Full Judgment Text
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CASE NO.:
Appeal (crl.) 857 of 1996
PETITIONER:
Smt. Shakila Abdul Gafar Khan
RESPONDENT:
Vasant Raghunath Dhoble and Anr.
DATE OF JUDGMENT: 08/09/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
"If you once forfeit the confidence of our fellow
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", Said Abraham Lincoln. This Court
in Raghubir Singh v. State of Haryana (AIR 1980 SC 1087),
took note of these immortal observations while deprecating
custodial torture by the police.
Custodial violence, torture and abuse of police power
are not peculiar to this country, but it is widespread. It
has been the concern of international community because the
problem is universal and the challenge is almost global. The
Universal Declaration of Human Rights in 1948 which marked
the emergence of a worldwide trend of protection and
guarantee of certain basic human rights stipulates in
Article 5 that "No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment".
Despite this pious declaration, the crime continues
unabated, though every civilized nation shows its concern
and makes efforts for its eradication.
If it is assuming alarming proportions, now a days, all
around it is merely on account of the devilish devices
adopted by those at the helm of affairs who proclaim from
roof tops to be the defenders of democracy and protectors of
peoples’ rights and yet do not hesitate to condescend behind
the screen to let loose their men in uniform to settle
personal scores, feigning ignorance of what happens and
pretending to be peace loving puritans and saviours of
citizens’ rights.
Article 21 which is one of the luminary provisions in
the Constitution of India, 1950 (in short the
’Constitution’) and is a part of the scheme for fundamental
rights occupies a place of pride in the Constitution. The
Article mandates that no person shall be deprived of his
life and personal liberty except according to the procedure
established by law. This sacred and cherished right i.e.
personal liberty has an important role to play in the life
of every citizen. Life or personal liberty includes a right
to live with human dignity. There is an inbuilt guarantee
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against torture or assault by the State or its
functionaries. Chapter V of the Code of Criminal Procedure,
1973 (for short the ’Code’) deals with the powers of arrest
of persons and the safeguards required to be followed by
the police to protect the interest of the arrested person.
Articles 20(3) and 22 of the Constitution further manifest
the constitutional protection extended to every citizen and
the guarantees held out for making life meaningful and not a
mere animal existence. It is therefore difficult to
comprehend how torture and custodial violence can be
permitted to defy the rights flowing from the Constitution.
The dehumanizing torture, assault and death in custody
which have assumed alarming proportions raise serious
questions about the credibility of rule of law and
administration of criminal justice system. The community
rightly gets disturbed. The cry for justice becomes louder
and warrants immediate remedial measures. This Court has in
a large number of cases expressed concern at the atrocities
perpetuated by the protectors of law. Justice Brandies’s
observation which have become classic are in following
immortal words:
"Government as the omnipotent and
omnipresent teacher teaches the whole people
by its example, if the Government becomes a
law breaker, it breeds contempt for law, it
invites every man to become a law into
himself". (in (1928) 277 U.S. 438, quoted
in (1961) 367 U.S. 643 at 659).
The diabolic recurrence of police torture resulting in
a terrible scare in the minds of common citizens that their
lives and liberty are under a new and unwarranted peril
because guardians of law destroy the human rights by
custodial violence and torture and invariably resulting in
death. The vulnerability of human rights assumes a traumatic
torture when functionaries of the State whose paramount duty
is to protect the citizens and not to commit gruesome
offences against them, in reality perpetrate them. The
concern which was shown in Raghubir Singh’s case (supra)
more than two decades back seems to have fallen to leaf ears
and the situation does not seem to be showing any noticeable
change. The anguish expressed in Gauri Shanker Sharma v.
State of U.P. (AIR 1990 SC 709), Bhagwan Singh and Anr. v.
State of Punjab (1992 (3) SCC 249), Smt. Nilabati Behera
@Lalita Behera v. State of Orissa and Ors. (AIR 1993 SC
1960), Pratul Kumar Sinha v. State of Bihar and Anr. (1994
Supp. (3) SCC 100), Kewal Pati (Smt.) v. State of U.P. and
Ors. (1995 (3) SCC 600), Inder Singh v. State of Punjab and
Ors. (1995(3) SCC 702), State of M.P. v. Shyamsunder Trivedi
and Ors. (1995 (4) SCC 262) and by now celebrated decision
in Shri D.K. Basu v. State of West Bengal (JT 1997 (1) SC 1)
seems to have caused not even any softening attitude to the
inhuman approach in dealing with persons in custody.
