No Acts & Articles mentioned in this case
2024 INSC 734 Page 1 of 53
Criminal Appeal Nos.1614-1618 of 2012
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos.1614-1618 of 2012
Manik & Ors.
…Appellant(s)
Versus
The State of Maharashtra.
…Respondent(s)
J U D G M E N T
C.T. RAVIKUMAR, J.
1. In these quintuplet appeals, the appellants-
convicts who stood the trial in Sessions Trial No.21 of
1996 before the Court of Additional Sessions Judge,
Gondia for the charge of commission of offences
punishable under Section 302 and/or various other
offences under the Indian Penal Code, 1860 (for short
‘IPC’) are challenging the common judgment dated
12.07.2011 in Criminal Appeal Nos. 64, 65, 71, 76, 77 and
88 of 1997 whereby and whereunder their conviction and
consequential sentences, handed down by the trial
Court except under Section 201 read with Section 34,
IPC, were confirmed by the High Court of Bombay,
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Nagpur Bench. For the sake of convenience appellants
are referred to hereafter in this judgment in accordance
with the order of their rank as accused before the trial
Court. Criminal Appeal No.1614/2018 stood abated as
the sole appellant who was the first accused and the sole
appellant before the Additional Sessions Judge in
Criminal Appeal No.64/1997, died on 06.03.2022 and
hence, the rest of the appellants in the appeals are, at
times, commonly referred to as ‘appellant-convicts’. The
appellant-convicts stood the trial for offences punishable
under Sections 302, 330, 331, 342, 343, 348, 354, 385, 387,
193, 201, 202, 203, and 218 read with Section 34, IPC, in
connection with the death of one Shama @ Kaliya s/o
Nanu Uke. Though accused No.8 (Sudhir s/o Rambhau
Kayarkar) and accused No.9 (Ganesh s/o Raghuji
Turkar) were acquitted of the twin offences charged
against them under Sections 201 and 202, IPC, read with
Section 34, IPC, the respondent State did not file an
appeal against their acquittal before the High Court.
2. For the sake of convenience, the offence(s) for
which each one of the appellant-convicts (accused Nos.
2 to 7) was convicted and the sentence(s) imposed
therefor, by the trial Court, can be enumerated as
under: -
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Criminal Appeal Nos.1614-1618 of 2012
Accused
Number
IPC offence(s) for which
conviction was entered and the
consequential sentence(s)
imposed
A2 (Ravindra) &
A4 (Hans Raj)
Section 304 part II read with Section
34, IPC – sentenced to undergo 7
years of rigorous imprisonment and
a fine of Rs. 4,000/- each.
A2 (Ravindra),
A3 (Manohar),
A4 (Hans Raj) &
A5 (Vishnu)
Section 331 read with Section 34,
IPC – sentenced to undergo 3 years
of rigorous imprisonment and a fine
of Rs. 1,000/- each.
A2 (Ravindra),
A3 (Manohar),
A4 (Hans Raj) &
A5 (Vishnu)
Sections 330, 348, & 387 read with
Section 34, IPC and sentenced to
undergo one year of rigorous
imprisonment and a fine of Rs.
1,000/- each.
A3 (Manohar),
A5 (Vishnu),
A6 (Vishwanath)
& A7 (Dilip)
Section 202 read with Section 34,
IPC – sentenced to undergo 3
months of rigorous imprisonment
and Rs. 500/- each.
A2 (Ravindra),
A3 (Manohar),
A4 (Hans Raj),
A5 (Vishnu),
A6 (Vishwanath)
& A7 (Dilip)
Section 203, IPC. – No separate
sentence was imposed.
A2 (Ravindra),
A3 (Manohar),
A4 (Hans Raj),
A5 (Vishnu),
A6 (Vishwanath)
& A7 (Dilip)
Section 201 and 218 read with
Section 34, IPC – sentenced to
undergo rigorous imprisonment for
one year and to pay a fine of Rs.
1,000/- each.
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3. All the corporeal punishments of rigorous
imprisonment imposed on the appellant-convicts were
directed to be run concurrently. Default sentences were
also ordered in respect of sentences for payment of fine.
4. Against the judgment of conviction, accused Nos.6
and 7 jointly filed Criminal Appeal No.65/1997, accused
Nos. 2 and 4 jointly filed Criminal Appeal No.76/1997,
accused Nos. 3 and 5 separately filed Criminal Appeal
No.77/1997 and 71/1997 respectively and the State filed
Criminal Appeal No.88/1997 against all the convicts.
Obviously, the State challenged acquittal of all the
accused for the offences punishable under Sections 302
and 354 read with Section 34, IPC, while the aforesaid
accused persons challenged their conviction under all
the aforesaid sections for which they were convicted and
sentenced.
5. As per the impugned common judgment, the High
Court dismissed the appeal filed by the State and partly
allowed the appeals filed by the appellant-convicts.
According to the appellant-convicts, the High Court
acquitted all of them of the offences punishable under
Section 201 read with Section 34, IPC. In other words, in
respect of all the other offences for which each of them
was found guilty and consequently convicted and
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sentenced, their appeals were dismissed. It is to be
noted that despite the dismissal of Criminal Appeal
No.88/1997 filed by the State and acquittal of all the
appellant-convicts of the offence under Section 201 read
with Section 34, IPC assigning specific reasons the State
of Maharashtra did not move this Court against the said
common judgment dated 12.07.2011.
6. Heard learned senior counsel Sh. Nagamuthu
appearing for the appellant-convicts and Sh. Shrirang B.
Varma, learned counsel for the State.
7. The case of the prosecution, in succinct, is as
follows: -
Deceased Shama @ Kalya, S/o Nanu Uke, a history
sheeter, was taken into police custody for interrogation
in connection with an incident of house-breaking at one
Vijay Agrawal’s residence in Gondia and stealing
properties worth more than rupees one lakh on
07.12.1995 and without duly recording the arrest he was
kept in custody. The suspect Shama @ Kalya was
subjected to third degree methods during interrogation,
resulting in his death on 22.12.1995. On 31.12.1995, an
un-identified body, which was burnt and buried, was
found in the forest within the jurisdiction of Tirodi police
station in Balaghat district of the State of Madhya
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Pradesh. It is the further case of the prosecution that after
committing heinous crime the appellant -convicts
concocted a case and contrived false evidence to escape
prosecution for custodial death by making one Dipak
Lokhande disguised as Shama @ Kalya and taking him
under cover to Bhanpur and Survai to Mulchand Radhelal
and Tasanbai respectively on the night of 24.12.1995. It
is also the case of the prosecution that the appellant-
convicts made Dipak Lokhande to run away from the
jeep to make it appear that Shama @ Kalya had escaped
from custody. Thereupon, PW-38 Harne was informed
about it and entry to that effect was made in the station-
diary and consequently, false inquiry was made and
documents were also prepared.
8. The facts narrated above would reveal that going
by the case of the prosecution, it is a case of custodial
torture leading to custodial death.
9. The Trial Court, after appreciating the evidence
found that the prosecution had failed to establish the
charge punishable under Section 302, IPC, and
concluded that the prosecution had succeeded only in
establishing charge under Section 304 -II read with
Section 34 against accused numbers 1 to 3. True that
they and the others, barring accused Nos. 8 and 9, were
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found guilty under certain other charged offences as
well, and accordingly sentenced therefor, as mentioned
hereinbefore. However, in the appeals by the appellant-
convicts the High Court confirmed the conviction and
sentences except under Section 201 read with Section 34
IPC. The acquittal of accused numbers 8 & 9 by the trial
Court was not challenged by the State before the High
Court. So also, the acquittal of the appellants under
Section 201 read with Section 34, IPC by the High Court
is not now under challenge. In short, the captioned
appeals carry only the challenge of the convicts against
their conviction under the different sections of the IPC
and consequently imposed sentences therefor, as
mentioned hereinbefore.
10. The learned senior counsel appearing for the
appellants would submit that there is no serious
challenge against the conviction of the appellants for
custodial torture. Nonetheless, a feeble attempt was,
indeed, made by the learned senior counsel to convince
me that the appellants are entitled to a plain acquittal in
respect of all the charges for which they were found
guilty and were confirmed by the High Court under the
impugned judgment. Then, serious contentions were
advanced with respect to the conviction for the custodial
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death under Section 304-II read with Section 34 IPC and
the consequential sentence imposed on the appellants.
Having heard the rival contentions and bestowing
anxious consideration I am of the considered view that
even otherwise, contentions in respect of the finding on
the charge of custodial torture warrant no serious
consideration and the conviction and consequently
imposed sentences, therefore, under different sections
hereinafter to be mentioned specifically invite no
interference.
