judgment
Dev Darshan Sud, J.—All these appeals are being decided by this common judgment as they arise out of the same judgment of the learned Sessions Judge, Chamba.
Two cases, Sessions case No. 26 of 1995, titled: State vs. Bali Ram and Others and Sessions case No. 32 of 1995, titled: Labhdhi Ram vs. Bali Ram and Others, which was a private complaint instituted with respect to the same incident against the accused, were clubbed and decided together by the learned Sessions Judge under the provisions of Section 210 of the Code of Criminal Procedure (hereinafter referred to as the ''Cr.P.C.'').
Initially, all the appellants, who were accused before the learned trial Court, were charged for offences under Sections 304 read with Section 34 of the Indian Penal Code (hereinafter referred to as ''IPC''), pursuant to FIR Ex.PP, dated 1.3.1995 based on daily diary report Ex.PQ/2, were recorded on the basis of an application Ex.PB moved by PW-1 Labhdhi Ram who is also the complainant in the complaint case. On the submission of the final report, the accused were charged for offences under Sections 306, 329, 327, 325, 323 and 223 read with Section 34 IPC and Section 13(2) of the Prevention of Corruption Act, 1988.
The allegations against the accused-appellants were of causing the death of Bharat Kumar, who was in their custody at the relevant time. The appellants, who have been referred to as A-1 SI Bali Ram, A-2 HC Rajender Kumar, A-3 HC Dalip Kumar, A-4 Constable Lokinder Singh and A-5 Constable Mohd.Yakub, were charged for offences:-
A-1 Bali Ram, Sections 327, 329 A-2 Rajender Kumar read with Sections and A-5 Yakub Mohd. 149, 304(1), read with Section 149 and in the alternative 306 read with Sections 149 and 342 IPC.
A-3 Dalip Kumar Sections 327, 329 read with Section 149, 304(1) read with Section 149 and in the alternative 306 read with Sections 149, 342 IPC and Section 13(2), The Prevention of Corruption Act, 1988.
A-4 Lokender Singh Sections 327, 329 read with Section 149, 304(1) and in the alternative 306 read with Sections 149 and 342 IPC.
On the conclusion of the trial, all the accused were convicted for the following offences:-
(i) A-1 Bali Ram, A-2 Rajender Kumar and A-5 Yakub Mohd. Sections 323, 325 read with Sections 149, 342 and 304 Part-II, read with Section 149 IPC.
(ii) A-3 Dalip Kumar Sections 323, 325 read with Section 149, 342, 304 Part-II read with Section 149 and 384 IPC.
(iii) A-4 Lokender Singh Sections 323, 325 read with Section 149, 342 and 304 Part-II IPC.
The sentenced imposed upon them was:-
(a) Each of the appellants was sentenced to simple imprisonment for three months u/s 323 IPC;
(b) Simple imprisonment for six months each u/s 325 read with Section 149 IPC;
(c) Simple imprisonment for three months each u/s 342 IPC.
(d) A-4 Lokender Singh was sentenced to undergo simple imprisonment for two years and fine of Rs. 10,000/- u/s 304 Part-II IPC. The remaining accused were also sentenced to undergo simple imprisonment for two years and a fine of Rs. 10,000/- each for offences u/s 304 Part-II read with Section 149 IPC;
(e) A-3 Dalip Kumar was sentenced to undergo simple imprisonment for three months u/s 384 IPC.
(f) In the event of default of payment of fine each of the five accused-appellants were directed to undergo simple imprisonment for one year each. All the substantive sentences passed against them were directed to run concurrently. The fine, on realization, was directed to be paid to the parents of the deceased in equal shares.
In this appeal, in order to maintain consistency, we will be referring to the accused-appellant in the manner in which they have been described before the learned trial Court i.e. A-1 SI Beli Ram, A-2 HC Rajender Kumar, A-3 HC Dalip Kumar, A-4 Constable Lokender Singh and A-5 Constable Yakuv Mohd.
The prosecution case against them as detailed in Ex.PO, which is a report submitted by the Deputy Superintendent of Police, PW-10 Shri Amar Singh, who had visited the spot after the incident, is that on 15.2.1995 Shri Bharat Kumar deceased died while he was in their custody by abruptly falling into river `Ravi� from Bakan Bridge which was in the jurisdiction of the Police Station, Sadar, Chamba. The accused were charged for being instrumental and responsible for causing the death of Bharat Kumar who was a young student having passed his M.A. in English despite hailing from a poor family and paying his way through by doing odd jobs including sawing timber.
One Chamaru Ram was accused of complicity/having committed offences under Sections 376, 452, 323, 506 Part-II IPC as recorded in FIR No. 53 of 1995, being accused for having raped one Smt. Pano Devi. This case was registered on the complaint by victim with the Deputy Commissioner, Chamba. Daya Nand PW-4 is alleged to have been an eye witness to this incident. On 14.2.1995 A-3 HC Dalip Kumar and A-5 Constable Yakub Mohammad were deputed to search out the accused Chamaru Ram in that case. On 15.2.1995 both these police personnel were proceeding from Darwin to Lowa at around 10.00 A.M. They met Daya Nand PW-4 in the company of the deceased, both of them were going to the house of one Mohkam Din PW-5 in village Durged for earning their livelihood by sawing timber. At that time, Chamaru Ram was also accompanying both A-3 HC Dalip Kumar and A-5 Yakub Mohd. Both these police personnel asked Daya Nand PW-4 about his name etc. He told them that he was Daya Nand. They then asked him to sit down on the spot, but he declined to do so informing them that he alongwith the deceased Bharat Kumar was going to work in village Durged. They were allowed to proceed by the accused to the house of PW-5 Mohkam Din where they started sawing timber.
The case then made out is that the accused also reached the spot where both Daya Nand PW-4 and the deceased were working and asked PW-4 Daya Nand to sign on a blank paper. At this, the deceased Bharat Kumar cautioned Daya Nand not to put his signatures on any blank paper. The accused got infuriated and started abusing the deceased and threatened him with dire consequences. He was beaten up though he tried to ward off the blows. He told both the accused that no force could be used by them and they could also not compel PW-4 Daya Nand to sign any blank paper(s) as this was illegal. This response only enraged them more. The deceased then told them that he would personally meet the Superintendent of Police at Chamba and report to him about the unruly behaviour and illegal acts being committed by the accused. They did not like this response, got enraged and started dragging the deceased towards Durged Nullah. Daya Nand PW-4 was ordered to follow. On Durged Nullah (bridge), Daya Nand and deceased were ordered to sit down. There, A-5 Constable Yakub Mohammad started slapping the deceased. At this juncture, police party consisting of A-1 SI Bali Ram, A-2 HC Rajender Kumar and A-4 Constable Lokender Singh reached the spot. They were proceeding from Gram Panchayat Dalwin towards the bridge. Out of the accused, one of them met the second police party and talked about something in the presence of one Kahan Singh who could not comprehend as to what they were saying. After some discussion, the second police party consisting of A-1 SI Bali Ram, A-2 HC Rajender Kumar and A-4 Constable Lokender Singh became excited with rage. They caught hold of the deceased from his hair, roughed him up and threw him on the ground. Both arms of the deceased were pinned down. He was repeatedly pushed to the ground, one of the accused sat on his chest and thrashed him mercilessly as a result the deceased suffered injuries on his chest, neck, ear, nose and face where he sustained bleeding wounds. After sometime, again the deceased was kicked to the ground and assaulted with kicks directed at his head, stomach, face, chest and back, as a consequence the deceased was nearly half dead from the vicious assault to which he has been subjected.
All this activity had stirred the residents of the neighbouring locality, whereupon PW-3 Yusaf, Nawab Din etc. reached the spot. On seeing the crowd collecting there, the accused stopped beating the deceased. When A-3 HC Dalip Kumar saw the bridge splattered with blood stains and blood all over the face of the deceased, he tore his jacket at the shoulder. One of the accused tried to cover up the blood stains on the bridge by throwing sand on the spots and spreading it all over. The accused thereafter dragged the deceased to village Salwin alongwith PW-4 Daya Nand. At this juncture, all others also followed him. He was taken there to the house of one Jai Kishan. PW-2 Shri Kaur, father of the deceased, who had also received information about his son being beaten up by the police, also rushed to the house of this Jai Kishan. On seeing the condition of his son, who was drenched in blood, he fell on the feet of the accused pleading and begging them for mercy, asking them to release his son and stating that he belongs to a very poor family and it was with great difficulty that he was able to educate the deceased who was a student of M.A. in English. He told them that the deceased was the most educated person in Gram Panchayat Darwin and was rights conscious person. He was informed that he should pay a sum of Rs. 900/- to the accused in case he wanted his son to be released. PW-2 Shri Kaur immediately arranged a sum of Rs. 700/- and paid it to the accused, but despite this, the deceased was not released and the accused insisted that unless the entire amount was paid they would not release him. Since balance amount of Rs. 200/- was not paid, the deceased was dragged and taken towards Bakan Bridge followed by PW-3 Yusaf and PW-4 Daya Nand as also Shri Kaur PW-2, father of the deceased. They stopped on this bridge and again the accused was given a sound thrashing. This entire gory episode was being carried out in the centre of the bridge where the deceased was kicked, punched and then thrown into the river ''Ravi''. The deceased swam in the river up to a distance of 150/200 feet and desperately attempted to swim across the river to the other bank of the river, but since the current was very swift he was carried away for some distance by the water and drowned in the river. Thereafter, the accused tried to flee from the scene, but were blocked and caught hold of by the crowd which had collected there who informed the Deputy Commissioner about the incident. Thereafter, Sub Divisional Magistrate, Chamba, PW-7 Shri Hukam Singh Thakur, reached the spot for carrying out further investigation. The dead body of the deceased could not be found.