Rarely in cases of police torture or custodial death,
direct ocular evidence of the complicity of the police
personnel 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 â\200\223 and
the present case is an apt illustration â\200\223 as to how one
after the other police witnesses feigned ignorance about the
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whole matter.
The exaggerated adherence to and insistence upon the
establishment of proof beyond every reasonable doubt by the
prosecution, at times even when the prosecuting agencies are
themselves fixed in the dock, ignoring the ground realities,
the fact-situation 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 suspect and
vulnerable. 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 at times of the courts
as well because it reinforces the belief in the mind of the
police that no harm would come to them if one 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 civilized society, governed by the rule
of law and poses a serious threat to an orderly civilized
society. Torture in custody flouts the basic rights of the
citizens recognized by the Indian Constitution and is an
affront to human dignity. Police excesses and the
maltreatment of detainees/under- trial 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 of the
very fence eating the crops, the foundations of the criminal
justice delivery system would be shaken and the civilization
itself would risk the consequence of heading, towards total
decay resulting in anarchy and authoritarianism reminiscent
of barbarism. The courts must, therefore, deal with such
cases in a realistic manner and with the sensitivity which
they deserve, otherwise the common man may tend to gradually
lose faith in the efficacy of the system of judiciary
itself, which if it happens will be a sad day, for any one
to reckon with.
Though Sections 330 and 331 of the Indian Penal Code,
1860 (for short the ’IPC’) make punishable those persons who
cause hurt for the purpose of extorting the confession by
making the offence punishable with sentence up to 10 years
of imprisonment, but the convictions, as experience shows
from track record have been very few compared to the
considerable increase of such onslaught because the
atrocities within the precincts of the police station are
often left without much traces or any ocular or other direct
evidence to prove as to who the offenders are. Disturbed by
this situation the Law Commission in its 113th Report
recommended amendments to the Indian Evidence Act, 1872 (in
short the ’Evidence Act’) so as to provide that in the
prosecution of a police officer for an alleged offence of
having caused bodily injuries to a person while in police
custody, if there is evidence that the injury was caused
during the period when the person was in the police custody,
the court may presume that the injury was caused by the
police officer having the custody of that person during that
period unless the police officer proves to the contrary. The
onus to prove the contrary must be discharged by the police
official concerned. Keeping in view the dehumanizing aspect
of the crime, the flagrant violation of the fundamental
rights of the victim of the crime and the growing rise in
the crimes of this type, where only a few come to light and
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others don’t, the Government and the legislature must give
serious thought to the recommendation of the Law Commission
and bring about appropriate changes in the law not only to
curb the custodial crime but also to see that the custodial
crime does not go unpunished. The courts are also required
to have a change in their outlook approach, appreciation and
attitude, particularly in cases involving custodial crimes
and they should exhibit more sensitivity and adopt a
realistic rather than a narrow technical approach, while
dealing with the cases of custodial crime so that as far as
possible within their powers, the truth is found and guilty
should not escape so that the victim of the crime has the
satisfaction that ultimately the majesty of law has
prevailed.
But at the same time there seems to be disturbing trend
of increase in cases where false accusations of custodial
torture are made, trying to take advantage of the serious
concern shown and the stern attitude reflected by the courts
while dealing with custodial violence. It needs to be
carefully examined whether the allegations of custodial
violence are genuine or are sham attempts to gain undeserved
benefit masquerading as victims of custodial violence. The
case in hand is unique case in the sense that complainant
filed a complaint alleging custodial torture while the
accused alleged false implication because of oblique
motives.
Respondent-Vasant Raghunath Dhoble (hereinafter
referred to as the ’accused’) faced trial on the basis of a
private complaint filed by the appellant Shakila. The
Additional Sessions Judge, Greater Bombay, found the accused
guilty of offence punishable under Section 302 Part II IPC
and sentenced him to undergo rigorous imprisonment for 7
years and to pay a fine of Rs.1,00,000/-. In default of
payment of fine he was to undergo 21 months imprisonment. In
appeal, the Bombay High Court found that the prosecution has
failed to establish the accusations and directed acquittal.