11. The facts that deceased Shama @ Kalya was taken
into police custody on the complaint of PW-6 Vijay
Kumar Rameshwarlal Agrawal in crime No. 315 of 95
registered at Gondia City Police Station and that the
appellants took him to Detective Branch Room of Gondia
Police Station for interrogation and in that regard
detained him for days together without adhering to the
legal mandate for production of the arrestee within 24
hours, since his detention, before a Magistrate having
jurisdiction in the case, remain irrefragable, rather,
proved and unrebutted. While the appellant-convicts
contend that he is an escapado, the prosecution contends
that he was subjected to custodial torture which
ultimately culminated in his custodial death (The
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defence also put forth a case that he was arrested later
by the Railway Police in connection with traveling in a
train ticketless and consequently prosecuted and
sentenced to pay fine, to counter the case of the
prosecution that escape of Shama from police custody
was nothing but a staged drama). In the contextual
situation it is apposite to refer to the decision of this Court
in Central Bureau of Investigation v. Kishore Singh
1
wherein it was held that when a person was brought to a
police station and locked up, obviously, he would be
under arrest.
12. The evidence of PW-1 (Amrutabai Ukey), PW-3 and
PW-16 and others as also PWs 20 and 22 who are police
officials, was relied on by the trial Court and also by the
High Court to hold that the deceased was in the custody
of the appellants and was in the Detective Branch Room
of Gondia Police Station and was subjected to torture
during such custody. PW-1 is the wife of deceased
Shama. She would depose that she found him in the
Detective Branch Room of Gondia Police Station on
18.12.1995 and he was then bleeding from his legs.
According to her, Shama told that police have cut off
1
(2011) 6 SCC 369
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veins of his legs and hence, he might not survive. She
had also deposed that on 22.12.1995, she again found
him there and on 24.12.1995, police told her that Shama
had escaped from their custody. I will deal with her
evidence, a little later, appropriately. PW-3 turned
hostile. He was examined to prove that Shama was
brought to police station for interrogation and he had
suffered injuries on account of torture during the
interrogation. Indisputably, while being examined-in-
chief, he supported the prosecution and then,
prevaricated during his cross-examination. Thereupon,
he was cross-examined by the prosecution after getting
him declared as hostile. The impugned judgment would
reveal that to a Court question, he would admit that what
he had stated before the Court in the morning session,
during cross-examination on behalf of the accused, was
false. The demeanor of the witness as recorded by the
courts below and his oscillation during his examination
before the Court thus revealed the danger in accepting
his version, on any count, without corroboration. Since
the maxim ‘falsus in uno, falsus in omnibus’ (false in one
thing, false in everything) has no application in India, his
evidence was evidently taken into consideration to the
extent of establishing the custody of Shama in the Station
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and also his sustaining injuries during such custody as
they got corroboration from the oral testimonies of other
witnesses. PW-4 Mulchand deposed that when he visited
the police station concerned, he found swelling on the
arms and legs of Shama besides bleeding from his legs.
PW-16 was the mother-in-law of deceased Shama. She
would depose that she was taken to the police station and
was kept there for two days and simultaneously herself
and deceased Shama were beaten by the police. PW-
20 is a Police Officer who was on duty in the said police
station between 05.11.1995 and 19.12.1995. He deposed
that on 16.12.1995 at about 3 p.m. he visited the
Detective Branch room of the Police Station and found
Shama @ Kalya in the presence of accused numbers 1 to
6. It is to be noted that he would also depose that he
found there an old woman and a girl aged about 16
years. He also deposed that a compounder by name Soni
(PW-3) was called to the police station and he dressed
the injuries of Shama. PW-20 would further depose that
on 19.12.1995 he was shifted to other duties. PW-21 was
a lady police constable. She would depose that she was
called to the Detective Branch Room and was asked to
remain present when search was being conducted.
According to her, she found Shama @ Kalya limping
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when they went to Balaghat to search his house. PW-22
is another Police Officer by name Sumanbai Bharatram
Madavi. She deposed that on 20.12.1995 she was
deputed to duty there and she found two female suspects
sitting in the front room of the police station. She also
deposed that inside the room, she found a male suspect,
said to be the husband of one of the ladies, sitting there.
In view of the nature of the oral testimonies of the
aforesaid witnesses and the concurrency in the
appreciation of their evidence on the custody and torture
of Shama from the detective branch room of Gondia
Police Station, I do not find any reason whatsoever
requiring a further consideration in regard to the
confirmation of conviction for custodial torture. But at the
same time, I may hasten to add that the sustainability of
conviction and sentencing for some of the offences
would depend on the sustainability of the conviction
under Section 304 – Part II read with Section 34, IPC. I
may also hasten to add that though I decline to interfere
with the finding that Shama was subjected to torture
while being in custody I shall not be understood of
having given imprimatur to the finding that veins of legs
of Shama were cut and that ultimately caused his death
as according to me, this question is intrinsically
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intertwined with the challenge against the conviction
under Section 304 – Part II, read with Section 34, IPC.
One aspect with respect to the acquittal (or conviction)
for the offence under Section 201 read with Section 34,
IPC also requires consideration, which I will deal with a
little later.
13. While considering the question of sustainability of
the conviction under Section 304-II read with Section 34,
IPC, in view of the position obtained in this case, I am of
the considered view that the observation of this Court in
Noor Aga v. State of Punjab and Anr.
2, as also the
principles enunciated by this Court in the decisions in V.
Venkata Subbarao v. State
3 and in Vishnu Dutt Sharma
v. Daya Sapra
4 cannot go in oblivion. In Noor Aga’s
case, this Court observed and held that superficially a
case might have an ugly look and thereby, prima facie,
shaking the conscious of any court. But it is well settled
that suspicion, however high it might be, could under no
circumstances be held to be substitute for legal
evidence.
2
(2008) 16 SCC 417
3
(2006) 13 SCC 305
4
(2009) 13 SCC 729
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14. There can be little doubt with respect to the
position that a Court is bound to appreciate the defence
evidence in the same manner as it is to appreciate the
prosecution evidence, in a criminal case. In V. Venkata
Subbarao’s case, this Court held that the burden as an
accused did not have to meet the same standards of
proof as is required to be met by the prosecution. In
Vishnu Dutt Sharma’s case, this Court held that the
prosecution is bound to prove the commission of the
offence on the part of the accused beyond any
reasonable doubt. Certainly, the requirement to
establish its case beyond reasonable doubt does not
mean that the degree of proof on the part of the
prosecution must be one beyond a shadow of doubt (see
the decision in Iqbal Moosa Patel v. State of Gujarat
5).
15. The principle as to what degree of proof is
required, is stated by Lord Denning in Miller v.
Minister of Pensions
6, thus: -
“…that degree is well settled. It need not reach
certainty, but it must carry a high degree of
probability. Proof beyond reasonable doubt
does not mean proof beyond the shadow of a
doubt. The law would fail to protect the
5
(2011) 2 SCC 198
6
(1947) 2 All ER 372
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community if it admitted fanciful possibilities to
deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote
possibility in his favour which can be dismissed
with sentence, “of course it is possible, but not
in the least probable” the case is proved beyond
reasonable doubt, but nothing short of that will
suffice.”
16. The reasons for my remarks, as above, would be
unravelled by the following critical examination of the
impugned common judgment and also appreciation of
evidence, in that regard.
17. The judgment of the trial Court would reveal that
the finger print test conducted for identification of the
dead body was accepted and acted upon. The trial Court
held in paragraph 59 of its judgment that the finger prints
of Shama @ Kalya are identical with the finger prints of
unknown dead body, is acceptable. “Had Shama @
Kalya not been criminal, whose record slips would not
have been available, there was no chance of identification
of dead body”, the trial Court further held thus in
paragraph 101 of its judgment. However, a bare perusal
of the impugned common judgment would disclose that
even while confirming the conviction under Section 304
part-II read with Section 34, IPC and also the
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consequently imposed sentence therefor, the High Court
had reversed the twin foundational findings of the trial
Court for the conviction under Section 304 part-II read
with Section 34, IPC. Furthermore, the High Court
assigned its own reason for finding the appellants not
guilty for the offence committed under Section 300, IPC,
punishable under Section 302, IPC. It is to be noted that
the Trial Court despite the absence of medical evidence
as to the injury of cutting off veins on the legs took that
the prosecution has succeeded in establishing that the
deceased Shama @ Kalya had sustained such injuries
and at the same time, held that the said injuries would not
attract clause (3) of Section 300, IPC that speaks of
causing bodily injury which is sufficient in the ordinary
course of nature to cause death. Based on such opinion
and holding that in the circumstances obtained accused
Nos.1, 2 and 4 should be clothed with the knowledge that
the injuries which Shama @ Kalya had so sustained were
likely to cause death, found them guilty for having
committed the offence falling squarely under Section 304
part-II with the aid of Section 34, IPC. As already noted,
the trial Court did so after accepting the opinion on
finger print test and the consequent identification of the
dead body as that of Shama @ Kalya.