The other version of the accused, as recorded by the learned Sessions Judge in his judgment, is that on 15.12.1995, A-3 HC Dalip Kumar and A-5 Constable Yakub Mohd were proceeding from Darwin to Lowa at 10.00 A.M. On the way they met PW-4 Daya Nand, who was the eye witness in the rape case. He was in the company of the deceased Bharat Kumar. A-3 HC Dalip Kumar communicated a `Hukumnana� to PW-4 Daya Nand directing him to join investigation at 1.00 P.M. at Sahali Gharat. He was asked to acknowledge the ''Hukumnana''. At this, the deceased asked PW-4 Daya Nand not to sign ''Hukumnana'' to join investigation in the case. The deceased is also said to have picked up a stone and hurled it at A-3 HC Dalip Kumar who ducked and saved himself. The deceased threatened A-3 HC Dalip Kumar with dire consequences and death in case he dares to serve the ''Hukumnama'' on the accused. According to the accused, Bharat Kumar deceased was responsible for obstructing the police personnel from performing their duties, assaulting them, grappling with one of the officers and tearing his official uniform. After this, A-3 HC Dalip Kumar and A-5 Constable Yakub Mohammad reached Durged Khud. Here also, the deceased grappled with A-3 HC Dalip Kumar and tried to snatch the papers from them. He was grossly guilty of obstructing the police in the discharge of their legitimate duties. He was, therefore, arrested on the spot. The deceased was being taken to Chamba in police custody and, when they were crossing Bakan Bridge, he managed to escape from their custody and jumped into the river despite the best efforts made by the accused to prevent his escape. He swam up to a distance of 150 to 200 feet, trying to save himself but as the current was very swift he disappeared in the river. Even A-1 SI Bali Ram directed the police party to save the accused from drowning, but they were again obstructed by the crowd which had collected there who then beat up the police party. Soon after the occurrence, PW-16 Shri K.R. Bharti, who was the Additional District Magistrate, Chamba, was deputed by the District Magistrate, Chamba to hold an inquiry under Sections 174(4) and 176 Cr.P.C to ascertain the cause for the death of the deceased. After inquiry, vide his detailed report Ex.PAR, he concluded that the deceased died in the custody of the police owing to the various acts of omission and commission of the police personnel.
We advert to this report Ex.PAR at this juncture. The Additional District Magistrate holds that the inquest was ordered on the basis of a report of the Sub Divisional Magistrate, Chamba, who had reported that a police team consisting of Bali Ram, Sub Inspector, Rajinder Singh, Head Constable, Daleep Singh Head Constable, Lokinder Singh Constable and Yaqub Mohammad Constable had gone to investigate a rape case. The police was interrogating some people. Bharat Kumar deceased objected to the manner and mode of investigation by the police which enraged them and they beat him up mercilessly. They forced him to pay Rs. 500/- as bribe. When the entire amount was not paid, he was arrested and was being brought to Chamba. During this process he managed to escape from police custody and jumped into the River Ravi at Bakani bridge. Notices were issued, which were displayed in:-
(a) Rain Shelter at Bakani Bridge;
(b) Bakani Bridge;
(c) Shops of Sh.Madho Ram, Hanif Mohd. Raoshan Deen, Karam Chand, Joginder Pal all at Bakani Bridge;
(d) Panchayat Ghar Bakani;
(e) Panchayat Ghar Dadwin;
(f) Patwarkhana Bakani;
(g) House of Sh. Kishan Kumar S/o Shri Prithi, R/o Village Nali;
(h) House of Sh. Ram Chand S/o Sh.Joshi, R/o Village Nali;
(i) Village Nali.
He examined the following persons for details of the incident:-
(i) Yusaf S/o Ilam Deen R/o Durged Panchayat Bakani;
(ii) Sh.Ismail S/o Kala R/o Durged Panchayat Bakani The.& Distt.Chamba.
(iii) Nawab Deen S/o Mohkam Deen R/o Village Durged, Panchayat Dadwin.
(iv) Sh.Jaram Singh S/o Dayal Chand R/o Village Sahlwin, Panchayat Bakani;
(v) Sh.Kahan S/o Churhu R/o Village Sahlwin, Panchayat Bakani.
(vi) Mohd.Hanif S/o Mussa R/o Village Bagh panchayat Bakani.
(vii) Sarno S/o Bhekhi R/o Gajnuin Panchayat Bakani.
(viii) Gopi Chand S/o Chamaru R/o Village Bakani Panchayat Bakani.
(ix) Beli Ram S/o Sh. Surma Pradhan Gram Panchayat Bakani.
(x) Smt.Pano W/o Jigri R/o Sahlwin Panchayat Bakani.
He recorded the statements of:-
(i) Shri Kaunr, father of deceased Bharat Kumar,
(ii) Daya Nand son of Shri Ram Chand,
(iii) Ibrahim son of Shri Thollta, Resident of Village Durgedh, Panchayat Dadwin,
(iv) Bharat Singh son of Shri Dittu, Resident of Village and Panchayat Dadwin,
(v) Shri Banga son of Shri Chuhru, Resident of Village Saklana Panchayat Dadwin,
(vi) Shri Yusaf son of Shri Ilam Deen, R/o Village Durgedh, Gram panchayat Dadwin,
(vii) Shri Nawab Deen son of Shri Mohkam Deen, Resident of Village Durgedh, Gram Panchayat Dadwin,
(viii) Shri Ismyal son of Shri Kala, Resident of Village Durgedh, Gram Panchayat Dadwin,
(ix) Shri Jaram Singh son of Shri Daya Chand, Resident of Village Shalwin, Gram Panchayat Bakani,
(x) Smt.Pano wife of Shri Jigri, Resident of Village Shalwin, Gram Panchayat Bakani,
(xi) Shri Kahan Son of Shri Chuharu, Resident of Village Sahlwin, Panchayat Bakani,
(xii)Shri Chamaru R/o Village Dadwin, Gram Panchayat Dadwin;
(xiii) Mohd.Hanif son of Shri Mussa, Resident of Villagge Bag, Gram Panchayat Bakani;
(xiv) Shri Sarno son of Shri Bhekhi, Resident of Village Bhujnuin, Gram Panchayat Bakani (Panchayat Member).
(xv) Shri Gopi Chand son of Shri Chamaru Ram, resident of Village Bakani, Gram Panchayat Bakani.
(xvi) Shri Beli Ram son of Shri Surma Ram, Pradhan Gram Panchayat Bakani.
(xvii) Shri Nurdh Ram Pradhan, Gram Panchayat Dadwin.
(xviii) Shri Manak Chand, Pradhan, Gram Panchayat Mehla,
(xix) Bali Ram Accused, Sub Inspector, Police Lines, Chamba.
(xx) HC Rajender Kumar accused;
(xxi) Constable Lokender Singh, accused;
(xxii) Constable Dalip Singh, accused;
(xxiii) Constable Yakub Mohad. Accused.
In addition, he also took into consideration the report of the Sub Divisional Magistrate, Chamba, PW-7 Hukam Singh Thakur, except report of the Deputy Superintendent of Police, Chamba, Amar Singh PW-10. He formulated six points for determination:-
(a) Whether Bharat Kumar obstructed the police officials in discharge of their public duty?
(b) Whether Bharat Kumar was beaten/belaboured by the police?
(c) Whether Bharat Kumar was in custody of police? If yes, in whose custody and supervision he was?
(d) Whether there was any extortion of money by police from the father of Bharat Kumar?
(e) Whether Bharat Kumar fell into the river? If yes, the manner and circumstances in which Bharat Kumar fell into the river?
(f) Whether Bharat Kumar had died and who is responsible for his death?
We paraphrase his findings:-
(a) On the first point, after consideration of the material on record, he concludes that the deceased did nothing wrong by asking for a proper Court summon or order and the arguments, which he entered into with the policemen, may have been taken to be an obstruction of duty. There was nothing on the record to establish that the deceased had beaten up, threatened or assaulted the police party, rather it was the deceased who was brutalized by them. Registering a case under Sections 353, 186 and 506(B) IPC was not called for against the deceased as there was no case for obstruction which was made out. A false FIR seems to have been fabricated against the deceased.
(b) That the deceased was beaten up and man handled mercilessly by all the police personnel and the participation of A-5 Constable Yakub Mohd and A-4 Constable Lokender Singh was greater than the others. There was no positive evidence that the deceased had retaliated when he was assaulted by the policemen. He falsifies these facts by saying that retaliation seems to be unnatural as deceased was one pitted against five. The SDM in his report and the Pradhan of Gram Panchayat Dadwin, Pradhans of adjoining Gram Panchayats and the other persons who witnessed this confirmed the deceased being thrashed.
(c) From the record it was established that Bharat Kumar was arrested for causing obstruction to the duty of the policemen and a case was registered against him on 15.2.1995 under Sections 353, 186 and 506(B) IPC on 15.2.1995. FIR was lodged in the police station which was inspected by him as proof of authenticity of the fact for registration of the case. He was in the custody of the accused and large number of persons were ready to get him released from police custody and had even paid Rs. 700/- to the police.
(d) The evidence on record suggested that a demand for Rs. 1000/- was made for settling the case instituted against the deceased Bharat Kumar. Shri Kaur, father of the deceased, stated that a demand of Rs. 900/- had been made, he had only Rs. 600/- with him and borrowed Rs. 100/- from one Yusuf son of Ilam Deen. This fact was corroborated by Yusuf. Ibrahim son of Thollia, Bharat Singh son of Dittu Ram, Banga son of Kala, Nawabdeen son of Mohkam Deen confirmed the demand for money. He even records that Sub Inspector Bali Ram in his statement stated that the amount paid to Dalip was returned to Shri Kaur, father of Bharat Kumar, and HC Rajinder also confirmed this fact. From these facts he concluded that there was a money deal to have the deceased released from custody.
