1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ** J U D G M E N T 1. D.B.CR.APPEAL NO.121/2004 (Raju Singh and anr. Vs. State) 2. D.B.CR.APPEAL NO.152/2004 (Kailash Chand Vs. State) 3. D.B.CR.APPEAL NO.582/2004 (Khem Singh Vs. State) Date of Judgment : August 05th,2010 C O R U M REPORTABLE HON'BLE MR.JUSTICE NARENDRA KUMAR JAIN HON'BLE MRS.JUSTICE MEENA V.GOMBER Mr.A.K.Gupta with Mr.Vijyant Nirwan, Mr.R.K.Mathur with Mr.Vivek Goyal & Aditya Kiran Mathur, Mr.N.C. Choudhary & Mr.ZA Naqvi with Mr.N.A.Rathore, Kapil Gupta and Ms.Ahnita Khandelwal, for the appellants. Mr.Sanjeev Kumar Mehla, P.P. for State. BY THE COURT: (Per Hon'ble Mrs.Meena V.Gomber,J) The case in hand is a chequered story and the prosecution case unfolds a pathetic chilling and sinister phenomenon whereby the life of a person was eliminated from this worldly scene and consigned to the heavenly abode by putting an end to his innocent life simply in a bid to exercise the powers of 2 Police officials misused by them on the people in custody. The appellants before us are four Police officers of the rank of SHO and constables named Raju singh, Rajesh Kailash and Khem singh who have preferred their respective appeals against the judgment and order dated 20.12.2003 passed by learned Special Judge, SC & ST (Prevention of Atrocities) Court, Jhalawar in Sessions case No.32/2003 (78/2001, 18/2000 & 4/2000), whereby they were convicted for the offences punishable under Section 302/331/348/201 alternatively under Sections 302/331/348/201 read with Section 34 of the IPC and were sentenced as under:- i) For the offence under Section 302/302 read with Section 34 of the IPC with imprisonment for life and a fine of Rs.500/- in default whereof to further undergo three months' simple imprisonment; ii) For the offence punishable under Section 331/331 read with Section 34 of the IPC with simple imprisonment for three years’ and a fine of Rs.200/- in default whereof to further undergo simple imprisonment for two months’; 3 iii) For the offence punishable under Section 348/348 read with Section 34 of the IPC with simple imprisonment for one year and a fine of Rs.100/- in default whereof to further undergo one month’s simple imprisonment; and iv) For the offence punishable under Section 201/201 read with Section 34 of the IPC with simple imprisonment for two years and a fine of Rs.200/- in default whereof to further undergo two months’ simple imprisonment. Benefit of Section 428 Cr.P.C. had also been granted to all the four convicts. 2. The facts as culled out by the prosecution are that on 11.5.99 at about 9.45 P.M., PW-10 Sh.Kalu Ram Rawat, the then Circle Officer, Bhawani Mandi submitted a written report Ex.P/11 at police station Gangdhar to the effect that he had received a complaint from the then Superintendent of Police, Jhalawar. The facts mentioned in the complaint were that the accused Raju Singh, the then SHO of P.S.-Gangdhar alongwith his five police employees had illegally detained and beaten three persons namely Radhey Shyam, Balu and Lalu for interrogation for an offence of theft and that one of the three named Radhey Shyam Darji died during 4 the intervening night of 6th & 7th of May at about 3.00 AM at police Station itself whose dead body was burnt at an unknown place on the same night. 3. Further that thereafter the other two persons namely PW-1 Balu and PW-11 Lalu were allowed to go on 8.5.1999. As per PW-10 Kalu Ram Rawat, Dy.S.P., he verified the facts of the complaint and found that on the directions of accused Raju Singh, the then SHO, his three constables Dilip singh No. 665, PW-7 Tola Ram No. 481 and PW-9 Rajesh No. 222 had gone to Shahjahanpur (M.P.) to bring the suspects and Radhey Shyam Darji (deceased), PW-1 Balu and PW-11 Lalu Chamaar were brought to Police Station Gangdhar in the evening of 5.5.99. 4. During late night of 6th of May, deceased Radhey Shyam Darji S/o Ram Lal resident of Bajpur (MP) while in illegal police custody, was tortured and beaten to death by the four accused-appellants mentioned hereinabove along with constable Tej Singh 871 (since acquitted). In order to destroy the evidence, his corpse was taken in the 5 police jeep to an unknown place and was burnt. The matter was not reported to senior officers. 5. PW-10, found prima facie case under Sections 302, 201, 331, 342, & 348 of the IPC against the above four accused- appellants and also against Constable Tej Singh 871 (since acquitted) and ordered for registration of case, whereupon case no.75/1999 was registered and Ex.P-12 FIR was chalked. The matter was handed over to Addl. S.P., CID (CB) Range Cell, Kota, PW-61 Sh.Vinod Kumar Bangad who, after investigation, filed the charge-sheet against the five accused persons. 