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18. The evidence on record would reveal that what was
traced from Garra Chowky, within the jurisdiction of
Tirodi Police Station, on 31.12.1995 was an unidentified,
burnt body. Taking note of the said position, in
paragraph 102 of the impugned common judgment the
High Court held thus: -
“102. In view of the fact that the dead body was
beyond identification and recognition, by patent
identification marks, only sources of identification
left to the prosecution were:
[a] DNA test
[b] Comparison of finger print marks.”
19. Upon finding that no DNA test was done and then
holding that even if it was done it would not have the
value of a conclusive proof as to the contents thereof, the
High Court went on to consider the sustainability of the
finding on the finger print test by the Trial Court.
Contextually, it is worthy to refer to paragraphs 105 to
108 of the impugned common judgment. They read
thus: -
“105. In so far as the aspect of finger prints is
concerned, prosecution has made efforts to
demonstrate that finger prints, subject-matter,
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match with those of the dissected fingers of
corpse, and do prove that those are of one and
the same person.
106. Prosecution has proved that the finger
prints of the dissected fingers, which were used,
were of the dead body, subject-matter.
107. The evidence of PW 41 - Sharad Dayaram
Girhepunje at pages 1471 onwards of the paper-
book, however, fails to positively prove that the
finger prints, which were used as a basic
document to be the finger prints of Shyama,
were not so proved to be that of Shyama taken
by a particular person with maintenance of due
record thereof, and the purpose for which those
were taken by proving those to have been
recorded in relation to a particular crime.
108. In the result, reliance of the prosecution to
prove that the dead body, subject-matter, was
that of Shyama is based on guess work than on
positive evidence. Result is that unless it is
proved that the dead body was that of Shyma,
the evidence in relation to efforts made by the
accused persons to mutilate the said body and
thereby destroy the evidence are rendered like
a hazy picture, and do not constitute proof of
charge under Section 302 of Indian Penal Code,
and, therefore, charge to destroy evidence of
murder is not proved to that extent.”
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20. A scanning of the afore-extracted paragraphs
would show that the High Court had clearly arrived at the
conclusion that even if it could take that the prosecution
had succeeded in proving that the finger prints kept in
the police station would match with the dissected fingers
of the corpse, it had failed to establish that the finger
prints, which were used as basic document to be the
finger print of Shama and thereby, that the recovered
dead body was that of deceased Shama. Evidently, the
High Court held that the evidence of PW-41, Sharad
Dayaram Girhepunje failed to prove positively that the
finger prints that were used as a basic document to be
the finger prints of Shama, taken by a particular person
entrusted with the duty of maintenance of due record
thereof. It is such cumulative consideration that
constrained the High Court to reverse the conclusion of
the Trial Court and ultimately to hold that the finding that
the dead body was that of Shama was based on guess
work than on positive evidence. The aforesaid
paragraphs would show that after appreciating the
evidence, the High Court held that unless it is proved that
the dead body is that of Shama, the evidence in relation
to efforts made by the accused persons to mutilate the
said body and to destroy the evidence would not
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constitute the proof of charge under Section 302, IPC. In
short, assigning specific reasons the High Court
reversed the finding of the trial Court that the opinion on
the fingerprint test is acceptable and the prosecution
had thus succeeded in proving the identity of the
recovered body as that of Shama. After holding thus, it
was further held that unless it is proved that the dead
body was that of Shama, the evidence in relation to
efforts made by the accused persons to mutilate the said
body could not be taken as proof for destruction of
evidence of murder of Shama. At this juncture, I will
refer to the other aspect of acquittal (or conviction) for
the offence under Section 201 read with Section 34, IPC,
referred to earlier by me as one that also requires
consideration.
21. In paragraph 77 of the judgement of the trial Court
it was observed thus: -
“Whatever be reason, but there is no direct
evidence in this case, that all the accused No.1
to 9 had caused disappearance of the dead body
of deceased Shama @ Kalya by nothing it to
fire”.
22. After making such observation, the trial Court held
that there was no other alternative except to hold the
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accused Nos.1, 2 and 4 guilty for causing the
disappearance of the body by mutilating it and
accordingly guilty of the offence under Section 201 read
with Section 34, IPC. In the above circumstances, the
observations and findings at paragraph 108 of the
impugned judgment of the High Court can only be qua
accused Nos.1, 2 and 4.
23. Now, it is to be noted that on another count, the
Trial Court held accused Nos.3, 5, 6 and 7 guilty of the
offence under Section 201, IPC. In paragraph 85 of the
judgment of trial Court it was observed and held: -
“……A false record came to be prepared about
escape of Shama @ Kalya. Apart from that even
the arrest of Shama @ Kalya and taking him for
the purpose of investigation itself was a false
preparation of the record and thus false
information. All the accused No. 1 to 7 seem to
have been involved in this drama played in the
night on 24.12.1995 right from showing of arrest
of Shama @ Kalya. Therefore, so far as offence
U/s. 201 of IPC is concerned I hold the accused
No. 3,5 to 7 guilty for giving false information
which they knew it to be false.”
24. The judgement of the trial Court would further
reveal that on 17.02.1997 when it was brought to notice
that while typing the final order, conviction in respect of
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the offences under Sections 201, 218 read with Section
34, IPC were not typed due to oversight and bona fide
mistake, a corrigendum of the order of conviction was
issued on 17.02.1997 on the following lines: -
“Accused No. 1 to 7 are convicted of the offence
under Section 201, 218 R/w Section 34 of IPC and
are sentenced to suffer R.I. for one year and to
pay a fine of Rs. 1,000/- each in default to suffer
further S.I. for four months on each count”.
25. Thus, it can be seen that though on different counts
the trial Court held accused Nos.1 to 7 guilty under
Section 201, IPC the High Court acquitted accused 1, 2
and 4 of the charge under Section 201 read with Section
34, IPC only in respect of causing disappearance of body
by mutilating it. Therefore, the question is whether the
acquittal of the accused Nos. 1, 2 and 4 under Section 201
read with Section 34, IPC by the High Court got any
impact on accused Nos. 2 and 4 as also accused Nos.3
and 5 to 7 in relation to the other count, referred
hereinbefore.
26. Now, in the impugned common judgment, the High
Court after reversing the finding of the trial Court on the
evidence based on fingerprint test held that the charge
in relation to the screening of evidence by mutilating the
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dead body of Shama @ Kalya was not proved but failure
of prosecution in identification of dead body of Shama
would not exonerate the accused from the charge of the
screening evidence and other charges. Thereafter, upon
considering the evidence on the charge of offence under
Section 201, IPC read with Section 34, IPC, the High
Court held in paragraphs 111 – 113 of the impugned
common judgment thus: -
“111. In the result, this Court concludes that
based on facts proved by the prosecution, it has
succeeded in proving all charges, except the
proof of destruction of evidence as regards dead
body.
112. Prosecution has failed to prove offence
punishable under Section 201 read with Section
34 of Indian Penal Code for causing
disappearance of evidence by destroying the
dead body of Shyama, incorporated in sixth part
of charge framed against accused persons.
113. Based on findings and conclusions
recorded in para 112, the accused are acquitted
of those charges.”
27. In view of the afore-extracted paragraphs from the
impugned common judgment of the High Court as also
what is referred from the judgment of the trial Court, it is
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evident that the contention of the appellant-convicts that
there is wholesome acquittal of their conviction under
Section 201, read with Section 34 IPC cannot be the
correct position. As specifically made clear in
paragraph 112 as extracted above, the acquittal under
Section 201, IPC was with respect to causing
disappearance of evidence by destroying the dead body
of Shyama. Therefore, the question as to whether the
appellant-convicts concerned still stand convicted on
the other count.
28. In the light of the observations and findings in
paragraphs 105 to 108 and 112 of the impugned common
judgment, and the reversal thereunder of the aforesaid
twin foundational findings of the trial Court, the main
question to be considered is whether any evidence was
available to hold the appellants guilty under Section 304
part-II read with Section 34, IPC. Certainly, the answer
to the aforementioned question qua Section 201, IPC also
would depend upon the outcome of its consideration.
Before continuing with such consideration, it is relevant
to note that despite such reversal of the findings and
observations by the High Court which are fatal to the
case of the prosecution regarding custodial death,
neither the State nor any relative, who falls within the
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Criminal Appeal Nos.1614-1618 of 2012
expression ‘victim’, did not prefer any appeal against the
impugned common judgment.
29. There can be no doubt that it is imperative, firstly,
to prove homicidal death of the very person whose death
was allegedly caused by the accused concerned to hold
the accused concerned guilty, either under Section 300,
IPC punishable under Section 302, IPC or under Section
304, IPC. In the decision of Harendra Nath Mandal v.
State of Bihar
7, this Court held that before an accused is
held guilty and punished under first part or second part
of Section 304, IPC, a death must have been caused by
the assailant under any of the circumstances mentioned
in the five exceptions to Section 300, IPC. I shall not be
understood to have held that recovery of the dead body
of the particular person whose death was allegedly
caused by the accused is always required to sustain a
charge of murder or that of commission of offence under
Section 304, IPC.
30. Contextually, it is only apposite to note that the
expression ‘corpus delicti’ got no reference to corpses.
