Haricharan & Anr vs State Of M.P. & Ors

Haricharan & Anr. ... Appellant (s)

VERSUS

State of Madhya Pradesh & Ors. ...Respondent (s)

WITH

Criminal Appeal No(s). 582 OF 2003

Nathuram ... Appellant (s)

VERSUS

State of Madhya Pradesh & Ors. ...Respondent (s)

WITH

Criminal Appeal No(s). 583 OF 2003

Ram Ujagar Singh ... Appellant (s)

VERSUS

State of Madhya Pradesh ...Respondent (s)

WITH

Criminal Appeal No(s). 584 OF 2003

Anil Kumar Singh Kushwaha ... Appellant (s)

VERSUS

1

State of Madhya Pradesh ...Respondent (s)

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. These appeals have been filed against the judgment

of the High Court of Judicature of Madhya Pradesh

in Criminal Appeal No. 79 of 1990 whereby the High

Court accepted the appeal of the State of Madhya

Pradesh and convicted the appellants herein for an

offence under Section 304 Part II and sentenced

them to five years R.I. and fine of Rs.5,000/- each

and further convicted the appellants under Section

330 IPC and sentenced them to three years R.I. In

so doing, the High Court reversed the judgment of

the trial court in Sessions Case No. 8 of 1988 dated

7th March, 1989 whereby the appellants were

acquitted of all the offences under Section, 343, 330

and 304 Part II IPC.

2. At that relevant time, all the appellants were police

officers and posted at Police Station Indar, District

Shivpuri. Anil Kumar Kushwaha, appellant in

2

Criminal Appeal No. 584 of 2003 was posted as

the Station House Officer of the aforesaid Police

Station. Ram Ujagar, appellant in Criminal Appeal

No. 583 of 2003 was posted as Head Constable.

Nathuram, appellant in Criminal Appeal No. 582 of

2003 was also posted as Head Constable.

Haricharan and Mazid Hussain, appellants in

Criminal Appeal No. 581 of 2003 were posted as

Constables.

3. Briefly stated the prosecution case, as noticed by

the High Court is that Mathura was called to the

Police Station through Head Constable Ram Ujagar

with regard to the investigation of Crime Case No.

57 of 1983 for offence punishable under Section

457 and 380 IPC. He was interrogated at the Police

Station and was confined in the lock up. While he

was confined in the lock up, he was subjected to

third degree torture. He was given electric shock on

his scrotum with the intention to extort the

confession for the crime of the alleged theft. As due

3

to the torture and electric shocks, condition of

Mathura deteriorated, he was released on 11th

October, 1983. According to the prosecution,

Mathura was unlawfully detained in the Police

Station from 8th October, 1983 till 11th October,

1983. The police had neither made any entry about

his detention in the police records nor about his

discharge.

4. Mathura was handed over to Takhat Singh, PW1

and Parmal Singh, PW16, who took Mathura to his

house. He was looked after by the family members.

However, the condition of Mathura worsened on 13th

October, 1983. Takhat Singh, PW1 alongwith his

brother Amrit Lal sent a private doctor Jagdish

Prasad Soni, PW18 for his treatment. On seeing that

Mathura was unconscious, Jagdish Prasad Soni

advised that he should be immediately taken to

hospital at Shivpuri. Takhat Singh, PW1 brought

him to Shivpuri by bus. He also intimated

Superintendent of Police about the ill-treatment and

4

torture of Mathura by the police personnel at Police

Station Indar. He requested the Superintendent of

Police to ensure that proper medical treatment is

given to Mathura. He also made a request for an

enquiry against the police officers at the aforesaid

police station. Accepting the request made by

Takhat Singh, Superintendent of Police, R.K.

Tripathi, PW28 directed Town Inspector, Shivpuri to

get the injured Mathura medically examined and to

submit his report.

5. PW34, R.P. Upadhyay took Mathura to the District

Hospital at Shivpuri. He was first examined by Dr.

L.D. Vaswani, PW24. Dr. Vaswani found that

Mathura was unconscious but his pulse and

breathing was normal. He admitted Mathura in

hospital and kept him under observation. On 13th

October, 1983 at about 6.10 p.m., condition of

Mathura further deteriorated. At that stage, Dr.