The complainant has filed this appeal.
Accusations of the complainant sans unnecessary details
are as follows:
On 14.10.1983 Abdul Gafar (hereinafter referred to as
the ’deceased’), the husband of the complainant was arrested
in respect of CR.No. 559/83 at D.N. Nagar Police Station on
the allegation that he had caused grievous hurt to one
Vishnu Sone Bhuwas. The deceased informed his wife
(complainant) that he was required to go to the police
station in connection with a case, as he had scuffle with
some persons. On 15.10.1983, the complainant having found
that deceased had not returned home in the night of
14.10.1983 came out of her house to search for her husband.
Around 8.30 a.m., she noticed that police van on the main
road vis. Link Road was being parked on the road side. The
accused who was then attached to the D.N. Police Station
came out of the van along with some police constables and
they were dragging the deceased. The complainant noticed
that the condition of her husband was not very sound, and he
was not even able to stand up. The complainant was sure that
he had been assaulted in the previous night, apparently in
police custody. The accused was carrying a hockey stick in
his hands and continued to beat the deceased in the presence
of complainant and other persons. The other constables were
holding the hands of the deceased and tried to make the
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deceased stand. The accused continued to give blows by the
hockey stick. The constables pulled the hair of the deceased
while he was being beaten by the accused. Having been
informed about the assaults, Smt. Khairunissa, mother of the
deceased (PW-2) and Shamsunissa, sister of the deceased (PW-
5) came to the spot. They had also witnessed the assaults on
the deceased. When the complainant (PW-1), PW-2 and PW-5
tried to intervene, they were also threatened. The assaults
continued for a very long time for more than an hour and
when one of hockey sticks which was being used by the
accused broke, another hockey stick was brought out from the
van and assaults continued. In the evening, PWs 1 and 2 made
attempts to move the police authorities at D.N. Nagar Police
Station and met one Assistant Commissioner of Police (Mr.
Irani) and senior Police Inspector (Mr. Chaglani) and
requested them to render medical assistance to the deceased.
But there was no cooperation and although the deceased was
in a bad physical condition, he was taken to the hospital on
16.10.1983 around 11.00 a.m. The deceased was produced
before the Remand Magistrate and was released on bail. After
his release the deceased was taken to the hospital and was
admitted in Cooper Hospital at about 4.00 p.m. and as his
condition worsened he was transferred to K.E.M. Hospital on
17.10.1983. Subsequently, he expired. PWs. 1, 2 and 5 made
complaint to the police officials against the accused
holding him responsible for the death due to the assaults
during the period from 14.10.1983 to 16.10.1983. Their
statements were recorded, but no action was taken. Though
the complainant made the representations to various
authorities including the Commissioner of Police on
20.10.1983 that also did not yield any result. The
complainant (PW-1) claims to have been made representations
to the Prime Minister and the President of the country. As a
last resort, a private complaint was made before the
Metropolitan Magistrate, 10th Court, Andheri on
12.12.1984. The case was committed for sessions trial by an
order dated 5.1.1987.
Nine witnesses were examined to prove the prosecution
version. The accused pleaded innocence and false
implication. He produced three witnesses to substantiate his
plea of innocence. Three witnesses were examined as court
witnesses. They were the police officials attached to the
D.N. Nagar Police Station. On consideration of the materials
on record, as noted above, the trial Court found the accused
guilty but the judgment of conviction and sentence was set
aside by the High Court, which found certain circumstances
to be of great importance corroding the credibility of
complainant’s version. Essentially the circumstances are as
follows:
The complaint was lodged after more than one year of
the alleged date of occurrence without any plausible
explanation for the delay. The version given by PWs 1, 2 and
5 regarding the merciless assaults by the accused were
incredible inasmuch as the doctor who conducted post mortem
found 16 injuries on his body and had opined the cause of
death to be acute renal failure. Certain documents were not
supplied to the accused and thus caused great prejudice to
the accused and use of those materials by the trial Court to
find the accused guilty did not meet the requirements of
law. The evidence of PWs 1, 2 and 5 when read together
improbabilises the stand that they had seen the beatings
alleged to have been given by the accused to the deceased.