Virtually, it means that before seeking to prove that
accused is the author of the crime concerned, it must be
7
(1993) 2 SCC 435
Page 26 of 53
Criminal Appeal Nos.1614-1618 of 2012
established that the crime charged has been committed.
In fact, the said Latin expression is used with reference
to the establishment of the fact that an offence has been
committed, as opposed to the proof that a given person
has committed it. I may hasten to add that, at times, the
said expression is found to be used in the sense “dead
body of the victim of alleged homicide". In the decision
of Sevaka Perumal & Anr. v. State of Tamil Nadu
8
, it was
laid down that it would not be essential to establish
corpus delicti, but the factum of death of the deceased
concerned must be established like any other fact. In the
decision of Ram Chandra and Ram Bharosey v. State of
Uttar Pradesh
9
, it was held that in law, a conviction for an
offence did not necessarily depend upon the corpus
delicti, i.e., the dead body, is being found. However,
there must be reliable evidence, direct or
circumstantial, of commission of murder, though corpus
delicti is not traceable. In the decision of Mani Kumar
Thapa v. State of Sikkim
10
, it was held that in a trial for
murder it is neither an absolute necessity nor an
essential ingredient to establish corpus delicti, but the
8
(1991) 3 SCC 471
9
AIR 1957 SC 381
10
(2002) 7 SCC 157
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Criminal Appeal Nos.1614-1618 of 2012
factum of death of the deceased concerned must be
established like any other fact. Furthermore, it was held
that in some cases it would not be possible to trace or
recover corpus delicti owing to a number of possibilities
such as dead body might have been disposed of without
trace. Taking into account such possibilities it was
furthermore held that if the recovery of dead body is to
be held to be mandatory to convict an accused, in many
cases, the accused would manage to see that the dead
body is destroyed, which would have afforded the
accused a complete immunity from being held guilty or
from being punished. It was therefore held that what is
required in law to base a conviction for an offence of
murder is that there should be reliable and plausible
evidence, like any other fact, that death was committed
and it could be proved by direct or circumstantial
evidence albeit the dead body could not be traced.
Thus, the law laid down in the aforesaid decisions, which
was consistently being followed, would reveal that
conviction of an offence referred above did not depend
upon whether the dead body is found, if reliable
evidence, direct or circumstantial, of the commission of
homicide is established despite the non-tracing of the
dead body. Having held thus, I may hasten to add that
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the same cannot be the position, rather, the position
would be different, when prosecution itself got a case
that the dead body was recovered. Indisputably, it is
one thing to say that the dead body is not traceable and
another thing to say and claim that the dead body is
traced and it is of that person allegedly murdered by the
accused. Once the dead body is traced and subjected to
autopsy and necrotomic and other evidences are
adduced to bring out the cause of death, failure to prove
that the dead body is of that very person allegedly done
to death by the very accused, must have fatal and
adverse consequence on the prosecution case. As noted
earlier, a case that dead body is untraceable and a case
where it is traced and evidence is adduced in a bid to
prove the identity of the deceased are different and
distinct. In the latter case, upon failure to prove, the
prosecution cannot be permitted to advance a case that
the dead body is untraceable. In the decision of State v.
Sushil Sharma
11, a Division Bench of the Delhi High
Court held that there would be absolutely no room, in a
criminal case, for conjectures and surmises and the
prosecution is supposed to establish its case as is put
11
2007 SCC OnLine Del 255
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Criminal Appeal Nos.1614-1618 of 2012
forth by it and if the case is disbelieved on any aspect by
the Court, then the Court could not make out a new case
on its own for the prosecution. I am in full agreement
with the law thus laid.
31. In the case on hand, evidently the very case of the
prosecution is that the body recovered from forest area
within jurisdiction of Tirodi Police Station is that of the
deceased Shama @ Kalya, and it is to prove the same that
the fingerprint test was conducted and relied on. I have
already found that though trial Court accepted and acted
upon the opinion of the fingerprint test and that the said
finding was reversed by the High Court. In categoric
terms, the High Court held that the reliance of
prosecution to prove that the dead body, subject matter,
was that of Shama is based on guess work than on
positive evidence. I have already taken note of the fact
that the trial Court after accepting the opinion of the
fingerprint test held that but for the availability of record
slips, Shama @ Kalya being a criminal, there would not
have been any chance of identification of the dead body.
In such circumstances when once identification of the
dead body as that of Shama @ Kalya based on fingerprint
test is reversed by the High Court, in the absence of
appeal by the State or the victim, it could not be said that
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the dead body is that of Shama @ Kalya, either for
holding the appellant-convicts guilty of the offence
under Section 300, IPC punishable under Section 302,
IPC, or under Part -I / Part-II of Section 304, IPC.
32. Though, I have already held that upon failure to
prove the case put forth that the recovered dead body is
that of the person allegedly murdered by the accused,
the prosecution cannot be permitted to raise a
contention that the dead body is not traceable or that in
such eventuality the Court also cannot make out a new
case on its own for the prosecution, I think it only proper
to proceed with further consideration of the present
case.
33. In the contextual situation, it is also relevant to refer
to the decision of this Court in State of Karnataka v. M.V.
Mahesh
12
. Even in the absence of corpus delicti, it is
possible to establish in an appropriate case commission
of murder on appropriate material being made available
to the court, it was held therein. Therefore, the question
is when the opinion on the fingerprint test is eschewed
from the evidence, what survives to sustain the finding of
12
(2003) 3 SCC 353
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Criminal Appeal Nos.1614-1618 of 2012
guilt of appellant-convicts concerned under Section 304,
Part-II, IPC, in the case on hand.
34. The case on hand allegedly, being a case of
custodial death, as an abundant caution, I have taken
pain to see whether any other material and acceptable
evidence was adduced by the prosecution to establish
homicide of Shama @ Kalya by the appellant-convicts
during his illegal custody. It is a fact that none of the
prosecution witnesses had deposed to the effect that
he/she had seen the veins of legs of Shama @ Kalya in a
cut off state or that he/she had seen his dead body
anywhere in Gondia City Police Station including in any
part of the Detective Branch Room. True that PW-1 and
PW-16 have spoken to have seen Shama being beaten
while in police custody. Hence, in the absence of any
such specific statement from any of the prosecution
witnesses while being examined and in the absence of
any medical evidence in that regard, the question is how
the Trial Court and the High Court arrived at the
conclusion that veins of legs of Shama @ Kalya were cut
off and such injuries, though not sufficient in the ordinary
course of nature to cause death, ultimately caused his
death while being in custody.
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35. In the contextual situation, it is relevant to deal
further with the oral testimonies of the witnesses. PW-1,
Amrutabai, the wife of Shama @ Kalya would depose that
Shama was involved in several theft cases and used to be
in jail frequently. She would also depose that he had
plans to dispose of property at Kalamana. PW-16, who is
the mother-in-law of Shama @ Kalya had also deposed in
regard to his proposal to dispose of property at
Kalamana. The relevance of their evidence in regard to
disposal of Kalmana property will be looked into later, in
another context. Evidence of PW-1, Amrutabai would
reveal that while being examined-in-chief, she deposed
that on 18.12.1995 she was tortured in a room by some of
the accused and Shama was also brought to the said
room later and then she saw him bleeding from his legs.
She would further depose that on being enquired Shama
would say that police had cut the veins of his leg and he
might not survive and therefore, she would have to look
after their children. She would further depose that on
22.12.1995, she found swelling on his feet and also
bleeding from it. One Compounder, Soni was brought
to treat them. According to her, Shama was treated for 5
days and though she had been there for 5 days since
17.12.1995, she was given treatment only for a day. She
Page 33 of 53
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also deposed that when she went to speak to Shama she
found his eyes and mouth were shut and he did not speak
to her. According to her, she told the accused that the
police had killed him to which they replied that he was
only pretending. She would further depose that at about
5 or 6 pm she was released and, thereafter, on 25.12.1995
she, along with PW-16, her children, one Anil and her
brother-in-law, went to Detective Branch Office of the
police station and when enquired about Shama she was
told that he had escaped from police custody.
36. It is to be noted that in the context of the oral
testimony of PW-1, as above, she was confronted with
her Ext. 130 statement as also Ext.131, which was her
statement recorded under Section 164 of the Code of
Criminal Procedure, 1973 (for short “Cr.PC.”) for the
purpose of contradicting her. In the light of the decision
of this Court in Utpal Das & Anr. v. State of West Bengal
13
there can be no doubt that a statement recorded under
Section 164, Cr.PC., can also be used like a statement
under Section 161, Cr.PC, to cross-examine the maker of
it and to contradict him. Evidently, serious omissions
were brought out by confronting PW -1 with such
13
(2010) 6 SCC 493
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Criminal Appeal Nos.1614-1618 of 2012
statements, with respect to the alleged disclosure of
Shama that the accused had cut off veins of his leg and
statement that he would not survive and, therefore, she
should look after the children. Though in the chief
examination she deposed to have been told as above by
Shama while confronting with Ext. 131 they were brought
as omissions which PW-1 could not explain. So also, it is
evident on being confronted with Ext.130, her statement
in Court that after being beaten Shama shut off his eyes
and mouth and did not speak to her, was brought as
omissions. A perusal of Section 145 of the Evidence Act,
1872 would reveal that a witness could be cross-
examined as to previous statement in writing only in
respect of a fact relevant to the matter(s) in question, for
the purpose of contradicting him in the manner provided
therein. Omissions amounting to contradiction that
militate against the core of the prosecution case alone is
material as in such circumstances it would have a
bearing on the credibility of the witness concerned. In
the decision in Shri Gopal & Anr. v. Subhash & Ors.