C.M. Tripathi, PW23, who was on casualty duty also

examined Mathura and found Mathura was on the

5

verge of death. He had, therefore, given artificial

respiration, oxygen and extra massage to Mathura.

In spite of following the aforesaid procedures for

about ten minutes, Dr. Tripathi could not revive the

heartbeats of Mathura. He was declared dead at

6.20 p.m. in the evening.

6. The Town Inspector was given intimation of the

death vide Ex.P7 and a request was made for a

postmortem of the dead body. The dead body of

Mathura was examined in the presence of PW1,

Takhat Singh and PW37, Laxminarayan

Kulshreshtha, Sub-Divisional Magistrate.

Panchnama of the dead body (Ex.P3) was duly

prepared. Thereafter, a direction was issued for

performing the postmortem. On 14th October, 1983

at about 11.50 a.m., the postmortem was performed

by Dr. L.D. Vaswani. He found one oval shaped

charring wound on each side of the anterior of the

scrotum. A black charring wound oval in shape 2.5

cm x 3 cm on the right side and a black charring

6

oval in shape 2 cm x 1.5 cm on the left side.

According to this postmortem, no other external

injuries were found. On internal examination, it

was found that arachnoid membrane of the brain

was congested. He also found sub arachnoid

Hemorrhage at the base of the near circle of Willis.

The vessels of the circle were diluted and ruptured.

Haematoma in the substance of the brain at the

middle portion of the brain near base. According to

the report Haematoma was 4 cm. in diameter. Dr.

Vaswani found that the cause of death was coma

caused by intracranial Hemorrhage, which might be

due to hyper tension.

7. After the death of Mathura, FIR was duly registered

against all the appellants. Upon completion of the

investigation, the appellants were put on trial. The

trial court vide its judgment dated 7th March, 1989

acquitted all the appellants of all the charges.

Feeling aggrieved against the judgment of the trial

court, the State of Madhya Pradesh challenged the

7

same by way of an appeal. The High Court by its

judgment dated 1st August, 2002 allowed the appeal

and reversed the findings of acquittal recorded by

the trial court. All the appellants were convicted

and sentenced as noticed above. Aggrieved by the

aforesaid judgment, the appellants have filed the

present four appeals.

8. We have heard the learned counsel for the parties.

9. Mr. K.T.S. Tulsi, learned senior counsel, appearing

in Criminal Appeal No. 582 of 2003 on behalf of

Head Constable, Nathuram submitted that the High

Court committed a grave error in reversing the well

reasoned judgment of the trial court. He relied on a

judgment of this Court in the case of State of Uttar

Pradesh Vs. Nandu Vishwakarama and Ors.1 , to

point out that in reversing the judgment of the trial

court, the High Court has disregarded the principles

within which the High Court was to exercise its

1 (2009) 14 SCC 501

8

appellate powers. In the aforesaid judgment, this

Court notices and reiterates the principles laid

down in the case of Chandrappa Vs. State of

Karnat aka2 , which are as follows:-

"42. From the above decisions, in our

considered view, the following general

principles regarding powers of the appellate

court while dealing with an appeal against an

order of acquittal emerge:

(1) An appellate court has full power to review,

reappreciate and reconsider the evidence

upon which the order of acquittal is

founded.

(2) The Code of Criminal Procedure, 1973

puts no limitation, restriction or condition

on exercise of such power and an appellate

court on the evidence before it may reach

its own conclusion, both on questions of

fact and of law.

(3) Various expressions, such as, "substantial

and compelling reasons", "good and

sufficient grounds", "very strong

circumstances", "distorted conclusions",

"glaring mistakes", etc. are not intended to

curtail extensive powers of an appellate

court in an appeal against acquittal. Such

phraseologies are more in the nature of

"flourishes of language" to emphasise the

reluctance of an appellate court to interfere

with acquittal than to curtail the power of

the court to review the evidence and to

come to its own conclusion.

(4) An appellate court, however, must bear in

mind that in case of acquittal, there is

double presumption in favour of the

accused. Firstly, the presumption of

2 (2007) 4 SCC 415

9

innocence is available to him under the

fundamental principle of criminal

jurisprudence that every person shall be

presumed to be innocent unless he is

proved guilty by a competent court of law.

