Mehboob Batcha & Ors vs State Rep. By Supdt. Of Police

Mehboob Batcha & Ors. .. Appellant(s)

-versus-

State Rep. by Supdt. of Police .. Respondent

J U D G M E N T

MARKANDEY KATJU, J.

"Bane hain ahal-e-hawas muddai bhi

munsif bhi

Kise vakeel karein kisse munsifi

chaahen"

-- Faiz Ahmed Faiz

1. If ever there was a case which cried out for death penalty it is this one,

but it is deeply regrettable that not only was no such penalty imposed but not

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even a charge under Section 302 IPC was framed against the accused by the

Courts below.

2. Heard learned counsel for the parties.

3. The facts in detail have been stated in the impugned judgment of the

High Court as well as of the trial court and hence we are not repeating the

same here, except where necessary.

4. The appellants are policemen who wrongfully confined one

Nandagopal in police custody in Police Station Annamalai Nagar on

suspicion of theft from 30.5.1992 till 2.6.1992 and beat him to death there

with lathis, and also gang raped his wife Padmini in a barbaric manner. The

accused also confined several other persons (who were witnesses) and beat

them in the police station with lathis.

5. Both the trial Court and the High Court have found the appellants

guilty and we see no reason to disagree with their verdict. To prove the

charges the prosecution examined as many as 37 witnesses, and they have

proved the guilt of the accused beyond reasonable doubt.

6. PW1 Padmini has given her evidence in great detail and we see no

reason to disbelieve the same. We have read her evidence which discloses

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the inhuman and savage manner in which the accused, who were police

personnel, treated Nandagopal and Padmini. We may quote just parts of her

testimony which are as follows :

......."on Sunday at about 1.00 p.m. two policemen came

in an auto to my house. They are A3, A6 and A8. All of

them beat me by lathis on my buttocks. A3 caught hold

of my leg and pulled me saying get into the auto. I ran

outside. Two autos came and in one auto Subramaniam

and Nandagopal were sitting with handcuffs jointly.

Unable to bear pain I sat by their side. The auto went to

Annamalai Nagar police station and they asked me to go

inside and I went inside. A6 beat me up. I was

surrounded by 4, 5 persons who were beating me. At that

time my jacket (blouse) was torn. Some one tore off my

jacket and I do not remember as to who tore off that

jacket. They said `you will not bear any more and go and

sit' I sat in the corner where the Head constable was

sitting earlier. Some time afterwards two women police

came there. Thinking that I would be let off, I stated to

them that I took oleander seeds, for that the women

police gave me water mixed with tamarind and soap and

asked me to drink it. That night myself and the women

police were lying down in the room where the Sub

Inspector of Police was sitting and in the early morning

the women police went out. My husband's sister's

daughter by name Priya gave coffee. I could talk

anything. I ate idly. My husband told me why you are

coming here, I am being tortured by them. I told him that

they would not do anything and they would let you free.

At that time a policeman came and told `what are you

talking to her', and saying so he kicked him and pushed

him down. A6, beat my husband and kept him in the

lock up. Subramani, Kolanchi and Subramaniam were

also in the lock up. Then I was given good meals and my

husband was given waste food. Therefore I gave my

food to Nandagopal. For that A1 said you should take

that food and be good and why did you give it him, by

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saying so he beat me by lathi. In the evening all of them

jointly discussed with themselves saying that each one of

them should give Rs.50/- for giving a party. One police

man asked for what purpose you are giving a party and

one police man whispered some thing in his ear. On

hearing that, he asked were you not born with your

sisters, and saying so he left that place. On Monday at

about 8.00 pm night, Nandagopal was brought out from

the lock up. A6 told that he should see some one has to

remove my saree. He called the accused Kolanchi from

the lock up and asked him to remove my saree. He was

holding my palla, but I was holding it tightly without

leaving it. The said Kolanchi told that he should not pull

it. Immediately the first accused beat him with a lathi.

