Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
RAM SAGAR YADAV AND ORS.
DATE OF JUDGMENT18/01/1985
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
SEN, AMARENDRA NATH (J)
CITATION:
1985 AIR 416 1985 SCR (2) 621
1985 SCC (1) 552 1985 SCALE (1)108
CITATOR INFO :
R 1992 SC1817 (17)
ACT:
Indian Penal Code. ss. 300 302 and 304-Murder and
culpable homicide not amounting to murder-Distinction
between.
Indian Evidence Act-Evidence-Appreciation of-Dying
declaration-If true, whether corroboration necessary-Death
caused and/or atrocities perpetrated while in police
custody-Burden of proof-Need for re-examination by
legislature.
Criminal Law-Petty details and minor contradictions in
evidence-Whether can tilt the scale of justice.
HEADNOTE:
Respondent 1 was the Station House Officer and
Respondents 2 to 4 were attached as constables to the Police
Station. The prosecution alleged that a complaint was filed
against the deceased for cattle trespass. The Respondent
pursuant to the said complaint sought to extort illegal
gratification from the deceased for hushing up the case.
Respondent 2 succeeded in obtaining Rs. 100 and made a
further demand of Rs. 200. The deceased refused to oblige
him and made a complaint to the Superintendent of Police,
who forwarded it to Respondent 1 for inquiry and report.
This incensed Respondent 1. The deceased was arrested and
brought to the Police Station by Respondents 3 and 4 at
about 10.00 A.M. Same day at about 6.00 P.M. the deceased
succumbed to injures which were caused to him by Respondents
while he was in their custody.
The Sessions Court tried the four Respondents,
convicted each of them under section 304, Part 2 of the
Penal Code while Respondent I was also convicted under
section 220 of the Penal Code and all were sentenced to
different terms of imprisonment.
The Respondents appealed to the High Court and a
Single Judge set aside their order of convictions and
sentences.
Allowing the Appeal of the State,
622
^
HELD: 1. It is impossible to sustain the judgment of
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the High Court as it has totally overlooked crucial evidence
led by the prosecution and taken an unrealistic view of
unequivocal facts. It has not even adverted to the reasons
given by the trial court for holding the Respondents guilty
of the offences of which they were convicted. [625B-C]
2. It is quite clear that upon the evidence led by the
prosecution only one conclusion is possible, which is, that
the Respondents inflicted injuries upon Brijlal while he was
in their custody, thereby causing his death. [635F]
3. It is well-settled that, as a matter of law, a dying
declaration can be acted upon without corroboration. There
is not even a rule of prudence which has harden d into a
rule of law that a dying declaration cannot be acted upon
unless it is corroborated. The primary effort Or the Court
has to be to find out whether the dying declaration is true.
If it is, no question of corroboration arises. It is only
If the circumstances surrounding the dying declaration are
not clear or convincing that the Court may, for its
assurance, look for corroboration to the dying declaration.
[628D-E]
The instant case. is a typical illustration of that
class of cases in which the Court should not hesitate to act
on the basis of an uncorroborated dying declaration The
circumstances leave no doubt that the dying declaration made
by the deceased to the Judicial Magistrate to the effect
that he was beaten by Darogah and the constables at the
Police Station is true in every respect and it is safe to
accept the same. [628F; G; 629A-B]
Khushal Rao v. The State of Bombay, [1958] SCR 552,
Harbans Singh v. State of Punjab, [1967] Supp. ISCR 104 and
Gopalsingh v. State of M.P, [1972] 3 SCC 268, followed.