Secondly, the accused having secured his

acquittal, the presumption of his

innocence is further reinforced, reaffirmed

and strengthened by the trial court.

(5) If two reasonable conclusions are possible

on the basis of the evidence on record, the

appellate court should not disturb the

finding of acquittal recorded by the trial

court."

The same principles were laid down in the case of M.C.

Ali & Anr. Vs. Stat e of Kerala3 .

10. Mr. Tulsi submitted that the High Court would have

been justified in interfering with the order of

acquittal only in case, the High Court had recorded

a conclusion that the findings recorded by the trial

court were perverse and resulted in miscarriage of

justice. It was not in the domain of the High Court

to interfere with the findings of the facts recorded by

the trial court, upon due appreciation of evidence

and recording plausible conclusions. He further

submitted that if two views are possible on the

3 (2010) 4 SCC 573

10

evidence adduced in the case, one pointing to the

guilt of the accused and other to his innocence, the

view which is favorable to the accused should be

adopted. In support of the submissions, learned

counsel relied on Allarakha K. Mansuri Vs. State

of Gujarat4 , and Raghunath Vs. State of Haryana

& Anr.

5 .

11. Mr. Tulsi further submitted that there were

discrepancies between the charges as laid by the

prosecution and medical evidence. According to the

postmortem, injury had been caused within two

days. This, according to Mr. Tulsi, would clearly

rule out the case of torture. Even according to the

prosecution, Mathura had been taken into the

custody on 8th October, 1983 and had been released

on 11th October, 1983. The postmortem was

conducted on 14th October, 1983 at around 11.50

a.m.

4 (2002) 3 SCC 57

5 (2003) 1 SCC 398

11

12. Mr. Tulsi then submitted that the discrepancies

between the oral evidence of the prosecution

witnesses and the medical evidence would clearly

show that the prosecution has failed to prove the

case beyond reasonable doubt. The appellants have

been convicted by the High Court merely on the

basis of assumption and presumptions based on

suspicion. He relied on the observations made by

this Court in Paragraph 31 of the judgment in the

case of Sadashio Mundaji Bhalerao Vs. State of

M aharashtra6 , which are as follows:-

"We are conscious that there is a rise in

incidents of custodial deaths but we cannot

completely dehors the evidence and its

admissibility according to law convict the

accused. We cannot act on presumption

merely on a strong suspicion or assumption

and presumption. We can only draw

presumption which is permissible under the

law and we cannot rush to the conclusion just

because the deceased has died in the police

custody without there being any proper link

with the commission of the crime."

13. Mr. Mahabir Singh, learned senior counsel

appearing for appellants in Criminal Appeal No. 581

6 (2007) 15 SCC 421

12

of 2003, submitted that the appellant Majid

Hussain was a mere constable and he had no role to

play in the illegal custody of Mathura. He has not

been named in the FIR. No specific role has been

attributed to him. He has only been implicated

because he was posted in the police station at that

relevant time. He further submitted that appellant

Haricharan similarly had only been involved in the

entire episode because he was posted as a guard

outside the police station. He submits that no role

is attributed to this appellant inside the police

station. The High Court failed to notice any of the

circumstances, which would clearly show that these

two appellants were innocent victims of the

fortuitous circumstance of having been posted at

the police station at the relevant time.

14. Mr. Nagendra Rai, learned senior counsel appearing

for the appellant in Criminal appeal No. 584 of 2003

submitted that even though the appellant was

posted as the Station House Officer at the relevant

13

time, he has been convicted without any direct

evidence of his involvement in the illegal custody or

alleged torture of Mathura. He submits that no

specific role has been attributed to him. In fact,

PW6, Kamal Singh, who had stated that "Mathura

told him that Nathuram has caused him severe

beatings. At that time, the condition of Mathura

was very serious but he was speaking. I did not see

any injury on his person and even he also did not

show him any injury." In spite of such statement of

PW6, the High Court without any justification

reversed the findings recorded by the trial court.

Learned counsel then submits that the trial court

on examination of the evidence of PW6, Kamal

Singh discarded the same, concluding that he was a

manufactured witness and could not be relied upon.