(e) There were two versions; firstly, that deceased Bharat Kumar was thrown by the policemen in the river; secondly, he fell into the river while a struggle ensued on the bridge which was the result of the policemen pulling and pushing him. On the first version, he did not find any evidence. He also concluded that the deceased had himself jumped into the river was not proved though the SDM, Chamba, in his report had referred to Bharat Kumar jumping into the river to escape the torture by the police. He concludes that there is sufficient material on the record to prove that Bharat Kumar was belaboured at Durged bridge, Bakani bridge. So much so, he was not even allowed to urinate despite repeated requests. He was publically humiliated; money was extorted from his father. The deceased was a qualified graduate and was studying in M.A. in English. Torture and humiliation meted out to him publically might have spurred him to take this extreme step. In these circumstances, even if the version of the accused that Bharat Kumar Jumped in the river is to be believed, it was the sole creation of the circumstances created by the police.
(f) On the last point, he concludes that all eye witnesses including the police party comprising of the accused had confirmed the fact that Bharat Kumar had fallen into the river; some of them had even seen him making an attempt to swim across the river but the fast current of the water carried him away, his body has not been traced and in these circumstances he might have died in all probability. It was not possible to single out one individual policeman for the acts, but the whole team led by Sub Inspector Bali Ram was responsible. He concluded by saying that Bharat Kumar had died in the custody of the police due to various acts of omission and commission of the police as discussed in detail in his report and a case was required to be registered by him against them.
We have noted these facts in a summary manner in order to put the facts in their proper perspective.
We now proceed with the prosecution case further. The body of the deceased was recovered on 23.3.1995 from the river Ravi at a place situated between Jangi and Nalli near Mehla. It was identified by PW-6 Chain Lal and one Ibrahim. It was photographed by PW-15 Constable Khialo Ram, photographs Ex.P-1 to Ex.P-3 and negatives Ex.P-4 to Ex.P-6 have been proved on the record. Inquest proceedings Ex.PF and Ex.PG were conducted and the dead body was sent for autopsy and postmortem. Dr.Suresh Sankhyan PW-8, who conducted the postmortem, stated in his report Ex.PJ that:-
Though the dead body was in advanced state of purification but in the light of sand particles found in the stomach and Bronchial Tree it can be safely presumed that the deceased had died due to asphyxia as a result of ante-mortem drowning.
He opined that the probable time between injuries and death was �few minutes� and between death and postmortem is �three weeks to three months�. Viscera could not be preserved as the body was in an advanced state of decomposition. Investigation was completed and the case alongwith the complaint instituted by PW-1 Labhdhi Ram was tried together. The prosecution examined 17 witnesses in all.
In their statement u/s 313 Cr.P.C., the accused have denied their involvement in any wrong doing; their case is one of false implication. All the accused, except A-5 Constable Yakub Mohammad, admitted that their statements were recorded by PW-16, Additional District Magistrate, Shri K.R. Bharti. But they say that these were result of the pressure from the police/administration. They also state that the statements of the other witnesses were recorded by these witnesses in their absence and behind their back. The local populace had lied to the Magistrate. A-1, SI Bali Ram, says that the case against him is a result of political conspiracy. They were asked as to whether they would be leading evidence in defence to which they all replied in the affirmative; they were given a chance, but they declined to lead any evidence. This is the entirety of the prosecution case in a nutshell.
We now advert to the evidence on record and the submissions made by learned counsel appearing for the appellants as to whether there were material contradictions in the evidence of the prosecution witnesses entitling them to acquittal, the contradictions were of such a nature that they destroyed the entire edifice of the prosecution case and whether the offences as recorded by the learned trial Court were in fact committed by them or not. We notice that there are two versions which have come on record. One by the prosecution of wrongfully detaining and confining the deceased, subjecting him to belabouring, dragging and kicking him and ultimately throwing him into the river when he or his father PW-2 Shri Kaur Ram could not meet the demand for the bribe demanded for his release. The second version of the accused is that the deceased obstructed the accused in the lawful discharging of their duties as a result of which criminal case was registered against him at the instance of A-3 HC Dalip Kumar under Sections 353, 186 and 506 Part-II IPC on the day of occurrence itself. He tried to free himself from police custody and as a result, fell in the river. He had also assaulted the police party and threatened them with dire consequences including death, should they proceed further in the investigation of the case u/s 376 IPC against Chamaru Ram.
These contradictory versions at least prove one fact that on the day of occurrence the deceased Bharat Kumar was in the custody of the accused. The only point requiring determination was as to whether his custody was legal/illegal and in any event whether his death was a result of the instigation/acts of omission and commission by the accused. It is undisputed before us that the case against the accused Bharat Kumar under Sections 353, 186 and 506 Part-II IPC was registered at the instance of A-3 HC Dalip Kumar since Bharat Kumar had died, cancellation report alongwith copies of the documents accompanying them etc. were filed in the Court.
The prosecution evidence was considered in detail by the learned Sessions Judge. The first witness is PW-1 Labhdhi Ram. He is the uncle of the deceased Bharat Kumar. He says that the deceased was a student of M.A. and was also skilled in sawing timber. In the month of Phalgun of 1995, this witness was in Bhatiyat with his sheep and goats. He came to know on that day that his nephew Bharat Kumar had died after being beaten up by the police. He rushed home and after reaching there he rushed from pillar to post, officer to officer requesting them to take action in the matter. He met the Deputy Commissioner, Chamba, Shri Harsh Mahajan Local MLA, the Station House Officer, Police Station, Sadar Chamba, but without success. Thereafter he filed a complaint Ex.PA, u/s 302 IPC, against the police personnel in the Court of the Chief Judicial Magistrate, Chamba. This was thumb marked by him and he identified it as Ex.PA/1 on the complaint. He had engaged Shri Rajinder Sharma, Advocate, Chamba to draft and file the complaint. He proved Ex.PB, which is the application submitted to the Station House Officer, Chamba, for registration of the case against the accused. He says that he had stated in his complaint what had been told/described to him by the people. On a Court question put to him, he says that he reached at Chamba from his home at Bhatiyat 6-7 days after the incident. In cross-examination, he says that he was informed by one Shri Bainsu about the incident and that it had received wide publicity in the newspaper also. He also says that he had been visiting the police station regularly, but instead of helping him, the police were intimidating and threatening the eye witnesses that in case they state anything in the Court, they will be dealt with appropriately. Ex.PB is an application addressed to the Station House Officer, Police Station, Chamba describing the gory details of the entire episode and requesting for immediate police action.
PW-2, Shri Kaur, the father of the deceased, states that his son was an intelligent boy and was very bright in studies who had managed to graduate and was now studying in M.A. He was a poor person and since he could not meet the expenses of education, he had asked his son also to do some work to relieve the financial burden. On the 4th Phalgun (Wednesday) of 1995 the deceased alongwith Daya Nand PW-4 had gone to the house of one Maukam Din PW-5 at around 10.00 A.M., Shaffi, nephew of one Yusaf, came to his house and informed him that five policemen had beaten up his son Bharat Kumar. He started for Durged and found the police party and his son missing. He, thereafter, went to Salwin where he found his son and the police party in the house of one Jai Kishan. He saw his son in an injured condition; his face was battered and was bleeding all over. At that time he was in custody of all the five accused. He asked his son as to who had beaten him up, who in turn informed him that five accused were responsible for it. He asked the accused as to why they had beaten up his son, there was no response. He then told them that he will approach the Deputy Commissioner for justice. Thereupon A-1 SI Bali Ram told him that he was a Station House Officer and his "words" are "final". PW-2 Kaur Ram answered that he would approach the Superintendent of Police and a Court of law for justice when again he was told that do whatever he liked as the Station House Officer was so powerful that no action could be taken against him. He then asked them to release his son. They replied that this could be done only if he paid Rs. 1000/-. He did not have that sum, but he had paid Rs. 600/-. He borrowed Rs. 100/- from Yusaf and paid this amount of Rs. 700/- to the accused. This amount was taken by A- 2 HC Rajinder Kumar. Even thereafter, the deceased was not set free and he was told that unless he paid the entire amount they would not release him. They told him that they had the authority and are authorized infact to kill any person in case of need. A-1 SI Bali Ram, then asked him to accompany the police party to the house of one Jarmo and told him that matter will be settled there. He pleaded and begged of them that the deceased was his only son and they should set him free, but this had no impact on the accused. Even at the house of Jarmo, the accused did not release the deceased till the entire sum demanded by them was paid. Thereafter they took the deceased towards ''Baag'' and told PW-2 Kaur Ram that unless the amount demanded is paid, the deceased would not to be released. He says that he was not allowed to speak with his son despite repeated requests. The path leading from Salwin to Bakan bridge is hilly track and was narrow and one person could walk at a time. It is next to the river ''Ravi''. The slope between this path and river is very steep. On reaching Bakan Bridge, the deceased was asked to sit down on a parapet and the police personnel sat either side. His son deceased Bharat Kumar protested and asked the accused as to why he was being taken to Chamba and what offence he had committed. He then states that he could not control himself and the other persons present tried to pacify him. During this time, the deceased was dragged along the bridge and in this scuffle the deceased fell into the river below. He was shocked and benumbed with horror. His son drowned in the strong current and his body could only be traced after a month and seven days near a place called Skali near Mehla. He says that a large number of people had reached there. The accused tried to flee from the scene. He further details as to how his brother rushed to the Police Station, Sadar, Chamba then to the Superintendent of Police, Deputy Commissioner and sent an application to Shimla praying for justice, but no heed was paid. He also met the Local MLA and sent a petition to this (High Court) Court. Ultimately, his brother Labhdhi Ram PW-1 filed a criminal complaint in the Court of the learned Chief Judicial Magistrate, Chamba. His statement was recorded by the Additional District Magistrate PW-16 Shri K.R. Bharti. His statement was also recorded by the learned Chief Judicial Magistrate which he proved on record as Ex.PC and his signatures as Ex.PC/1. He has been cross-examined at length by the defence. He admits that Jai Kishan of village Salwain is blind, whose brother Kahan was present when he reached the house of Jai Kishan. He admits that a number of persons were present in the house of Jai Kishan. He says that some minor contradictions in the statement might have occurred when he deposed before the learned Chief Judicial Magistrate, but that was because of the fact that he was traumatized and in distress and has not been able to reconcile with the fact that his son has been killed by the police. He denied the suggestion that on Bakan bridge, the accused and the deceased were sitting separately on opposite sides and that the deceased had run towards the bridge and jumped there. He admits about the inquiry etc. being conducted. This in a nutshell is his cross-examination by the respondents who also tried to contradict his evidence by confronting him with his statement made before the Chief Judicial Magistrate and details regarding where the accused had meals before reaching Bakan bridge.
