1. The case in hand is a chequered story and the prosecution case unfolds a pathetic chilling and sinister phenomenon whereby the life of a person was eliminated from this worldly scene and consigned to the heavenly abode by putting an end to his innocent life simply in a bid to exercise the powers of Police officials misused by them on the people in custody. The appellants before us are four Police officers of the rank of SHO and constables named Raju singh, Rajesh Kailash and Khem singh who have preferred their respective appeals against the judgment and order dated 20.12.2003 passed by learned Special Judge, SC & ST (Prevention of Atrocities) Court, Jhalawar in Sessions case No.32/2003 (78/2001, 18/2000 & 4/2000), whereby they were convicted for the offences punishable under Section 302/331/348/201 alternatively under Sections 302/331/348/201 read with Section 34 of the IPC and were sentenced as under:- i)For the offence under Section 302/302 read with Section 34 of the IPC with imprisonment for life and a fine of Rs.500/- in default whereof to further undergo three months' simple imprisonment;
ii) For the offence punishable under Section 331/331 read with Section 34 of the IPC with simple imprisonment for three years and a fine of Rs.200/- in default whereof to further undergo simple imprisonment for two months;
iii) For the offence punishable under Section 348/348 read with Section 34 of the IPC with simple imprisonment for one year and a fine of Rs.100/- in default whereof to further undergo one months simple imprisonment; and
iv) For the offence punishable under Section 201/201 read with Section 34 of the IPC with simple imprisonment for two years and a fine of Rs.200/- in default whereof to further undergo two months simple imprisonment. Benefit of Section 428 Cr.P.C. had also been granted to all the four convicts.
2. The facts as culled out by the prosecution are that on 11.5.99 at about 9.45 P.M., PW-10 Sh.Kalu Ram Rawat, the then Circle Officer, Bhawani Mandi submitted a written report Ex.P/11 at police station Gangdhar to the effect that he had received a complaint from the then Superintendent of Police, Jhalawar. The facts mentioned in the complaint were that the accused Raju Singh, the then SHO of P.S.-Gangdhar alongwith his five police employees had illegally detained and beaten three persons namely Radhey Shyam, Balu and Lalu for interrogation for an offence of theft and that one of the three named Radhey Shyam Darji died during the intervening night of 6th & 7th of May at about 3.00 AM at police Station itself whose dead body was burnt at an unknown place on the same night.
3. Further that thereafter the other two persons namely PW-1 Balu and PW-11 Lalu were allowed to go on 8.5.1999. As per PW-10 Kalu Ram Rawat, Dy.S.P., he verified the facts of the complaint and found that on the directions of accused Raju Singh, the then SHO, his three constables Dilip singh No. 665, PW-7 Tola Ram No. 481 and PW-9 Rajesh No. 222 had gone to Shahjahanpur (M.P.) to bring the suspects and Radhey Shyam Darji (deceased), PW-1 Balu and PW-11 Lalu Chamaar were brought to Police Station Gangdhar in the evening of 5.5.99.
4. During late night of 6th of May, deceased Radhey Shyam Darji S/o Ram Lal resident of Bajpur (MP) while in illegal police custody, was tortured and beaten to death by the four accused-appellants mentioned hereinabove along with constable Tej Singh 871 (since acquitted). In order to destroy the evidence, his corpse was taken in the police jeep to an unknown place and was burnt. The matter was not reported to senior officers.
5. PW-10, found prima facie case under Sections 302, 201, 331, 342, & 348 of the IPC against the above four accused-appellants and also against Constable Tej Singh 871 (since acquitted) and ordered for registration of case, whereupon case no.75/1999 was registered and Ex.P-12 FIR was chalked. The matter was handed over to Addl. S.P., CID (CB) Range Cell, Kota, PW-61 Sh.Vinod Kumar Bangad who, after investigation, filed the charge-sheet against the five accused persons.
6. On committal of the case to the Court of Sessions, charges under Sections 302, 331, 348, 201 in the alternative under Sections 302, 331, 348, 201 read with Section 34 of the IPC were read over to the accused which they denied and claimed trial.
7. In order to prove its case, prosecution examined as many as 73 witnesses and exhibited 80 documents. Accused persons when examined under Section 313 Cr.P.C, pleaded innocence without giving specific explanation with regard to the death of Radhey Shyam Darji in police station.
8. In defence, they examined six witnesses including the accused-appellant Raju Singh and others namely Ram Vilas (DW-1), Dinesh (DW-2), Rajesh Mathur (DW-3),Mukim Kham (DW-4) and Bhanwar Singh (DW-6). Accused appellant Raju Singh, the then SHO, PS-Gangdhar examined himself as DW-5. Documentary evidence in the form of Ex.D/1 to Ex.D/13 was also filed.
9. Learned Trial Court, after perusing the record and considering the arguments of both the parties and appreciating the material placed before it, recorded the finding of conviction of the present four appellants for the offences mentioned herein above; whereas the 5th accused namely Tej Singh, Constable 871 was acquitted of all the charges for want of evidence against him.
