RAM CHANDER AND ORS.

STATE OF HARYANA

Mdy 12, 1983

[V. D. TULZAPURKAR AND V. BALAKRISHN'A ERADI, JJ.]

Crlminal Procedure-Appeal against acquittal-While reversing acquittal High Court !Ja:. to deal vo!ith each one of the reasons which prompted trial court to rl!c'Ofd acquittal. ,

The appellants were tried along with one other person for offences under ss. 302 and 323 read with s. 34, I.P.C., as also under ss. 218 and 342, J.P.C_., on allegations that they had taken one Balwant Singh into custody, tortured him to death and thereafter created false evidence with a view to e'scape from legal punishment in connection with tl)e murder of Balwant Singh. The Sessions Judge acquitted all the accused after coming to the conclusion that the prosecution story was highly improbable. He dealt with the prosecution evidence elaborately and gave substantial reasons for rejecting the same. ·

In the appeal preferred by the State, the High Court reversed the acquittal and convicted and sentenced the appellants without dealing with or discussing the reasons given by the Sessions Judge for acquitting them. The High Court was principally influenced by the nature of injuries that had been noticed on the dead body at the time of autopsy. Based on th~ injuries found on the soles and buttocks of the deceased the High Court came to the conclusion that the deceased had. been given a sound beating while he was in police custody. The High Court mentioned that its conclusion had been strengthened by the fact that appeUant No, 2 had, while preparing the inquest report, made a deliberate

effort to minimise the number of injuries sustained by the deceased inasmuch as in column No. 10 thf'reof, injuries on five different parts of the body had been mentioned without giving the actual number of injuries in those parts, while according to the doctor's post mortem report there w¢re 33 external injuries.

Allowing the appea),

HELD : The duty of the High Court while dealing with the appeal against acquittal was quite clear. It should have dealt with each one of the reasons which prompted the trial court to record the acquittal and should have pointed out how, if at all, those r.easons were wrong or incorrect. Without undertaking such exercise the High Court could not reverse the acquittal. . .

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The High Court was clearly in error in solely [relying upon the nature of some: or the injuries for drawing the conclusion that the c; Jceasec; J ptust havo

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been.nssnultcd by the appellant in c~1 tody. n oing so, the H igh Court indulged in coojcctures and surmises:;. There . were only two injuries which could 'properly be regarded as injuries on. the soles of the two feet of the ·

deceased whicH may be indicative of the police using third degree methods but the injuries on the buttocks could not be indicative of user of third degree . methods. Apart from injurieS on' the soles and th.e buttocks, there were other: injuries on several other parts of the body which could not be regarded as being necessarily consitent with the assault on the deceased only in police custody.

The criticism made against appellant No: 2 that he made deliberate attempt to minimise the injuries sustained by the deceased while writing column No. 10 of the inquest report also cannot be a'cccptcd. Jt is' quite possible that he may not llave noticed all the injuries or, even aflr noticing them, he may not bave

mentioned in detail all tne injuries tfia~ WCJ C lJrCSCJ; lt on 'the dead body at the time of the inquest. In any event it cnnnot be forgotten that he has broadly indicated five parts of the body on which it has bc:cn stated severn I mjuries

were noticed. His only fault is thot the actual number of injuries were not mentioned but from this nlone it will be difficult to impute the motive that he bad deliberately done so with a view to minimise the number of injuries iustained by the deceased, [2.66 B-HJ . •

· CRIMINAL APPELLATE JuRISDICTION ·: Criminal Appeal No. 584 . of 1976. .. · · · . · '.' ' . · · ·

Appen1 From the Judgment nud Order dated the . 22nd November, 1976 of the Punjab & Haryana High. Court in Criminal Appeal No. 501 of 1973.

Prem 'Malhotra for the Appellants. . .

R.N. Poe/dar for the Respondent. .. : .

The Judgment of the Court was delivered by.