PW-3 Yusaf says that on 15.2.1995 at around 9.00 A.M. he was present in his house at Durged. House of Maukam Din PW-5 is situated near and above his house. He saw two policemen dragging the deceased on the path below his house. Daya Nand PW-4 was also with the police. He identified them as A-3 HC Dalip Kumar and A-5 Constable Yakub Mohammad. He asked these policemen as to why they were doing this, on which they told to shut up and not to poke his nose in police business. He says that thereafter the police party alongwith the deceased and Daya Nand proceeded towards Durged bridge. He followed this party as he knew the deceased. Chamaru and Tula also reached there. He asked the deceased why he was detained by the police on which he was told that the police had asked Daya Nand PW-4 to accompany them on which he had told that he would do so after finishing his work of sawing timber. He was further informed by the deceased that the policemen asked Daya Nand PW-4 to sign on some blank papers if it is not possible for him to accompany them. At this, the deceased asked the police to first write down whatever they wanted on the paper before Daya Nand PW-4 put his signatures on the paper. At this, the police personnel told him that they would teach him a lesson as he was talking in nonsense unnecessarily. He was directed to accompany them. At this, this witness asked the police personnel to forgive the deceased at which, A-5 Constable Yakub Mohammad got enraged and slapped the deceased. In the meantime, three more police personnel came there from across the bridge from the side of the watermill of Pano. A-3 HC Dalip Kumar went across the bridge and started talking with the other police party. He identified them as A-1 SI Bali Ram, A-2 HC Rajender Kumar and A-4 Constable Lokender Singh in Court. After sometime, all four accused namely; A-1 SI Bali Ram, A-2 HC Rajender Kumar, A-3 HC Dalip Kumar and A-4 Constable Lokender Singh came to the bridge and A-4 Constable Lokender Singh started slapping the deceased. A-2 HC Rajender Kumar caught hold of the deceased from his hair and started dashing his head against the wooden surface of the bridge. Thereafter accused pounced upon the deceased and started thrashing him. Some were kicking him and the others were punching and slapping him. As a result, the deceased started bleeding from his nose and mouth. On seeing this, Nabab Din started screaming that the police had committed murder. On seeing blood splattered on the surface of the bridge, A-3 HC Dalip Kumar tore his jacket near the shoulder and another policeman tried to remove the blood stains with his shoes by spreading sand on the spot. When Nabab Din was shouted and screaming, he was told to shut up as the police were even authorized to kill and no body could do anything against them. Many persons namely; Ismail, Ibrahim, Bharat Kumar of village Dadwin and Banga had gathered on the spot. After this incident, the police party started going towards village Salwin with the deceased and Daya Nand PW-4. He also followed them. On the way to Salwin, he thought it appropriate to inform PW-2 Shri Kaur Ram, father of the deceased, about the entire incident and he sent his nephew Shaffi Mohammad to inform him. At village Salwin police party went to the house of Jai Kishan where PW-2 Kaur Ram reached. He put his ''safa'' (turban) at the feet of A-1 SI Bali Ram and pleaded with them to release his son asking them as to what offence had he committed. The accused informed Kaur Ram PW-2 that he was being taken to Chamba where he would be put behind the bars and if he was interested in having his son released he should pay one thousand rupees to them. Kaur Ram PW-2 then told this witness that he does not have Rs. 1000/- with him and that he (Kaur Ram) had only Rs. 600/-. PW-3 Yusuf then gave Rs. 100/- to PW-2 Kaur Ram who then paid Rs. 700/- to the police as he was carrying only Rs. 600/- with him. He was told by the police that the matter could not be settled for Rs. 700/- and he should accompany them up to ''Rakh'' where the matter could be settled. The personal search of the deceased was conducted in the house of Jai Kishan in village Salwin. One wrist watch, one comb and two currency notes were recovered from the deceased. Thereafter, they went to the house of Jarmo in village Salwin. The accused had tea there. Again, PW-2 Kaur Ram pleaded with the accused for mercy and that his son should be released, but these fervent pleas went unheeded. When all of them reached ''Rakh'' on Bakan Bridge, which can be approached only by a single narrow path on which only one person can walk, the deceased was made to sit on the parapet of the bridge and was told that he would be taken to Chamba. The deceased refused to accompany them and told them that he would like to go home. He was then forced to walk towards Chamba and when they all reached middle of the bridge, the accused started grappling (guthamgutha) with the deceased. At this, he saw the deceased falling into the river below. He kept on swimming for sometime, there was commotion around and many people gathered there. Three accused ran away from the spot and two were overpowered by the people. Two of the accused were taken across the bridge to the shop of one Haneef where they were asked to sit down. One of the accused A-1 SI Bali Ram left the place because he wanted to urinate, but when he went outside to do so, he also jumped into the river, but was caught in the nettle shrubs (Bichhu Buti). Gulam Rasool also jumped after this accused and brought him back to the shop. Both Gulam Rasool and Shaffi Mohammad informed the Deputy Commissioner, Chamba about the occurrence. Thereafter, Sub Divisional Magistrate, Chamba reached the place of occurrence. He consoled and pacified the agitated crowd present there. He says that the Sub Divisional Magistrate took the official belts which these two accused were wearing. He proved his statement Ex.PD made before the Chief Judicial Magistrate, Chamba and mark ''E'' statement before the Additional District Magistrate. Chamba.
PW-4 Daya Nand states that on the fateful day he alongwith deceased were engaged for sawing timber for Maukam Din of village Durged. He started from the village for Durged at around 8.00 A.M. and on the way near Mandir Kelang, A-3 HC Dalip Kumar and A-5 Constable Yakub Mohammad met them. At that time Chamaru accused was also with the police party. He was asked to sit down but he told them that he was going to Durged for work at the house of Maukam Din. He alongwith the deceased then proceeded to Durged and were occupied with the work of sawing timber. When the accused reached that place, they took up a blank paper and asked him to sign it. At this, the deceased asked the accused as to how and under what authority the signatures of this witness were being obtained and that too on a blank paper. He told them to write the document before it was signed. At this, A-3 HC Dalip Kumar caught hold of the deceased from the shirt and asked him to accompany them Durged Bridge. He was also asked to follow them. He says that the deceased was dragged to the bridge. On reaching there, they were made to sit down and A-5 Constable Yakub Mohammad started slapping the deceased. Three more police officials came there from the side of Pano�s Gharat. This accused A-3 HC Dalip Kumar went across the bridge where they conversed for sometime. He identified A-1 SI Bali Ram, A-2 HC Rajinder Kumar and A- 4 Constable Lokender Singh in the Court. They then came to the place where all of them were sitting. On reaching there, accused A-4 Constable Lokender Singh caught hold of the deceased from his hair and started dragging him. He made the deceased to bend down and started pummeling, punching and kicking him. Thereafter the other accused also joined him and started dashing the accused against the parapet of the bridge. On seeing this, Nabab Din raised an alarm that the police people were committing a murder at which one of the accused also kicked Nabad Din telling him to get lost. There were blood stains all over the bridge and the accused tried to destroy this by throwing sand. At this juncture, A-3 Constable Dalip Kumar also tore his jacket. They then proceed towards village Salwin and took this witness and the deceased alongwith them to the house of Jai Kishan. He says that on Durged bridge a number of persons, namely; Ibrahim, Nabab Din, Chamaru, Banga, Bharat Kumar of village Darvin, Kahan and Chhottu Gujjar alias Yusaf were also present. At the house of Jai Kishan in village Salwin PW-2 Shri Kaur Ram, father of the deceased, was also reached after sometime and started pleading with the accused to release his son. At first his plea was not heeded to, but lateron he was told that he should pay Rs. 1000/- to have his son released and when he expressed his inability saying that he has only Rs. 600/-, he took Rs. 100/- from Yusaf which he paid to the accused. This amount had been handed over to the accused A-3 HC Dalip Kumar, who lateron gave this money to accused A-1 SI Bali Ram. He says that the accused then asked him to come to the house of Jarmo where the matter would be settled. There he was informed that the matter would be settled at ''Baag'' below ''Bakan''. When they reached Bakan bridge, the deceased was made to sit on the parapet and the two accused sat on either side. The accused told PW-2 Kaur Ram that the deceased would be taken to Chamba and started forcibly dragging him. When they had reached the middle of the bridge, he witnessed, A-5 Constable Lokender Singh kicking and punching the deceased and in the very next moment the deceased fell into the river. He proved his statement Ex.PE before the learned Chief Judicial Magistrate.