10. The appellants before us are accused Raju Singh SHO, constables Kailash Chand No.227 Rajesh Kumar No 566 and Khem Singh No. 774 who are represented through their respective Counsel.
11. Shri R.K.Mathur learned Counsel arguing on behalf of all the appellants contended that the cardinal principle of law is that the Prosecution must prove its case beyond reasonable doubt. Very seriously it was contended by him that most of the circumstances, relied upon by the learned Trial Court, have not been proved beyond reasonable doubt. it would be hazardous to presume that Radhey Shyam had died because of alleged beating given to him by the appellants i.e. assuming that such an incident did take place in the police station on the intervening night of 6.5.99 and 7.5.99 as there was no corpus delicti.
12. The argument of learned counsel in this regard was that where the corpus delicti was not found, there should be some acceptable evidence produced by the prosecution to prove that death of the person was in fact caused and the accused persons are directly responsible for causing such death.
13. Sh.Mathur argued that the prosecution should establish by link evidence that Radhey Shyam Darji had actually died because of the acts of the appellants without which there can be no conviction for an offence under Section 302 IPC.
14. Elaborating this contention, learned counsel further argued that there is absolutely no evidence whatsoever to hold that by the so-called attack on the deceased Radhey Shyam in the police station, he had died or that the injury caused, if any, on Radhey Shyam by these appellants, was sufficient in the normal course to cause death. It was contended that even the prosecution witnesses in particular PW-8 claim to have seen Radhey Shyam alive in the police station and this fact is supported by the evidence of PW-52 to show that Radhey Shyam was sitting in Verandah asking for water and was complaining of stomach-ache. Therefore, it is his contention that deceased could not have died because of alleged beating suffered by him in the police station.
15. His argument was that appellants had been charged for voluntarily causing grievous hurt and confining him in custody so as to extort confession of a crime and for causing death of Radhey Shyam Darji in police custody whereas there was nobody to say that Radhey Shyam Darji was, in fact, in their police custody because the person who was released from Shahjahanpur jail in the morning of 5.5.99 by the orders of the Court, after attestation of bail and after the entries in the Shahjahanpur jail register, was Radhey Shyam Chamaar and not Radhey Shyam Darji. Relying on some prosecution as well as defence evidence, it was argued that no one as Radhe Shyam darji was brought from Shahajahanpur jail to PS-Gangdhar as the three accused released from Sahajahanpur jail were Balu Chamar, Lalu Chamar and Radhey Shyam Chamar.
16. It was further contended that the evidence of prosecution witnesses cannot be accepted for various reasons. For example, Pw-38 Natwar Singh and PW-39 Rajendra Singh were accused in a double murder case and were in police custody and they expected some special favour from the accused Raju Singh, Incharge police station Gangdhar which was not given. Further that the investigation of that case had been carried out by the police, therefore, they had every reason to implicate the police, including the appellants, falsely.
17. It was alleged that their evidence is not corroborated in any manner by any other evidence, therefore, it was not safe to rely on their evidence.
18. With regard to the statements of PW-7,8,9,11,14,38, 39,40,52 and 57 etc., it was argued that even if their evidence is accepted as true, it would not further the prosecution case in any manner because they are not the eye witnesses and their evidence only shows that Radhey Shyam was seen in the police station on the alleged date of incident and this evidence would not, in any manner, support the prosecution case to base the conviction on the appellants for having committed murder of Radhey Shyam.
19. Argument of learned counsel for Raju Singh was that PW-67 Sh.D.C.Jain, the then Superintendent of Police, had falsely concocted the whole case against him as he was inimical to him. He contended that when Radhey Shyam Darji was not brought for any interrogation, then where does the question of Radhey Shyam Darji being murdered in the police custody arise, more so, when the factum of death of Radhey Shyam is highly doubtful.
20. Next argument advanced by him was that from the prosecution case, it is clear that incident allegedly took place on the intervening night of 6.5.99 and 7.5.99 whereas the case was registered on 11.5.99 at 9.45 pm by PW-10 on the basis of an anonymous letter stated to have been received by PW-67, Superintendent of Police, who himself could not say with certainty as to whether anonymous letter was received by post or otherwise. Further that letter Ex.P-9 itself shows that it was obtained at the instance of Superintendent of Police himself so as to settle his scores with the Incharge Raju Singh, one of the appellants herein above.
21. Last argument of Shri R.K.Mathur, learned counsel for the appellant was that there were material contradictions, discrepancies and embellishments in the statements of prosecution witnesses and that PW-6 was a planted witness. Further that so called recovery of half burnt flesh and bones cannot establish any link evidence as the prosecution has not proved as to whose burnt flesh or bones they were.
22. Shri N.C.Chowdhary learned counsel arguing on behalf of appellant Kailash Chand contended that there is no evidence to establish the identity or presence of appellant Kailash as there were three persons by the name of Kailash in the Police station. Further that PW-8 was inimical with him because at his instance a departmental inquiry had been initiated against PW-8 hence his evidence cannot be said to be reliable.