6. On committal of the case to the Court of Sessions, charges under Sections 302, 331, 348, 201 in the alternative under Sections 302, 331, 348, 201 read with Section 34 of the IPC were read over to the accused which they denied and claimed trial. 7. In order to prove its case, prosecution examined as many as 73 witnesses and exhibited 80 documents. Accused persons when 6 examined under Section 313 Cr.P.C, pleaded innocence without giving specific explanation with regard to the death of Radhey Shyam Darji in police station. 8. In defence, they examined six witnesses including the accused-appellant Raju Singh and others namely Ram Vilas (DW-1), Dinesh (DW-2), Rajesh Mathur (DW-3),Mukim Kham (DW- 4) and Bhanwar Singh (DW-6). Accused appellant Raju Singh, the then SHO, PS- Gangdhar examined himself as DW-5. Documentary evidence in the form of Ex.D/1 to Ex.D/13 was also filed. 9. Learned Trial Court, after perusing the record and considering the arguments of both the parties and appreciating the material placed before it, recorded the finding of conviction of the present four appellants for the offences mentioned herein above; whereas the 5th accused namely Tej Singh, Constable 871 was acquitted of all the charges for want of evidence against him. 10. The appellants before us are accused Raju Singh SHO, constables Kailash Chand 7 No.227 Rajesh Kumar No 566 and Khem Singh No. 774 who are represented through their respective Counsel. 11. Shri R.K.Mathur learned Counsel arguing on behalf of all the appellants contended that the cardinal principle of law is that the Prosecution must prove its case beyond reasonable doubt. Very seriously it was contended by him that most of the circumstances, relied upon by the learned Trial Court, have not been proved beyond reasonable doubt. it would be hazardous to presume that Radhey Shyam had died because of alleged beating given to him by the appellants i.e. assuming that such an incident did take place in the police station on the intervening night of 6.5.99 and 7.5.99 as there was no corpus delicti. 12. The argument of learned counsel in this regard was that where the corpus delicti was not found, there should be some acceptable evidence produced by the prosecution to prove that death of the person was in fact caused and the accused persons are directly responsible for causing such death. 8 13. Sh.Mathur argued that the prosecution should establish by link evidence that Radhey Shyam Darji had actually died because of the acts of the appellants without which there can be no conviction for an offence under Section 302 IPC. 14. Elaborating this contention, learned counsel further argued that there is absolutely no evidence whatsoever to hold that by the so-called attack on the deceased Radhey Shyam in the police station, he had died or that the injury caused, if any, on Radhey Shyam by these appellants, was sufficient in the normal course to cause death. It was contended that even the prosecution witnesses in particular PW-8 claim to have seen Radhey Shyam alive in the police station and this fact is supported by the evidence of PW-52 to show that Radhey Shyam was sitting in Verandah asking for water and was complaining of stomach-ache. Therefore, it is his contention that deceased could not have died because of alleged beating suffered by him in the police station. 9 15. His argument was that appellants had been charged for voluntarily causing grievous hurt and confining him in custody so as to extort confession of a crime and for causing death of Radhey Shyam Darji in police custody whereas there was nobody to say that Radhey Shyam Darji was, in fact, in their police custody because the person who was released from Shahjahanpur jail in the morning of 5.5.99 by the orders of the Court, after attestation of bail and after the entries in the Shahjahanpur jail register, was Radhey Shyam Chamaar and not Radhey Shyam Darji. Relying on some prosecution as well as defence evidence, it was argued that no one as Radhe Shyam darji was brought from Shahajahanpur jail to PS- Gangdhar as the three accused released from Sahajahanpur jail were Balu Chamar, Lalu Chamar and Radhey Shyam Chamar. 16. It was further contended that the evidence of prosecution witnesses cannot be accepted for various reasons. For example, Pw-38 Natwar Singh and PW-39 Rajendra Singh were accused in a double murder case and were in police custody and they expected 10 some special favour from the accused Raju Singh, Incharge police station Gangdhar which was not given. Further that the investigation of that case had been carried out by the police, therefore, they had every reason to implicate the police, including the appellants, falsely. 