Then after beating him, he asked him to get to the side of

the open court yard. Immediately A3 came to remove

my saree. A3 removed the entire saree of mine. At that

time I was wearing petty coat and jacket. A1, A3, A6,

A8 and A10 removed my jacket and petty coat and made

me nude. They asked me to run through the court yard

and beat me and I fell down. All the five accused person

one by one embarrassed me and kissed me. Then I fell

down. At that time one said `your private part is big in

size, cannot you bear this pain'. I cried and asked him to

stop beating. At that time some one came there in

connection with a case. They said not to say this to

anyone outside. I wrapped the saree over the body and

sat. At that time two women police came there. I stated

to them what had happened. They said that no one will

beat you hereafter, and I went to lie down along with

them in a room. In the early morning on Tuesday one

Senthil came and brought coffee. Senthil is the son of

my husband's sister. On that evening my husband was

taken outside and brought to the police station along with

Rani, Dandapani. Rani is the younger sister of

Nandagopal. Dandapani is the husband of Rani. When

Dandapani was asked about the tape recorder, he showed

a bill of a shop where he purchased it. For that the police

said `why are you telling a lie'. Yesterday we have

removed the saree of the wife of Nandagopal and saw,

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and it would be proper if we remove the saree of your

wife. At that time there were bleeding injuries on the

back, leg and shoulder of Nandagopal and blood was

oozing out in strips. Police stated like that. My husband

sustained injury on account of beatings by the police A1,

A3, A6, A8 and A10 beat my husband. Then the police

asked Rani and Dandapani to go to their house. On

Tuesday night two women police came to the police

station. They were talking with each other as to whether

any clothes have been brought for staying in the night.

Along with them one male police came and asked

whether they had seen Tamil picture `Sembaruthi'. I

asked them not to leave me alone and asked them to take

me along with them. They said they would not do

anything, by saying so those two women police went out.

I cannot identify those police properly and I do not

remember their names. On Tuesday at about 10.30 pm

my husband Nandagopal was brought to the open court

yard from the lock up. Myself and Nandagopal were

brought to a room opposite to the open court yard. My

husband was kept in a standing position on the wall and

beaten up by them. A6 Dhass pulled out my saree. A10

removed my jacket and petty coat and made me to

become nude and I was beaten and pushed down. My leg

had stuck into a bench and I could not remove it. At that

time the 2nd accused Sub-Inspector of police came to

Annamalai Nagar police station. He said that he would

go first. At that time he used rubber loop at the genital

organ and committed rape on me. A2, A3, A6, A8 and

A10 also raped me forcibly. All of them have used

rubber loop. All of them raped me in the presence of my

husband. At that time my husband Nandagopal requested

them not to do harm to my wife, and leave her. At that

time A6 beat Nandagopal with lathi on his genital part.

He fell down. He asked water by gesture. At that time

after wrapping the saree over my body I took water from

the pot. At that time the said five police men surrounded

me and said if you want to give water to Nandagopal,

you should give a kiss to everyone. Then I gave kisses to

all the five. When I went to take water to my husband,

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they threw it away. That fell down. With an intention to

spoil me again, they pulled me and I said I cannot come

and leave me, by saying so I sat down. When A6 came

and tried to force me, I fell on his leg and bit. On

account of the sexual intercourse, I sustained bleeding

injuries on the breast and genital organ and then I fell

unconscious. When I woke up after regaining

consciousness, the clothes were wrapped halfly. I said I

wanted to see my husband. I was brought outside saying

that my husband was sent to court. One of the policemen

asked me to get into the van. I was kept at Chidambaram

police station. They offered me idli and coffee. I ate it.

One lady police was with me. All the other policemen

went out with lathis. The woman police who was with

me stated that there was students' agitation and some one

was done to death at Annamalai Nagar Police Station. I

wept and then I was left out. I asked the auto man at

Mariamman temple to take me in the auto. He asked me

whether I am the wife of Nandagopal, I said yes. He said

that Nandagopal was done to death by the police and

asked me not to go there. Then I went to court in the

auto. This occurrence was talked in court. Then I went

to Tahsildar's office immediately. I stated what had

happened there. The Officers have gone to take action

and they asked me to be here. I was sitting there. I went

to Annamalai Nagar police station in a Jeep. There was a

crowd there. I cried saying that not only I was raped by

five persons but they also assaulted my husband and done

him to death. One of the police men who raped me was

standing there. I beat him with a chappal. He is A10.

R.D.O. was there. He asked me what had happened and I

said what had happened. I fell down unconscious. Then

I was taken to the hospital. At about 1.00 pm one male

doctor examined me. Then I came to the police station at

Annamalai Nagar and gave my statement. That was

recorded by them. Ex.P.1 is the statement typed by

R.D.O. and obtained my signature therein. Then I went

to the house of my mother in law. Nandagopal was lying

dead. I was weeping. At that time Balakrishnan,

Jankirani and politicians came there. I stated to them

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what had happened. Balakrishnan is the District

Secretary of Communist Party, Janki Rani is the

President of All Indian Madhar Sangam at Chidambaram.