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TuLZAPURKAR, J. The thrc . appellants afongwith one Ram Kishan (since acquitted) were tried foe offences under ss. 302 and . . . 323 read with s. 34 I.P.C. as also under ss. 218 and 342 I.P.C.· before the learned Sessions Judge, Karnnl in Sessions Cnse No. 3 of 1973 but the learned Sessions Judge on an appreciation of the evidence Jed QY the prosecution as well as by the defence acquitted them of all the charges on the ground that the prosecutjon had f.'lilcd to prove the offences charged. Tho State of lfaryana pref"crred an appeal being Criminal Appeal No. 501 of 19?3 to the High Court challenging the said acquittul and the High Coi1rt by its judgment and order dated 22nd Novmber, 1976 allowed the State appeal so far as the ln.'e appe1Iant5 before us are conc, erncd, but confirmed the acquittal or

a!ll Khhan. The Hih Court convicted the appellants under s. 302

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. . ·. RAM CHANDER V. J{ARYANA (Tu/zqpurkar. J.) 259

read .with s. 34 I.P.C .. and sentenced each of them to St, Iffer unprison ... ment. for life and further convicted . the .fir$-t two . appellants -(Ram_ Chander and Ch_and-Ram) under$. 218 .I.P, C. and -sentenced -. . them to. suffer rigorous . imprisonment .. for ! two . years . each; . . the substantive sentences were . directd to run .concurrently . .. In _other wordst so far. as the three.appllants are concerned, hejr acquittal has been" reversed and the' question in:. this appeal .. is whtllr . te slligh Court is right in that behalf •... · ·. · · · ' . . .

. / . .. The prosecution case against th~ three ppellants and Ram ._ iJGshan may briefly be stated :.as follows • .. ~Ram 1Chander. (appellant ·-

No; l) had been posted as a Station 'House Officer, : Police .· Station, . -~ . Sadar Panipat a few days. before ·. the ·. occurrence~· while -appellants ' Nos.'2 and 3 ·(Chand Ram .and .BaJjeetSingh) ' and ; Ram Kisbaii -·-. :were . :working as Assistant Sub Inspector, Head Constable ; and · Constable respectively under him at· that -.Police Station . . According ·.to the prosecution _on. the eyening . of September: 6, 1972, _appellant No.:l summoned some -persons. suspected .of ·:havi(lg._committe, d . a . theft to,'the Police ·_Station; :.Banta (P.W.7) -.on being_ -: summone~ . .. through appellant No. 3 had reached :--the Police .. Station .at , about __,--..._ ~15 p.m while Vir Singh .{P.W.6) .and one . .-.Sukha .. :Sin_gh--·:Wel'e

personally brought :by appellant No. 1 to the Police Station ; at . about 7 p.m.; at about IO p.m. appellants Nos. 2 and 3 and -Ram ~Kisban . . went to the house of Blwant Singh, . the . deceased, . and . prt)cJaimed

. that Balwant Singh was wanted by the appellant No. ~1 at the Police :Station where'upon Joginder . Singh . (P.W.4) . -is , :brother •.and .-other members of his family requested that Balwant -.Singh . should not, be taken to the police station at that odd hour and that they .tbemseies would produce .him _before the S.H .. O. on :the foJlwing , moring _ -qpt . · . their-request went unheeded and reluctantly Balwant Singh 1and :; his . -servant Harnam Singh (PW5) went with tbe -polic~ party in ·-a :tempo

driven by Som Nath (P.Wl4) to ·the ·.police station_..while !Joglnder . 'Singh'(PW4) • .tAmarjeet•Singh(P .. W.l2) another brother :.of •:Balwant

_. Sigh and two othersfollowe, d th~ police arty . on their.· bicycles; .on

"the way the police party told them (the ,. witnesses) . '.to 'go '.back, ; but

~Joginder ; Singh and his compnions 'did not. listen :iand , followed, :the police party righ! up tothe'Police Station.· . Joginde~ :_Singh. (P.W.4) approached appellant-No. 1' and enquired from him about the matter :for which -the: deeeased Balwant :Singh had been summoned .i but ~-~ ·. appellantNo. 1 told him to go backan~ .to makejnquiries ·.about-the..; matter on the -following morning . . According :to.! the .-prosecution further.- within their sisht Bahant Singb_deceased and Hamam Singh

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. SUP.REME COURT 'REPORTS [19~3) 3 s.c.R.