PW-5, Maukam Din states that he had employed Bharat Kumar deceased and Daya Nand PW-4 for sawing timber which was used for fabricating door frames of his house. They came to his house at around 9.00/9.10 A.M. They worked for one day. He was not feeling well on that day and was resting on a cot. He was informed that both these persons were sawing timber by his daughter-in-law and his grand children. After about 10-15 minutes, the children ran to him and told him that there was a police party approaching his house. He opened the window and saw two policemen. One of them, whose back was towards him, was talking to Daya Nand and asking him to put his signatures on a blank piece of paper. Deceased Bharat Kumar asked him not to do so at which an altercation followed and the policemen dragged Bharat Kumar away towards Durged Bridge. When they reached the bridge they started beating Bharat Kumar. During this time many persons gathered there. In cross-examination this witness states that he had also narrated this version to some higher ranking officers namely; Afsar Maal, Kanungo etc. who had come to him.
PW-6 Chain Lal is a cousin of the deceased. He says that the body of Bharat Kumar was traced at a short distance of village Mehla after one month and seven days of the day when he had fallen to a river at Bakani Bridge. He identified the body which has brought to Chamba Hospital. It was thereafter sent to Shimla for examination and he accompanying the body to Shimla. The doctors at Shimla conducted the postmortem. In cross-examination he states that the body was spotted by one boy named Rakesh of village Unhan (Mehla). He said that when he saw the body, it was not in such a condition that it could not be identified.
We now turn to the evidence of PW-7 Shri Hukam Singh Thakur, who remained posted as Sub Divisional Magistrate, Chamba, from December, 1994 to June, 1995. He says that on 15.2.1995 in the evening at around 5.00 P.M. he was directed by the Deputy Commissioner, Chamba to proceed at Bakani Bridge where law and order problem had arisen because of the death of Bharat Kumar. He started from Chamba at around 5.30 P.M. and reached Bakani Bridge at around 6.00/6.15 P.M. A large crowd numbering about 400/500 had gathered at the Bakani bridge; they were restive and the atmosphere was surcharged. Stones had been placed on the road to block traffic. Earlier to him, Deputy Superintendent of Police, Chamba Shri Amar Singh PW-10 had reached the spot at about 4.00 P.M. with the police force of about 40-50 personnel. He was informed by the people assembled there that a police investigation team had gone towards village Nalla (Nalli) to investigate a case. They told him that it was during the course of this investigation that there was an altercation between the investigating team and the deceased during which the deceased was beaten up by the police while being taken to Chamba. The crowd was emotionally charged and was raising slogans demanding action against the police officials involved in the occurrence. He says that the situation was so tense that but for timely action, it would have aggravated. Out of the policemen who were said to be responsible for the occurrence, three were in the house of a police officer hailing from that area who was posted outside District Chamba. They had taken shelter there in order to save themselves from the agitated crowd. He assured all present that action in accordance with law would be taken if anyone was found guilty. He thereafter rescued the policemen and brought them to Chamba at about 8.00/8.30 P.M. On enquiry conducted by him, which, according to him, was of a cursory nature, he found that the deceased Bharat Kumar had allegedly jumped into river from the Bakani Bridge. He proved on record Ex.PH, which is a report submitted by him. We advert to this document which says that the deceased tried to free himself in the middle of the bridge from the policemen and jumped into the river. He states in his cross-examination that he tried to talk with the father of the deceased, but could not elicit any response as he was inconsolable crying and was not in a position to talk coherently. He submitted two versions of the report. The first was Ex.PH and then another detailed report, which was incorporated by the Additional District Magistrate, Chamba, in his report. Ex.PH is the report of the first instance.
PW-9 Shri Sanjay Kumar, was the Superintendent of Police, Chamba and proved on record the prosecution sanction Ex.PN, which had granted after going through the material/file which has been placed before him.
PW-10 Shri Amar Singh, Deputy Superintendent of Police, states that on 15.2.1995 at around 3.00 P.M. he was present in his office when he was directed by the Superintendent of Police, Chamba to proceed to Bakani Bridge where a police party had been detained by a crowd. He was asked to assess the spot situation. He along with SI Ram Saroop, who was the Station House Officer, Police Station, Sadar, Chamba and 2-3 Constables left for Bakani Bridge. On reaching there he found that the road had been blocked by the people and a crowd of about 200/300 had gathered near the bridge. They were angry and were raising slogans against Chamba Police, demanding that justice be done. In the meantime, Sub Divisional Magistrate, Chamba also reached there. The crowd was in such an agitated state that they were unwilling to talk/negotiate with the police. It was with great difficulty that he was able to pacify the crowd. He was informed by the persons present on the spot that the police party was responsible for the incident, in which Bharat Kumar went missing. This police party consisted of A-1 SI Bali Ram, A-2 HC Rajender Kumar, A-3 HC Dalip Kumar, A-4 Constable Lokender Singh and A-5 Constable Yakub Mohammad. He immediately suspended these officials. They were directed by him to handover the case file of investigation to SI/SHO Ram Saroop and then to report to Police Lines, Chamba. He thereafter directed SI/SHO Ram Saroop and the accompanying police officials to search for Bharat Kumar. He proved on record Ex.PO, which is the report submitted by him. The gist of the report is that when the accused police party had gone to investigate the rape case, some kind of altercation ensued in which Bharat Kumar stated that Daya Nand PW-2 would not accompany the police, a request was sent by A-1 SI Bali Ram, for registration of the case under Sections 363, 186, 506 Part-II IPC against the deceased. He concluded that investigating team (consisting of the accused) had not acted in a proper manner and it is because of their negligence that Bharat Kumar succeeded in committing suicide. We will advert to this report later in the judgment.
PW-16 Shri K.R. Bharti, Additional District Magistrate, has proved on record his report Ex.PAR alongwith the statements of the persons recorded during the course of his enquiry, namely; Ex.PT statement of Shri Ibrahim, Statements of Bharat Singh and Banga was recorded jointly as Ex.PU. Statements of Shri Kaur and Daya Nand as Ex.PV and Ex.PW, statements of A-1 SI Bali Ram Ex.PX, A-2 HC Rajender Kumar Ex.PY, A-3 HC Dalip Kumar Ex.PZ, A-4 Constable Lokender Singh Ex.PAA and A-5 Constable Yakub Mohammad Ex.PAB. He also recorded the statements of S/Shri Ismile Ex.PAC, Nabab Din, Ex.PAD, Jaram Singh Ex.PAE, Kahan Ex.PAF, Mohammad Hanif, Ex.PAG, Sarno Ex.PAH, Gopi Chand Ex.PAJ, Beli Ram Ex.PAK, Smt.Pano Devi, Ex.PAL, Nurdh Ram, President, Gram Panchayat Darwin Ex.PAM, Chamaru Ram, President, Gram Panchayat, Mehla Ex.PAN, Chamaru Ram Ex.PAO and Shri Amar Singh, Dy.S.P., Chamba Ex.PAP. In cross-examination he says that no notice was issued to these witnesses individually, but a general notice was issued. The statements of all these persons were recorded in the absence of the five accused who had not been given an opportunity of cross-examining them. He did not deem it proper to summon the accused at that time as there was a lot of tension in the area and when he recorded the statements of the accused they had been given a full opportunity to rebut whatever had been stated by the witnesses against them.
This is the evidence relating to the facts occurring before, during and after the incident. The other evidence is that of PW-8 Dr. Suresh Sankhyan who conducted the postmortem and police personnel who proved various documents on record.
We advert to the evidence of PW-8 Dr. Suresh Sankhyan, Associate Professor, Department of Forensic Medicines, Indira Gandhi Medical College, Shimla. He conducted the postmortem of the body received for postmortem which, he states, was in advance state of decomposition with adepocer formation at places like chest, abdomen, buttocks, thighs and legs. The skin face and scalp was missing and the underlying bones were visible. The skin of hands and feet was corrugated and the body was soiled with mud and sand particles. The identification of the deceased was made from the clothes which he was wearing i.e. torn trousers, body built, feet, hand and shape of anterior teeth. In his postmortem report Ex.PJ he says that no superficial injuries etc. could be made out as the body was in advanced state of putrification. There was ante-mortem fracture of the second and third ribs of right side. Post mortem fracture of nasal bones and skull. The brain matter was in liquefied state. The lungs were congested with water and had turned pulpy due to advanced state of putrification, but there were sand particles in the whole bronchial tree. According to him, the cause of death was asphyxia as a result of ante-mortem drowning. The injury of ante-mortem fracture of ribs etc., according to him, could be possibly caused by a person falling from a bridge. In Cross-examination he says that the dead body was identified with the help of torn trousers only which was entangled with the dead body, body built, the shape of hands and feet and the front teeth etc.
We also take note of the fact that in his statement u/s 313 Cr.P.C. the accused A-1 SI Bali Ram has admitted the fact of arresting the deceased. In reply to question No. 39 he states thus:-
Q.39 Do you want to say anything else?
Ans: On 15.2.95, HC Dalip Kumar had made a statement u/s 154 Cr.P.C. before me at the place of occurrence. I made suitable endorsement on the statement and handed it over to Constable Lokinder for being taken to P.S. Chamba for registration of the case. I then arrested accused Bharat Kumar for offences under sections 353/332/186/506-B IPC. He was arrested after he had been personally searched at Salwein. His custody was then entrusted to Yakub Mohd. Under supervision of HC Dalip Kumar for being taken to police Station Chamba/Court.
Meaning thereby that arrest and registration of a case against the deceased stands admitted and does not call for strict corroboration.
It is in this background that we are now called upon to judge the guilt of the accused which according to the appellants is a matter of conjecture by the learned Court below and not established by legal proof.
