TaxTMI 
TaxTMI 
2003 (9) TMI 819
X X X X Extracts X X X X
X X X X Extracts X X X X
....ional 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. 3. 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 lat loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviors of citizens' rights. 4. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ngh'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 Shankar Sharma v. State of U.P. [1990] 1 SCR 29, Bhagwan Singh and Anr. v. State of Punjab 1992 CriLJ 3144, Smt. Nilabati Behera @ Lalita Behera v. State of Orissa and Ors., 1993 CriLJ 2899, Pratul Kumar Sinha v. State of Bihar and Anr. , Kewal Pati (Smt.) v. State of U.P. and Ors. 1995 CriLJ 2920. Inder Singh v. State of Punjab and Ors. 1995 CriLJ 3235, 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 1997 CriLJ 743 seems to have caused not even any softening attitude to the in human approach in dealing with persons in custody. 6. Rarely in cases of police torture of 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 collea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns who cause hurt for the purpose of extorting the confession by making the offences 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 flagr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... respect of CR.No. 559/83 at D.N. Nagar Police Station on the allegation that he had caused grievous hurt to one Vishnu Son 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 there 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 deceased stand. The accused continued to give ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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: 13. The complainant 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 mortam 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 on 14.10.1983. The doctor who had examined the deceased had noted the medical ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nducted 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 CriLJ 167 for the said purpose. 15. 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, and by adopting a technical approach, contrary to the principles laid down by thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was in a pathetic condition. If that be so, it is unbelievable that the Magistrate who granted bail would not have noticed this was 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. 18. In the complainant 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. 19. 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 CriLJ 1521. Had....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 24. 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 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 complaint 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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, 1975 CriLJ 1734. As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. 1981 CriLJ 1012, 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a definite finding about the prejudice or otherwise. This aspect was highlighted in Noor Khan's case supra. 29. 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 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. 30. 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 e....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the accused alone had assaulted the decreased. 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. 33. Taking totality of the circumstances it is clear that the High Court was right in directing acquittal of the accused. We decline to interfere with the judgment of acquittal. 34. 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. Th....