Mohammad Sardar vs State of H.P.

R.S. Thakur, J.—This judgment will dispose of six Criminal Appeals, mentioned in the title cause, since all these appeals arise out of a common judgment dated November 26, 1984, in Session Trial No. 20/1983/8/1984, passed by the learned Additional Sessions Judge, Mandi, whereby he found the accused Mohd. Sardar, Lal Singh, Jiwan Lal and Netar Mani guilty for the offence u/s 302 read with Section 34 of the I.P.C. and also for the offences u/s 342 and 120-B read with Section 201 of the I.P.C. and sentenced each of them to undergo life imprisonment under the first count, to undergo rigorous imprisonment for six months and to pay fine of Rs. 500/- and in default to undergo further rigorous imprisonment for two months under the second count and to undergo rigorous imprisonment for four years and to pay fine of Rs. 3000/- and in default to undergo further rigorous imprisonment for one year under the third count. The accused Mohd. Sardar was additionally found guilty for the offence u/s 506 I.P.C. and sentenced to rigorous imprisonment for three years and to pay fine of Rs. 1000/- and in default to undergo further rigorous imprisonment for four months. He also found eleven other co-accused, namely, Ram Singh, Deepak Raj, Man Singh, Ludar Mani, Prem Singh, Devi Ram, Amar Singh, Banta Ram, Kishori Ram, Kanshi Ram and Jai Singh guilty of the offence u/s 120-B read with Section 201 I.P.C. and sentenced them to undergo rigorous imprisonment for four years and to pay fine of Rs. 3000 each and in default to undergo rigorous imprisonment for one year each. All these sentences were, however, ordered to run concurrently. Out of the fine realised, Smt. Bhuvneshwari, widow of the deceased Sheru alias Sher Singh was ordered to be paid Rs. 20,000/- by way of compensation to herself and her minor children u/s 357 of the Code of Criminal Procedure.

The prosecution case is that in July 1983, the accused Mohd. Sardar was posted as Sub-Inspector, Incharge of Police Station, Balh at Ratti. The accused Lal Singh was working as Investigating Head Constable and the other-co-accused Jiwan Lal,Luder Mani, Netar Mani and Jai Singh were posted as constables in the said police station. A theft involving currency notes worth Rs. 6,700/- and three gold ornaments, namely, ''nath'', ''cak'' and ''balu'' then took place in the house of one Kishan Chand alias Krishnoo (PW-10) in village Dadoh within the said police station on July 8, 1983. Said Krishnoo was not at home at that time as he had gone to sell milk in Sunder Nagar and was informed of the theft over there sometime in the evening. He then returned home and after verifying the factum of theft, he, next morning, proceeded to police station Balh to lodge a report. While on his way, however, he came across the accused Head constable Lal Singh and three constables while they were on patrol duty and said Krishnoo then lodged a report of the theft with the accused Lal Singh. After recording this report, he sent a ruqa in the police station with one of the constables accompanying him for registration of the case while he himself went to the house of Krishnoo at village Dadoh Said Krishnoo while lodging the report expressed his suspicion on one Dila Ram (PW-16) as responsible for the commission of this theft and the police then summoned said Dila Ram to his house on July 9, 1983 who came there in the company of one Basant Ram (PW-15) son of Longu Ram, resident of village Dhaban. Said Lal Singh after interrogating them at the house of Krishnoo then took them to the police station Balh on the same day. On the following day, that is July 10, 1983, said Lal Singh accompanied by some constables again came to the house of Krishnoo and at that time it was pointed out to said Lal Singh that one Sher Singh alias Sheru of village Biharta was also habitual of committing such petty thefts in the area and the accused Lal Singh thus called said Sheru to the house of Krishnoo that very day and interrogated him Meanwhile, one Nirber Singh A.S.I. (PW-19) in the police station Balh also came there and he also interrogated said Sheru and thereafter said Nirber Singh and accused Lal Singh took Sheru to the police station Balh on the evening of July 10, 1983.

Meanwhile, said Longu Ram, whose son Basanta Ram had been taken to the police station on July 9, 1983, and was still being kept there with Dila Ram, approached Shri Prakash Chand (PW-1) in the morning of July 11, 1983, to use his good offices with the accused Mohd. Sardar for release his son, and said Parkash Chand then went to the Police station Balh and requested the accused Mohd. Sardar to release said Basanta and Dila Ram The accused Mohd. Sardar told him that they would be released after the swelling on their feet would subside. At the same time the accused Mohd. Sardar requested said Prakash Chand to remain in the police station as he would be taken as witness of recovery since said Sheru who was also in the police station, had confessed that he had committed the offence of theft in question and had hidden the stolen Articles in the ''nalla'' of village Dadoh.

In those very days some of the accused mentioned above had been called by the accused Mohd. Sardar from the police headquarters at Mandi with the police mini bus HP M 265 of which the accused Deepak Raj was the driver for the purposes of conducting the excise-raids within the jurisdiction of his police station. At about 3.30 or 4 p.m. the accused Mohd. Sardar accompanied by the accused Lal Singh, Netar Mani, Jiwan Lal and Jai Singh then went in a private truck to village Dadoh when the said Sheru and Prakash Chand and Krishnoo were also with them. Said Sheru then took the police and Prakash Chand and Krishnoo to Dadoh nalla but nothing was recovered from there. Thereafter said Sheru pointed out a number of other places, namely, a small tunnel near Hatgarh, a place near the stores of B.S.L. Project at Diyargi, where according to him, he had hidden the stolen property but nothing was recovered and at Diyargi said Sheru was made to lie on the ground and was given severe beatings by the police people accompanying him with sticks, kicks and fists. Said Sheru then disclosed to the police that he had kept the stolen Articles in his house at Biharta and the police then took said Sheru to Biharta and said Prakash Chand and Krishnoo were still with them.