14
,
this Court held that omission to state a fact amounts to
contradiction. In the light of the matters in question the
14
(2004) 13 SCC 174
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Criminal Appeal Nos.1614-1618 of 2012
position that the aforementioned omissions are serious
and amounting to contradictions cannot be disputed in
view of the fact that they militate against the core of the
prosecution case. In this context it is to be noted that
they are crucial points of facts brought out by the
prosecution through the testimony of PW-1 Amrutabai in
Court. Injury due to cutting off the veins of the legs of
Shama @ Kalya was taken as an injury that ultimately
caused his death, though, it was held not sufficient in the
ordinary course of nature to cause death. The judgment
of the trial Court would further show that the statement
said to have been made by Shama to PW-1, during the
cross-examination, that owing to such cutting of vein he
might not survive and she would have to take care of the
children, was taken as dying declaration by the trial
Court. Statement of PW-1 in the Court that on 22.12.1995
after they were beaten up, she went to speak to Shama
and then, his eyes and mouth were shut and he did not
speak, were also given due weight as a fact ignoring that
they were brought as serious omissions. Thus, the
circumstances reveal that in respect of matters in
question involved in the case those omissions brought
out during cross-examination of PW-1 are material and
serious enough to tantamount to contradictions militating
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against the core of the prosecution case and, therefore,
got a bearing on the credibility of the witness. Some of
the other witnesses referred to hereinbefore mentioned
only about the bleeding injuries seen on Shama, and at
any rate none of them spoke about seeing injury of
cutting off veins on his legs much less about seeing the
accused persons cutting off the veins. I have already
taken note of the fact that there is no medical evidence
revealing that the veins of legs of Shama were cut off.
That apart, it is to be noted that the postmortem report
conducted on the un-identified body also would not
reveal noting of any antemortem injuries much less
cutting of veins on the legs.
37. In the said circumstances taking note of the facts
that dead body traced out and subjected to postmortem
was not identified to be that of Shama, that no
antemortem injuries were found on the dead body
coupled with the omissions amounting to contradiction
that militates against the core of the prosecution case,
there was no justification for the trial Court to arrive at a
conclusion that the veins of legs of Shama were cut off
and the said bleeding injury ultimately caused his death.
These aspects were not at all considered by the High
Court under the impugned common judgment.
Page 37 of 53
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38. Paragraph 18 of the judgment, would reveal that it
was the further case of the prosecution that accused
persons hatched a plan and conspiracy and made PW-8
Dipak Lokhande disguised as Shama @ Kalya and made
him to sit in a vehicle along with them. According to the
prosecution after the vehicle had taken and turned near
Agrasen Bhavan, Dipak Lokhande was asked to jump
from vehicle and no sooner the vehicle was slowed down
near the speed-breaker, Dipak Lokhande obliged to the
request and then the accused persons started shouting
that Shama @ Kalya escaped from the custody. It is also
the case of the prosecution that to suit a case of escape of
Shama @ Kalya from custody certain documents were
created rather some entries were made in the station
diary records. Thus, prosecution put forth such a case to
establish that the accused persons had staged such a
drama in a bid to create a belief that Shama @ Kalya
escaped from their custody. Dipak Lokhande who was
examined by the prosecution as PW-8, evidently did not
support the case of the prosecution. It is to be noted that
his evidence was appreciated by the Trial Court in
paragraph 48 of its judgment and observed that it is not
expected from such a stock panch and a regular
informant who is on the parole of police to go against
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local police. It is also a fact that though a charge under
Section 202, IPC was framed against accused Nos. 1, 2
and 4 as well they were not found guilty on the said
charge. The High Court instead of taking into account
the fact that it was a case put forth by the prosecution and
to prove the same PW-8 was examined and he turned
hostile, observed that a specific case of Shama’s escape
from custody was raised by the defence. The High Court
went on to observe that having taken such a specific
defence the appellants failed to establish the same and
therefore, it must have its consequences. In other words,
it was held that proving the same was the burden of the
appellants. In the contextual situation, another
incongruency occurred in the consideration of the
evidence by the Trial Court and the High Court is also
noteworthy. As noticed hereinbefore, it is the case of the
prosecution that such a drama was staged by the
accused to show that Shama had escaped from their
custody. As noticed earlier, Dipak Lokhande who was
examined by the prosecution to prove the same did not
support the case of prosecution. It is in this context that
an Order dated 07.01.1996 passed by Railway Court,
JMFC, Railway, Raipur in C.No.12/96 of S.E. Railway
under Section 137/174 of Railways Act, 1989, the
Page 39 of 53
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certified copy of which was produced by the accused No.
1 assumes relevance. The appreciation of the same by
the Trial Court in paragraph 54 of its judgment, is
required be extracted, to know the nature of
appreciation made by the Trial Court. It reads thus: -
“……It is defence of accused No. 1 that a person
by name Shama was convicted by Railway
Court. Raipur on 7.1.96 for traveling without
ticket. He has produced the certified copy of the
order of Railway Court. Raipur. This was an
attempt to show that Shama was alive.
Considering the circumstances and conduct of
the policemen. It appears that the certified copy
which is produced to show that Shama was
convicted on 7.1.96 cannot be pertaining to
Shama @ Kalya. It was an attempt to circumvent
the case of prosecution. It was known to accused
persons that offence was to be registered
against them. The certified copy discloses that
Shama was found while traveling between
Gondia to Raipur without ticket. As per
practices of Railway he was asked to pay Rs. 50/-
but it is said that he denied and therefore, he
was prosecuted. We have to see firstly Shama
was dreadful criminal who will not be so easily
caught by Railway police accordingly if he
would have been by chance caught, he will
choose to pay Rs. 50/- From the certified copy it
appears that he was convicted on admission and
Page 40 of 53
Criminal Appeal Nos.1614-1618 of 2012
sentenced to pay a fine of Rs. 200/- Defence has
not arranged to examine the railway employee
who has charged sheeted the alleged Shama @
Kalya. This record produced by defence cannot
be taken to be pertaining to Shama @ Kalya the
record seems to have been prepared so that
there should be some record about Shama @
Kalya. The record seems to have been prepared
so that there should be some record about
Shama @ Kalya being alive. It is difficult to
believe that Shama would never meet his
children wife and mother. There was no reasons
for Shama to avoid his arrest, because he was
convicted in 11 Criminal cases. For this reason,
I have no hesitation to reject the theory of
defence about Shama @ Kalya having fled away
from the custody of Police.”
39. Despite such consideration by the Trial Court on
the aforesaid evidence based on suppositions and
conjectures, the High Court in the impugned judgment
observed that the defence, for reasons best known and
best advice they must have been rendered chosen to be
happy and satisfied with the defence of cross-
examination and they did not deem it appropriate to take
recourse to any defence whatsoever.
Page 41 of 53
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40. The legally and factually incorrect approach of the
High Court is evident from paragraphs 61 and 62 of the
impugned common judgment. They read thus: -
“61. For the accused persons at least to create
a doubt in the evidence brought by the
prosecution in the mind of the Court, and some
belief in favour of accused, that the accused
have some defence and the prosecution story is
debatable, defence could have chosen to lead
any evidence including their own testimonies
of denial, stating that on particular days and
dates, on which the prosecution witnesses
claim to have been brought to the Detective
Branch Room of the Police Station, were not at
all also called or detained or kept under the
domain of police or were ill-treated.
62. The defence has, for the reasons best
known and best advice they must have been
rendered, chosen to be happy and satisfied
with the device of cross-examination. They did
not deem it appropriate to take recourse to any
defence evidence, whatsoever.”