15. According to Mr. Nagendra Rai, the High court

ignored the settled principle of law that the findings

of fact recorded by the trial court can not be ignored

unless the conclusions have led to a miscarriage of

justice. Learned senior counsel further submitted

14

that there is no evidence on record to show that

Mathura was kept in custody from 8th October,

1983 to 11th October, 1983. In fact, PW6 clearly

stated that "then Mathura was kept in the police

station for about two days". According to Mr.

Nagendra Rai, learned senior counsel that the

custody of Mathura being doubtful, the appellant

can not be connected with the crime of alleged

torture. He then pointed out to a communication

addressed by Dr. K.L. Singh, Chief Medical

and Health Officer, District Shivpuri, Madhya

Pradesh to the concerned Inspector dated 29th

October, 1983. This communication was in the

context of a query regarding the postmortem report

of deceased Mathura, which had been addressed by

the concerned Inspector on 20th October, 1983. It

was stated in this communication that on passing

electric current on scrotum, intracranial

hemorrhage is not possible. The postmortem report

dated 14th October, 1983 clearly stated that "the

cause of death in the case is due to coma caused by

15

intracranial Hemorrhage, which might be due to

hyper tension". It is submitted by Mr. Nagendra Rai

that the two aforesaid facts would clearly raise the

doubt as to whether the injuries were sustained by

Mathura on account of electric shock. Learned

senior counsel pointed out that there is evidence on

the record to show that Mathura was a habitual

drunkard. He was also suffering from some

dangerous disease. He was being treated by Dr.

Jagdish Prasad Soni, PW18 for a number of years.

16. Learned senior counsel further submitted that the

cumulative affect of all the evidence raises a

reasonable doubt about the events as projected by

the prosecution. Learned senior counsel submitted

that the reasoning adopted by the trial court in

Paragraph 20 of the judgment can not be said to be

either perverse or based on no evidence. The

conclusions drawn by the trial court being plausible

conclusions could not have been reversed by the

Appellate Court. Learned senior counsel also

16

reiterated the observations made by this Court in

the case of Sadashio Mundaji Bhalerao (supra)

that suspicion, however, strong can not take the

place of legal proof, even in cases of custodial death.

17. On the other hand, Ms. Vibha Datta Makhija,

learned counsel submits that the judgment of the

High Court does not call for any interference. It is

well within the findings of the appellate jurisdiction

of the High Court. On merits, she submits that in

this case, the prosecution has presented systematic

evidence, in four stages to connect the accused

appellants with the crime. She submits that there

is evidence that :-

i) Mathura was taken to the Police Station.

ii) That he was given electric shocks and he was

taken to the hospital.

iii) The postmortem report clearly shows that the

injuries suffered by Mathura had been caused

as he had been subjected to electric shock.

17

iv) That the death was the direct result of the

torture inflicted on Mathura.

18. According to the learned counsel, in this case, the

medical evidence is the crucial link. She has made

detailed reference to the evidence given by PW23,

Dr. C.M. Tripathi and PW24, Dr. L.D. Vaswani.

Learned counsel submits that the evidence of these

witnesses have been carefully scrutinized by the

High Court. The High Court has also demonstrated

the implausibility of the conclusions recorded at the

trial court. Learned counsel emphasized that there

is clear evidence that Mathura was called to the

police station. He was kept there for two days.

Injuries were caused during that period. Injuries

were torturous in nature. All these facts are

adverted to by PW6. The trial court wrongly

discarded the evidence of this witness. Learned

counsel then submitted that the High Court rightly

relied on the evidence of DW1, Suresh Singh

Sikarwar, who had clearly stated that Mathura had

18

been called to the police station and that he had

been illegally confined.

19. Learned counsel further submitted that the trial

court has not given sufficient attention to the

evidence of the brother PW1, Takhat Singh. It can

not be said that he did not support the prosecution,

merely because he stated that he had no knowledge

about the torture. This witness had not stated that

Mathura was not taken to the police station. Once

it was established that Mathura had been taken to

the police station, it was for the police to explain the

injuries suffered by Mathura. Finally, learned

counsel submitted that in case of custodial death,

normal rules with regard to appreciation of evidence

can not always be made applicable. In support of

her statement, the learned counsel relied on

judgment of this Court in the case of D.K. Basu Vs.