{P.W.S} wer~ taken i~ a room of the police _station where. Moharrir Head Con-stable '(Balwant Singh PW 15) used to sit.· and while . Joginder Singh (P. W. 4) and his companions wer.e stimding just O'utside

- the police 'station they beard the cries of Balwant Singh.deceased who . was' saying that he was innocent and should not be beaten. In short . . . ' " " ' . . . . -. ., . ' accordmg to. tbe prosecution, Balwant Singh wa~ tortured to death by

-B the th.ree appellants arid Ram Kishan_ wh!le he was_iri police. cUstody

onthe night between 6th nd 7th September;-1972~ ·.. ·. . ,

 ':, In the morning at about-6.30 (on eptember 7, 1972) Vir Singh c :{PW6)who came out of the police station told Joginder Singh (PW4) .and· his companions;_ who were stiU waiting. outside the:- polie station, that the three apreliants and Ram Kishan had contiuonsly

.1'1' - • • ; • - , .• beaten Balwant Singh inside the police station for the whole night and ·

·:that he was not sure whether Balwant Singh was alive or 'notcand

__ - . 'that the appeiJants were conspiring to some how or other dispose_ or

, the dead body .. At the instance of Joginder' Singh (PW4), Amarjit D · .Singh (P.W.t2) went to the Sub Division~} Magistrate's Court, Panipat ··

. :and got an appl_icatiori (F:X. PM) drafted and presented it to the Sub

_Divisional Magistrate, who marked it to the Station House Officer, , Sadar Panipat- :(appellant No. 1). for ·eport. Smt.' Harnam Kaur (P.W.t3) mother ofBalwant Singh deceased, after waiting in vain E . '.for; her sons to.come' back ti11 11 a.tri_.- hereself. went to . the police

: ; station•Panipat and met Joginder Sin£h (P\V4)._and others outside the

police station arid after bearing about the beating ofBalwant Singh in the custody of the police station~ at the instance of Joginder Singh (PW 4), she sent a telegram (E.x. PL) Jo the Superintendent of.· Police Karnal to the effecf that Station Home Officer, Sadar Panipat .and five constables and ,.Havildar Baljeet Singh-raided her house on the

... . previous night and took her son Bat want Singh and servanf. Hamam -·: -- ·- Singh {PWS) to the- police station: that Balwant Singh. had, been,. . . , beaten ruthlessly and taken to an unknownplaceand that his Jife was -. ~:, in danger and she prayed for an ear iy action to :save·: the .. preciou~ . G ·. life of Balwant Singh. At abo-ut 7 or 7.30 p.m.· on. Sptember-: 7, . : 1972, Joginder Singh (PW4) contatelDy. S.P~ Iqbal- Singh (P\V16)

and narrated to him all that had happened and Iqbal Singh, assured , ~- hin1 .. that justice would be done in . tlie case~ . By this time it :· had

:become-that Balwant Singh had succinnbd to the injuries received

 H . by him arid therefore; Joginder Singhrequeste.d the Dy. S.P. to have -·

.• ': the autopsy on the dead body dne by Chief Medical Officer: l(aroal.) //

1llsted. of b¥ the Iocal'fvfedical Officer~ . \ ·

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Meanwhile, as per the direction of the' f Sub Divisional Magistrate, endorsed on Ex. PM (Amarjit Singh's application~, appellant No. 1 submitted his report (Ex. DE) on September 9, 1972, stating his version as to what had transpired, which substantially became the defence version at the trial. In his report it was stated that on September 7, 1972 at about 5.30 a.m. Bhim Singh (D.W.2) reported that at night two thieves entered his residential Kotha for committing theft which he noticed on returning from the field and on finding the thieves there he raised an alarm "thief, thief". Both the thieves opened an attack on him with lathis which they were carrying but many persons of the village also gathered there carrying lathis; that one of the thieves who was a Sik~ succeeded in running away while the other was knocked down by the people who . gave him many lathi blows. Later on he was found to be Balwant Singh; consequently a case under s. 458 IPC had been registered at the police station Sadar Panipat on the information given by Bhim Singh (DW2) and that during this operation currency notes worth Rs. 2260/- alongwith one gold ring belonging to Bhim Singh had been stolen; the investigation was still in hand and the search for the second accused was being made.

Appelant No. 1 denied that

.Balant Singh deceased and Harnam S!ngh {PWS) had been asked to attend the police station.