4. The distinction between murder and culpable hom cide
not amounting to murder is often lost sight of, resulting in
undue liberality in favour of undeserving culprits like the
respondent-police officers Except in cases covered by five
exceptions mentioned in section 300 of the Penal Code,
culpable homicide is murder if the act by which the death is
caused is done with the intention of causing death, or if
the act falls within any of the three clauses of section
300, namely, 2ndly, 3rdly and 4thly. [630 F-G]
The instant case, appears to fall under the clause
’2ndly’ of section 300 since the act by which the death of
was caused, was done with the intention of causing such
bodily injury as the Respondents knew to be likely to cause
his death. It is regrettable that the Sessions Court
convicted the Respondents under section 304 instead of
convicting them under sect on 302 of the Pen 11 Code. This
Court, would not however pursue the matter further since the
State did not fled an appeal against the judgment of the
Sessions Court. [630H; 631A]
5. The record of the case is disproportionately bulky
to the narrow Point which is involved in the case. It is not
an unusual experience that the wood is missed for the trees
when a Judge is confronted with a jumbled-up mass of data
623
relevant and irrelevant. it is necessary in such cases to
find the central point of the case and to concentrate upon
evidence which bears upon that point. Petty details which
befog the real issue and contradictions in the evidence
which are inevitable when a story is narrated under the
stress of a grave crime, ought not to be permitted to tilt
the scales of justice. The more a Judge gets bogged down in
superfluous details the greater is the likelihood of his
straying away from evidence which can clinch the issue.
[625C-E] R
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In the instant case, the High Court missed or mistook
the salient features of the case and embarked upon a hair-
splitting exercise while appreciating the evidence.
6. Remand orders are often passed mechanical,y without
a proper application of mind. In this case, the Magistrate
was led into passing an order of remand on the basis of the
usual statement that the offence of which the accused was
charged was still under investigation. What is important is
that deceased had not committed any offence at all for which
1- could be remanded and, far from being an accused, he was
in the position of a complainant. Respondent 1 was the
architect of his remand and the motive for obtaining the
remand order was to keep him in custody so as to prevent him
from disclosing to his people who beat him and where. [627D-
F]
7. It is necessary that the Government amends the law
appropriately so that policemen l who commit atrocities on
persons who are in their custody are not allowed to escape
by reason of paucity or absence of evidence. Police Officers
alone and none else. can give evidence as regards the
circumstances in which a person in their custody comes to
receive injuries while in their custody. Bound by ties of a
kind of brotherhood, they often prefer to remain silent in
such situations and when they choose to speak they put their
own glass upon facts and pervert the truth. The result is
that persons on whom atrocities are perpetrated by the
police in the sanctum sanctorum OF the Police Station, are
left without evidence to prove who the offenders are. The
law as to the burden of proof in such cases may be re-
examined by the legislature so that hand-maids of law and
order do not use their authority and opportunities for
oppressing the innocent citizens, who look to them for
protection. [631C-E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No 69
of 1 975 .
From the Judgment and Order dated 13th May, 1974 of
the Allahabad High Court in Criminal Appeal No. 269 of 1973.
M.R. Sharma, Dalveer Bhandari, H.M. Singh and Miss
Rachna Joshi, for the Appellant
R.K Garg, V J. Francis and N.M. Popli for the
Respondents.
624
The Judgment of the Court was delivered by
CHANCRACHUD, C.J. This is an appeal by the State of
U.P., against the judgment of a learned single Judge of the
Allahabad High Court, setting aside the order of conviction
and sentence passed by the learned Sessions Judge, Fatehpur
against the four respondents. Respondents 1 and 2, Ram Sagar
Yadav and Shobha Nath alias Pujari were convicted by the
learned Sessions Judge under section 304. Part 2, of the
Penal Code and were sentenced to rigorous imprisonment for
seven years. Respondent 1 was also convicted under section
220 of the Penal Code for keeping a person in confinement
corruptly and was sentenced to rigorous imprisonment for
five years Respondents 3 and 4 were convicted under section
304, Part 2 of the Penal Code and were sentenced to rigorous
imprisonment for three years.
Respondent l, Ram Sagar Yadav, was the Station House
Officer of the Hussainganj Police Station, District
Fatehpur, while the remaining three respondents were
attached to that police station as constables. On the
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morning of August 29, 1969 respondents 3 and 4 went to
village Haibatpur, arrested the deceased Brijlal and brought
him to the police station at about 1().()0 A.M. Brijlal died
the same day at about 6.00 P.M. due to the injuries which
were caused to him between the time that he was brought to
the police station and the forenoon of August 29.