When the police arrived at Biharta, it was about 9.30 p.m. and the police sent said Prakash Chand to his house at Dhaban to prepare food at his house for them while they continued investigating the case. At that time all the family members of Sheru had gone to bed who were then woken up by the police and on this the two br Ors. of Sheru, namely, Het Ram and Guddu, his mother, Reshmo (PW-14) and his wife Bhuvneshwari (PW-11) came out of the house. Said Sheru then told the police that he had handed over the stolen articles to his mother Reshmo and when Reshmo denied this, the police again gave beatings to Sheru and also his br Ors. . Sheru then disclosed to the police that he had hidden the stolen articles under neath a ''tuni'' tree in the fields below his house and he led the police to that place but nothing could be recovered even from there. After this said Sheru was again made to lie on the ground, his legs were tied and was given severe beatings by the police as a result of which his clothes became soiled and blood stained. He was then brought to the court-yard of his house where. he was made to take off those clothes which were handed over to his wife Bhuvneshwari and said Bhuvneshwari then gave Anr. bush-shirt and pant which the accused was made to put on Said Sheru, his mother and two br Ors. were then taken to the house of said Prakash Chand. It may also be mentioned here that at the time when the police was with Sheru at his house, one Bihari Lal (PW-2) of village Biharta also joined the investigation at the instance of the police. The police then had food at the house of Prakash Chand and then again started interrogating said Sheru who disclosed that he had hidden the stolen articles near B.S.L. Stores at Bagi. It was 1 a.m. by that time and the police alongwith Sheru and Prakash Chand, Bihari Lal and Krishnoo set out for Baggi to effect the recovery. At Baggi again said Sheru was not able to locate the stolen articles and on this the police made him lie forward on his belly and gave him severe beatings with ''dandas''. Sheru then stated to the police that he would get the stolen articles recovered next morning and he was then brought by the police to the police station Balh when said Prakash Chand and Bihari Lal and Krishnoo also acccompanied the police to the police station and slept there.

Next morning when they got up, they saw Sheru crying in pain and his feet were also swollen. Sheru was then again interrogated by the accused Mohd. Sardar on the morning of July 12, 1983 when he disclosed that he had kept the stolen articles at a place in a village Shegli. Thereafter at about 12.30 p.m. all the accused including those who had come from headquarters at Mandi for excise-raids with a mini-bus (van) along with Sheru, Prakash Chand, Bihari Lal and Krishnoo went the mini-bus towards Shegli from the police station, Balh. When they arrived at village Rao-Ramp those police personnel who were to conduct the excise raids got down from the van while the accused Mohd. Sardar, Lal Singh, H.C. Jiwan Singh, Netar Mani, Jai Singh constables and said Bihari Lal, Krishnoo, Prakash Chand and Sheru remained in the police mini-bus (van) and they proceeded towards Shegli. Said Sheru then took the police on foot for a distance of about 1 or 2 km from the road side to certain caves for the purposes of getting the stolen articles recovered when Prakash Chand, Bihari Lal and Krishnoo were also with them. Their search of the caves, however, did not bring forth any results and this again resulted in more beatings being given by the police to said Sheru. Then again Sheru took them to a ''nalla'' near there for the purpose of recovery but to no results and on this the police stripped-said Sheru naked and was given severe beatings. After this beatings when said Sheru was asked to put on his clothes he was able to put on his shirt only but could not put on the pant which he put on his shoulder. He was perspiring all over and expressed his desire to have water. He was made to have water in a channel over there when he even put some water on a part of his body also but from there he could not move when he was asked to proceed further despite the fact that he was given 2/3 Rao-Ramp danda blows by the police under the impression that said Sheru was malingering. However, when despite this, Sheru was unable to move, Krishnoo was made to carry him on his shoulder while the two of the constables gave him support in carrying Sheru to the van which had been brought to the nearest point. At that time Sheru disclosed that he had hidden stolen property under a banana tree near his house in village Biharta and the police then intended to take him to village Biharta but while on their way to Biharta when their vehicle reached Rao Ramp, the other accused police personnel who had earlier alighted from the van over there to conduct the excise raids were standing there and the) also got into the bus and proceeded towards Biharta. When they arrived at a point from where Mohd. Sardar and his party was to proceed towards Biharta on foot with Sheru and the witnesses, the excise raiding party was again made to get down for conducting excise raids. They had, however, hardly proceeded some distance when they were called back as the condition of Sheru had deteriorated and who was required to be given immediate medical aid. They then all got into the van and proceeded towards Diargi where there was a civil dispensary. They had, however, not yet arrived at Diargi when it was disclosed that said Sheru had breathed his last.