The appellants also pleaded that they were falsely implicated in this case by the complainant and others who were not merely related to and interested in the deceased but were inimical to them, being peop, le of shady character and were aggrieved by the appellant No. 1' s strict surveillance over their illegal activities. AppeHant No. 1 and Ram Kishan also raised pleas of alibi suggesting that on the night in question they were not at police station Sadar Panipat but were away on duty elsewhere and examined defence witnesses to support ther case.

It may be stated_that as desired by the_deceased's .. relatives~. the autopsy on the dead body of Balwant Singh was performed by Dr. P.N. Kapila (P.W.l), Chief Medical Officer, Karnal on September 8, 1972, who noticed as many as 33 external injuries and four internal injuries and opined that the cause of death was shock as a result of multiple injuries which were all ante-mortem and were sufficient in the ordinary. course of nature to cause death collectively.

It was not disputed that Balwant Singh's death was homicidal and those responsible for .assault on him would be guilty of murder. Main question was whether the prosecution discharged the onus of proving convincingly that the, appellants were involved in such assault 'l

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In view of the afore-mentioned rjval versions put forward by the prosecution and the defence; three main questions arose for deter- , iltination :-(a) whether deceased Balwailt Singh was taken to the

Police Station SadarPanipat by tbe appellants Nos. 2 and 3 and Ram Kishan in the tempo driven by Som Nath (P.W.14) on the night"between6th and 7th .. September, 1972? (b) what transpired at the 'Police 3tation, that is to say, whether deceased Balwant Singh --was given a beating by the three appellants and Ram Kishan whilehe

was allegedly in their ctstody? and (c) whether the appellants "patti-· cularly appellant No. 1 reated false evjdence by preparing documents in connection with the theft said to :have been committed in the house of Bhim Singh (DW2) with a view to escape from legal punishment in connectionwith the murder of Balwant Singh? On. the first two points the prosecution mainly relied upon the evidence of Som Nath (P. W~ 14), the.'driver of the tempo, Vir Singh (F•W6), Banta Singh (PW7), Harnam Singh (PW5), Joginder Singh (PW4) and Amarjeet'Singh {PW12), out of whomBanta Singh and Harnam Singhwere said to be 'stamped witnesses' as they had injuries on their. persons allegedly suffered by them at the time of causing injuries to deceased Balwant Singh. On analysing the entire material . on record the learned Sessions Judge came to the conclusion that the

prosection story was highly improbable and that the evidence of the aforesaid witnesses was not reliable. The pleas of a1ibi were accepted and -the defence version'of theft at the house of DW Bhim Singh involving deceased Balwant Singh washeld to be true. Leaving aside the defence case, it .must be observed that he dealt .. with :.the

prosecution eveidence quite elaborately and gave substantial reasons -for rejecting the same. w

As regards Som Nath (P.W. 14), aged about IS. years, who is alleged to have brought Harnam Singh and Balwant Singh in his tempo to the Police Station in the company of-the police officials, the learned Judge found ·.that though the witness asserted that he-was driving the tempo for the last about 5 years, he wa~ nodn poss(ssion of any licence till the-date of his evidence, that it was surprising.how he could remember the date 6th of September, 1972 as the date on which: he brought Balwant Singh in his tempo to thepolice station when he could not remember other dates of other occasions when his tempo had been requisitioned by the police and who were, the . police officials WhO had travelled in his tempo on thoSe occasions

and that'his statement had been recorded by the police aslate as-bn

17th September, 1972 though be was shown_ to have remained in

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. RAM CHANDER v._ HARYANA (Tu/rapurkar, J.) t263

Panipat throughout. For these reasons the learned Judge .was not prepared to accept Som Nath's evidence -and if that .be .so the very :basis of the prosecution story that deceased .Balwant SiJ:gh was taken to the police station on the night in questio~, was kpt in custody there and was assaulted by the appellants, would fall to the.ground ..