17. It was alleged that their evidence is not corroborated in any manner by any other evidence, therefore, it was not safe to rely on their evidence. 18. With regard to the statements of PW- 7,8,9,11,14,38, 39,40,52 and 57 etc., it was argued that even if their evidence is accepted as true, it would not further the prosecution case in any manner because they are not the eye witnesses and their evidence only shows that Radhey Shyam was seen in the police station on the alleged date of incident and this evidence would not, in any manner, support the prosecution case to base the conviction on the appellants for having committed murder of Radhey Shyam. 19. Argument of learned counsel for Raju 11 Singh was that PW-67 Sh.D.C.Jain, the then Superintendent of Police, had falsely concocted the whole case against him as he was inimical to him. He contended that when Radhey Shyam Darji was not brought for any interrogation, then where does the question of Radhey Shyam Darji being murdered in the police custody arise, more so, when the factum of death of Radhey Shyam is highly doubtful. 20. Next argument advanced by him was that from the prosecution case, it is clear that incident allegedly took place on the intervening night of 6.5.99 and 7.5.99 whereas the case was registered on 11.5.99 at 9.45 pm by PW-10 on the basis of an anonymous letter stated to have been received by PW-67, Superintendent of Police, who himself could not say with certainty as to whether anonymous letter was received by post or otherwise. Further that letter Ex.P- 9 itself shows that it was obtained at the instance of Superintendent of Police himself so as to settle his scores with the Incharge Raju Singh, one of the appellants herein above. 12 21. Last argument of Shri R.K.Mathur, learned counsel for the appellant was that there were material contradictions, discrepancies and embellishments in the statements of prosecution witnesses and that PW-6 was a planted witness. Further that so called recovery of half burnt flesh and bones cannot establish any link evidence as the prosecution has not proved as to whose burnt flesh or bones they were. 22. Shri N.C.Chowdhary learned counsel arguing on behalf of appellant Kailash Chand contended that there is no evidence to establish the identity or presence of appellant Kailash as there were three persons by the name of Kailash in the Police station. Further that PW-8 was inimical with him because at his instance a departmental inquiry had been initiated against PW-8 hence his evidence cannot be said to be reliable. 23. Shri A.K.Gupta learned counsel for appellant Rajesh Kumar and Shri Z.A Naqvi learned counsel for appellant Khem Singh contended that at the relevant time these 13 two appellants were posted at outpost Chaumehla and not at P.S Gangdhar. Further tha they were on patrolling duty on that night and that they had been falsely implicated. 24. On the other hand, learned Public Prosecutor supported the findings of learned Sessions Judge and argued that although it is a case of circumstantial evidence but still in view of special circumstances of the case wherein death of a person under illegal detention in police station has taken place and the dead body is not traced, the case cannot be thrown out merely on the ground that dead body was not traced when other evidence clinchingly establishes that the deceased Radhey Shyam met his death at the hands of accused. 25. According to him, there is sufficient evidence to prove that the appellants have caused injury on the person of Radhey Shyam in custody and they illegally detained him without entering his detention in the police record so as to extort confession. He was detained and after committing the murder, 14 his body was burnt in the early hours of 7.5.99 at the cremation ground situated near the police station itself. 26. We have considered the rival contentions advanced by the learned counsel for all the appellants as well as by learned Public Prosecutor and have minutely scanned through the material on record. The case law cited by both the parties was also considered. 27. The brief facts necessary for the disposal of these appeals are as follows:- 28. Criminal case no.65/99 was registered in PS- Gangdhar with regard to a theft wherein the deceased Radhey Shyam, PW-1 Balu and PW- 11 Lalu were the suspects and on receiving the information, about their being in Shahjahanpur, the accused Raju Singh, the then Incharge, Police Station sent PW-7, PW- 9, Constables No. 481 & 222 along with Constable Dalip Singh No.665 to bring Radhey Shyam, Lalu and Balu for the purpose of investigation in the said case. Necessary entry of their departure was made in Roznamcha. 