MANIK & ORS. versus THE STATE OF MAHARASHTRA
[2024] 9 S.C.R. 724, Supreme Court of India, 2024
Outcome: Unknown
Segment: Issues
[2024] 9 S.C.R. 724 : 2024 INSC 734
Manik & Ors. 
v. 
The State of Maharashtra
(Criminal Appeal Nos. 1614-1618 of 2012)
25 September 2024
[C.T. Ravikumar* and Sanjay Kumar,* JJ.]
Issue for Consideration
Appellants-convicts are members of the police force and the 
allegation against them is misuse and abuse of their powers, in 
resorting to custodial torture of victim-S and tampering with evidence.
Headnotes†
Penal Code, 1860 – ss.302, 330, 331, 342, 343, 348, 354, 385, 
387, 201, 202, 193 and 218, all r/w. s.34 – Victim-S was taken 
into police custody for interrogation – Allegation that he was 
subjected to third degree torture – Thereafter, a burnt and 
buried body was found in the forest – Body was unidentified – 
Prosecution case that appellants-convicts committed the 
heinous crime and concocted a case to escape the prosecution 
for custodial death – The Trial Court held that prosecution 
succeeded only in establishing charge u/s.304-II r/w. s.34 
against accused A1, A2 and A3 – Other accused were found 
guilty under certain other charges – High Court confirmed 
the conviction and sentences except u/s. 201 r/w. s.34, IPC:
Held: [Per C.T. Ravikumar, J.]: Criminal Appeal No.1614/2012 
stood abated as the sole appellant who was the first accused (A1) 
died on 06.03.2022 – In the instant case, the very case of the 
prosecution is that body recovered from forest area was of 
victim-S – When once identification of the dead body as that of 
victim 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 the dead body is that of victim, either for holding the 
appellant-convicts guilty of the offence u/s. 300, IPC punishable 
u/s. 302, IPC, or under Part -I / Part-II of s.304, IPC – However, 
in view of the findings confirming custodial torture, A2, A3, A4, A5 
convicted are convicted u/ss. 330, 348 and 387 r/w. s.34, IPC – 
All the appellant-convicts acquitted of all the other offences for 
* Author
[2024] 9 S.C.R. 
725
Manik & Ors. v. The State of Maharashtra
which each of them was convicted and sentenced – So, further 
action was required only in respect of A2 to A5 viz., appellants 
in Crl. Appeal Nos. 1617 of 2012, 1618 of 2012 and, 1616 of 
2012, that too in case any sentence remains unserved in view of 
confirmation of conviction and sentence u/ss. 330, 348 and 387 
r/w. s.34, IPC. [Paras 1, 31 and 53] – [Per Sanjay Kumar, J. 
(dissenting)]: Nothing on record to support and substantiate that 
Criminal Appeal No. 1614 of 2012 stands abated as accused A1 
died on 06.03.2022 – There is a major point of divergence in 
views regarding the tracing of dead body and proving to be of that 
person – Permitting the premise that once the dead body is said 
to have been traced and not proved to be of that person, same 
would be fatal to the case of the prosecution, such an 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 victim 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 – Disagreed with 
the conclusion drawn that in the absence of evidence regarding 
the homicidal death of victim-S, the appellants are entitled to 
be acquitted of the charge u/s. 304 Part-II IPC r/w. s.34 IPC, by  
granting
them the benefit of doubt – On the contrary, the convictions 
and sentences of the appellants are maintained, as confirmed by 
the High Court. [Paras 2, 15, 21]
Case Law Cited
In the judgment of C.T. Ravikumar, J:
Central Bureau of Investigation v. Kishore Singh [2010] 14 SCR 
95 : (2011) 6 SCC 369; Noor Aga v. State of Punjab and Anr. 
[2008] 10 SCR 379 : (2008) 16 SCC 417; V. Venkata Subbarao 
v. State [2006] Supp. 10 SCR 729 : (2006) 13 SCC 305; Vishnu 
Dutt Sharma v. Daya Sapra [2009] 7 SCR 977 : (2009) 13 SCC 
729; Iqbal Moosa Patel v. State of Gujarat [2011] 2 SCR 121 : 
(2011) 2 SCC 198; Lord Denning in Miller v. Minister of Pensions 
(1947) 2 All ER 372; Harendra Nath Mandal v. State of Bihar 
[1993] 2 SCR 137 : (1993) 2 SCC 435; Sevaka Perumal & Anr. 
v. State of Tamil Nadu [1991] 2 SCR 711 : (1991) 3 SCC 471; 
Ram Chandra and Ram Bharosey v. State of Uttar Pradesh AIR 
(1957) SC 381; Mani Kumar Thapa v. State of Sikkim (2002) 7
726
[2024] 9 S.C.R.