In the first report there was no mention about the assaults
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on 14.10.1983. The doctor who had examined the deceased had
noted the medical history of the accused, but the name of
the accused was not specifically indicated though the
accused and the deceased were known to each other
intimately. In the report as alleged, name of the accused
did not figure. The claim of oral dying declaration to have
been made by the deceased was not indicated in the first
report. The original post mortem report having not been
placed on record, the evidence of PW-7 who admittedly did
not conduct the post mortem is inadmissible. It was highly
improbable that after having given a thorough beating to the
deceased, the police officials would bring the deceased in a
pathetic condition to a spot near his house and would
continue the assaults in the presence of people of the
locality. Opportunity was not granted to cross-examine the
court witnesses. Accordingly, High Court set aside the
conviction.
In support of the appeal, Mr. S.B. Sanyal, learned
senior counsel submitted that the case involved police
officials and the evidence brought on record by the
complainant should not have been lightly brushed aside by
conclusions which are not supportable in law. In case of a
custodial torture, the onus is on the police official to
prove his innocence. At every stage an attempt was made to
shield the accused and investigation was not done properly.
The complainant’s plea for justice was very casually dealt
with and ignored. It is not that the complaint was inactive,
and on the contrary she had moved the high dignitaries and
finding that no justice has been done filed a private
complaint. The oral dying declaration has been erroneously
kept out of consideration and by making surmises presence of
PWs 1, 2 and 5 has been doubted and their evidence has been
discarded. The evidence of PWs 2 and 5 have been discarded
because one Shamin who was sent by PW-1 was not examined. It
was clearly explained in evidence that she was absent from
the locality and therefore was not examined. Another
conclusion of the High Court that PW-2 does not refer to
the presence of PW-1 at the spot is an erroneous conclusion
and has been arrived at by mis-reading of the evidence. The
credible evidence of PWs 1, 2 and 5 has been totally
discarded without any plausible basis. The medical evidence
has also been misread by High the court. No prejudice has
been caused by the non-supply of the documents; and on the
contrary, cross examination has been conducted on the basis
of documents which were supplied belatedly. Merely because
there were some exaggerations in the evidence of PWs 1, 2
and 5, that cannot affect the credible evidence tendered by
them and even keeping out the exaggerations the residual
evidence is sufficient to sustain conviction. Merely because
the court witnesses were not permitted to be cross examined,
that is really of no consequence because their evidence was
not considered by the trial Court for recording conviction.
Merely because casualty medical register was not produced,
that is also not a factor to discard the register containing
the original reports of which a copy of the report was
produced. Non-supply of the copies of the statement did not
per se cause prejudice. Strong reliance was placed on a
decision of this Court in Noor Khan v. State of Rajasthan
(1964(4) SCR 521) for the said purpose.
It was also submitted that the entire object of the
State machinery was to protect the police officials. Even if
it was not possible to collect more material, even the
evidence on record was sufficient to find the accused guilty
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and by adopting a technical approach, contrary to the
principles laid down by this Court, the acquittal should not
have been directed.
Mr. Arun Pednekar while adopting the arguments of Mr.
Sanyal took the stand that even if the materials more or
less fell short of the required standard, one factor cannot
be over â\200\223looked that the police officials did not take any
action as required under law. Even if for the sake of
arguments it is conceded that the materials are not
sufficient to convict the accused, yet the State has a duty
to explain as to under what circumstances a particular
person in custody suffered injuries and in appropriate cases
its functionaries can be directed to bring it to the notice
of the State Government to pursue the matter further.
In response to the stands taken by the complainant, Mr.
V.S. Kotwal, learned senior counsel appearing for the
accused-respondent No.1 submitted that the complainant has
not come to the Court with clean hands. Instead she tried to
abuse the process of the Court by bringing false
accusations. Accused and the deceased were friends and there
is no reason as to why he would assault the deceased, and
instead he would have tried to protect him in the connected
case where the deceased was an accused. What is alleged is
not in line with the normal human conduct. The belated
complaint without any explanation for the delay has been
rightly thrown out by the High Court. The injuries noticed
by the doctor who examined the deceased before his death did
not show the involvement of the accused. In fact, at no
stage at the beginning the complainant has particularly
named the accused. Even in the history sheets recorded by
the doctor, name of the accused did not figure.