41. Thus, it is evident that the High Court failed even to
take note of the fact that such a document was available
before the trial Court, but the trial Court appreciated the
same only in the manner mentioned above. This
assumes relevance in the context that the prosecution
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itself had put forth the case of escape from custody by
Shama @ Kalya, but described it as a drama staged by
the defence to create a belief that Shama @ Kalya was
escaped from the custody. When the witness examined
to prove the same turned hostile and the defence
evidence suggesting probabilising such an escape was
produced, it was incumbent on the part of the court(s) to
consider the same, in accordance with law. In this
context, it is to be noted that the very judgment of the
trial Court itself would reveal that what was produced by
the first accused was certified copy of an order in a
summary trial whereunder a person by name Shama @
Kaloo s/o Nanu, shown to be a resident of Kalamana was
convicted for travelling ticketless in a train between
Gondia to Raipur. I have already noted earlier that PW-
1 and PW-16 deposed that Shama @ Kalya wanted to
dispose of property at Kalamana. The way in which it was
appreciated by the trial Court, as extracted
hereinbefore, would reveal that the said piece of
evidence was brushed aside by the trial Court making its
own suppositions and presumptions. There can be little
doubt with respect to the position that a Court is not
justified in deciding a case upon its own suspicions or
suppositions after discarding the evidence adduced by
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the parties and that defence evidence is also to be
appreciated in the same manner as it is to appreciate the
prosecution evidence, but with the understanding that in
the case of accused the standard of proof required is only
preponderance of probabilities.
42. In the context of the reasoning of the High Court
that the defence had failed to prove its specific plea of
escape, it is only appropriate to consider the aforesaid
factual and legal position. I have already noted that the
prosecution has put forth a case that the accused had
staged a drama to create evidence that Shama @ Kalya
had escaped from police custody and to prove the same,
prosecution got examined PWs, but he turned hostile
and did not support the prosecution. Ignoring the
evidence from the defence, which was discussed in
detail though rejected by the Trial Court, the High Court
held that the defence did not adduce any evidence, but
had chosen to be happy and satisfied with the device of
cross-examination and further held that for the failure to
prove the specific plea the accused have to suffer the
consequence. Before considering evidence adduced by
defence, elaborately discussed by the Trial Court, I will
consider certain established principles of criminal law.
Indisputably, it is an established principle of criminal
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law that it is the burden of the prosecution to establish
the guilt of the accused. This Court in the decision in
Paramjeet Singh v. State of Uttarakhand
15 held in
unambiguous terms that the burden of proof squarely
rests upon the prosecution and further that the more
serious is the crime, the stricter is the proof required.
43. In view of the afore-mentioned reasoning given by
the High Court it is also relevant to refer the decision of
this Court in Sharad Birdhichand Sarda v. State of
Maharashtra
16. This Court held that the prosecution
must stand or fall on its own legs and it could not derive
any strength from the weakness of the defence.
Furthermore, it was held that the weakness of the
defence could only be called as additional link to aid the
prosecution and that it is not the law that where there is
any infirmity or lacuna in the prosecution case, the same
could be cured or supplied by a false defence or plea
which is not accepted by a court. It is also worthy to refer
to the decision of this Court in V. Venkata Subharao’s
case (supra). The burden on accused did not have to
meet the same standard of proof as is required to be
made by the prosecution, it was held therein. There can
15
(2010) 10 SCC 439
16
[AIR 1984 SC 1622]
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Criminal Appeal Nos.1614-1618 of 2012
be no doubt with the position that unlike the duty cast on
the prosecution where proof has got to be beyond
reasonable doubt, in the case of accused, he got to
establish through a preponderance of probabilities that
the evidence produced is acceptable to the court. I have
already referred to and extracted the relevant
paragraph in the judgment of the trial Court dealing with
the certified copy of the order dated 07.01.1996 of the
Railway Court, Raipur convicting one Shama, S/o Nanu
residing at Kalamna Nagar for travelling in a train
between Gondia to Raipur, ticketless. Evidently, the
afore-extracted paragraph from the judgment of the trial
Court would reveal that the said piece of evidence of
defence was never put to test whether it satisfies the
standard of preponderance of probabilities, but was
declined on consideration based on suppositions,
surmises and conjectures. Evidently, being a certified
copy of an order passed by a Court viz., the Railway
Court, Raipur the trial Court could not have declined to
accept its existence in view of Section 43 of the Evidence
Act.
44. In terms of the combined reading of Sections 43
and 79 of the Evidence Act, the trial Court could not have
declined to accept the existence of the order dated
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07.01.1996 of Railway Court, Raipur. Since the existence
of the said order dated 07.01.1996 cannot be said to be
not a relevant fact or fact in issue, in view of the
circumstances obtained in the case, upon its production,
its evidentiary value should have been considered by
applying degree of preponderance of probability. In
this context, it is only relevant to refer to following
relevant extract from paragraph 24 of the decision of this
Court in Dr. N.G. Dastane v. Mrs. S. Dastane
17:-
“24… The belief regarding the existence of a
fact may thus be founded on a balance of
probabilities. A prudent man faced with
conflicting probabilities concerning a fact-
situation will act on the supposition that the fact
exists, if on weighing the various probabilities
he finds that the preponderance is in favour of
the existence of the particular fact. As a prudent
man, so the Court applies this test for finding
whether a fact in issue can be said to be proved.
The first step in this process is to fix the
probabilities, the second to weigh them, though
the two may often intermingle. The impossible is
weeded out at the first stage, the improbable at
the second. Within the wide range of
probabilities the Court has often a difficult
choice to make but it is this choice which
17
[(1975) 2 SCC 326]
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Criminal Appeal Nos.1614-1618 of 2012
ultimately determines where the
preponderance of probabilities lies…”
45. While considering the identity of the accused who
stood convicted under the said order dated 07.01.1996 it
is relevant to note the initial observation of the trial Court
at paragraph 54 of its judgment. At the risk of repetition,
it is referred to hereunder thus: -
“The certified copy disclose that Shama was
found while travelling between Gondia to
Raipur without ticket.”
46. In this context, it is to be noted that neither the trial
Court nor the High Court arrived at a specific finding that
the order dated 07.01.1996 of the Railway Court, Raipur,
was not in existence or that it pertains to the conviction
of a different person. How can such an order be ignored
by stating that being a dreadful criminal he would not
have been caught easily or even if caught he would have
avoided arrest and conviction by depositing a fine of Rs.
50/-. It is in this context that the further case of the
prosecution, that to create an impression that Shama @
Kalya had escaped from police custody and the accused
had staged a drama, has to be looked into. According to
the prosecution, in that regard one Dipak Lokhande was
Page 48 of 53
Criminal Appeal Nos.1614-1618 of 2012
made to disguise as Shama @ Kalya and made to jump
from a police vehicle by the accused. The evidence
would reveal that though prosecution itself had
examined the said Dipak Lokhande, a police official to
prove the said case, but he turned hostile and did not
support the prosecution case. It is in this context that the
decision of this Court in Sharad Birdhichand Sarda’s
case (supra) holding that it is not the law that where there
is any infirmity or lacuna in the prosecution case, the
same could be cured or supplied by a false defence or
plea which is not accepted by a court , assumes
relevance. In such circumstances, the order dated
07.01.1996 mentioned above only probabilise the case
of defence. It is in the aforesaid context that the failure
of the prosecution to prove that Shama’s homicidal death
had occurred in Detective Branch room of Gondia police
station has to be viewed. It is relevant to note that the
prosecution had examined one Gopal Dinaji Bansod as
PW 11 to prove disposal of dead body by police. The
impugned judgment itself would reveal that he was
declared hostile and despite being cross-examined on
behalf of the prosecution nothing relevant could be
elicited. It is also to be noted that both the trial Court and
the High Court failed to appreciate the evidence of PW-
Page 49 of 53
Criminal Appeal Nos.1614-1618 of 2012
38, who was a superior officer of the accused and spoke
about not only certain entries made in the case diary with
respect to the escape of Kalya and a report on the said
incident but also of the fact he came to know that one
person by Shama was arrested at Raipur for travelling
without ticket. These aspects also were not taken into
account by the trial Court as also the High Court.
47. To sum up, it is not inappropriate to extract
paragraph 110 of the impugned common judgment
which reveal the principle adopted by the High Court in
appreciating the evidence in the case on hand and it
reads thus: -
“110. In so far as the aspect of burden of the
prosecution and duty of defence in regard to
these points is concerned, the prosecution
evidence rises to the level as expected for proof
of facts, and as discussed earlier in this
Judgment, the accused persons have failed in
discharge of their duty of rebuttal which rests on
them in an unqualified manner and the degree.
48. Thus, paragraphs 61, 62 and 110 of the impugned
common judgment would reveal that it is the wrong
application of the principle of appreciating the evidence
in criminal cases that ultimately resulted in the
conclusions and findings compelling the High Court to
Page 50 of 53
Criminal Appeal Nos.1614-1618 of 2012
confirm the judgment of the trial Court except to the limit
referred above. Therefore, the appeals except Crl.
Appeal No. 1614/2012 which stood abated owing to the
death of the sole appellant, must succeed to the following
extent.
49. In the absence of evidence regarding homicidal
death of Shama @ Kalya in Gondia City Police Station
coupled with the defence evidence, which could stand
the test of preponderance of probabilities and the other
circumstances favourable to the accused emerging from
the other circumstances and failure of the prosecution to
establish the case put forth by it. Appellants in Crl.