As regards the other prosecution witnesses mentioned above, .the learned Judge referred to the admitted position that each one of them had past antecedents and history of shady character to .his . credit and being inimical towards the police attachea to Panipat

Police Station had shown anxiety to involve the Police Officials in the case. With this background he examined their evidence with • _great care and caution and came to th~ conclusion that none of them was worth relying upon and their evidence hopelessly fell short of connecting any of the appellants with the offences charged. The learned Judge further pointed out that in Ex. PM -dt. 7th September, 1972, the earliest application made by Amarjeet Singh (P.W. 12) to the Sub Divisional Magistrate, the names of appellant No. I (Ram Chander) and Ram Kishan had not been mentioned at all and this fact assumed importance especially when it was immediately after getting information abont the assault on .Balwant Singh from Vir Singh (PW 6) in the morning at 6.30 a.m. Amarjit Singh made that application as directed by Joginder Singh (PW 4). The learned Judge further pointed -out that in the telegram Ex. PL sent by Harnam Kaur {PW 13), to the Superintendent of Police, Karnal, it was stated.that S.H.O _Sadar Panipat alongwith five constables and Hawaldar Baljeet Singh had taken away her son Balwant Singh and .servant Harnam Singh to the police station whereas it was never the case of the prosecution that S.H.O. Ram Chander (appllant No.· I) was among those police officials who had gone to the nera of Balwant Singh. In view of these facts and the other material on record the learned Judge came to the conclusion that Ex. PG, the regular First Information Report lodged by Jqginder Singh as late as on 9th Sept, ember, 1972 had been got drafted after holding deliberations and consultations in which detailed allegations were made against the appellants mentioning even the sections of the Penal Code. One more crucial circumstance was referred to by the learned Sessions Judge and that was that Joginder Singh (PW 4), Amarjeet Singh (PW 12) had claimed that theY. had not allowed the dead body of Balwant Singh to be. taken away from the police statio-n and that it was brought out in the OJ.orning in the immediate presence of hundreds of persons and if that were so there should have been no dearth of independent persons~ who could have been examined fo.r

substantiating the prosecution case that at some stage of the other the dead body of Balwant Singh was at the police station but nothing of the kind was done. What is more, Amarjit Singh (P.W. 12) had stated befOre the Dy. S.P. Iqbal Singh (PW 16),. with which._portion he was confronted, that he had seen the dead body of Balwant Singh for the first time at the morgue. The learned Ses&ions Judge, therefore, concluded that there was no satisfactory proof that the dead

body of Balwant Singh had ever remained in the police station of Sadar Panipat either during the night intervening betwcn 6th and 7th September, 1972 or any time subsequently and prior to i.ts post mortem. As regards the two injured witnesses Banta Singh. and Harnam Singh, the learned Sessions Judge pointed out that neither . in Ex. PM dt. 7th September. 1972 the fact that Banta Singh too had received injuries while at poJice station was mentioned and further, since Dr. R. S. Naiyar, who had examined Banta Singh's injuries had stated that Banta Singh could have received those injuries within 3 to 7 days of his examination, which was done on 13th September, 197 2, it could not be pin-pointed with certainty tha't he had rccived tJfose injuries during the night of the occurrence. As regards injuries on Harnam Singh, the learned Judge observed that the possibility of Harnam Singh being the other thief alongwith Balwant Singh durjng the theft that occurred on the night in question at the house of Bhim Singh (D.W. 2) and he being. the thif who had escapc!d on that occasion with minor injuries at the hands of the vilJagers could not be ruled out. It was for this state of evidence and fo:r the reasons indicated above that the learned the appellants of the charge of murder. charge under s. 218 also failed.

Sessions Judge acquitted Consequently, the other

When the matter was taken in appeal by the State, we are surprised to find that the High Court reversed the acquittal without

dealig with or discussing any of the aforesaid reasons given :by the learned Sessions Judge for acquitting the appellants. The High Court, it appears, was principally influenced by the nature of injuries that were noticed by the doctor on the dead body of Balwant Singh at the time of autopsy and in its view some of the ilijuries which • were on the soles and buttocks of the deceased convinced it that the deceased was given a sound beating while he was in police custody.

This is what the High Court has observed in that behalf:

"Injuries Nos. 21, 22, 23, 25, 29, 30 and 31 were on the soles and the buttocks of the deceased. Such injuries

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RAM CHANDER v. HARY, A.NA (futzapurkar, i.) 26)

are sustained by a person when he is subjected to third degree methods by the police. The reason. is obvious.

Injuries inflicted on the soles, unless given continuously for a longer period, do not feave behind tell-tale marks.

This consideration apart~ we have to see . in the light of the two versions before us the probability of the circumstances under which the injuries were sustained by the deceased; assuming while not admitting, that the deceased did go to commit a burglary at the house of Bhim Singh, D.W. 2, and he was knocked down by his co-villagers, it would be wholly improbable on the parf of such villagers to aim their blows at the soles of a fallen thief.