15 29. As per the prosecution case, deceased Radhey Shyam, PW-1 Balu and PW-11 Lalu were brought for the purpose of interrogation of the said case on the evening of 5.5.99 to PS-Gangdhar and were produced before the accused-appellant Raju Singh, who was Incharge of PS-Gangdhar. Entry of return of these constables was also made in the Roznamcha on 5.5.99 but the suspects brought were not entered and on the asking by constables, the Incharge told them that it will be recorded later and thus although they were put in the lockup but their arrest was not officially recorded. 30. PW-1, PW-11, PW-38, PW-39, PW-7 & PW-9 are the witnesses for the fact that the deceased Radhey Shyam was brought on 5.5.99 and handed over to the Incharge Raju Singh accused. PW-38 & PW-39 who were in police custody on 5.5.99 in some other case claim to had seen the deceased Radhey Shyam Darji resident of Bajpur in the lockup whom they knew from before. 31. The prosecution alleges that during Radhey Shyam's illegal custody at PS- 16 Gangdhar on the night of 6.5.99, accused appellants hereinabove, assaulted the deceased by using Patta which was noticed by PW-1 & PW-11 (the other two suspects brought with him). Besides these persons, other staff of police station Gangdhar had also witnessed that accused-appellants Rajesh, Khem Singh and Kailash Chand took deceased Radhey Shyam to the room of accused Raju Singh, Incharge of said police station on the night of 6.5.99 and that Radhey Shyam Darji was severely beaten by the accused persons in the closed room of the Incharge to the extent that he died and his body was taken in the government jeep and was burnt. 32. It appears that for four days nothing happened but some public spirited person got a scent of it that some accused has died in Police custody and an anonymous letter was received by PW-67. The superintendent of Police who ordered preliminary enquiry to be conducted by Dy.SP PW-10 who, on verifying the facts of the matter registered the case. 33. As is clear from above it is an unfortunate case of custodial death of a 17 person who is stated to had been illegally detained in Police custody for the purpose of interrogation of Criminal case No.65/99. the accused involved are all Police officials and custodial death is a serious matter but, nonetheless, we have to examine the matter objectively though keeping in mind that the accused involved in all the three appeals are none else than the Police officers and the investigation was being undertaken by their colleagues only. This aspect cannot be lost sight of that the accused involved in the present appeals are nobody else but the colleagues of another investigating agency. 34. It is common knowledge that atrocities within the precincts of the police station are often left without any ocular or other direct evidence to prove who the offenders are. In such cases the principles of law enshrined in Sec.6 being Res gestae and Section 106 of Indian Evidence Act come into play and the facts which may not be facts in issue become relevant if they form part of the same transaction & the burden shifts on the person to explain the facts which are exclusively in his knowledge. 18 35. Admittedly it is a case of circumstantial evidence. In the above background various circumstances need to be looked in the light of legal principles in this regard so as to see as to whether the case of Prosecution stands proved against the accused or not and whether the chain of circumstances is completely established to show that it is the accused only who are guilty and none else. 36. So far as the circumstance which pertains to the production and detention of deceased in Police Station Gangdhar on 5.5.99 is concerned, there is direct evidence of PW-7,PW-9, PW-I,PW-11, PW-38 and PW-39 besides the roznamcha entry of three constables going to MP for the purpose of bringing suspects and returning on the evening of 5th May 99. It is not in dispute that Radhey Shyam was one of the suspects in Criminal Case No 65/99 and the Police of Gangdhar, on receiving the information of the suspects being in Barod, instructed constables PW-7, PW-9 and one Dilip Singh,to bring them for interrogation. 19 37. PW-7 who was the constable in Gangdhar Police Station, deposed that he and his two colleagues had been entrusted by the Incharge with the job of bringing the three suspects namely Radhey Shyam, Lalu & Balu from Barod for interrogation of Criminal Case No 65/99 registered in the Police Station. In compliance thereof he and his other two colleagues PW-9 and Dilip constable went to Shahjahanpur and apprehended the three suspects named Balu, Lalu and Radhey Shyam from outside the jail of Shahjahanpur and brought them in the evening of 5.5.99 and handed them over to the accused SHO, Raju Singh. 