Appeal No.1617 of 2012 viz., Accused No. 2 (Ravindra)
and Accused No. 4 (Hans Raj) are entitled to be acquitted
for commission of offence under Section 304 Part II read
with Section 34, IPC, granting the benefit of doubt. There
is absolute absence of medical and oral evidence to find
that the prosecution had succeeded in proving that
Shama @ Kalya being in custody sustained any ‘grievous
hurt’ or sustained a kind of hurt, falling in one or the other
of the eight kinds of hurt (firstly to eighthly given under
Section 320, IPC). This is because I have already
declined the finding that Shama @ Kalya had sustained
the injury of cutting of veins of his legs. In such
Page 51 of 53
Criminal Appeal Nos.1614-1618 of 2012
circumstances, the conviction of accused Nos. 2
(Ravindra), No. 3 (Manohar), No. 4 (Hans Raj) and No. 5
(Vishnu) under Section 331 read with Section 34, IPC
cannot be sustained.
50. In view of confirmation of the finding on custodial
torture their conviction and consequential sentence
under Section 330, 348 and 387 read with Section 34, IPC
is to be confirmed. Since the conviction under Section
330 covers Section 323, IPC no separate sentence for
voluntary causing hurt is to be imposed.
51. In view of the conclusions and finding in respect of
the offence under Section 304-Part II read with Section 34,
IPC, and the consequential acquittal of the convicts
concerned granting benefit of doubt the convicts under
the other offences are also entitled to get benefit of
doubt, as those offences have relation with the main
crime. Consequently, conviction based on finding guilt
under Section 201, 202, 203 and 218 read with Section 34,
on appellants-convicts concerned are also liable to be
set aside.
52. The above discussion and conclusion would
inevitably invite interference with the conviction of the
appellant-convicts under Section 201, IPC read with
Section 34, IPC, on all other grounds than for causing
Page 52 of 53
Criminal Appeal Nos.1614-1618 of 2012
disappearance of evidence by destroying the dead body
of Shama @ Kalya mentioned in paragraph 112 of the
impugned common judgment of the High Court.
53. In the result, I dispose of all the appeals as under: -
I. Crl. Appeal No.1614 of 2012 stands abated.
II. Crl. Appeal Nos.1615, 1616, 1617 & 1618 of 2012
are partly allowed and the common judgment
dated 12.07.2011 of the Nagpur Bench of the
Bombay High Court stands set aside except to the
extent whereunder appellants in Crl. Appeal
No.1617 of 2012 viz., Ravindra (A2) and, Hans Raj
(A4), appellant in Crl. Appeal No.1618 of 2012
viz., Manohar (A3) and, appellant in Crl. Appeal
No. 1616 of 2012 viz., Vishnu (A5) are convicted
under Sections 330, 348 and 387, IPC, and
sentenced to undergo one year of rigorous
imprisonment and a fine of Rs.1,000/- each and in
default to suffer simple imprisonment for four
months on each count. Accordingly, all the
appellant-convicts are acquitted of all the other
offences for which each of them was convicted
and sentenced. In view of this judgment further
action is required only in respect of A2 to A5 viz.,
appellants in Crl. Appeal Nos. 1617 of 2012, 1618
Page 53 of 53
Criminal Appeal Nos.1614-1618 of 2012
of 2012 and, 1616 of 2012, that too in case any
sentence remains unserved in view of
confirmation of conviction and sentence under
Sections 330, 348 and 387 read with Section 34,
IPC.
……………………, J.
(C.T. Ravikumar)
New Delhi;
September 25, 2024
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos. 1614-1618 of 2012
Manik and others … Appellants
Versus
The State of Maharashtra … Respondents
J U D G M E N T
SANJAY KUMAR, J
1. Having perused the erudite judgment authored by my learned
brother, Justice C.T. Ravikumar, I find myself unable to subscribe to some
of the views and conclusions noted therein. Hence, this differing opinion.
2.At the outset, though my learned brother has prefaced his verdict by
stating that Criminal Appeal No. 1614 of 2012 filed by Manik, s/o Sitaram
Jibhkate, stands abated as he died on 06.03.2022, I do not find anything
on record to support and substantiate this statement. I, therefore, proceed
on the assumption that this appeal also remains alive for active
consideration, along with the other four appeals.
1
3. A crucial aspect to be kept in mind while considering these
cases is that all the appellants are members of the police force and the
allegation against them is of misuse and abuse of their powers, in
resorting to custodial torture of Shama @ Kalya, s/o Nanu Ukey, and
tampering with evidence. This ultimately resulted in registration of Crime
No. 315 of 1995 for offences punishable under Sections 302, 330, 331,
342, 343, 348, 354, 385, 387, 201, 202, 193 and 218, all read with Section
34, of the Indian Penal Code, 1860 (IPC). The appellants in these appeals
are Accused Nos. 1 to 7. Sudhir, s/o Rambhan Kayarkar, and Ganesh, s/o
Raghuji Turkar, Accused Nos. 8 and 9, were acquitted by the Trial Court of
charges under Sections 201 and 202 IPC, read with Section 34 IPC, and
the same attained finality.
4. Details of the conviction and sentencing of Accused Nos. 2 to 7
having been set out at length by my learned brother, there is no need to
replicate the same except to the extent of adding that Accused No. 1,
Manik, the appellant in Criminal Appeal No. 1614 of 2012, was also
convicted by the Trial Court for offences punishable under Section 304
Part II, 330, 331, 348, 387, 201 and 218 IPC, all read with Section 34 IPC,
and he stood acquitted, along with the other accused, of offences
punishable under Sections 302 and 354 IPC, both read with Section 34
2
IPC. Thereafter, in appeal, the High Court held that the prosecution had
failed to prove the offence punishable under Section 201 IPC, read with
Section 34 IPC, in so far as it related to causing disappearance of the
body of Shama and all the appellants stood absolved of the same.
5. It may be noted that Vishwanath and Dilip, Accused Nos. 6 and
7, who jointly filed Criminal Appeal No. 1615 of 2012, already served out
their sentence and were released from prison. This aspect was noted by
this Court on 05.10.2012, while granting leave in these five cases. Further,
it was noted that Manohar, Accused No. 3, had undergone imprisonment
for about 1 year and 10 months out of the sentence of 3 years, while
Vishnu, Accused No. 5, had completed about 1 year imprisonment out of a
similar sentence of 3 years. As regards Manik, Ravindra and Hansraj,
Accused Nos. 1, 2 and 4, it was noted that they had undergone only 2
years out of the sentence of 7 years imprisonment. In such circumstances,
bail was granted only to Manohar and Vishnu, Accused Nos. 3 and 5, and
not to the other three accused/appellants. It was only on 16.02.2015, that
these three accused/appellants were also granted bail, taking note of the
fact that they had completed approximately 5 years in jail.
6. Ergo, at this stage, we are concerned mainly with Manik,
Accused No. 1; Ravindra, Accused No. 2; Manohar, Accused No. 3;
3
Hansraj, Accused No. 4 and Vishnu, Accused No. 5. As the State has not
chosen to approach this Court against the dismissal of its appeal by the
High Court, which was filed in the context of the acquittal of the accused
under Section 302 IPC, read with Section 34 IPC, that aspect stands
settled. This failure on the part of the State is, in itself, a cause for concern
as this was a case of police brutality and use of third-degree methods,
which ought to have prompted the State to take a more rigorous stand so
as to set an example and instill discipline in its police machinery. However,
the State of Maharashtra did not deem it appropriate to do so. Be that as it
may.
7.Sufficient evidence having been adduced before the Trial Court,
which found favour with the High Court also, my learned brother has
confirmed that custodial torture of Shama stands duly proved. As pointed
out by this Court in State of U.P. vs. Ram Sagar Yadav and others
1
:
“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 perpetuated by the police in the sanctum
1
(1985) 1 SCC 552
4
sanctorum of the police station, are left without any evidence to prove who
the offenders are”.
8.In Bhagwan Singh and another vs. State of Punjab
2
, this Court
observed: “If a person is in police custody, then what has happened to him
is peculiarly within the knowledge of the police officials who have taken
him into custody. When the other evidence is convincing enough to
establish that the deceased died because of the injuries inflicted by the
accused, the circumstances would only lead to an irresistible inference
that the police personnel who caused his death must also have caused
disappearance of the body”.
9.Given this settled legal position, it would suffice at this stage to note
that several witnesses from within the police department, such as, Dilip
Madhuprasad Sawwalakhe (PW-20), Shalikram Sarasram Nimkar
(PW-23), Sumanbai (PW-22), and Dayaram Bakaram Sonkusare (PW-19),
and independent witnesses, such as, Tejlal Karulal Pachbhaye (PW-10)
and Kuwarlal Buddusao Dohare (PW-9), the staff from Hotel Anand at
Balaghat, where the appellants kept Shama overnight, confirmed that
Shama was injured and bleeding. His wife, Amrutabai (PW-1), stated that
when she saw Shama in the police station on 18.12.1995, he was bleeding
from both legs and he told her that the police had cut the veins in his legs.