On this the accused police party headed by the accused Mohd. Sardar gave up the idea of taking Sheru to the civil dispensary at Diargi and turned back the vehicle and thus the entire party went in that police van to jungle Kaloti near Chail Chowk. At Kaloti the police van was parked on the road side with two constables guarding the dead body inside the van while the rest of the police party started deliberations as to how to dispose of the dead body. The witnesses accompanying them, namely, Prakash Chand, Bihari and Krishnoo were at that time made to sit at a separate place. The accused thus deliberated for a considerable time and thereafter they prepared a document to which said Prakash Chand, Bihari Lal and Krishnoo were made to append their signatures and when they enquired about the document, the accused Mohd. Sardar told them that this was to the effect that Sheru had absconded from their custody. The accused Mohd. Sardar then asked the accused Jiwan Lal and Krishnoo to go in the vehicle to Chail Chowk to bring two empty gunny bags, one tin and a rope. This was accordingly done and thereafter when it was dusk time, all the persons over there boarded the van and the accused Mohd. Sardar asked the driver of the vehicle to drive the same to Sunder Nagar for post mortem examination. They thus all arrived at Sunder Nagar and on their way the vehicle stopped outside the precincts of a petrol pump over there when the driver of the vehicle, the accused Deepak Raj, the accused constable Netar Mani and Krishnoo went with the tin which they hid purchased at Chail Chowk and one empty bottle and they brought diesel in the tin and petrol in the bottle from the said petrol pump and the vehicle thus instead of proceeding towards the hospital at Sunder Nagar deviated and drove on Sunder Nagar-Shimla road towards Bilaspur. At the time the head lights of the vehicle had failed and, therefore, when the vehicle was proceeding towards Harabagh from Sunder Nagar, a truck came from the back side of the police van but pass was not intentionally given to the truck and as such in the light of the truck, the police van was driven upto Harabagh. At Harabagh the accused purchased two torches and cells and thereafter they drove the police van in the light of the two torches upto Chaghas in Bilaspur district and from Ghaghas, the police van moved on Jukhala-Brampukhar Road and at a distance of 3/4 km. from Ghaghas the police van was stopped at a quiet place, the dead body of Sheru was taken out by some of the accused constables from the van to some distance and there, after sprinkling petrol over the dead body it was set afire. Just then they found that there were some residential houses nearby and also a lime-kiln was working. They then put out the fire by throwing earth on the dead body. Then the dead body was put in a gunny bag and tied with a rope. The vehicle then turned back again towards Slapper bridge and near the sllapper bridge, the police van was again stopped, the dead body of Sheru in the gunny bag was taken out by some of the accused persons and thrown into the Satluj river. It had to be re-affirmed through the torch-light by some of the constables that the dead body had gone into the river as the sound of splash was not heard when the dead body was thrown into the river. The entire party then came back to the police station Balh and when they arrived at village Bhor near the police station even the engine of the police van failed and the vehicle was then pushed by some of the accused and brought to the police station Balh when it was about 4 a.m. on July 13, 1983.

In the morning the accused Mohd. Sardar told said Prakash Chand, Bihari Lal and Krishnoo to go to their respective houses and that in case some body enquired from them about the whereabouts of Sheru then tell them that said Sheru had absconded from the police custody. The three witnesses, then left the police station and as they were proceeding towards their villages they found that it had already become a talk of the area that the police had tortured said Sheru to death. The three witnesses then became panicky. They tried to contact one Tulsi Ram of Mandir Tanda who was Up-Pradhan of the panchayat to consult him in this behalf but he was not found at home. They then returned to the police station Balh and apprised the accused Mohd. Sardar in this behalf. The accused Mohd. Sardar, however, assured them that nothing was going to happen as he had patched up the matter with the one Ratia, the father of Sheru''s widow Bhuvneshwari by paying him Rs. 2500/-. The three witnesses, however, were not satisfied. As they were returning from the police station they met one Jai Singh who was member of their panchayat and while they were sitting with said Jai Singh at Ner Chowk, the Up-Pradhan, Tulsi Ram (PW-13) also met them and they narrated the entire incident to him. Tulsi Ram, Up-Pradhan then advised the three witnesses to go and report the matter to the Superintendent of police, Mandi. They then went to Mandi and contacted the

S.P. Mandi, Shri B.C. Negi (PW-20) when said Tulsi Ram and Jai Singh, Up-Pradhan and Member respectively, were also with them. They narrated this incident to the Superintendent of Police who then called the Dy. S.P. Headquarters, Shri Sarup Singh to his residence and said Sarup Singh (PW-22) then recorded the statement of Shri Prakash Chand with regard to the incident. Thereafter the Superintendent of Police Shri B.C. Negi, Dy. S.P. Shri Sarup Singh accompanied by the three witnesses and Up-Pradhan Tulsi Ram and Jai Singh, Member, went to the police station, Balh and on the basis of the report recorded at the instance of Prakash Chand earlier, a case was registered against the accused in the police station, Balh. Before proceeding from Mandi, the Superintendent of Police Shri B.C. Negi, had contacted the Dy. S.P. at Sunder Nagar, Shri D.N. Shah, (PW-24) and directed him to come to the police station immediately and he also arrived at the police station Balh sometime after mid night when the investigation of the case was entrusted to him. The Dy. S.P. Shri D.N. Shah thereafter investigated this case and then ultimately challaned the accused who were then committed to stand their trial in the Court of the Sessions.

At the commencement of the trial, the accused Mohd. Sardar was charged for the offences u/s 302 read with Section 34, Section 201, Section 201 read with Section 120-B, Sections 342, 506 and 218 of the I.P.C The other co-accused Lal Singh, Ludar Mani, Jiwan Lal, Netar Mani and Jai Singh u/s 302 read with Section 34, Section 201, 201 read with Section 120-B and Section 342 [of the I.P.C. The other accused were charged for the offences under Sections 201 and 201 read with Section 120-B of the I.P.C.

None of the accused pleaded guilty to the charge.

The learned Additional Sessions Judge who ultimately tried this case, found only the four accused guilty u/s 302 read with Section 34, Section 342 and Section 201 read with Section 120-B of the I.P.C, that is, the accused Mohd. Sardar, Lal Singh, Jiwan Lal and Netar Mani and Mohd. Sadar also u/s 506 of the I.P.C. while rest of the accused were held guilty u/s 201 read with Section 120-B of the I.P.C. only as stated earner.

To bring home the offences to the accused the prosecution has examined as many as 24 witnesses.

Prakash Chand (PW-1), Bihari Lal (PW-2) and Krishnoo (PW-10) are the main eye witnesses of the prosecution who have supported each other while giving detailed description as to how Sheru was tortured to death by the accused Mohd. Sardar and his subordinates, namely Lal Singh, Jiwan Lal and Netar Mani.