They would much rather break the shin bones of the thief instead of particularly aiming their blows at that part of the body where injuries do not leave any mark. When we asked the learned counsel for the respondep.ts to explain these injuries~ the only explanation w.hich he could put forth was th(lt the deceased could have sus:.. tained them by jumping on to the ground. We are unable to accept this explanation because nature has endowed the human sole with more elacticity than which he is required for jumping about. If a person falls from a height, it is more probably for him to sustain fractures of his ankles and shi~ boes instead of getting redness on the soles. Furthermore, the presence of the contusions on both the oles unmistakably points out to the infliction of injuries thereupon with the help of a small rule which the police men usually carry. We are accordingly con, .. vinced that the decease~ was given these injuries while he was in custody. In fact the deceased was brutally basted, his tongue-was caught in between the teeth, there was bleeding from the right -nostril, mouth and left ear.

There was seminal discharge from the urethera on the posterior surface of the trunk and back of neck. Human beings possssed with the spirit of the devil alone could have caused such injuries."

The High Court has further gone on to observe that its conclusion mentioned in the above quoted portion was strengthened by the fact that when Chand Ram (appellant No. 2) prepared the inquest report he made a deJiberate effort to minimise the number of injuries sustained by the deceased. for, in column No .. 10 of the inquest

[i98l 3 s..c.k.

report injuries on 5 different parts of ihe body were mentioned without giving the actual number of injurjes in those parts, whi_Je according to doctor's post JllOrtem report there were. 33 external injuries.

In our view the High Court was clearly in error in solely relying upon the nature of some of the injuries that were found on the dead body of Balwant Singh for drawing the conclusion that the deceased must have been assualted by the appellant in custody.· In doing so, the High Court has unfortunately indulged in conjectures and surmises. In the first place there were only two injuries, namely, injury No. 22 and'23 which could properly be regarded as injuries on the soles of the two feet of the deceased, which may be indicative of the police using third degree methods but the injuries on the buttocks could not be indicative of user of third degree method:;, for; once a thief is caught by villagers for the purpose of giving a sound

beating he may as well fail flat on the ground and the villagers could give beating on his-buttocks. Moreover, apart froni these injuries on the so1es and the buttocks there were other injuries on several other parts ofthe body, such as fore-head, shoulders, neck, arms, legs, knesJ scalp, etc~ 'The impact of these injuries cannot be ignored an:d these injuriescouldnQt b!' regarded as being nece:; sarily consistent with the assault on the deceased onlY in police custody.

It is thus not possible to agree with the High Court's view which has been expressed thus: "Furthermore, the presence of the contusions on both the soles unmistakably points out t~ the infliction of injuries thereupon with the help of a small rule which the policemen usually carry. We are accordingly convinced that the deceased was given these injuries while he was in custody.', ·

; The criticism made against appellant No. 2 that he made a deliberate attempt to minimise the injuries sustained . by the deceased while '"writing Col. No: 10 .of the inquest report also cannot be accepted. ' It is quite possible that he .may not have noticed aU the , injuries or -even after noticing them h~ may not have mentioned in detail.all the injuries that were present on , the dead body-of Balwant Singh at the time of the inquest. In any event it cannot be forgotton that the appellant No. 2 has broadly indicated 5 parts of the body on which it has been stated several injuries were noticed. The only fault on the part of appellant No. 2 is that the actual number of injuries were not mentioned but 'from this alone it will be diffi.cult to impute the motive that he had deliberateJy done sowith a view to minimise the number of injuries sustained by the deceased . ..

llAM CHANDER v. HARYANA (1'ulzapurkar, 1.) '26?

Apart from these aspects of the High, Court's reasoning, its duty while dealing with the appeal against acquittal was quite clear. it should have dealt with each one of the reasons which prompted the trial Court to. record the acquittal and should have pointed out how, if at all, these rea-sons were wrong or .incorrect. Without undertaking such exercise the High Cout could not reverse the acquittal. We therefore, allow the appeal,-set1aside the conviction recorded by the High Court and restore the appelJan ts' acquittal in respect of the charges levelled agaitrst them, thei( bail bonds are cancelled.

H.L.C.

Appeal allowed.