The case of the prosecution is that the respondents
wanted to extort illegal gratification from Brijlal in
connection with a complaint which was filed against him by
one Faheeman Faqirin for cattle trespass. Respondent 2,
Shobha Nath, had succeeded in obtaining a sum Of Rs. 100
from Brijlal with an assurance that no steps will be taken
against him in that complaint. Respondent 2 demanded a
further sum of Rs. 200 from Brijlal for hushing up the case.
which the latter refused to pay. Instead, on August 7, 1969
he sent a complaint (Exhibit Ka-2) to the Superintendent of
Police, Fatehpur, complaining that a bribe was being
demanded from him by respondent 2, a policeman of the
Hussainganj Police Station. That complaint was forwarded by
the Superintendent of Police to respondent I for inquiry and
report. Being incensed by the ’audacity’ of Brijlal in
complaining against a policeman under his charge, respondent
I sent respondents 3 and 4 to bring Brijlal to the police
station in order that he could be taught a proper lesson.
That is the genesis of Brijlal’s arrest. Apart from Faheeman
Faqirin’s complaint that Brijlal’s bullock had damaged her
crop, there was no complaint or charge against him.
625
We have heard this appeal at reasonable length and
both Shri M.R. Sharma, who appears on behalf of the
appellant and Shri R.K. Garg who appears on behalf of the
respondents, have taken us through the relevant evidence and
the judgments of the High Court and the Sessions Court. Upon
a consideration of that evidence, we find it impossible to
sustain the judgment of the High Court. Ii has totally
overlooked crucial evidence led by the prosecution in
support of its case and, with respect, taking an unrealistic
view of unequivocal facts, it has not even adverted to the
reasons given by the trial court in support of its
conclusion that the respondents are guilty of the offences
of which it convicted them.
The record of the case is disproportionately bulky to
the narrow point which is involved in the case. It is not an
unusual experience that the wood is missed for the trees
when a Judge is confronted with a jumbled-up mass of data,
relevant and irrelevant. It is necessary in such cases to
find out the central point of the case and to concentrate
upon evidence which bears upon that point. Petty details
which befog the real issue and minor contradictions in the
evidence which are inevitable when a story is narrated under
the stress of a grave crime, ought not to be permitted to
tilt the scales o justice. The more a Judge gets bogged down
in superfluous details, the greater is the likelihood of his
straying away from evidence which can clinch the issue. In
the instant case, the High Court missed or mistook the
salient features of the case and, in the result, embacked
upon a hair-splitting exercise while appreciating the
evidence.
We do not propose to discuss more than is strictly
necessary since it is quite clear that upon the evidence led
by the prosecution only one conclusion is possible, which
is, that the respondents inflicted injuries upon Brijlal
while he was in their custody, thereby causing his death.
Brijlal was hale and hearty on the morning of August
29, 1969. He was ploughing his field when respondents 3 and
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4 reached Haibatpur in order to arrest him. They took him on
foot to the Hussaniganj Police Station which is about 3 km
away from Haibatpur. They reached the police station at
10.00 A.M. Two hours later, Brijlal was taken in a police
van to the Court of the learned Additional District
Magistrate for obtaining remand. Shri R.C. Nigam, the
Presiding Officer of the Court, had finished the winding
list of the remand applications, at the end of which the
Moharir of the
626
Court informed him that a remand order had remained to be
passed against an accused who was brought from the
Hussainganj Police Station and that the accused could not be
produced in Court since he was lying in the verandah in a
badly injured condition. Shri Nigam (P.W. 5) says in his
evidence that since the accused could not be brought to the
Court-room, he himself went to the verandah where the
accused was lying and he asked him his name. The accused was
unable to respond at first since his condition was "very
serious" but, on repeated inquiries, the accused told Shri
Nigam that his name was Brijlal. On being questioned as to
how he came to receive the injuries, Brijlal replied that
’the Darogah of Hussainganj and the constables had beaten
him very badly’. Shri Nigam made a note of the statement
made by Brijlal on the remand application (Exhibit Ka-l).