So far as Krishnoo is concerned, he has stated that after he came to know of the theft in his house on July 8, 1983, he went next morning to lodge a report in the police station Balh but the report was actually recorded by the accused Lal Singh while he was on patrol duty in the area who met him on his way and thereafter said accused Lal Singh went to his house in village Dadoh where two persons, namely, Dila Ram and Basant Ram were called to his house and after some interrogation the accused Lal Singh took them both to the police station, Balh on the same day, that is, July 9, 1983. On July 10, 1983, said Lal Singh again came to his house and at that time Sheru of Biharta was called to his house for interrogation when later on A.S.I. Nirber Singh also joined and interrogated Sheru at his house and thereafter both these persons took Sheru to the police station, Balh on the evening of July 10, 1983. It is from here that the long and woeful tale of torture of said Sheru starts, obviously, when said Sheru was kept in the police station during the night third degree methods were used against said Sheru while in the police station and the result was that he confessed that the had committed the theft in question and had hidden the stolen articles in the ''nalla'' of village Dadoh. Next morning, that is July 11, 1983, when said Krishnoo came to the police station, he came to know that Sheru had made such a confessional statement. Meanwhile, other witness Prakash Chand also came to the police station that very time as he wanted to put in good words to accused Mohd. Sardar for the release of Basant Ram who was till then in the police station at the instance of his father Longu Ram. The accused Mohd. Sardar then asked said Prakash Chand also to be a witness to the recovery of the stolen articles which Sheru was to disclose. The accused aforementioned thus went in a private truck to Dadoh on July 11, 1983 and took Sheru to the place where, according to him, he had hidden stolen articles. When nothing was recovered from there said Sheru disclosed Anr. place near Diargi where he had kept the stolen articles. But there too nothing was recovered and this resulted in severe beating of said Sheru by the police with danda, kicks and fist blows. Sheru then disclosed that he had kept the stolen articles at his house in village Biharta and the entire police party then went to village

Biharta. At that time it was about 9.30 p.m. The accused woke up the family members of Sheru but when nothing was recovered from there, Sheru was again given beating when he disclosed that he had kept the stolen articles in his fields below a ''tuni'' tree but there too nothing was recovered. Sheru was then again given severe beating by the accused and at that time even his legs were tied and he was made to lie on his belly before giving him beatings. So much so that even the clothes of Sheru got torn and became soiled and blood stained which were then taken off and handed over to the wife of Sheru, Smt. Bhuvneshwari who gave a new pant and bush-shirt which Sheru was made to put on. The accused then had meals at the house of PW Prakash Chand. Again the accused continued interrogating said Sheru when at about 1 a.m. he disclosed that he had kept the stolen articles at Baggi near the B.S.L. Project Stores. The accused then again took Sheru to that place but nothing was recovered from there. At that time he was again administered beatings when said Sheru stated that he would disclose the actual place where the stolen articles were kept by him next morning and Sheru was then taken to the police station Balh and at that time it was 4 a.m. of July 12, 1983. It may also be stated that at Biharta, Bihari Lal (PW-2) of the same village was also made to join the investigation and thereafter he also remained constantly with the police. In the morning of July 12, 1983, even the wife of Sheru met said Sheru in the police station but Sheru only told her to go back home and lookafter the children. On the morning of July 12, 1983, Sheru stated to the police that he had hidden the stolen articles at a place in village Shegli. The accused then went to Shegli with Sheru along with all the witnesses in a mini police bus H P M 265, when the other co-accused connected with excise-raids also went in the same van for the purposes of excise raids and got down at Rao Ramp for conducting the excise-raids whereas the accused and three witnesses and Sheru went ahead to village Shegli. Even at Shegli nothing was recovered and this again resulted in severe beatings of Sheru at the hands of the accused when he was even stripped naked. This beating, however, completely broke down said Sheru who was not able to even put on his pant and was profusely sweating and after he took some water he was not able to even walk despite danda blows given to him by some of the accused as they thought that said Sheru was malingering and he had to be carried by PW Krishnoo on his back to the police van with the help of some of the accused. Soon after said Sheru breathed his last and on this accused Mohd. Sardar called back all the co-accused who had gone on excise raids and

they thus all went to Kaloti jungle near Chail Chowk where they started deliberations as to how they should act in the matter further. It was ultimately decided by the accused that the dead body of Sheru should be thrown into the river and it should be declared that he had absconded from the police custody and for that purpose even a document was prepared at that time which was signed by these witnesses. Then an empty tin, a pair of empty gunny bags and a rope were purchased at Chail Chowk at the instance of the accused Mohd. Sardar and the entire party at dusk time then set out towards Sunder Nagar. 15 litres of diesel oil and one bottle of petrol were purchased by the accused from petrol pump at Sunder Nagar but the police van was kept away from the petrol pump and the tin of diesel oil was carried upto the vehicle by PW Krishnoo from the petrol pump. The vehicle then went upto Harabagh in the light of a truck which accidently started following the police van as no pass was given to the truck upto Harabagh since the lights of the police van had failed. At Harabagh two torches along with the cells were purchased by the accused and in the light of these torches the vehicle was driven upto a place near Ghaghas bridge where the dead body of Sheru was set aftre after sprinkling petrol thereon and thereafter it was put into a gunny bag and brought back to Slapper bridge from where the accused threw down the dead body into the river Satluj. Thereafter the vehicle was brought back to the police station Balh and as its engine got locked up at village Bhour near the police station, it was pushed by some of the accused to the police station Balh and the entire party thus returned to the police station Balh on July 13, 1983 at about 4 a.m. Thereafter the accused Mohd. Sardar sent the three witnesses to their houses with the instructions that if any body enquired from them as to where said Sheru was they should tell them that he had absconded from the police custody.

