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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.