Stat e of West Bengal7 . According to the learned

counsel, the guidelines laid down in this judgment

7 (1997) 1 SCC 416

19

have been flouted by the police totally. She relied

on the judgments of this Court, i.e., State of M.P.

Vs. Shyamsunder Trivedi & Ors.8 and Sahadevan

Alias Sagadevan Vs. State Represented by

Inspector of Police, Chennai9 , in support of the

submission with regard to the manner in which the

evidence has to be appreciated in cases relating to

custodial death. Learned counsel also relied on

Munshi Singh Gautam (Dead) & Ors. Vs. State of

M adhya Pradesh10 .

20. We have considered the submissions made by

learned counsel for the parties. In principle, as a

pure statement of law, Mr. Tulsi is entirely correct

in the submission that the Appellate Court would

not interfere with the order of acquittal, unless the

conclusion recorded by the lower court is held to be

perverse and has resulted in miscarriage of justice.

The Appellate Court would also not interfere with an

8 (1995) 4 SCC 262

9 (2003) 1 SCC 534

10 (2005) 9 SCC 631

20

order of acquittal if two reasonable conclusions are

possible.

21. We also find much substance in the submissions of

Mr. Tulsi, again as a pure statement of law, that

suspicion, no matter how strong cannot form the

basis of a conviction. Even in cases of custodial

death, it is for the prosecution to establish beyond

reasonable doubt a proper link between the accused

and the commission of crime.

22. Similarly, the submissions made by senior

advocates, i.e., Mr. Nagendra Rai, and Mr. Mahabir

Singh cannot be said to be without merit as legal

propositions.

23. We are, however, unable to agree that any of the

appellants could take advantage of any of the legal

submissions made by the learned counsel in the

facts and circumstances of this case. It has become

necessary to remind ourselves of the principles laid

21

down by this Court in the case of D.K. Basu Vs.

Stat e of West Bengal11 . In the aforesaid landmark

judgment, this Court declared that custodial

violence, including rape, torture and death in the

lock up, strikes a blow to the rule of law.

24. It was emphasised that custodial death is perhaps

one of the worst crimes in a civilized society

governed by rule of law. It is aggravated by the fact

that crimes in custody are committed by persons,

who are charged with the solemn responsibility to

protect the fundamental rights of all the citizens.

These crimes are committed under the shield of

uniform and authority within the four walls of police

station or lock up, the victim being totally helpless.

The Judgment further declared that the

fundamental rights under Articles 21 and 22 (1) of

the Constitution required to be jealously and

scrupulously protected. It reiterated the principle

that the expression "Life or Personal Liberty in

11 (1997) 1 SCC 416

22 Article 21 includes right to live with human dignity.

Therefore, it also includes within itself guarantee

against the torture and assault by the States or his

functionaries."

25. The Supreme Court, as the custodian and protector

of the fundamental and the basic human rights of

the citizens, would view with deep concern any

allegation made against the police officials about

custodial crimes. In the present case, we are

dealing with the torture of detenue, resulting in

death. Using any form of torture for extracting any

kind of information, from a suspect was declared to

be "neither right, nor just, nor fair." It was

specifically laid down that though a crime suspect

must be interrogated ---- indeed subjected to

sustain and scientific interrogation -- determined in

accordance with the provisions of law, he cannot,

however, be tortured or subjected to third degree

methods or eliminated with a view to elicit

information or extract a confession. The aforesaid

23

observations of this Court, in our opinion, have

been totally disregarded in the present case.

26. Mr. Nagendra Rai had submitted that there is no

direct evidence of the involvement of Anil Kumar

Singh Kushwaha in the legal custody and alleged

torture of Mathura. He also submitted that no

specific role had been attributed to him. In our

opinion, both the submissions are without any

merit. This submission of Mr. Nagendra Rai is

completely answered by the observations made by

this Court in the case of State of M.P. Vs.