15 When after coming from the police station, the three witnesses, Prakash Chand, Bihari Lal and Krishnoo, however, found that it had become talk of the entire illaqa that the police had killed Sheru, they naturally became panicky and they thus again came back to the police station and apprised the accused Mohd. Sardar of this The accused Mohd. Sardar, however, pacified them by saying that he had patched up the matter with Ratia the father-in-law of Sheru by paying Rs. 2500/- and that they should not have any fear on that score. The witnesses, however, were not satisfied and they, under the advice of Tulsi Ram, Up-Pradhan (PW-14) contacted the Superintendent of Police at Mandi and reported the whole matter to him when on the basis of the statement of Prakash Chand a case was registered in the police station Balh.

Now apart from this evidence of eye witnesses there is also documentary evidence on the record. Admittedly, the theft case in question was registered in the police station as case No. 169/83 u/s 380 of the I.P.C. which is Ex. PJ on record. It is also clear from the police daily diary register of Police Station Balh that on July 9, 1983, H.C. Lal Singh had gone on the spot in connection with this theft case. Then on July 10, 1983, Nirber Singh had also gone to the spot in connection with the investigation of this case. Thereafter vide report Ex. PW 23/C dated July 11, 1983, the accused Mohd. Sardar took the investigation of this case in his own hand and visited the spot. It is obvious that since Sheru had been brought to the police station on the previous evening, that is, July 10, 1983, on account of his torture in the police station, he had come out with a confessional statement that he had committed the theft in question and could get the stolen articles recovered and that is the reason why the accused Mohd. Sardar himself went along with the other accused to get the recovery effected at the instance of Sheru and by that time obviously the two witnesses, namely, Prakash Chand and Krishnoo were available to be the witnesses of this recovery. Then zimini report No. 17 discloses that Mohd. Sardar accused alongwith other co-accused returned to the police station at 4 a.m. This obviously was on July 12, 1983, which is supported by the three eye witnesses that this accused Mohd. Sardar along with other co accused first visited Dadoh nalla and then Diargi and then went" ultimately to Biharta with Sheru and again set out from Biharta to Baggi at 1 a.m. and when nothing was found at Baggi at the instance of Sheru they returned to police station Balh at 4 a.m. Then there is Anr. report of the same day, that is, July 12, 1983 that the accused Mohd. Sardar along with the other co-accused left the police station Balh at 7.45 a.m. again in connection with this case as also to conduct the excise raids in the police van. Although there is discrepancy with regard to the time as according to these witnesses they had left the police station at 12 noon or 1 p.m. but this is of no consequence. It may be that the report was recorded earlier and they left later. It is, however, pertinent to note that there is no record anywhere that said Sheru was formally taken into custody by the police at any tims during these days and this omission is obviously intentional since the accused Mohd. Sardar and his other subordinates first wanted to get the recovery of the stolen articles effected and only thereafter they would have shown his formal arrest in the police record. Obviously, had they shown that said sheru was taken into the custody in connection with this theft in the police record the consequences would have been that they had to produce him before the competent Magistrate within 24 hours to obtain remand u/s 167 of the Code of Criminal Procedure and in that case it would not have been easy for them to torture said Sheru and thus to run the risk of their misdeeds being exposed.

Then besides these three witnesses the prosecution has also examined Bhuvneshwari the widow of Sheru and his mother Reshmoo and they have categorically stated that after this Sheru was called by the police to the house of Krishnooon July 10, 1983, he was not allowed to come home and he remained in the police custody and was brought to village Biharta by the police on July 11, 1983 at about 9.30 p.m. when the entire family was asleep and that said Sheru was administered beatings over there when no recovery could be effected at his instance and at that time said Sheru was made to change his clothes as those he was putting on had become soiled and torn. Those clothes were later on handed over by Smt. Bhuvneshwari to the police during the investigation of this case and the report of the Sero-logist Ex. PY discloses that the shirt Ex.P. 1 was stained with human blood. Obviously these blood stains were there on account of the third degree methods which were used by the accused against said Sheru.

Then again according to these two ladies said Sheru was again taken away by the accused to the police station where Bhuvneshwari Devi even met him next morning which was the last time she saw her husband. Thus we feel that the offence u/s 302 read with Section 34 of the I F C is clearly made out against the accused Mohd. Sardar, Lal Singh, Netar Mani and Jiwan Lal as they constantly tortured said Sheru by using third degree methods which ultimately resulted in his death.

Now obviously after Sheru succumbed to these constant tortures and third degree methods it became the concern of the accused as to how to face this serious situation and for this purpose now he took the help of the co-accused comprising of excise raiding party as well and they thus all went to a quiet place in a jungle at Kaloti far off from the police station and had long deliberations and then after purchasing two gunny bags, one rope and one empty tin from the shopkeeper at Chail Chowk they set out to dispose of the dead body. The shopkeeper at Chail Chowk Shri Prakash Chand (PW-4) has stepped into the witness box and stated that these articles were purchased from him and thus the statements of three eye witnesses Krishnoo, Prakash Chand and Bihari Lal on this point find further support as regards their veracity.

20 The prosecution has also examined Narotam Singh (PW-17) who has proved two cash-memos. Ex. PW-17/A and PW-17/B with regard to the purchase of 15 litres of diesel and one litre of petrol sold on July 12, 1983, at about 9.45 p.m. though according to him, the vehicle was not at the petrol pump at that time. Although he was declared hostile but this does show that at the relevant time diesel and petrol were sold by him to certain person(s) who had come to the petrol pump with empty tin and a bottle for diesel and petrol.

Jagdev Singh, A.S.I. (PW-21) has deposed that the police van HPM 265 was sent to the police station, Balh on July 7, 1983, and had remained in the said police station till July 13, 1983 and at the time when it was sent the mileometre disclosed that it had run 34310 km, and when reading was done on Jyly 13, 1983, it showed that it had run for 34889 km. and on 7-7-1983 when it was sent to police station Balh it had only 20 litres of diesel.