Janki Rani is the wife of Balakrishnan. I gave a petition

to the R.D.O. to send me to the hospital that is Ex.P.2. I

was admitted in the hospital at about 11.00 pm in the

night. On the next day at about 7 or 7.30 am I was

examined by a lady doctor. After coming from the

hospital, on Thursday evening my husband was buried.

On 5.6.1992 I sent a petition to the District

Superintendent of Police. After I came to my house, a

police officer came to my house. I have stated to him

what had happened.".........

7. Padmini also stated :

..........."The two police asked me to come to the rest

room. Then at the same time three police without any

uniform came inside. Then I cried in front of the lock up

where my husband was kept inside saying that are calling

me, but no one to help me. My husband was brought

from the lock to the open court yard with handcuff. I

cried to the police by kneeling down. At that time

Subramaniam asked them not to do anything to my sister

and not to beat my friend. Then they removed the jacket

and saree and made me to become nude in the open yard

and squeezed my breast and bit and the old aged police

hit against my private part with a stick saying that it is

very big and I have to see how long it would go.........

........Five police men came smelling of Brandy in their

mouth. My husband was beaten while he was taken from

the lock up and myself and my husband were kept in a

room where the rice bags were kept. I was made to

become nude. My husband cried to the police with

handcuff to release him. The police kicked my husband

on his chest. You would be alive only tonight and if you

want you can enjoy. By saying so they hit him with gun.

At that time Sub-Inspector stated that others can do only

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if I say because I am the officer here and so I will do first

and other can afterwards, and by saying so he raped me.

I raised a noise saying I am having much pain and asked

him to leave me and the other police men were beating

my husband. My husband asked them to remove the

handcuff put on him. They did not do so. After finishing

the work, Sub Inspector went away and asked others to

do the same and he would see whether anybody is

coming and asked them to finish the work. I was asked

to lie facing up, one of them was holding my leg and

another one was holding the hand and another one was

lying on me and had intercourse with me. Like that all

the five persons spoiled me."..........

8. We see no reason to disbelieve Padmini's evidence. Ordinarily no

self respecting woman would come forward in Court to falsely make such a

humiliating statement against her honour.

9. The learned counsel for the accused referred to some discrepancies in

her evidence, but it is well settled that minor discrepancies cannot demolish

the veracity of the prosecution case. In our opinion there is no major

discrepancy in the prosecution case, which is supported by the evidence of a

large number of witnesses, including injured witnesses, apart from the

testimony of Padmini, who identified the accused in the identification parade

held on 13.8.1992 in Central Jail, Cuddalore. Although A10 was not

identified by her, the High Court has given good reasons for holding him

guilty too, and we agree with the same.

9 10. The Medical Officer who examined Padmini found multiple nail

scratches on her breasts. She complained of severe pain in her private parts.

There were multiple abrasions on her vagina and cervix with discharge of

foul smelling fluids. The chemical analysis of her vaginal smear showed

plenty of pus cells and epithetical cells. The doctors also examined

Subramaniam and Chidambaranathan who were beaten by the accused

policemen with lathis.

11. We have held in Satya Narain Tiwari @ Jolly & Anr. vs. State of

U.P., JT 2010(12) SC 154 and in Sukhdev Singh vs. State of Punjab, SLP

(Criminal) No.8917 of 2010 decided on 12.11.2010 that crimes against

women are not ordinary crimes committed in a fit of anger or for property.

They are social crimes. They disrupt the entire social fabric, and hence they

call for harsh punishment.

12. The horrendous manner in which Padmini was treated by policemen

was shocking and atrocious, and calls for no mercy.

13. The post-mortem report of Nandagopal shows the following injuries :

"I. A rope like ligature mark centre of neck encircling

obliquely upwards. M Right to left neck with knot like

mark on right neck. (Size about "1/2 in width O Rope

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mark). Middle lateral aspect. Underlying skin dry

parchment in colour.

II. An abrasion 1 x 1 cm left cheek.

III. An abrasion 3 x 1 cm right hip anterior.

IV. An abrasion 2 x 1 cm left leg middle anterior.

V. An abrasion 3 x 1 cm right leg middle anterior.

VI. An abrasion 2 x 1 cm left arm shoulder posterior

lower.

VII. An abrasion 2 x 1 cm right arm shoulder posterior

lower.

VIII. An abrasion 2 x 1 cm left elbow antero-medical.

IX. An abrasion 2 x 1 cm right elbow posterior lower.

X. An abrasion 2 x 1 cm right scrotum lower antero-

lateral. No underneath haemotoma injuries are

ante-mortem in nature.

XI. Tongue bitten in between the teeth partially

protruded outside.