Shyamsunder Trivedi & Ors. (supra). We may

notice here the observations made in Paragraph 16

and 17 of the aforesaid judgment:-

16...............The High Court erroneously

overlooked the ground reality that rarely in

cases of police torture or custodial death,

direct ocular evidence of the complicity of the

police personnel would be available, when it

observed that `direct' evidence about the

complicity of these respondents was not

available. Generally speaking, it would be

police officials alone who can only explain the

circumstances in which a person in their

24

custody had died. Bound as they are by the

ties of brotherhood, it is not unknown that the

police personnel prefer to remain silent and

more often than not even pervert the truth to

save their colleagues, and the present case is

an apt illustration, as to how one after the

other police witnesses feigned ignorance about

the whole matter.

17. From our independent analysis of the

materials on the record, we are satisfied that

Respondents 1 and 3 to 5 were definitely

present at the police station and were directly

or indirectly involved in the torture of Nathu

Banjara and his subsequent death while in the

police custody as also in making attempts to

screen the offence to enable the guilty to

escape punishment. The trial court and the

High Court, if we may say so with respect,

exhibited a total lack of sensitivity and a

"could not care less" attitude in appreciating

the evidence on the record and thereby

condoning the barbarous third degree methods

which are still being used at some police

stations, despite being illegal. The exaggerated

adherence to and insistence upon the

establishment of proof beyond every

reasonable doubt, by the prosecution, ignoring

the ground realities, the fact-situations and

the peculiar circumstances of a given case, as

in the present case, often results in

miscarriage of justice and makes the justice

delivery system a suspect. In the ultimate

analysis the society suffers and a criminal gets

encouraged. Tortures in police custody, which

of late are on the increase, receive

encouragement by this type of an unrealistic

approach of the courts because it reinforces

the belief in the mind of the police that no

harm would come to them, if an odd prisoner

dies in the lock-up, because there would

25

hardly be any evidence available to the

prosecution to directly implicate them with the

torture. The courts must not lose sight of the

fact that death in police custody is perhaps

one of the worst kind of crimes in a civilised

society, governed by the rule of law and poses

a serious threat to an orderly civilised society.

Torture in custody flouts the basic rights of the

citizens recognised by the Indian Constitution

and is an affront to human dignity. Police

excesses and the maltreatment of

detainees/undertrial prisoners or suspects

tarnishes the image of any civilised nation and

encourages the men in `Khaki' to consider

themselves to be above the law and sometimes

even to become law unto themselves. Unless

stern measures are taken to check the malady,

the foundations of the criminal justice delivery

system would be shaken and the civilization

itself would risk the consequence of heading

towards perishing. The courts must, therefore,

deal with such cases in a realistic manner and

with the sensitivity which they deserve,

otherwise the common man may lose faith in

the judiciary itself, which will be a sad day.

27. Keeping in view the aforesaid salutary observations,

we may now examine the question as to whether the

High Court committed an error in reversing the

judgment of acquittal as recorded by the trial Court.

It was the case of the prosecution that Mathura was

suspected of having committed theft. He was,

26

therefore, picked up for interrogation on 8th October,

1983, with regard to a case registered under

Sections 457 and 380 IPC, i.e. lurking house

trespass and theft respectively. He was kept in

custody till 11th October, 1983 at the police station.

The objective of keeping him in custody was to get a

confession from him of having committed the

offence of house trespass and theft. At the relevant

time, Anil Kumar Singh Kushwaha, appellant in

Criminal Appeal No. 584 of 2003 was Station House

Officer of the Police Station Indar. Ram Ujaagar,

appellant in Criminal Appeal No. 583 of 2003 and

Nathu Ram, appellant in Criminal Appeal No. 582 of

2003 were both working as Head Constables.

28. In our opinion, the High Court has correctly

concluded that there is sufficient evidence on record

to prove that Mathura had been taken into an illegal

custody. This fact has been adverted to by PW6,

Kamal Singh. When this witness appeared in Court,

27

he was absolutely terror stricken. He categorically

stated as follows:-

"I will give statement in favour of the accused

persons because if I speak against them then I

will be beaten up in the police station. I am a

poor person. That is why I am so frightened

that if I give the statement against the accused

persons then they will cause loss to me in the

police station. None of the accused persons

came to me asking for giving such a statement.

I feared because my nephew Lalji has been

murdered and we have not been heard

anywhere. (The witness was told that he

would get full protection as per his

requirement. Hence tell all this truth to the

Court)."