Interestingly, it was stated that the police had assaulted.
Even in the initial reports given by PWs. 1,2 and 5 name of
the accused was not indicated, though he is known to PW1
and the deceased intimately. Further, accusations were not
against the accused alone, two other police officials were
allegedly there giving beatings to the deceased.
Interestingly, in the private complaint filed, no definite
role is ascribed to others and they have not been arrayed as
accused. It is not a case of mere exaggeration or
embellishment; it is a totally false plea advanced. One
significant factor is that the accused was granted bail on
16.10.1983. The complainant has stated in the complaint
petition that when the deceased was produced in Court, he
was in a pathetic condition. If that be so, it is
unbelievable that the Magistrate who granted bail would not
have noticed this and would not have required the deceased
to undergo medical treatment or examination. It is not the
case of the complainant that any grievance was made before
the Magistrate about police torture.
In the complaint petition, there is one significant
statement about one Surya Prakash Singh witnessing the
assaults on 14.10.1983. Though his name is indicated in the
list of witnesses strangely his evidence has not been
tendered by examining him as a witness. Though a writ
petition was filed by the complainant before the High Court,
in that there was no allegation of the torture. Dr. Pankaj
Joshi (DW-3) who examined the deceased on 15.10.1983, did
not notice any injury of serious nature except three
superficial injuries. Before him also the deceased has not
made any statement about having been assaulted by the
accused.
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The court witnesses who were police officials were not
permitted to be cross examined by the accused. This is
clearly contrary to the law as laid down by this Court in
Mohanlal Shamji Soni v. Union of India and Anr. (1991 Supp
(1) SCC 271). Had the opportunity been granted, the truth
would have been revealed.
The so-called oral dying declaration has rightly been
discarded. If the witnesses knew that it was the accused who
had assaulted the deceased, there was no necessity of asking
the deceased as to how he came to be injured. In the
statement recorded on 18.10.1983, the name of the accused as
assailant has not been indicated. In short the stand was
that the accused has rightly been acquitted.
Learned counsel appearing for the State of Maharashtra
submitted that the prosecution has not been partisan. It has
produced all the materials which were required to be
produced before the Court, and inferences were drawn from
the materials available on record.
Before coming to the innocence or otherwise of the
accused, two disturbing features which have attracted our
notice needs to be noticed. Firstly, no explanation has been
offered as to why no FIR was registered. Learned counsel for
the State of Maharashtra submitted that the statements given
by PWs 1, 2 and 5 were treated to be in terms of Section 174
of the Code and, therefore, no FIR was registered. To say
the least, the stand is fallacious. It needs no reiteration
that if it is brought to the notice of the police that
somebody had beaten the deceased, the FIR was to be
registered. An interesting explanation has been given by CW-
1. He has stated that the statements were recorded in terms
of Section 174 of the Code and in order to report to the
coroner as regards the circumstances of the death. At that
point of time the sentiments were high. The allegations were
looked into and the matter was reported to the higher
authorities to order independent Crime Branch inquiry. This
witness also stated that he had also made enquiries from the
accused and other police officials and tried to obtain their
version. The witness stated that he had personally
questioned the accused and two other PSI, and he perused the
papers, medical certificate and station diary etc. and
submitted his report through ACP Irani. The official acted
as if he was deciding the guilt or otherwise of an accused.
The permissible area of application of mind is limited to
finding out existence of a cognizable offence, and nothing
beyond that.
It is a fairly well settled position in law that even
at the time of taking cognizance the Court is not required
to find out which particular person is the offender, and the
cognizance is taken of offence. The course adopted by the
official certainly tends to make a mockery of law. The
official stated that he had requested the higher authorities
to conduct crime branch enquiry. It has not been shown as to
what was the outcome of such enquiry, if any. We will
revert back to this aspect after dealing with the question
whether accused is guilty.