Then its log book at page 74 shows that the accused Mohd. Sardar had used this vehicle in connection with this theft case in question on July 12, 1983 and further on July 12, 1983, again he had used it for patrolling from 11 p.m. to 4 a.m. (13-7-1983). This entry clearly shows that the vehicle was brought to the police station at 4 a.m. on July 13, 1983. The entry with regard to the night patrolling is obviously, of course, false and in fact he had used this vehicle along with the other co-accused for disposing of the dead body that night.

Now since this disposal of the dead body was brought about by these accused after due deliberations and in a well thought out and pre-planned manner, all the other accused consisting of excise raiding party are also guilty of the offence u/s 120-B read with Section 201 of the IPC. and they have been rightly convicted thereunder.

It is also clear that this Sheru was kept in unlawful confinement from the evening of July 10, 1983, till his death; on July 12, 1983 by the accused, namely, Mohd. Sardar, Lal Singh, Jiwan Lal and Netar Mani and they thus have rightly ''been held guilty of the offence u/s 342 I.P.C.

Now the question arises whether the accused Mohd. Sardar is guilty of the offence u/s 506 of the T.P.C. The lower court has held so on the basis of the evidence of the three witnesses, namely, Prakash Chand, Bihari Lal and Krishnoo as, according to them, when they requested the accused Mohd. Sardar after the death of Sheru to inform the family members of Sheru and also to get his postmortem performed, he threatened them that they would meet the same fate as Sheru had met. This, however, in our opinion, does not appear to be true. It is quite probable that they have come out with this type of statement subsequently as an after thought. After all when the accused were in the van with such a big force, these witnesses could not have dared to speak anything of that type and it appears that they remained passive spectators throughout the time, the accused had taken steps to obliterate the dead body of Sheru. We are, therefore, of the opinion that this charge against the accused Mohd. Sardar u/s 506 of the I PC does not stand proved and his conviction thereunder is ''therefore, set aside and he is acquitted of the charge u/s 506 of the I.P.C.

The learned defence counsel has raised a number of contentions on the basis of which he argued that the prosecution evidence on record does not bear the scrutiny so as to prove the offences in question against the accused beyond all reasonable doubt. In the first place his contention is that there is no satisfactory evidence on record to show that Sheru was tortured to death while under police custody. According to the learned Counsel, no doubt said Sheru was called by the A.S.I. Nirber Singh to the house of Krishnoo on July 10, 1983 but thereafter there is nothing on record to show that this Nirber Singh brought said Sheru to the police station and produced him before the accused Mohd. Sardar.

We do not think there is any substance in this contention. The prosecution evidence discussed above proves beyond all doubt that said Sheru was brought to the police station Balh on the evening of July 10, 1983 and he was illegally confined and tortured by the accused Mohd. Sardar and the other three co-accused mentioned above so as to extract information from him with regard to the theft in question. It is also clear that on the very first night intervening 10/11th of July, 1983, the deceased Sheru must have been subjected to third degree methods by these accused to this extent that he had to confess in order to save his life that he had committed the offence although the subsequent events revealed that he had not done so. For instance he was taken to various places on July 11, 1983, as he had disclosed in his statements as the places where he had hidden the stolen property and apparently during whole of that day and even throughout the ensuing night till 4 a.m. the accused were taking deceased Sheru from place to place but nothing was being recovered and this resulted in more and more torment and torture of Sheru at their hands. Obviously, said Sheru was confessing the guilt and was giving out the names of different places from time to time as those where he had hidden the stolen property only in order to have a respite from the constant wrath let loose upon him by the accused but the accused appear to have been so much infatuated and blinded by these statements on the part of Sheru in their enthusiasm to detect the theft, that they did not care to apply their mind to this aspect of the matter and continued their barbarous treatment towards said Sheru till 2 or 3 p.m. of July 12, 1983 when he was given severe beatings as no recovery was effected as usual even in the last disclosed place known as Shegli. This last beating proved to be a last straw which broke the camel''s back and Sheru thus succumbed to this torture at the hands of the accused. Thereafter, a well thought out plan was hatched, as stated earlier, to get rid of the dead body of Sheru with a view to hushing up the entire matter by all the accused and the dead body was thus put in a gunny bag and thrown into the waters of Satluj. Thus in view of this categorical and overwhelming evidence on record, it does not lie in the mouth of the defence to say that the death of Sheru had not been proved and that, for aught we know, said Sheru might have voluntarily disappeared or absconded to save himself from the clutches of the police.