The post-mortem certificate contains the final opinion of

the doctor that Nandagopal died on asphyxial death due

to atypical hanging about 10 to 24 hours prior to post-

mortem."

14. The above injuries show the horrible manner in which Nandagopal

was beaten and killed in police custody. In her evidence Padmini stated that

on the evening of Sunday, "Four policemen beat my husband with sticks.

They kicked my husband with boots on his chest." She also stated "At that

time there were bleeding injuries on back leg and shoulder (of Nandagopal)

and blood was oozing out and found in strip form". Even when she was

being raped by the policemen Nandagopal was beaten.

1 15. We are surprised that the accused were not charged under Section 302

IPC and instead the Courts below treated the death of Nandagopal as

suicide. In fact they should have been charged under that provision and

awarded death sentence, as murder by policemen in police custody is in our

opinion in the category of rarest of rare cases deserving death sentence, but

surprisingly no charge under Section 302 IPC was framed against any of the

accused. We are constrained to say that both the trial Court and High Court

have failed in their duty in this connection.

16. The entire incident took place within the premises of Annamalai

Nagar police station and the accused deserve no mercy.

17. In this appeal the appellant no.1 has been given the sentence of 3

years rigorous imprisonment and a fine, while the other appellants have been

given sentence of 10 years rigorous imprisonment with a fine.

18. In the normal course, we could have issued notice of enhancement of

sentence, but as no charge under Section 302 IPC was framed, we cannot

straightaway record conviction under that provision and enhance the

punishment.

19. For the reasons given above this appeal is dismissed.

1 20. Before parting with this case, we once again reiterate that custodial

violence in police custody is in violation of this Court's directive in D.K.

Basu vs. State of West Bengal 1997(1) SCC 416 and we give a warning to

all policemen in the country that this will not be tolerated. The graphic

description of the barbaric conduct of the accused in this case shocks our

conscience. Policemen must learn how to behave as public servants in a

democratic country, and not as oppressors of the people.

21. In D.K. Basu's case this Court observed :

.........."Custodial violence, including torture and death in

the lock-ups, strikes a blow at the rule of law, which

demands that the powers of the executive should not only

be derived from law but also that the same should be

limited by law. Custodial violence is a matter of concern.

It is aggravated by the fact that it is committed by

persons who are supposed to be the protectors of the

citizens. It is committed under the shield of uniform and

authority in the four walls of a police station or lock-up,

the victim being totally helpless. The protection of an

individual from torture and abuse by the police and other

law-enforcing officers is a matter of deep concern in a

free society.

In spite of the constitutional and statutory

provisions aimed at safeguarding the personal liberty and

life of a citizen, growing incidence of torture and deaths

in police custody has been a disturbing factor. Experience

shows that worst violations of human rights take place

during the course of investigation, when the police with a

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view to secure evidence or confession often resorts to

third-degree methods including torture and adopts

techniques of screening arrest by either not recording the

arrest or describing the deprivation of liberty merely as a

prolonged interrogation. A reading of the morning

newspapers almost everyday carrying reports of

dehumanising torture, assault, rape and death in custody

of police or other governmental agencies is indeed

depressing. The increasing incidence of torture and death

in custody has assumed such alarming proportions that it

is affecting the credibility of the rule of law and the

administration of criminal justice system. The

community rightly feels perturbed. Society's cry for

justice becomes louder.

Custodial death is perhaps one of the worst crimes

in a civilized society governed by the rule of law. The

rights inherent in Articles 21 and 22(1) of the

Constitution require to be jealously and scrupulously

protected. We cannot wish away the problem. Any form

of torture or cruel, inhuman or degrading treatment

would fall within the inhibition of Article 21 of the

Constitution, whether it occurs during investigation,

interrogation or otherwise. If the functionaries of the

Government become law-breakers, it is bound to breed

contempt for law and would encourage lawlessness and

every man would have the tendency to become law unto

himself thereby leading to anarchism. No civilized nation

can permit that to happen. Does a citizen shed off his

fundamental right to life, the moment a policeman arrests

him? Can the right to life of a citizen be put in abeyance

on his arrest? These questions touch the spinal cord of

human rights' jurisprudence. The answer, indeed, has to

be an emphatic `No'."..............

(emphasis supplied)

22. Let a copy of this order be sent to Home Secretary and Director

General of Police of all States and Union Territories, who shall circulate the

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same to all police officers up to the level of S.H.O. with a directive that they

must follow the directions given by this Court in D.K. Basu's case (supra),

and that custodial violence shall entail harsh punishment.

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

(Markandey Katju)

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

(Gyan Sudha Misra)

New Delhi:

March 29, 2011