That application bears Shri Nigam’s signature and the thumb
impression of Brijlal.
Shri Nigam’s evidence is of a crucial character since
it establishes , beyond any doubt, that Brijlal had
extensive injuries on his person and that, at the earliest
opportunity, he involved the policemen of the Hussainganj
Police Station as the authors of those injuries, It is as
transparent, as any fact can be, that the injuries which
were found on the person of Brijlal were caused to him at
the Hussainganj Police Station. The few and simple steps in
the logical process leading to that conclusion are that
Brijlal had no injuries on his person when he was arrested
at Haibatpur in the morning or when he was brought to the
police station at about 10.00 A.M, and that, when he was
sent for remand he had a large number of injuries on his
person which had induced a state of shock. We are unable to
see what other explanation can reasonably be given of this
chain of facts except that the injuries were caused to
Brijlal by the policemen attached to the Hussainganj Police
Station. Who, from amongst them, is or are responsible for
causing the injuries has undoubtedly to be considered. But,
there is no escape from the conclusion that Brijlal was
assaulted while he was in custody of the respondents at the
Hussainganj Police Station.
The evidence of Laxmi Narain, P.W. No. 17, who was one
of the constables attached to the Hussainganj Police Station
has an important bearing on the guilt of the respondents, an
aspect which has escaped the attention of the High, Court.
Laxmi Narain says that when he went to the police station at
about 10.45 a.m. On August 29,1969, respondent 1, the
Station House Officer, and the other three respon-
627
dents were present at the police station; that Brijlal was
lying in the lock-up of the police station shrieking in
pain; and that, when Brijlal was handed over to his custody
for being taken to the Magistrate, there were a number of
injuries on his arms and legs. According to Laxmi Narain,
and that is undisputed, respondent 1 also accompanied him
and Brijlal to the Magistrate’s court. It seems to us
surprising that respondent I was nowhere on the scene in the
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Magistrate’s court, especially in the light of the fact that
Brijlal’s was an unusual case in which, the prisoner for
whom remand was to be obtained was in a precarious condition
due to the injuries suffered by him. It was respondent I
who, being the S.H.O., had the custody and care of Brijlal.
Instead of making himself available to the Magistrate for
explaining how Brijlal came to be injured, he resorted to
the expedient of deputing Laxmi Narain to face the
Magistrate. Laxmi Narain has also stated in his evidence
that Brijlal told the Magistrate that the Darogah and the
constables of the Hussainganj Police Station had assaulted
him.
It is notorious that remand orders are often passed
mechanically without a proper application of mind. Perhaps,
the Magistrates are not to blame because, heaps of such
applications are required to be disposed of by them before
the regular work of the day begins. Shri Nigam has to be
complimented for the sense of duty and humanity which he
showed in leaving his seat and going to the verandah to see
an humble villager like Brijlal. It is obvious that he was
led into passing an order of remand on the basis of the
usual statement that the offence of which the accused was
charged was still under investigation. What is important is
that Brijlal had not committed any offence at all for which
he could be remanded and, far from being an accused, he was
in the position of a complainant. Respondent I was the
architect of his remand and the motive for obtaining the
remand order was to keep Brijlal in custody so as to prevent
him from disclosing to his people who beat him and where.
After obtaining the remand order, Brijlal was sent to
the Fatehpur District Jail at 3.40 p.m. Sheo Shanker Sharma,
P.W.8, who was the Assistant Jailor of the Fetehpur Jail,
says that when he examined Brijlal at about 3.45 p.m. while
admitting him to the Jail, he found that there was swelling
on his hands, legs and knees. Brijlal was unable to get up
and on being questioned, he told Sharma that the policemen
belonging to the Police Station arrested him H
628
from his field, took him to the Police Station and committed
"marpit" on him, as a result of which the was unable to
stand. Finding that Brijlal’s condition was serious, he
called the Jail Doctor.