The High Court has rightly observed that the private
complaint was filed after a long lapse of time. If there was
inaction to deal with information lodged with the police in
October 1983, there was no reason for the complainant to
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wait for more than one year to approach the Court by making
a private complaint. Though, delay per se may not affect
credibility of complainant’s version, each individual case
has to be tested to see whether delay has been properly
explained. Mr. Sanyal referred to the explanation given
about the complainant having approached the Prime Minister
and the President. It was submitted that the complainant was
not aware of the legal modes to be adopted, and therefore in
good faith was writing to the Prime Minister and the
President. This plea is clearly unacceptable. In the
complaint petition itself it has been stated that legal
advise was sought in the matter immediately after the
occurrence and the legal notices were sent by advocates.
That being so, plea that the remedies available in law were
unknown to the complainant is unbelievable. The High Court
has, therefore, rightly held this to be a vulnerable
circumstance.
Coming to the acceptability of the evidence of PWs 1, 2
and 5 it is not merely a case of exaggeration or
embellishment.
It is the duty of Court to separate grain from chaff.
Falsity of particular material witness or material
particular would not ruin it from the beginning to end. The
maxim "falsus in uno falsus in omnibus" has no application
in India and the witnesses cannot be branded as liar. The
maxim "falsus in uno falsus in omnibus" has not received
general acceptance nor has this maxim come to occupy the
status of rule of law. It is merely a rule of caution. All
that it amounts to, is that in such cases testimony may be
disregarded, and not that it must be disregarded. The
doctrine merely involves the question of weight of evidence
which a Court may apply in a given set of circumstances, but
it is not what may be called ’a mandatory rule of evidence’.
(See Nisar Alli v. The State of Uttar Pradesh (AIR 1957 SC
366).
The doctrine is a dangerous one specially in India for
if a whole body of the testimony were to be rejected,
because witness was evidently speaking an untruth in some
aspect, it is to be feared that administration of criminal
justice would come to a dead-stop. Witnesses just cannot
help in giving embroidery to a story, however, true in the
main. Therefore, it has to be appraised in each case as to
what extent the evidence is worthy of acceptance, and merely
because in some respects the Court considers the same to be
insufficient for placing reliance on the testimony of a
witness, it does not necessarily follow as a matter of law
that it must be disregarded in all respects as well. The
evidence has to be shifted with care. The aforesaid dictum
is not a sound rule for the reason that one hardly comes
across a witness whose evidence does not contain a grain of
untruth or at any rate exaggeration, embroideries or
embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The
State of Madhya Pradesh (1972 (3) SCC 751) and Ugar Ahir and
Ors. v. The State of Bihar (AIR 1965 SC 277). An attempt
has to be made to, as noted above, in terms of felicitous
metaphor, separate grain from the chaff, truth from
falsehood. Where it is not feasible to separate truth from
falsehood, because grain and chaff are inextricably mixed
up, and in the process of separation an absolutely new case
has to be reconstructed by divorcing essential details
presented by the prosecution completely from the context and
the background against which they are made, the only
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available course to be made is to discard the evidence in
toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR
1954 SC 15) and Balaka Singh and Ors. v. The State of
Punjab. (AIR 1975 SC 1962). As observed by this Court in
State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC
1390), normal discrepancies in evidence are those which 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 occurrence and those are
always there however honest and truthful a witness may be.
Material discrepancies are those which are not normal, and
not expected of a normal person. Courts have to label the
category to which a discrepancy may be categorized. While
normal discrepancies do not corrode the credibility of a
party’s case, material discrepancies do so. These aspects
were highlighted recently in Krishna Mochi and Ors. v. State
of Bihar etc. (JT 2002 (4) SC 186), Gangadhar Behera and
Ors. v. State of Orissa (2002 (7) Supreme 276) and Rizan and
Anr. v. State of Chhattisgarh (2003 (2) SCC 661).
It is a case where it is really difficult to separate
the grain from the chaff. If really there was merciless
beatings with such brutal force that a hockey stick broke
and the beating was given for more than one hour, the result
would not have been 16 simple injuries with no fractures or
internal rupture. There is another vital factor which
corrodes complainant’s plea. If the condition of the accused
was so severe that he was not able to even stand on
15.10.1983 morning as claimed, it is not explained as to how
the Magistrate who granted bail did not notice the condition
or how even no grievance was made by the deceased before
him. There is a requirement under Section 54 of the Code
which deals with a right of an arrested person to bring to
the notice of the Court about torture or assault. The
provision provides for an examination of an arrested person
by medical practitioner at the request of the arrested
person and it is a right conferred on the arrested person.