A number of submissions have been made by learned counsel appearing for the appellants. Learned Senior counsel Shri Cheema submits that the case against the accused is not established. First point urged by learned Senior counsel is that the delay in filing the complaint Ex.PA in Court and Ex.PB complaint filed before Station House Officer, Police Station, Sadar, Chamba, has not been explained. Labhdhi Ram PW-1, who has initiated these complaints, is not an eye witness and as an adjunct it is submitted that even PW-2 Shri Kaur was not present at the material time, PW-3 Yusaf has given a tutored version and so is the case with PW-4 Daya Nand and PW-5 Maukam Din.
We advert to these two facts together. On the question of delay in lodging the First Information Report, it is not an universal rule that the delay is always fatal to the case of the prosecution. This law is now well settled. It is unexplained delay which has to be accounted for by the prosecution. This point is now well settled by the judgment in Sahebrao and Another Vs. State of Maharashtra, and the fact that unexplained delay in lodging would be fatal to the case as held in Budh Singh and Others Vs. State of U.P., . Delay in this case has to be considered in the contextual fact matrix. In Sahebrao�s case, the Supreme Holds:-
The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory.
At this juncture, we would like to quote the following passage from State of Himichal Pradesh Vs. Gian Chand, , wherein this Court observed: (SCC p.79. para 12)
Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.
In Ravinder Kumar and Another Vs. State of Punjab, , this Court observed: (SCC p.696, paras 14-15)
When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
We are not providing an exhaustive catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. (Vide Zahoor and others Vs. State of U.P., Tara Singh and others Vs. The State of Punjab, ; Jamna and others Vs. State of Uttar Pradesh, . In Tara Singh, the Court made the following observations: (SCC p.541, para 4)
It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.
In Amar Singh Vs. Balwinder Singh and Others, , this Court held that: (SCC pp.527-28, para 10)
There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR.
This principle finds reiteration in the decision Ramdas and Others Vs. State of Maharashtra, holding:-
Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family''s reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are case where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No strait jacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, . Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.
In Venkategowda and Others vs. State of Karnataka, (2006) 13 SCC 203, the Court holds that delay in lodging the FIR will not be fatal if the version given by the witnesses is reliable and trustworthy. The Court holds:-
� � � � � � �It is settled law that the delay in lodging the FIR will not be fatal in every case if the ocular version of the eyewitnesses is reliable and trustworthy. � � � � � .. �.
Looking to the reasons for delay in lodging the FIR we now advert to the evidence of PW-1 Labhdhi Ram. He says that after knowing about the death of his nephew Bharat Kumar he rushed home and thereafter run from pillar to post praying for legal action to be initiated against the accused. He met the Deputy Commissioner, Chamba, Shri Harsh Mahajan, Local MLA and Station House Officer, Police Station, Sadar, Chamba, but without success and ultimately he was forced to file a criminal complaint Ex.PA. Looking to the contents of this application, we find a clear averment in the complaint that no FIR was recorded nor any action was initiated on his pleas and that at the time when this complaint was filed, the accused were intimidating witnesses. We then advert to the complaint made to the police. This complaint has been filed on 28.2.1995. Ex.PB also states some similar facts, but we must loose sight of the facts that PW-10 Deputy Superintendent of Police Shri Amar Singh had rushed to the spot immediately, conducted a spot inquiry and submitted his report Ex.PO. Similarly, at that time we find that even PW-7 Shri Hukam Singh Thakur, the then Sub Divisional Magistrate, Chamba, had gone to the spot for inquiry, pacifying the people there and submitted his report Ex.PH. Both these witnesses, who at the relevant time were Government functionaries, were aware about the fact that Bharat Kumar was missing and that he had been roughed out by the appellants. It was their duty to have lodged a report there and then with the police. Faulting the complainant of sitting together to hatch a conspiracy against the accused is farfetched and cannot stand a moment�s scrutiny. We also advert to Ex.PQ/2 which is Report No. 10 in daily diary dated 24.2.1995 lodged by Labhdhi Ram PW-1 in which again these facts have been stated in detail. Where is the question of delay occurring in lodging the report? We then advert to the evidence of the witnesses PW-1 Labhdhi Ram, PW-2 Shri Kaur, PW-3 Yusaf, PW-4 Daya Nand and PW-5 Maukam Din. We do indeed find it taxing our imagination to hold that the consistency of corroboration of narration of the facts leads to the only conclusion of coaching of each and every one of these witnesses to state about the same facts. PW-4 Daya Nand had been accompanying the deceased from the time when he was dragged by the police to Durged and then to Bakani Bridge where he was beaten and thrashed. PW-2 Shri Kaur joined them in the house of Jai Kishan where his son was taken and threatened with dire consequences unless he paid the money demanded. His son was assaulted in the house of Jai Kishan, Durged and thereafter at Bakani bridge. He also accompanied them. PW-5 Maukam Deen saw the deceased being dragged away from the compound of his house by the police, beaten and thrashed in front of his eyes. PW-3 Yusaf also saw Bharat Kumar being dragged in front of his house and on his inquiry to the police officials as to why he has been subjected to this treatment, was told to shut up and mind his own business. Each one of these witnesses have stated that the only reason why Bharat Kumar was detained by the police was the fact that he had asked PW-4 Daya Nand not to sign a blank paper. They were infuriated by the fact that a villager would dare to ask an individual to assert his rights. In these circumstances, we reject this argument by fortifying it with the decision of the Supreme Court.
While looking to the contradictions in evidence urged for rejection of the prosecution case, we note the well settled principle of law. In Vadivelu Thevar Vs. The State of Madras, , the Court holds that the evidence of the witnesses may be "(a) Wholly reliable, (b) Wholly unreliable, (c) Neither wholly reliable nor wholly unreliable." The Court holds:-
In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.
In the first two cases, a conclusion may be arrived at by accepting or rejecting the evidence and it is in the third mode that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or by circumstantial evidence. We need not repeat this established principle of law as it is well established and reiterated in C. Magesh and Others etc. Vs. State of Karnataka, where the Court holds:-
It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh vs. State of U.P. (2008) 16 SCC 686 has held: (SCC p. 704, para 14)
�21�The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; � the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is guilty until proven so". Hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.
We are alive to the principle of law that a material contradiction takes away the veracity of the allegations made against the accused. However, discrepancy perse does not invite the rejection of evidence in its entirety. In Narotam Singh Vs. State of Punjab and Another, the Supreme Court holds:-
Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The ''sacred cows'' of shadowy doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home. By these guidelines, the conviction of the appellant must stand, although we do not detain ourselves to discuss the details of the evidence.
This principle finds reiteration in Faquira Vs. State of U.P., , where the Court again reiterates that minor discrepancies in the testimony may also indicate that the witness is not tutored.
The Court then re-affirms in State of Rajasthan Vs. Smt. Kalki and Another, that:-
� � � � In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. � � � .
In Sukhdev Yadav and Others Vs. State of Bihar, the Supreme Court reaffirms this principle. The Court holds:-
It is now well settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence. This Court in Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, relying upon an earlier decision of this Court in State of U.P. Vs. M.K. Anthony,
There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reasons therefor should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.
It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment-sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account. In Appabhai v. State of Gujarat, 1988 Supp. SCC 241, this Court in para 13 of the Report observed : (SCC pp.246-47)
The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such facts, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses now a days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy........
Lastly, the evidence of a rustic villager cannot be tested with mathematical precision. In State of Punjab Vs. Hakam Singh, , the Court holds:-
� � � � � Sometimes while appreciating the testimony of rustic villagers we are liable to commit mistake by loosing sight of their rural background and try to appreciate testimony from our rational angle. When a lady is confronted with number of intruder in her house armed with deadly weapons and showering bullets she can not give a very accurate and photographic version as whole thing happened in a few minutes. Therefore, while appreciating such testimony Court should give due regard to their rural background and the whole scenario in which the incident happened. � � � � � � �.
When we apply this principle to the facts of the present case, we find that the testimony on record of the witnesses barring those of Sub Divisional Magistrate, Additional District Magistrate and the police personnel is that of rustic villagers and it is in this light that their testimony has to be appreciated. We have gone through the extensive and searching cross-examination of the witnesses, but we have been unable to find anything on record which would disprove the evidence. Even if there are contradictions in the minor details about where the party stopped, where they had tea, where they had food and the amount demanded by them to release the deceased Bharat Kumar, we find that the details with respect to their brutal assault on the deceased at Durged bridge as also at Bakani bridge are established not only by the witnesses but also by the inquiry reports submitted by the Sub Divisional Magistrate PW-7 Shri Hukam Singh Thakur and PW-16, Additional District Magistrate Shri K.R. Bharti. We also find that it is an accepted case of the defence that a rukka was sent to the police station for registration of a case under Sections 353, 186 and 506 Part-II IPC against the deceased for assaulting the police party and obstructing them in discharging of their duties which facts also corroborated and admitted by A-3 SI Bali Ram as noted by us. In these circumstances, what requires consideration is as to whether the accused are guilty for offence u/s 304 Part-II IPC as held by the learned trial Court which we now proceed to consider.