Dr. S. C. Misra P W. 21, went to the District Jail
at about 5.20 IS p.m. He found that there were 19 injuries
on the various parts of Brijlal ’s person. On being
questioned, Brijlal told him in a faltering voice that he
had been beaten by the policemen. Dr. Misra says that
Brijlal’s condition was precarious but that, he had neither
any fever nor any symptoms of Pneumonie. The evidence of Dr
Misra proves that Brijlal died on account of the injuries
received by him and that, the suggestion made by the defence
that he died on account of some kind of a fever or on
account of the pneumonic condition of his lungs, is utteiy
baseless. The congestion in his lungs was the result of the
beating administered to him.
It is well-settled that, as a matter of law, a dying
declaration can be acted upon without corroboration. (See
Khushal Rao v. The State of Bombay(1);Harbans Singh v.State
of Punjab,(2) and Gopalsingh v. State of M.P.)(3) There is
not even a rule of prudence which has hardened into a rule
of law that a dying declaration cannot be acted upon unless
it is corroborated. The primary effort of the Court has to
be to find out whether the dying declaration is true. If it
is, no question of corroboration arises. It is only if the
circumstances surrounding the dying declaration are not
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clear or convincing that the Court may, for its assurance,
look for corroboration to the dying declaration. The ease
before us is a typical illustration of that class of eases
in which, the Court should not hesitate to act on the basis
of an uncorroborated dying declaration. Brijlal had no
reason for involving the policemen falsely for having
assaulted him. There was no possibility of anyone tutoring
him, for the simple reason that he was in the exclusive
custody of the policemen of Husssainganj Police Station. It
is the respondents who were in a position to exert influence
over him. No one else had access to him, which not only
excludes the possibility of his being tutored, but which
also excludes the possibility that he was assaulted by any
one else. Indeed, the circumstances of the case leave no
doubt that the dying declaration
(1) [1958] SCR 552.
(2) [19621 Supp. 1 SCR 104,
(3) 119721 3 SCC 268.
629
made by Brijlal to Shri Nigam is true in every respect. We
consider it safe to accept the statement made by Brijlal to
Shri Nigam that he was beaten by the ’Darogah and the
constables’ of the Hussainganj Police Station.
The only question which remains for consideration is
as to the identity of the persons belonging to the
Hussainganj Police Station who participated in the assault
on Brijlal. Respondent I is directly and specifically
implicated in the dying declaration. He was the "Darogah‘’
of that Police Station. Laxmi Narain says in his evidence
that at 10.45 a.m. when Brijlal was brought to the police
station by respondents 3 and 4 respondent I was present. It
is difficult to believe that The police constables would
beat an accused so mercilessly in the police station without
the connivance, consent or coollaboration of the Station
House Officer. The Police Station of Hussainganj is not so
large that the Station House Officer would not know what is
happening there during his presence. The possibility of any
other officer being a "Darogah" is removed by the evidence
of S.I. Bajrang Bahadur Singh, P.W. 19, who says that, at
the relevant time, there was no other Second Officer at the
Hussainganj Police Station except him.
Any doubt lurking about the involvement of respondent
I in the incident is removed by his own conduct. Though he
was unquestionably present at the police station at the
material time, he prepared a false record in order to show
that he had gone for the purpose of an identification parade
to another place. We agree with the leaned Sessions Judge
that the record was thus prepared by respondent 1 falsely in
order to support the defence of alibi. That, indeed, was his
defence at the trial. He also prepared false record to show
that Brijlal was involved in a dacoity case and was brought
to the police station for that reason. There was no such
charge against Brijlal and yet, respondent ], as the S.H.O.,
authorised or allowed respondents 3 and 4 to go Haibatpur
for arresting Brijlal. The true reason for arresting him was
that the respondent were incensed at the complaint made by
Brijlal against respondent 2 for extorting a bribe.