As this Court had noticed that in many cases the arrested
persons are not aware of the right, and on account of
ignorance are unable to exercise that right even though
they have been tortured or mal-treated by the police in lock
up, a direction was given in Sheela Barse v. State of
Maharashtra (1983 (2) SCC 96) to the Magistrates requiring
them to inform the arrested persons about this right in case
he has any complaint of any torture or maltreatment in
police custody. This apparently was not done by the
deceased and it is a serious flaw to the complainant
version. It is not the case of the complainant that such a
grievance was made and the Magistrate did not take note of
it. There are several inferences noticed by the High Court;
and one of them is non supply of documents. Section 208 of
the Code deals with the requirements of furnishing documents
to the accused. Of course, it has rightly been submitted by
Mr. Sanyal that mere non supply of documents may not be
considered prejudicial but the Court has to give a definite
finding about the prejudice or otherwise. This aspect was
highlighted in Noor Khan’s case supra.
Coming to the plea that refusal to grant permission to
cross examine was impermissible in law, the parameters have
been indicated in Mohanlal Shamji’s case supra. If the
Court has permitted the accused to lead the evidence the
mere denial of cross-examining the man by the accused cannot
be per se a vulnerable factor. In the present case, the
three police officials were not required to speak about the
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case at hand in general. They were in fact required to state
about certain documents in terms of Section 174 of the Code.
It is of course true that when the permission has been
granted to cross examine, the accused could have produced
some materials to support his case. We need not go into this
aspect in detail because the trial Court itself has
permitted the accused to lead rebuttal evidence.
Though the High Court was not justified in saying that
the register which contained the original entries regarding
the post mortem examination was not to be taken note of,
learned counsel for the accused submitted that copy of the
post mortem report cannot be accepted in evidence. Strong
reliance was placed on a decision of this Court in Vijender
v. State of Delhi (1997 (6) SCC 171) where the original post
mortem report was not produced and the doctor was not
examined. A close reading of the decision shows that it was
referred in a different factual context and on the facts of
the case it was held that the production of the original
post mortem report and the examination of the doctor was
necessary. While saying so, the principles of Section 32 of
the Evidence Act were recognized and it was noted that it
was an appropriate case where logic of the said provision
can be applied.
Coming to the evidence of PWs 1, 2 and 5 it is to be
noted that apart from the exaggeration about the assaults,
evidence shows even some doubtful features about their
presence.
In the initial statement given on 18.10.1983 PW-1 has
stated that after seeing the beatings by the accused she
sent one person to call her mother-in-law to the spot and
returned to her home. If that be so, it is quite improbable
that she saw PWs 2 and 5 together to witness the assaults.
Though the High Court was not justified in doubting the
version of PWs 1, 2 and 5, because one Shamin was not
examined, that actually would not dilute the conclusion
regarding evidence of PWs 2 and 5 about the alleged beatings
on 15.10.1983 being extremely fragile. So far as the
beating on 14.10.1983 is concerned, the complainant’s case
is based on what one Surya Prakash Singh allegedly told her
and the oral dying declaration. As rightly submitted by
learned counsel for the accused, Surya Prakash Singh has not
been examined and there is no material to otherwise link the
accused with the alleged beatings on 14.10.1983. The oral
dying declaration also is unbelievable if the PWs 1, 2 and
5 had really seen the assaults they would not have asked the
deceased as to how he sustained injuries. This
improbabilises the claim of oral dying declaration. Coupled
with this fact is the non mention of the accused’s name in
the medical report. The doctor who examined the deceased
stated that he did not implicate the accused, specifically
did not tell his name. Non-mention of accused’s name may not
in all cases be a vulnerable factor. But in the factual
background, it certainly assumes importance. Deceased made
omnibus statement about assaults by the police. It is not
brought on record that the accused alone had assaulted the
deceased. On the contrary, according to the evidence of PW-
1, two constables had accompanied the accused and also had
assaulted the deceased. Surprisingly they were not made
accused in the complaint.