29. Upon being given the assurance by the Court, as

noticed above, the witness proceeded to state that

Mathura was his uncle's son. He stated that

Nathuram, appellant No.3, had taken Mathura with

him to the police station. He was kept in the police

station for about two days. Takhat Singh, PW1 and

Parmal Singh, PW16 had brought Mathura from the

police station. He had talked to Mathura when he

came back from the police station. Mathura told

him that Nathuram had given him severe beatings.

This statement clearly shows that Mathura was

28

kept in illegal custody, as claimed by the

prosecution.

30. Apart from Kamal Singh (PW6), it appears that the

other witnesses were also under constant pressure,

not to depose against the police. This is evident

from the fact that virtually all the witnesses turned

hostile and failed to support the prosecution case.

It is noteworthy that Shrikrishna, PW3, Mathura's

brother, his widow and his son did not support the

prosecution version. The terror of the police was

such that even the family members of the deceased

refrained from speaking the truth. Takhat Singh,

PW1, the brother of the deceased Mathura, had

plucked up enough courage to state that the police

had called Mathura to the police station. He,

however, stated that Mathura came back in the

morning. This witness had also stated that the

police had beaten up his brother and he was

rendered unconscious. He had been taken to the

hospital from the Shivpuri Kotwali. He had also

29

lodged a complaint with the Superintendent of

Police, R.K. Tripathi, PW28, as the condition of

Mathura was serious.

31. The fact that Mathura had been tortured and

subjected to electric shock whilst in police custody

is well established by the medical evidence given by

PW23, Dr. C.M. Tripathi and PW24, Dr. L.D.

Vaswani. Dr. Tripathi had clearly stated that he

had found two burn injuries on the scrotum. The

injury on the right side was 2.5 cm x 3 cm. There

was oval shape charring of the skin, which had

become irony. Similar wound was found on the left

side of the scrotum, which was also oval shape and

2 cm x 1.5 cm in dimensions. It was the positive

opinion of Dr. Tripathi that the wounds had been

caused by electric shock. This witness further

stated that as the result of the electric shock, the

brain was found to be congested in aragonite

membrane. He stated that Mathura had died of

Hemorrhage of the vessels of the brain. This

30

witness, in cross-examination, totally ruled out the

possibility that the injuries could have been caused

with hot metal. He has clearly stated that- "It can

be ascertained as to how the burn injuries could

have been caused. When the body is burnt with a

hot object blisters are caused and if the blisters are

absent then the skin at that place squeezes and

below the skin on the raptor and on the muscles

becomes red. Whereas the marks formed by electric

current are black and hard. (The meaning of word

orne is hard). The skin also becomes hard due to

post mortem burns." During the cross examination,

he further clarified that " when low voltage shocks

are given to anyone, as a result of it Brenticoolar

Fredania is caused due to which the heart beats are

increased very much and the speed of the heart

increases. It is wrong to suggest that Intracranial

hemorrhage is not possible due to electric shocks".

This witness also clarified that due to the impact of

electric shocks the blood pressure of Mathura was

increased. In view of the aforesaid, we are unable to

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accept any of the submissions made by the learned

counsel for the parties that Mathura was not

subjected to electric shock.

32. We are of the considered opinion that in accepting

the evidence of PW6 and the medical evidence of

PW23 and PW24, the High Court has not committed

any error. The evidence on the record clearly shows

that death of Mathura was a direct consequence of

the inexcusable and inhuman torture by the police.

The prosecution has proved beyond reasonable

doubt that Mathura was taken to the police station.

Whilst at the police station, he was subjected to

third degree torture. He was given electric shocks

in the scrotum. Such torture was inflicted on

Mathura merely for the purpose of extracting a

confession that he was guilty of the offence of theft.

Upon his release, the police personnel terrorized the

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entire family. This is evident from the fact that the

widow, the son and the brother of the deceased

Mathura, all turned hostile. However, there is

sufficient evidence on the record given by PW6,

PW23 and PW24 to prove beyond reasonable doubt

that Mathura died due to the inhuman torture

inflicted upon him by the appellants.

33. We see no reason to differ with the findings

recorded by the High Court. The appeals are

dismissed.

...................................J.

[B.Sudershan Reddy]

...................................J.

[Surinder Singh Nijjar]

33

New Delhi;

March 9, 2011.

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