The learned defence counsel has then vehemently argued that no reliance can be placed on the testimony of PWS Prakash Chand, Krishnoo and Bihari Lal as they are no better than ''accomplices''. According to the learned defence counsel, once this evidence is excluded there is no evidence against the accused and they deserve acquittal and that the learned trial court has legally erred in placing reliance on their testimony. There is no doubt that these three witnesses have remained with the police almost throughout the period the deceased was being subjected to torture by the accused and also when after the torture resulted in his death, his dead body was made to disappear by throwing the same in the river Satluj in a planned and calculated manner. We also have no hesitation in holding that these witnesses enjoyed all the confidence of the accused and that is why they were being associated constantly in this investigation. We are, however, not prepared to hold that they were accomplices in the eye of law. The record clearly shows that they were associated in this investigation to be witnesses of recovery of stolen property which was expected as a result of disclosure statements by said Sheru. Obviously ''an accomplice is a person who participates in the commission of the actual crime charged against the accused''. In other words ''he is to be a Participles criminals ''An accomplice is one concerned with Anr. or Ors. in the commission of a crime''. He cooperation in the crime must be real and not merely apparent''. The term ''accomplice'' signifies a guilty associate in crime or one who sustains such a relation to the criminal act that he can be jointly indicated with the principal (See : C.D. Field''s Law of Evidence-11th Edition, Vol-A at page 3945). Obviously, none of the three witnesses fall within this definition of an accomplice as they did not participate in this crime with the accused. There is no doubt that after said Sheru succumbed to the beatings of the accused on July 12, 1983, in the presence of these witnesses, they did not dis-associate themselves from the accused and remained with them when the entire party went to jungle Kaloti near Chail Chowk to hold deliberations for the disposal of the dead body of Sheru and remained with them even during the period when steps were being taken for the disposal of the dead body of Sheru in that surreptitious manner by first setting fire to it and then throwing it into the river Satluj after putting the same into gunny bag. No doubt these witnesses have stated that after said Sheru died in the custody of the accused they had asked the accused Mohd. Sardar to take the body for postmortem and also inform his family members but the accused declined to do so. They also stated that at Sunder Nagar when the dead body was being taken on a route different to the one which led to the civil hospital at Sunder Nagar where according to these witnesses the accused Mohd. Sardar had promised to have postmortem of the dead body of Sheru done, these witnesses protested when they were threatened with dire consequences by the accused Mohd. Sardar. However, though this part of the deposition of these witnesses has not been believed by this Court, but, despite all this, it is clear that even if they did not do any overt act to dis-associate themselves from the accused while they were resorting to these illegal acts and even kept mum for some time, that is, till the evening of July 13, 1983, when they reported the matter first to the Up-Pradhan Tulsi Ram and then on his advice to the Superintendent of Police, Mandi, it cannot be said that their testimony can be tainted as that of an accomplice. As we have already held if they remained in the police van as passive spectators while the body of Sheru was being disposed of, to cause its disappearance, it was on account of partly fear of the police and partly loyalty to the accused Mohd. Sardar but when they realised that this silence would not be proper on their part in view of the fact that the death of Sheru in police custody as a result of torture had become well known in the entire area, they came out with the whole story as eye witnesses thereof. In Vemireddy Satyanarayan Reddy and Others Vs. The State of Hyderabad, a person who was sole eye witness of murder, disclosed the incident of murder after 21 days of the occurrence. Their lordships of the Supreme Court, however, held that even in such circumstances the persons cannot be regarded in law as an accomplice but in such circumstances the Court is required to scrutinize the evidence with caution and also to require corroboration. Their lordships in that case cited with approval a passage from Russell on Crime, 10th Edition page 1846, as follows:

But a person may be present, and, if not aiding and abetting, be neither principal nor accessory; as, if A, happens to be present at a murder and takes no part in it, nor endeavors to prevent it, or to apprehend the murderer, this course of conduct will not of itself render him either principal or accessory.

Similar is the case of the three witnesses in the instant case. Initially they were being associated as witnesses to the recoveries which the accused were expecting at the instance of Sheru. No doubt they did not appear to have raised any protest when Sheru was being subjected to torture from time to time but this action on their part cannot make them accomplices.

Then u/s 133 of the Indian Evidence Act, an accomplice is a competent witness and conviction can be sustained even on his sole testimony and the only requirement of law is that the Court has to keep in mind the caution in illustration (b) to Section 114 of the Indian Evidence Act and should ordinarily require corroboration of his testimony as a matter of prudence. But the discretion is with the Court to dispense with such corroboration in case : the judge concerned is convinced that no such corroboration was called for in a particular case. In the instant case, apart from the fact that three witnesses can by no stretch of imagination be dubbed as accomplices, it is also clear that their testimony is generally corroborated not only by oral evidence of the two ladies, that is Smt. Bhuvneshwari and Reshmoo, the widow and the mother of the deceased respectively but also by the documentary evidence.

The next point that was urged before us though mildly, is that this was a case where at least so far as the main accused Mohd. Sardar is concerned the prior sanction under the provisions of Section 197 of the Code of Criminal Procedure was called for, which is not the case here and as such the case of the accused Mohd. Sardar must fail. We do not agree with this contention as well. The relevant provisions of Section 197 Code of Criminal Procedure are that any person who is or was a Judge or Magistrate of a public servant not removable-from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court ''shall take cognizance of such offence except with the previous sanction:

(a) XXX XXX

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

Now the bare reading of this Section would reveal that the public servant concerned should not be removable from his office save by or with the sanction of the State Government-and the offence of which he is charged should have been committed by him while acting or purporting to act in the discharge of his official duties, that is, to say there should be a nexus between offence and the discharge of his'' official'' duty.

In the instant case it has not been shdwn that the accused Mohd sardar was not removeable from his office save by or with the Sanction of the Government of Himachal Pradesh. Rather u/s 7 of the Police Act, 1981'' read with Rule 16-A of the Punjab Police Rules, 1934 (Vol. III) as applicable, to Himachal Pradesh, a Sub-Inspector and, other officers, of subordinate ranks can be dismissed from service by the Superintendent of Police.

Then again it has not been shown that while the accused Mohd. Sardar and his accomplices illegally confined and, tortured Sheru they were doing so under the colour of their office as police officials under any provisions of law. No doubt they were at the relevant time investigating a theft case u/s 380 of the I.P.C. and they tortured said Sheru in order to get : confessional statements and the recovery of stolen property but while resorting to illegal acts of unlawful confinement and torture they cannot be said to be acting or purporting to act in the discharge of their official duties. In The State of Andhra Pradesh Vs. N. Venugopal and Others, their lordships of the Supreme Court, have held:

It cannot be said that beating a person suspected of a crime or confining him or sending him away in an injured condition by the police at a time when they were engaged in, investigation are acts done or intended to be done under the provisions of the Madras District Police Act or Criminal P.C. or any other law conferring powers on, the police...It cannot be said that the provisions of Section, 161, Code of Criminal Procedure authorise the police officer examining a person, to beat him or to confine him for the purpose of inducing; him to make a, particular statement. The provisions of Section 163 emphasize this fact." Virupaxappa Veerappa Kadampur Vs. The State of Mysore, .

The learned Counsel has lastly contended that even if it is held as proved that said Sheru died as a result of torture at the hands of the accused the offence which can be ascribed to these accused is only u/s 330 and not u/s 302 of the I.P.C. as the accused had No intention to cause the death of said Sheru through such torture and it was merely to extract information from him, touching, the offence in question.