The submission made by the learned senior counsel appearing for the accused was that the body of the deceased Bharat Kumar was not identified and that in this event what was recovered from the river could not be said to be his body and in the absence of the corpus delicti no conviction u/s 304 Part-II IPC could be sustained. We are unable to accept this submission. Emphasis has been placed on the evidence of PW-10 Amar Singh and his report Ex.PO to urge that this being the first in point of time, based on the local investigation/inquiry made by him at the spot, he completely exonerates all the accused; he holds in the concluding part of the report on the basis of the information gathered by him that the police party had not investigated the case properly nor looked after the person(s) who was in police custody. He then adds �due to this negligence of investigating team, Bharat Singh succeeded in committing suicide�. Immediately afterwards, great resentment prevailed in the public and he immediately suspended the officials for their negligence. He then concludes that a case under Sections 223/161 IPC and Section 52(sic)5(2) of the Corruption Act be registered against him. He also states that the dead body of Bharat Singh has not been recovered. Even if we accept this as a fact, what we find that this is a clever attempt made by this witness to white wash the entire incident and involvement of the accused to mitigate the acts of the police party by placing the entire blame on the deceased for jumping into the river. This is a classical example of peer group justice gone awry. What would be the consequence? We have considered in detail the evidence of the other witnesses. This evidence leads to no other conclusion except that the accused were guilty of custodial violence leading to the drowning of the deceased. Despite the fact that this witness cleverly disguises the death of Bharat Kumar as a suicide, but even if be accept that as a fact the instigation is squarely on the shoulder of the accused which they cannot escape. We cannot repeat time and again that they had no right to beat up the deceased mercilessly. We reject outright the submission that at best what is made out is what Ex.PO makes out. What we find from the evidence on record is that it is during the beating being administered to the deceased that he fell into the river for which one of the accused is responsible. During this gory saga if the deceased had made an attempt to free himself from the accused and had fallen in the river we cannot accept the submissions made on behalf of the appellants that no offence u/s 304 Part-II IPC is made out.
We rely upon the decision of the Supreme Court in State of M.P. Vs. Shyamsunder Trivedi and Others, holding:-
Indeed, there is no evidence to show that after Ganniuddin, Respondent 5, who along with Rajaram, Respondent 4, had brought the deceased to the police station for interrogation, had at any time left the police station on the fateful night. In the face of the unimpeachable evidence of Public Witness 4 and Public Witness 8, we fail to understand how the learned Judges of the High court could opine that there was no definite evidence to show the complicity of Ram Naresh Shukia, Respondent 3, Rajaram and Ganniuddin, Respondents 4 and 5 respectively in the crime along with SI Trivedi, Respondent 1. The observations of the High court that the presence and participation of these respondents in the crime is doubtful are not borne out from the evidence on the record and appear to be an unrealistic over simplification of the tell-tale circumstances established by the prosecution. The following pieces of circumstantial evidence apart from the other evidence on record, viz., (i) that the deceased had been brought alive to the police station and was last seen alive there on 13/10/1981; (ii) that the dead body of the deceased was taken out of the police station on 14/10/1981 at about 2 p.m. for being removed to the hospital; (iii) that the deceased had died as a result of the receipt of extensive injuries while he was at the police station; (iv) that SI Trivedi, Respondent 1, Ram Naresh Shukia, Respondent 3, Rajaram, Respondent 4 and Ganniuddin, Respondent 5 were present at the police station and had all joined hands to dispose of the dead body of Nathu Banjara; (v) that SI Trivedi, Respondent 1 created false evidence and fabricated false clues in the shape of documentary evidence with a view to screen the offence and for that matter, the offender; (vi) SI Trivedi respondent in connivance with some of his subordinates, respondents herein had taken steps to cremate the dead body in hot haste describing the deceased as a ''lavaris'', (vii) Rajaram and Ganniuddin respondents, had brought the deceased to the police station from his village, and (viii) that police record did not show that either Rajaram or Ganniuddin had left the police station, till the dead body was removed to the hospital in the jeep, unerringly point towards the guilt of the accused and the established circumstances coupled with the direct evidence of PWs 1, 3, 4, 8 and 18 are consistent only with the hypothesis of the guilt of the respondents and are inconsistent with their innocence. So far as Respondent 2, Ram Partap Mishra is concerned, however, no clinching or satisfactory evidence is available on the record to establish his presence at the police station when Nathu deceased was being subjected to extensive beating or of his participation in the commission of the crime. The High court erroneously overlooked the ground reality that rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available, when it observed that ''direct'' evidence about the complicity of these respondents was not available. Generally speaking, it would be police officials alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues, and the present case is an apt illustration, as to how one after the other police witnesses feigned ignorance about the whole matter.
From our independent analysis of the materials on the record, we are satisfied that Respondents 1 and 3 to 5 were definitely present at the police station and were directly or indirectly involved in the torture of Nathu Banjara and his subsequent death while in the police custody as also in making attempts to screen the offence to enable the guilty to escape punishment. The trial court and the High court, if we may say so with respect, exhibited a total lack of sensitivity and a "could not care less" attitude in appreciating the evidence on the record and thereby condoning the barbarous third degree methods which are still being used at some police stations, despite being illegal. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in ''Khaki'' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith in the judiciary itself, which will be a sad day.
Since the occurrence took place 14 years ago, the respondents have gone through the ordeal of a protracted trial and the appeals in the High court and in this court. The learned counsel for the State-appellant has very fly submitted that though an adequate and exemplary sentence of imprisonment would have been normally called for the crime committed by them the respondents may, because of the lapse of time, be sentenced to some imprisonment but they be also sentenced to pay a substantial amount of fine, which if realised may go to the heirs of the deceased. Learned counsel for the respondents has also urged that sending the respondents to the prison at this distant point of time would cause great hardship to them and might make them hardened criminals. We have given our anxious consideration to the submissions made by learned counsel for the parties on the question of sentence. We are conscious that a precious human life has been lost at the hands of those who are expected to protect the life and liberty of the citizens of this country. We are also conscious of the fact that the crime is a dehumanising one and is an affront to the human dignity. The long lapse of period is indeed a consideration which may weigh in favour of the respondents for not being awarded a long sentence of imprisonment but then the interests of the victim of the crime have also to be kept in view. Keeping in view the consideration of the human factor involved and particularly the interests of the heirs of Nathu deceased to whom mere imprisonment of the respondents at this belated stage may not offer much solace, we have to strike a balance between these disparate considerations and keeping in view the fact that Respondent 1 has already undergone a sentence of two years'' rigorous imprisonment consequent upon his conviction for the various offences by the High court as noticed earlier we pass the following order.
The Supreme Court thereafter proceeded to convict them for offences under Sections 304 Part-II/34, 201 and 342 IPC by enhancing the fine amount.
In Sukhpal and others Vs. State of Madhya Pradesh, where the accused were tried and punished under Sections 304 Part II/149 and 34 IPC on the allegation that they had assaulted and caused bodily injury to one Phoola Devi with a view to extort confession which resulted in to her death. The Court holds:-
When the evidence of the eyewitnesses is considered in the light of the respective cases of the parties it stands fully established that the appellants came together to the premises of Phoola Devi on the plea that they wanted to search it. If the defence contention that on such search an unlicensed pistol was recovered was true, it was obligatory on their part to prepare a seizure memo in respect of the same and then register a case against Phoola Devi. Similarly, it must also be said, if really she had managed to run away from the police station after she was brought there under arrest, it was expected that not only there would be some daily diary entry in the police station in support thereof but also a prosecution launched against her for escaping from lawful custody. In absence of any evidence either oral or documentary to support the defence story we are unable to accept the same. We hasten to add that we are not unmindful of the settled principle of law that the prosecution must stand on its own feet and not on the weakness of the defence but, then these tell-tale circumstances not only falsify the defence story but also lend credence to the prosecution case that to wreak their vengeance on Phoola Devi for having lodged complaint against them to their superiors the appellants came to her house on the false pretext of searching for unauthorised firearms and forcibly took her to the police station - beating her all the way - as testified by the three eyewitnesses.
We then refer to the decision of the Supreme Court in N. Somashekar (Dead) by Lrs. Vs. State of Karnataka, , in which the accused were convicted for offence under Sections 341, 302, 201 and 506 IPC. The facts of that case were that the accused alongwith his wife and two sons had gone to Lalitha Mahal Palace Hotel a five star hotel. When he went to the swimming pool, he noticed that the deceased was present in the pool and he (accused), who was a high ranking police officer, asked the swimming pool attendant to remove him from there. The accused thereafter went to the changing room alongwith his wife, but came back to take a dip in the pool and swim. When he returned, he noticed that the deceased was sniggering at his wife. On this he abused him and gave three blows, one on his mouth, one on his shoulder and third blow, which was given in the karate style, on the left side of his neck, as a result of which he fell on the swimming pool. The swimming pool attendant in that case rushed towards the pool and wanted to save the deceased, but the accused restrained him. At this juncture, other people rushed to save the victim, who died as a result of the injuries and drowning. He was acquitted by the trial Court, but in appeal the High Court reversed the judgment. The Supreme Court holds:-
In response, learned counsel for the State submitted that the high police official had taken the law into his own hands, and strangely was directly interfering with the investigation and even monitoring it. This itself shows the impropriety in the conduct of the accused. The position that some of the officials were showing partisan attitude is of significance, because of diluting the evidence of the doctor by seeking answers to hypothetical questions. The doctor''s evidence clearly substantiates the accusations. Presence of the accused is accepted. The conduct of the accused in not trying to save the deceased if he was really drowning is significant. There is no embargo on accepting the evidence of the child witness if found to be credible and cogent. The acquittal recorded by the trial court was based on surmises and conjectures and, therefore, the High Court was justified in its decision.
It needs first to be noted that merely because the statement of witness is recorded u/s 164 of the Code, that does not automatically dilute the worth of his evidence. (See State of Assam Vs. Jilkadar Ali, and Vishwanath Vs. The State of Uttar Pradesh, There has been sufficient explanation rendered as to why there was delay in recording evidence. A high-placed police official was the accused and strangely, as noted above, was participating and was associating himself with the investigation. It is rather unusual that one of the child witnesses was the son of one of the investigating officers. The postmortem report of 8-4-1991 disclosed commission of a cognizable offence. The distinction between dry drowning and wet drowning is really of no consequence, in view of the fact that the eyewitness version is credible and cogent. There is no reason as to why PWs 28 and 29 would falsely implicate the accused. It is on record that the accused was giving instructions to Ganesh (PW 34) about the manner of recording the inquest report. The evidence also shows that the blow that was inflicted could cause the injury which is fatal in the ordinary course of nature to cause death. Though the scope for interference with the judgment of acquittal is limited where the evidence has not been properly analysed by the trial court and the conclusions drawn are based on surmises and conjectures, it is not only permissible but also desirable that the appellate court should interfere with the order of acquittal. The only criterion is that if the view taken by the trial court is a reasonable and possible view, interference should not be made. In the case at hand the evidence clearly establishes that the accused was the perpetrator of the crime. The High Court was justified in directing conviction and imposing sentence as noted above.