2
(1992) 3 SCC 249
5
Sureshkumar Kharagchand Soni (PW-3), the compounder who treated
Shama while he was in police custody, turned hostile but the fact remains
that his testimony, for what it is worth, also confirms the injured state of
Shama, consequent to the third-degree methods used on him by the
appellants. In such circumstances, it can be safely surmised that Shama
was in the illegal custody of the appellants since 16.12.1995, at the very
least, and suffered prolonged third-degree treatment till 24.12.1995. That
being so, it is very difficult to believe the story projected by the appellants
that Shama escaped from their custody at about 11:00 PM on 24.12.1995.
It is highly improbable that he would have been in a physical state of
fitness to flee, by jumping from a moving jeep in a crowded residential
area, and evade the police.
10. Significantly, Shalikram Nimkar (PW-23), being a member of the
police force, confirmed in his deposition before the Trial Court that the
entry in the police record about the escape of Shama was false. The facts
narrated by him were recorded by the Trial Court in para 48 of its
judgment. He stated that he was attending to the Station Diary on
24.12.1995 when Manik, Accused No. 1, approached and requested him
to make an entry that Shama was reported to have been seen in the
railway yard. PW-23 stated that he inquired with Manik as to why such an
6
entry should be recorded when Shama was in police custody. PW-23
admitted that this entry was wrong but, as Manik was his superior, he had
to oblige him.
11. ‘Life is the art of drawing sufficient conclusions from insufficient
premises’
3
. This art would be all the more essential in the repertoire of a
Judge, who may be presented with incomplete and, sometimes, incorrect
information, while adjudicating a case. Appearances can be manipulated
and may be completely deceptive, by deliberate design. It would be
gullible for a Court to accept appearances at face value, however
unconvincing they may be, and play into the hands of those who seek to
dishonestly deceive it. In the present case, the appellants cleverly
concocted the story of Shama escaping from their custody and created a
record to buttress it. Not content therewith, the appellants also cooked up
what is clearly a fabricated saga of Shama surfacing in Raipur and being
convicted by the Railway Court there, on 07.01.1996, for travelling without
a ticket. Even if it is assumed for a second that the police version of
Shama’s escape is true, it would require another huge leap of faith to
believe that Shama, a fugitive from the law, would have willfully refused to
pay 50/-, while caught travelling ticketless between Gondia and Raipur,
₹
and would have preferred to go before the Railway Court to suffer and
3
Erewhon (1872), a satire by Samuel Butler.
7
document a conviction, whereby he had to pay 200/- as fine. This
₹
convenient story was apparently devised for the purpose of creating a
record of Shama being alive on that date.
12. Significantly, the prosecution did not gather any further
evidence in relation to this conviction at Raipur. No witness from Raipur
was examined to identify and prove that it was the very same Shama who
had suffered the conviction there. In the absence of clinching proof of
Shama being actually alive, the only possible inference that can be drawn
from his established and prolonged torture by the appellants is that he
would have died while in their custody. No doubt, the High Court, in its
wisdom, chose to disbelieve the fingerprint evidence and did not sustain
the Trial Court’s finding that the body that was exhumed at the behest of
the appellants was that of Shama. At best, the exclusion of this evidence
would only mean that the dead body of Shama was not traceable.
However, as rightly pointed out by my learned brother, production of a
dead body to prove a murder is not necessary in the eye of law. ‘Corpus
Delicti’ is a Latin phrase that broadly means – ‘body of the crime’.
Generally, this principle has reference to the requirement of the
prosecution proving that the crime has been committed, so as to charge
the delinquent and secure a conviction.
8
13. In Sevaka Perumal and another vs. State of Tamil Nadu
4
,
this Court observed that it is not an absolute necessity or an essential
ingredient to establish the corpus delicti in a trial for murder, as the factum
of death must be established like any other fact. To base a conviction for
murder, this Court held that there must be reliable and acceptable
evidence that the offence of murder was committed and it must be proved,
either by direct or circumstantial evidence, even if the dead body is not
traceable.
14.Merely because the appellants were clever enough to trump up a
story of Shama escaping from their custody and the happenstance of the
exhumed body, recovered at their instance, no longer figuring in the picture
due to rejection of the fingerprint evidence, it would be improper to
proceed on the assumption that the law laid down in Sevaka Perumal
(supra) would not be applicable. Doing so would impel the Court to fall into
the trap of the ingenious and wily appellants, who have cunningly
concocted and falsified records to escape their just deserts.
15.This is the major point of divergence between our views. My learned
brother has acted upon the premise that once the dead body is said to
have been traced and it is, then, not proved to be of that person, it would
be fatal to the case of the prosecution. Permitting this premise to
4
(1991) 3 SCC 471
9
gain acceptance would mean that those in the police organization, who
resort to such nefarious methods, can take this easy way out to ward off a
finding of guilt. When sufficient evidence is available to conclude that
Shama was in no position to escape from the custody of the appellants,
the inevitable corollary that follows is that he died due to their torture while
in their custody.
16.It is high time that our legal system squarely faces the menace of
police excesses and deals with it by putting in place an effective
mechanism to obviate such inhuman practices. Long ago, Prof. Upendra
Baxi had observed: “What is truly striking about India is the lack of respect
for rule of law, not just by the people but those who make and enforce
them”
5
. A few years later, Prof. Srikrishna Deva Rao pointed out that
excessive use of force is a product of the police culture that rationalizes
physical abuse as appropriate punishment for persons who are viewed as
trouble-makers or deviants. He asserted that lack of proper legal restraint
on police powers is one of the main reasons for continuous police abuse
and that torture by the police is violative of the right to life and personal
liberty under Article 21 of the Constitution
6
.
5
Crisis of Indian Legal System (1982)
6
Custodial Deaths by P. Srikrishna Deva Rao (National Law School Journal. Vol. 6, 1994)
10
17.In the words of Mohammed Ghouse: ‘Torture or killing of a person in
police custody is, to put it mildly, illegal. But the real question is when gold
rusts, what can iron do? Who can police the police? Because of the
system of linkages, the accountability of police to the political process is
purely notional. So, the question arises whether courts can police the
police? It is unfortunate that the State has done little to reform the system
to control such abuse of power by the police by institutionalizing a regime
to detect, prosecute and punish wrongdoers within the police organization.
The recommendation of the National Police Commission for a mandatory
judicial inquiry by a District and Sessions Judge still remains on paper.
Organizational accountability is perhaps the only means of ensuring that
the rank and file within the police department respect and honour
Constitutional values while discharging their functions and do not abuse
the power that comes with it by resorting to third degree methods within
the secrecy and safety of police lock-up’
7
.
18.In fact, in Ram Sagar Yadav (supra), this Court had suggested
amendment of the law relating to burden of proof in case of custodial
deaths. In response thereto, the Law Commission of India, in its 113
th
Report (1985) on ‘Injuries in Police Custody’, recommended insertion of
7
Mohammed Ghouse, "State lawlessness and Constitution of India: A study of custodial deaths",
Comparative Constitutional Law 270 (Mahendra P. Singh ed., 1989).
11
Section 114-B in the Indian Evidence Act, 1872, so as to reverse the
burden of proof in cases of custodial death onto the police themselves.
Despite decades having passed since then, this recommendation has not
come to fruition.
19.Irrespective of that step being taken, the fact remains that when
sufficient evidence is adduced to prove custodial torture by the police, it is
then for the police themselves to prove their innocence, be it in a case of
death in police custody or even if such a victim goes missing or vanishes.
Notably, Section 29 of the Indian Police Act, 1861, makes willful breach of
regulations by a policeman and causing of unwarrantable personal
violence to any person in his custody, punishable with fine or
imprisonment. Further, Police Manuals invariably hold those in charge of
police stations responsible for the safe custody of all the prisoners housed
therein.
20.Deepak Lokhande (PW-8) allegedly impersonated Shama on
24.12.1995 and staged a performance to support the police version that
Shama had escaped from their custody on that night. Neither this parody
nor the record of Shama suffering conviction before the Railway Court at
Raipur can be allowed to dupe this Court, as intended by the guileful
appellants. The appellants have been let off rather lightly by convicting
12
them only under Section 304 Part-II IPC. Their careless disregard for the
value of human life warranted a much more stringent punishment being
visited upon them. In such circumstances, giving in to their duplicitous
stories and permitting them to escape punishment would only add insult to
injury.
21. I would, therefore, respectfully disagree with the conclusion
drawn by my learned brother that, in the absence of evidence regarding
the homicidal death of Shama @ Kalya, the appellants are entitled to be
acquitted of the charge under Section 304 Part-II IPC read with Section 34
IPC, by granting them the benefit of doubt. On the contrary, I would
maintain the convictions and sentences of the appellants, as confirmed by
the High Court, and dismiss all the appeals.
………………………..,J
(Sanjay Kumar)
September 25, 2024;
New Delhi.
13
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