In so far as respondent 2 is concerned, he is truly
the cause of the assault on Brijlal. It was he who had
extorted a bribe from Brijlal and was attempting to get some
money from him. Brijlal sent a complaint on August 7, 1969
to the Superintendent of Police, Fatehpur, complaining
against respondent 2. That complaint having
630
been referred for inquiry and report to the Hussainganj
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Police Soltion, respondents hatched a conspiracy to put
Brijlal under arrest, bring him to the police station and
assault him.
In so far as respondents 3 and 4 are concerned, it is
they who arrested Brijlal on a false charge of dacoity and
brought him to the police station at 10 a.m., on August 29.
Shortly thereafter, constable Laxmi Narain found that
Brijlal was lying in the lock-up in a badly injured
condition and was shrieking in agony.
In the light of these findings, it is unnecessary to
refer to the evidence of P.Ws. 6. 7 and 9 who are
respectively the nephew, the daughter and the wife of
Brijlal. We agree with the learned Sessions Judge that these
persons went to the police station immediately after Brijlal
was taken there under arrest. It is not, however, possible
to say with a reasonable amount of certainty that they saw
the respondents assaulting Brijlal. They reached the police
station quite some time after Brijlal was taken there and
it would be too much of a coincidence to suppose that they
arrived at the police station precisely at the time when
Brijlal was being beaten. They might have heard the shrieks
of Brijlal who was writhing in pain. But, standing outside
the police station, as they were, it could not have been
possible for them to see who was assaulting Brijlal. The
limited relevance of their evidence is for showing, apart
from the other circumstances stated above, that Brijlal was
lying injured in the police station.
For these reasons, we allow this appeal, set aside the
judgment of the High Court and affirm that of the Sessions
Court. It is to be greretted that the learned Sessions
Judge convicted the respondents under section 304 instead of
convicting them under section 302 of the Penal Code. The
distinction between murder and culpable homicide not
amounting to murder is often lost sight of, resulting in
undue liberality in favour of undeserving culprits like the
respondent-police officers, Except in cases covered by the
five exceptions mentioned in section 300 of the Penal Code,
culpable homicide is murder if the act by which the death is
caused is done with the intention of causing death, or if
the act falls within any of the three clauses of section
300, namely, 2ndly, 3rdly and 4thly. In this case, the
injuries suffered by Brijlal would appear to fall under the
clause ’2ndly’ of section 300, since the act by which his
death was caused was done with the intention of causing such
bodily injury as the respondents knew to be likely to cause
his death. However, we will not pursue that matter
631
any further since the State did not file an appeal against
the judgment of the learned Sessions Judge asking that the
respondents should be convicted under section 302 of the
Penal Code and since the prosecution did not lead sufficient
evidence through the Medical Officer in order to bring out
the true nature of the injuries suffered by Brijlal.
Before we close, we would like to impress upon the
Government the need to amend the law appropriately so that
policemen who commit atrocities on persons who are in their
custody are not allowed to escape by reason of paucity or
absence of evidence. Police Officers alone, and none else,
can give evidence as regards the circumstances in which a
person in their custody comes to receive injuries while in
their custody. Bound by ties of a kind of brotherhood, they
often prefer to remain silent in such situations and when
they choose to speak, they put their own gloss upon facts
and pervert the truth. The result is that persons, on whom
atrocities are perpetrated by the police in the sanctum
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sanctorum of the police station, are left without any
evidence to prove who the offenders are. The law as to the
burden of proof in such cases may be re-examined by the
legislature so that hand-maids of law and order do not use
their authority and opportunities for oppressing the
innocent citizens who look to them for protect on. It is
ironcial that, in the instant case, a person who complained
against a policeman for bribery, was done to death by that
policeman, his two companions and his superior officer, the
Station House Officer. The vigilant Magistrate, Shri R.C.
Nigam, deserves a word of praise for dutifully recording the
dying declaration of the victim, which has come to
constitute the sheet anchor of the case of the prosecution.
A. P. J. Appeal allowed.
632