What we find is that though there is no parity of facts a similarity in cases, but the principle is applicable. We find that this case is squarely covered by Part-II of Section 304 IPC. Though there may be no intention to cause death, but the act done was such which in the fact situation would lead to the logical end that death was the only consequence whether it be by grappling or by kicking the accused into the river.
We now advert to Criminal Appeal No. 92 of 1998, filed by the State for enhancement of the sentence awarded to the accused. It is urged that the conviction should be u/s 304 Part-I IPC and if it is upheld u/s 304 Part-II, the maximum sentence should and ought to be awarded. On the first aspect we already held that the learned trial Court was right in convicting the accused u/s 304 Part-II IPC.
On the question of sentencing, this Court has to consider the entirety of the evidence and then come to a decision. The Court is also alive to the situation that the victim in this case happens to be a person who is right conscious and could not be treated as a terrorist. Although on the last aspect of the case as stated, as to whether he was deliberately pushed into the river or fell down while he tried to free himself from the clutches of the accused, who, according to us, on the evidence on record had no business using the kind of force which they did. After all what was the offence he had committed? He had only asked one of the witnesses PW-4 Daya Nand not to sign a blank paper. We do not find any provision of law which can justify a police personnel/officer asking a witness to sign blank paper(s). Rather what we find is that on the intervention of the deceased, he was dragged, beaten, kicked, punched, which was witnessed by PW-4 Daya Nand as also PW-2 Kaur Ram, the father of the deceased etc. and a crowd which had collected near the bridge forced to witness the gruesome episode, as noted by us in detail hereinabove. The statement made on behalf of the appellants/convicts that the deceased was himself responsible for committing suicide, taxes our imagination. We cannot accept this submission. The witnesses had actually seen a struggle in the middle of Bakani bridge where the deceased was trying to free himself from the policemen, he then fell down in the river. This was preceded by a battering of the deceased and prior to that he was dragged and beaten up at Durged Bridge and on the way from the house of Maukam Din. The accused have turned a deaf ear to the plaintive cries of the father of the deceased PW-2 Kaur Ram, who fell at their feet, praying for mercy and pleaded that his son be released. We are also alive to the situation that PW-10 Shri Amar Singh, corroborates the incident regarding the deceased falling in the river who tried to whitewash the entire case by giving it a tilt favouring the appellants/accused with a markedly peer group bias, but nonetheless accepting the arrest and detention of the deceased. This witness seems to have forgotten that even if what he says is accepted in its entirety, the deceased had not committed such a crime which would entail being detained, pummeled and thrashed. He had only asked PW-4 Daya Nand, to repeat, not to sign on blank paper. Custodial violence is to be condemned and dealt with severely under any circumstance.
In Central Bureau of Investigation Vs. Kishore Singh and Others, the principles applicable for sentencing for custodial death are laid down. That was a case in which grievous hurt had been inflicted on the victim whose penis was cut off by the Constable with a barber�s knife while he was in police station. The Supreme Court holds:-
Leave granted What should be done to policemen who ''bobbitt'' a person in a police station and think that they can get away with it? That is the question to be decided in this case.
The prosecution case is that one Jugta Ram, the injured witness in this case, was an employee of one Bheru Singh and was working in his liquor shop. Jugta Ram also lived in the house of Bheru Singh in one room of the upper floor, while the family of Bheru Singh was living in the ground floor. Bheru Singh had two sons and three daughters. Jugta Ram is said to have had an affair with Bheru Singh''s wife and eldest daughter. This was suspected by Bheru Singh, whose relative was accused constable Kishore Singh.
On 2.2.1994, at about 8 P.M. Jugta Ram was carrying a bottle of liquor when accused constable Kishore Singh met him and snatched the liquor bottle and in the course of the scuffle the bottle fell down and got broken. Kishore Singh then took Jugta Ram to the Sadar police station where the accused SHO Sohan Singh and some policemen were also present. Sohan Singh allegedly assaulted Jugta Ram and at that time Bheru Singh also came to the 4 police station. Accused Kishore Singh, constable, is the son of Bheru Singh''s brother-in-law (sala)��.
The trial Court had sentenced the accused Kishore Singh along with other accused for offences under Sections 326, 308, 323 and 343 IPC which conviction was set aside by the High Court. The Court then holds:-
In our opinion, policemen who commit criminal acts deserve harsher punishment than other persons who commit such acts, because it is the duty of the policemen to protect the people, and not break the law themselves. If the protector becomes the predator civilized society will cease to exist. As the Bible says, �If the salt has lost its flavour, wherewith shall it be salted?� (Matthew 5, Mark 9.50 and Luke 14.34-35), or as the ancient Romans used to say, �Who will guard the praetorian guards?�
(emphasis supplied)
We note that all the appellants herein are none other than the police officials who owe a duty to the citizens not only to investigate the crimes maintain law and order but to protect them. We are reminded of the dictum of the Supreme Court in Raghbir Singh Vs. State of Haryana,
We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. The vulnerability of human rights assumes a traumatic, torture some poignancy; the violent violation is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them as has happened in this case. Police lock-up if reports in newspapers have a streak of credence, are becoming more and more awesome cells. This development is disastrous to our human rights awareness and humanist constitutional order.
The State, at the highest administrative and political levels, we hope, will organise special strategies to prevent and punish brutality by police methodology. Otherwise, the credibility of the rule of law in our Republic vis-a-vis the people of the country will deteriorate.
We conclude with the disconcerting note sounded by Abraham Lincoln :
If you once forfeit the confidence of our follow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time.
These observations have become necessary to impress upon the State police echelons the urgency of stamping out the vice of ''third degree'' from the investigative armoury of the police.
In Ajab Singh and Another Vs. State of Uttar Pradesh and Others, dealing with the case of custodial death the Supreme Court holds:-
We have before us instead the expert medical evidence of police officers. They tell us that Rishipal died of "jaundice and liver failure" and that the post mortem report which lists the cause of death as shock and haemorrhage due to ante mortem injuries is "rather misleading". They state that bandages tied to Rishipal''s wrists and ankles because he was throwing his legs and hands about while in a semi-conscious condition caused the injuries referred to in the post-mortem report. The injuries on Rishipal''s belly mentioned in the post-mortem report, according to that expert opinion, "can also be caused by bursting of liver inside the body". Upon the strength of such expertise, the deponent of one affidavit states that the post-mortem report and cause of death are "a concocted story".
If we may be permitted to use the same words, what appears to us to be a concocted story is that set out in the respondent''s affidavits. They are, to our mind, desperate attempts to avoid responsibility for acts committed while Rishipal was in judicial custody. There can be no doubt that the respondents have not investigated the cause of death of Rishipal as they ought to have done or that, at any rate, they have not placed all relevant material before this Court. They have attempted to pull the wool over the eyes of this Court. We do not appreciate the death of persons in judicial custody. When such deaths occur, it is not only to the public at large that those holding custody are responsible; they are responsible also to the Courts under whose orders they hold such custody. It is appropriate, therefore, that the cause of Rishipal''s death should be investigated by the Central Bureau of Investigation. The C.B.I. shall register a case and conduct an investigation into the circumstances of Rishipal''s death. The C.B.I. shall forthwith appoint an officer to receive from the respondents all records relating to Rishipal and the respondents shall immediately handover such records to such officer. The investigation shall be completed expeditiously and a copy of the investigation report shall be filed in this Court. The Registry shall forward a copy of this judgment and order to the Director, C.B.I.
The State of Uttar Pradesh is responsible in public law for the death of Rishipal and must pay compensation to the petitioners for the same. [See D.K. Basu Vs. State of West Bengal, . We think that it is appropriate, in the circumstances, to order the State of Uttar Pradesh to pay to the petitioners compensation for the death of Rishipal in the sum of Rupees five lakhs within three months. The sum shall be invested by the petitioners and the income thereof shall be so distributed that at least half is utilised for the benefit of Rishipal''s children during the period of their minority.
This direction to pay compensation shall be without prejudice to the rights of the legal representatives of Rishipal to claim compensation in private law proceedings, if so entitled in law, against those found responsible for his death.
We need not emphasis the fact that there is a Constitutional obligation cast on the police to protect its citizens from any wrong doing. They have no licence to beat up and brutalize. We are not repeating as to what was the role of the deceased. We need not multiply precedent any further, however we note that in the case of Fattuji Dajiba Gedam Vs. Superintendent of Police, Akola and Others, the High Court Bombay while dealing with a case of custodial death in police lock up, awarded damages.
In the facts and circumstances of the case, without altering the sentence of imprisonment which they have already undergone, each of the accused is directed to pay a fine of Rs. 1,00,000/- each which is to be deposited with the trial Court within a period of three months from today. On deposit of such fine, it shall be paid to the father of the deceased. We realize that this compensation may not be sufficient to replace the life of his son who was making an honest struggle to earn living and finance his education. We also direct that in case of non-deposit of fine, each of the accused shall undergo Rigorous Imprisonment for two years. We uphold the conviction of the learned trial Court for the offences as held by it. Criminal Appeal No. 92 of 1998 is allowed to the extent indicated above.