34 Admittedly, this plea was taken on behalf of the defence before the trial court without any success. We have perused the findings of the lower court on this point and, are inclined to accept them as plausible and as such this contention also must fall to the ground. This is no doubt true that the accused Mohd. Sardar and his accomplices had no intention to cause the death of said Sheru as they were interested only in detecting the theft case which they were investigating and since the said Sheru was one of the suspects in that case, they were only using third degree methods against him to extract information which could lead to the unfolding of the crime in question and this type of behaviour on the part of the police is generally covered inter alia, by the provisions of Sections 330 and 331 of the I.P.G. It is, however, clear that the courts while trying a case of this nature have to draw a line as to where facts and circumstances of the case attract the provisions of Sections 330 or 331 of the I.P.C. and where they cross the bounds and fall within other provisions of the Code, for instance, offences of culpable homicide and murder. One can visualize a situation wherein the police during the course of a single act administer a chastisement to a suspect or even while doing so cause grievous hurt to him. In such cases, in our opinion, the former offences would be attracted. However, when a suspect is illegally detained in the police station for days together and is constantly tortured and beaten during day and night which result in his death as happened in the case in hand, we are firmly of the view that the act assumes graver dimensions and falls within the ambit of Section 302 of the I.P.C. Their lordships of the Supreme Court in State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another, observed:

The intention to cause death'' is not an essential requirement of Clause (2) of Section 300 Only the intention of causing the bodily injury coupled with the offender''s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause.

XXX XXX XXX XXX

The expression ''bodily injury'' in clause thirdly includes also its plural so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures up to such sufficiency. The ''sufficiency'' spoken of in this clause, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause thirdly of Section 300.

Now in the instant case, admittedly said Sheru was tortured constantly from the evening of July 10, 1983, till his death at about 2 or 3 p.m. on July 12, 1983, during which period he was being given beatings with dandas, fists and kicks and even in the presence of witnesses Prakash Chand, Bihari Lal and Krishnoo when the stolen goods were not being recovered at the places which were being pointed out by said Sheru from time to time and he succumbed to the last beating given at Shegli. Obviously, since the dead body of Sheru could not be recovered the Court has been deprived of having the advantage of postmortem report. Since, however, the accused are responsible for this, we feel that this Court is justified in holding that this case of Sheru is covered by both the clauses ''secondly'' and ''thirdly'' and thus the illegal acts of the accused squarely fall within the provisions of Section 302 of the I.P.C.

It may also be noted that the accused Mohd. Sardar and his accomplices have stoutly denied that said Sheru was at any time brought to the police station or they associated him in the investigation of this case or gave him any beating during the period between 10th and 12th July, 1983. It has however, been proved beyond all doubt that said Sheru was kept by them in illegal confinement and tortured and beaten during that period and when he succumbed to this torture his] body was thrown in the river which could not be recovered. In these circumstances this Court will be justified in drawing adverse inference against the accused u/s 114 of the Indian Evidence Act, namely, that had the post-mortem report been available, it would have gone against the accused.

In Pershadi Vs. State of Uttar Pradesh, . the Supreme Court has held that:

Where in a murder charge, the accused falsely denied several relevant facts which had been conclusively established, the Court would be justified in drawing an adverse inference from this against the accused.

It is also pertinent to note that had said Sheru been treated by any private person(s) in the manner as the accused Mohd. Sardar and his accomplices have done, namely, illegal confinement and. constant torture and; beatings, throughout the confinement they would certainly have been guilty of the offence under Sections 342 and 302 of the I.P.C. We fail to appreciate as to why the culpability of the accused Mohd. Sardar and his accomplices should suffer abridgment, or shrinkage simply because they happened to be police officials and the relevant offences were committed by them while investigating a theft case. As observed earlier no laws or rules authorised them to use third degree methods against Sheru. Rather these accused being the police officials were required to use more care and cautions whiles performing their official duties as they were supposed to be conversant with laws and rules in this behalf. To hold, that since they were police officials and they tortured Sheru to death while investigating a theft case and, therefor, the in culpability amounts to no more than the one u/s 330 of the I.P.C. is to give them a privileged position as compared to ordinary citizens which, in our opinion,; is squarely hit by the provisions of Article, 14 of the Constitution of India and further also would impinge upon Article 21 thereof.

39 In view of the above discussion we find no merit in the appeal(s) and the same are dismissed with this modification that the accused Mohd. Sardar is acquitted of the offence u/s 506 of the I.P.C.

Before we part with this case, however, we would like to place on record our sense of horror, disgust and abhorrence over the conduct of the accused Mohd; Sardar and his accomplices in this entire episode. It is a matter of great sorrow and dismay that even after the four decades of our independence and establishment of republican polity, some of the police officials are still indulging into such acts of brutality and barbarism which may put to shame even the worst despotic potentate of middle ages Just to unearth a petty offence of theft said Sheru, a poor harijan, at the; prime of his life was subjected to such a nightmare of torture and brutality as to result in his death, leaving behind his widow and minor children to face the vicissitudes and hardships of life without their, bread-earner and a breast beating old, mother to wail and shed tears throughout the rest of her life.

In this state of mind we can do no better than respectfully, cite the, telling observations of their lordships of the Supreme Court in an identical case, in Raghbir Singh Vs. State of Haryana, We are deeply disturbed by the diabolical recurrence of police torture resulting in a treble scare in the minds of common citizens that the is 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 torturesome poignancy (when) the violent violation is perpetrated by the police arm of the State whose functions'' to protect the citizen and not to commit gruesome offences against them as has happened in -this ease. 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 humans rights, awareness and humanist constitutional order.

The State, at the highest administrate arid political levels, we hope will organize 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."