38. PW-9 was the other constable who had gone with PW-7 and Dilip Singh for the job entrusted by Raju Singh. He has corroborated the statements of PW-7 that they apprehended the suspects Lalu, Balu and Radhey Shyam from near Shahjahanpur jail and not from inside jail and brought them to Gangdhar Police Station and handed them over to Raju Singh Incharge. 20 39. PW-1 and PW-11 are the other two suspects who were brought by PW-7 and PW-9 alongwith Radhe Shyam. They also support PW-7 and PW-9 in this regard and state that they alongwith Radhey Shyam were apprehended and brought by three Police Constables of Gangdhar and on reaching Police Station at night, PW-11 was locked in lockup whereas PW-1 and Radhey Shyam were kept in separate rooms. 40. PW-38 and PW-39 who were in lockup in the Police Station on the night of 5th May 99 and 6th morning, deposed that on that night Lalchand, Balchand and Radhey Shyam were brought in the evening at about 6:30 to the Police Station by constables Tola Ram, Rajesh and Dilip Singh. Further that PW-11 Lal Chand was locked with them in the custody. Next day the witnesses PW-38 and PW-39 were taken to the Court from where they were remanded to judicial custody but they saw Lalchand, Balchand and Radhey Shyam in the Police Station on the sixth morning. 41. In his cross-examination PW-38 stated that he knew Radhey Shyam Darji because he 21 was of village Bajpur where the maternal uncle of the witness lived. 42. PW-39 also claimed that the three suspects brought by the constables on the evening of 5.5.99 namely Radhey Shyam Darji, Balu chamar and Lalu chamar were known to him. 43. PW-8 Head Constable who was in Gangdhar Police Station for wireless training on the 5th of May corroborated the statements of PW- 7 and PW-9 stating that three suspects were brought to Gangdhar Police Station by PW-7,9 and Dilip Singh Constable and produced before the Incharge Raju Singh. 44. PW-40 also corroborates the statements of PW-7,9 and other witnesses when he states that on 5.5.99 PW-7 , PW-9 and Dilip Singh had brought three suspects who, at the instructions of Raju Singh, were made to sit in the Police Station at different places. 45. PW-47 was Sub Divisional Magistrate who conducted an enquiry under Section 176 Cr.P.C, by the orders of District 22 Magistrate, also deposed that on enquiry he found that Radhey Shyam Darji , Balu and Lalu were detained in Police custody without officially recording their arrest. 46. Thus from the statements of these witnesses it is established that the three suspects Balu, Lalu and Radhey Shyam Darji were apprehended from outside of Shahjahanpur jail and were brought to Police Station Gangdhar and were entrusted to the accused Raju Singh in the evening of 5.5.99 and they were kept in Police custody without officially recording the same. 47. During cross-examination these witnesses were not given any suggestion that the suspect brought from Shahjhanpur was Radhey Shyam Chamaar and not Radheyshyam Darjee or that no one as Radhey Shyam was brought to the Police Station, Gangdhar on the 5th of May 99 and detained in the Police custody. 48. Now the next question is whether the prosecution has been able to establish the fact that the deceased Radhey Shyam Darji died during the intervening night of 6th & 7th 23 of May 99 in the police station-Gangdhar. In this regard the evidence of staff on duty on that night is important. 49. PW-7 who was on guard duty from 2.00 pm to 10.00 pm on 6th of May 99 deposed that at about 9.30 pm accused Raju Singh came and asked him to bring Radhey Shyam to his office for interrogation. Since Radhey Shyam had to go to the toilet, he was asked by SHO Raju Singh to bring the other suspect PW-1 Balu, to his room for interrogation. Radhey Shyam was taken to the canteen and by then his shift ended and he handed over the charge of guard duty to PW-8. 50. PW-8 Manna Singh, constable who was on guard duty from 10.00 pm to 2.00 am on the night of 6th May also deposed that when he came for his shift of guard duty, accused Raju Singh had called the suspect Balu who was sitting next to him. Accused Rajesh and Khem Singh took Balu to his office and Raju Singh ordered the witness to wait there. After taking the suspect Balu PW-I in, Raju Singh closed his room and beating was caused upon him for about two hours as the noise 24 could be heard. After about two hours' beating, Balu was brought out in a half-dead condition. 51. After Balu was brought out,