Digital Supreme Court Reports
SCC 157; State v. Sushil Sharma (2007) SCC OnLine Del 255; 
State of Karnataka v. M.V. Mahesh [2003] 2 SCR 553 : (2003) 
3 SCC 353; Utpal Das & Anr. v. State of West Bengal [2010] 6 
SCR 495 : (2010) 6 SCC 493; Shri Gopal & Anr. v. Subhash & 
Ors. [2004] 1 SCR 1085 : (2004) 13 SCC 174; Paramjeet Singh v. 
State of Uttarakhand [2010] 11 SCR 1064 : (2010) 10 SCC 439; 
Sharad Birdhichand Sarda v. State of Maharashtra AIR (1984) SC 
1622; Dr. N.G. Dastane v. Mrs. S. Dastane [1975] 3 SCR 967 : 
(1975) 2 SCC 326 – referred to.
In the judgment of Sanjay Kumar, J:
State of U.P. v. Ram Sagar Yadav and Others [1985] 2 SCR 
621 : (1985) 1 SCC 552; Bhagwan Singh and Another v. State of 
Punjab [1992] 3 SCR 180 : (1992) 3 SCC 249; Sevaka Perumal 
and Another v. State of Tamil Nadu [1991] 2 SCR 711 : (1991) 3 
SCC 471 – referred to.
Books and Periodicals Cited
Erewhon (1872), a satire by Samuel Butler; Crisis of Indian Legal 
System (1982); Custodial Deaths by P. Srikrishna Deva Rao (National 
Law School Journal. Vol. 6, 1994); Mohammed Ghouse, “State 
lawlessness and Constitution of India: A study of custodial deaths”, 
Comparative Constitutional Law 270 (Mahendra P. Singh ed., 1989).
List of Acts
Penal Code, 1860; Evidence Act, 1872.
List of Keywords
Police Custody; Interrogation; Custodial death; Custodial torture; 
falsus in uno, falsus in omnibus; Destruction of evidence; Mutilation 
of body; Disappearance of body; Corpus delicti;
Benefit of doubt; 
Fingerprint evidence; Identification of dead body; Escape from custody.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 
1614-1618 of 2012
From the Judgment and Order dated 12.07.2011 of the High Court 
of Bombay at Nagpur in CRLA Nos.64, 65, 71,76 and 77 of 1997
[2024] 9 S.C.R. 
727
Manik & Ors. v. The State of Maharashtra
Appearances for Parties
S. Nagamuthu, Sr. Adv., Shivaji M. Jadhav, Ms. Apurva, Brij 
Kishor Sah, Adarsh Kumar Pandey, Vighesh Singh, Advs. for the 
Appellants.
Shrirang B. Varma, Siddharth Dharmadhikari, Aaditya Aniruddha 
Pande, Bharat Bagla, Sourav Singh, Aditya Krishna, Advs. for the 
Respondent.
Judgment / Order of the Supreme Court
Judgment
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, 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,
728
[2024] 9 S.C.R.
Digital Supreme Court Reports
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: -
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.
[2024] 9 S.C.R. 
729
Manik & Ors. v. The State of Maharashtra
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 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,
730
[2024] 9 S.C.R.
Digital Supreme Court Reports
was found in the forest within the jurisdiction of Tirodi police station 
in Balaghat district of the State of Madhya 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 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
[2024] 9 S.C.R. 
731
Manik & Ors. v. The State of Maharashtra
by the High Court under the impugned judgment. Then, serious 
contentions were advanced with respect to the conviction for the 
custodial 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 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 Singh1 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. 
1	
[2010] 14 SCR 95 : (2011) 6 SCC 369
732
[2024] 9 S.C.R.
Digital Supreme Court Reports
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 
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 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
[2024] 9 S.C.R. 
733
Manik & Ors. v. The State of Maharashtra
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 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 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. State3 and in Vishnu Dutt Sharma v. 
Daya Sapra4 cannot go in oblivion. In Noor Aga’s case, this Court 
2	
[2008] 10 SCR 379 : (2008) 16 SCC 417
3	
[2006] Supp. 10 SCR 729 : (2006) 13 SCC 305
4	
[2009] 7 SCR 977 : (2009) 13 SCC 729
734
[2024] 9 S.C.R.
Digital Supreme Court Reports
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.
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 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 
5	
[2011] 2 SCR 121 : (2011) 2 SCC 198
6	
(1947) 2 All ER 372
[2024] 9 S.C.R. 
735
Manik & Ors. v. The State of Maharashtra
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 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. 