Taking totality of the circumstances it is clear that
the High Court was right in directing acquittal of the
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accused. We decline to interfere with the judgment of
acquittal.
But before we part with the case, there are several
factors which have, at the threshold, drawn our attention.
There are several loose ends, which as admitted by the
prosecution, were not taken note of. Even according to the
version of the accused, the deceased was taken to the
hospital and was examined by DW-3. What was the occasion for
this being done still remains shrouded in mystery. The post
mortem report reveals 16 injuries, though of simple nature.
If none of these injuries was sustained by the deceased in
police custody, there was no necessity of bringing the
deceased to the hospital on 15.10.1983 at 11.00 a.m. CW-2
has admitted that he had taken the deceased for examination
by DW-3. The Court could have asked him as to what was the
necessity for doing so. That admittedly has not been done.
The Courts exist for doing justice to the persons who
are affected. The Trial/First Appellate Courts cannot get
swayed by abstract technicalities and close their eyes to
factors which need to be positively probed and noticed. The
Court is not merely to act as a tape recorder recording
evidence, overlooking the object of trial i.e. to get at the
truth, and oblivious to the active role to be played for
which there is not only ample scope but sufficient powers
conferred under the Code. It has a greater duty and
responsibility i.e. to render justice, in a case where the
role of the prosecuting agency itself is put in issue.
As pithily stated in Jennison v. Backer (1972 (1) All
E.R. 1006), "The law should not be seen to sit limply,
while those who defy it go free and, those who seek its
protection lose hope". Courts have to ensure that accused
persons are punished and if deficiency in investigation or
prosecution is visible or can be perceived by lifting the
veil trying to hide the realities or covering the
deficiencies, deal with the same appropriately within the
framework of law. Justice has no favourite, except truth. It
is as much the duty of the prosecutor as of the Court to
ensure that full and material facts are brought on record so
that there might not be miscarriage of justice.
Though justice is depicted to be blind, as popularly
said it is only a veil not to see who is the party before it
while enforcing law and administrating justice and not to
ignore or turn the mind/attention of the Court from the
cause or lis before it, in disregard of its duty to prevent
injustice being done. When an ordinary citizen makes a
grievance against the mighty administration, any
indifference, inaction or slumber will tend to paralyse by
such inaction or lethargic action of the Courts and erode in
stages the faith, ultimately destroying the justice delivery
system of the country itself. Doing justice is the paramount
consideration and that duty cannot be abdicated or diverted
by manipulative red herrings. We consider this to be a fit
case for exercise of our jurisdiction under Article 142 of
the Constitution. We direct the State Government to pay
compensation of Rs.1,00,000/- to the mother and the children
of the deceased. We are not granting any compensation to the
widow because she appears to have re-married. A sum of
Rs.25,000/- be given to the mother and balance to the
children. The amounts are to be paid kept in fixed deposit,
and only the interest shall be allowed to be drawn by the
mother and the children. If the children are minors, the
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fixed deposit shall be made in their names through a proper
legal guardian till they attain majority. This amount of
compensation shall be as a palliative measure and does not
preclude the affected person(s) from bringing a suit to
recover appropriate damages from the State Government and
its erring officials if such a remedy is available in law.
The suit it goes without saying, if filed, shall be decided
in accordance with law, uninfluenced by any finding,
observation or conclusion herein. We further direct that an
enquiry be conducted by the Head of the Police force of the
State under the direct control of the Chief Secretary of the
State, to find out as to who were the persons responsible
for the injuries on the body of the deceased. The starting
point of course would be the enquiry as to the necessity for
taking the deceased to the hospital on 15.10.1983 where DW-3
examined him. If on further enquiry and on the basis of
materials collected it appears that the accused who is being
acquitted had a role to play, it shall be open to the
authorities to initiate proceedings for action and the same
shall be taken notwithstanding the order of acquittal passed
by the High Court and affirmed by us. This is so, because on
the materials now placed on record the acquittal was
justified. Action will also be taken against the officials
who did not register the FIR and the authorities who were
requested to conduct the crime branch enquiry but yet do not
appear to have done anything in the matter. Our awarding
compensation also shall not be considered as a factor to
decide either way as to whether any particular official was
responsible for custodial torture. The appeal stands
dismissed with the aforesaid observations.