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.”
736
[2024] 9 S.C.R.
Digital Supreme Court Reports
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, 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.”
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
[2024] 9 S.C.R. 
737
Manik & Ors. v. The State of Maharashtra
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 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 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
738
[2024] 9 S.C.R.
Digital Supreme Court Reports
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 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.
[2024] 9 S.C.R. 
739
Manik & Ors. v. The State of Maharashtra
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 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 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
740
[2024] 9 S.C.R.
Digital Supreme Court Reports
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 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 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 
7	
[1993] 2 SCR 137 : (1993) 2 SCC 435
8	
[1991] 2 SCR 711 : (1991) 3 SCC 471
9	
 AIR 1957 SC 381
[2024] 9 S.C.R. 
741
Manik & Ors. v. The State of Maharashtra
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 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 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 
10	
 (2002) 7 SCC 157
742
[2024] 9 S.C.R.
Digital Supreme Court Reports
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 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 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 
11	
 2007 SCC OnLine Del 255
[2024] 9 S.C.R. 
743
Manik & Ors. v. The State of Maharashtra
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 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. 
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 
12	
[2003] 2 SCR 553 : (2003) 3 SCC 353
744
[2024] 9 S.C.R.
Digital Supreme Court Reports
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 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 Bengal13 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 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 
13	
[2010] 6 SCR 495 : (2010) 6 SCC 493
[2024] 9 S.C.R. 
745
Manik & Ors. v. The State of Maharashtra
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 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 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 
14	
[2004] 1 SCR 1085 : (2004) 13 SCC 174
746
[2024] 9 S.C.R.
Digital Supreme Court Reports
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.
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 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
[2024] 9 S.C.R. 
747
Manik & Ors. v. The State of Maharashtra
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 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 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
748
[2024] 9 S.C.R.
Digital Supreme Court Reports
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.
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.”
[2024] 9 S.C.R. 
749
Manik & Ors. v. The State of Maharashtra
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 
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 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
750
[2024] 9 S.C.R.
Digital Supreme Court Reports
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 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 Uttarakhand15 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 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 
15	
[2010] 11 SCR 1064 : (2010) 10 SCC 439
16	
[1985] 1 SCR 88 : [AIR 1984 SC 1622]
[2024] 9 S.C.R. 
751
Manik & Ors. v. The State of Maharashtra
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 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. Dastane17:- 
“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 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.”
17	
[1975] 3 SCR 967 : [(1975) 2 SCC 326]
752
[2024] 9 S.C.R.
Digital Supreme Court Reports
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 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-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
[2024] 9 S.C.R. 
753
Manik & Ors. v. The State of Maharashtra
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 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 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
754
[2024] 9 S.C.R.
Digital Supreme Court Reports
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 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 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.
[2024] 9 S.C.R. 
755
Manik & Ors. v. The State of Maharashtra
Judgment
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. 
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 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.
756
[2024] 9 S.C.R.
Digital Supreme Court Reports
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; 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 
1	
[1985] 2 SCR 621 : (1985) 1 SCC 552
[2024] 9 S.C.R. 
757
Manik & Ors. v. The State of Maharashtra
pervert the truth. The result is that, persons on whom atrocities are 
perpetuated by the police in the sanctum 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. 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. 
2	
[1992] 3 SCR 180 : (1992) 3 SCC 249
758
[2024] 9 S.C.R.
Digital Supreme Court Reports
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 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 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 
3	
Erewhon (1872), a satire by Samuel Butler.
[2024] 9 S.C.R. 
759
Manik & Ors. v. The State of Maharashtra
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. 
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 
4	
[1991] 2 SCR 711 : (1991) 3 SCC 471
760
[2024] 9 S.C.R.
Digital Supreme Court Reports
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 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 
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 
5	
Crisis of Indian Legal System (1982)
6	
Custodial Deaths by P. Srikrishna Deva Rao (National Law School Journal. Vol. 6, 1994)
[2024] 9 S.C.R. 
761
Manik & Ors. v. The State of Maharashtra
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 
113th Report (1985) on ‘Injuries in Police Custody’, recommended 
insertion of 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 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.
7	
Mohammed Ghouse, “State lawlessness and Constitution of India: A study of custodial deaths”, 
Comparative Constitutional Law 270 (Mahendra P. Singh ed., 1989).
762
[2024] 9 S.C.R.
Digital Supreme Court Reports
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.
Result of the Case: In view of the divergent of opinion, the appeal 
papers directed to be placed before the Hon’ble 
Chief Justice of India for assigning the same to 
the appropriate Bench.
†Headnotes prepared by: Ankit Gyan