23. Shri A.K.Gupta learned counsel for appellant Rajesh Kumar and Shri Z.A Naqvi learned counsel for appellant Khem Singh contended that at the relevant time these two appellants were posted at outpost Chaumehla and not at P.S Gangdhar. Further tha they were on patrolling duty on that night and that they had been falsely implicated.
24. On the other hand, learned Public Prosecutor supported the findings of learned Sessions Judge and argued that although it is a case of circumstantial evidence but still in view of special circumstances of the case wherein death of a person under illegal detention in police station has taken place and the dead body is not traced, the case cannot be thrown out merely on the ground that dead body was not traced when other evidence clinchingly establishes that the deceased Radhey Shyam met his death at the hands of accused.
25. According to him, there is sufficient evidence to prove that the appellants have caused injury on the person of Radhey Shyam in custody and they illegally detained him without entering his detention in the police record so as to extort confession. He was detained and after committing the murder, his body was burnt in the early hours of 7.5.99 at the cremation ground situated near the police station itself.
26. We have considered the rival contentions advanced by the learned counsel for all the appellants as well as by learned Public Prosecutor and have minutely scanned through the material on record. The case law cited by both the parties was also considered.
27. The brief facts necessary for the disposal of these appeals are as follows:-
28. Criminal case no.65/99 was registered in PS- Gangdhar with regard to a theft wherein the deceased Radhey Shyam, PW-1 Balu and PW-11 Lalu were the suspects and on receiving the information, about their being in Shahjahanpur, the accused Raju Singh, the then Incharge, Police Station sent PW-7, PW-9, Constables No. 481 & 222 along with Constable Dalip Singh No.665 to bring Radhey Shyam, Lalu and Balu for the purpose of investigation in the said case. Necessary entry of their departure was made in Roznamcha.
29. As per the prosecution case, deceased Radhey Shyam, PW-1 Balu and PW-11 Lalu were brought for the purpose of interrogation of the said case on the evening of 5.5.99 to PS-Gangdhar and were produced before the accused-appellant Raju Singh, who was Incharge of PS-Gangdhar. Entry of return of these constables was also made in the Roznamcha on 5.5.99 but the suspects brought were not entered and on the asking by constables, the Incharge told them that it will be recorded later and thus although they were put in the lockup but their arrest was not officially recorded.
30. PW-1, PW-11, PW-38, PW-39, PW-7 & PW-9 are the witnesses for the fact that the deceased Radhey Shyam was brought on 5.5.99 and handed over to the Incharge Raju Singh accused. PW-38 & PW-39 who were in police custody on 5.5.99 in some other case claim to had seen the deceased Radhey Shyam Darji resident of Bajpur in the lockup whom they knew from before.
31. The prosecution alleges that during Radhey Shyam's illegal custody at PS-Gangdhar on the night of 6.5.99, accused appellants hereinabove, assaulted the deceased by using Patta which was noticed by PW-1 & PW-11 (the other two suspects brought with him). Besides these persons, other staff of police station Gangdhar had also witnessed that accused-appellants Rajesh, Khem Singh and Kailash Chand took deceased Radhey Shyam to the room of accused Raju Singh, Incharge of said police station on the night of 6.5.99 and that Radhey Shyam Darji was severely beaten by the accused persons in the closed room of the Incharge to the extent that he died and his body was taken in the government jeep and was burnt.
32. It appears that for four days nothing happened but some public spirited person got a scent of it that some accused has died in Police custody and an anonymous letter was received by PW-67. The superintendent of Police who ordered preliminary enquiry to be conducted by Dy.SP PW-10 who, on verifying the facts of the matter registered the case.
33. As is clear from above it is an unfortunate case of custodial death of a person who is stated to had been illegally detained in Police custody for the purpose of interrogation of Criminal case No.65/99. the accused involved are all Police officials and custodial death is a serious matter but, nonetheless, we have to examine the matter objectively though keeping in mind that the accused involved in all the three appeals are none else than the Police officers and the investigation was being undertaken by their colleagues only. This aspect cannot be lost sight of that the accused involved in the present appeals are nobody else but the colleagues of another investigating agency.
34. It is common knowledge that atrocities within the precincts of the police station are often left without any ocular or other direct evidence to prove who the offenders are. In such cases the principles of law enshrined in Sec.6 being Res gestae and Section 106 of Indian Evidence Act come into play and the facts which may not be facts in issue become relevant if they form part of the same transaction & the burden shifts on the person to explain the facts which are exclusively in his knowledge.
35. Admittedly it is a case of circumstantial evidence. In the above background various circumstances need to be looked in the light of legal principles in this regard so as to see as to whether the case of Prosecution stands proved against the accused or not and whether the chain of circumstances is completely established to show that it is the accused only who are guilty and none else.
36. So far as the circumstance which pertains to the production and detention of deceased in Police Station Gangdhar on 5.5.99 is concerned, there is direct evidence of PW-7,PW-9, PW-I,PW-11, PW-38 and PW-39 besides the roznamcha entry of three constables going to MP for the purpose of bringing suspects and returning on the evening of 5th May 99. It is not in dispute that Radhey Shyam was one of the suspects in Criminal Case No 65/99 and the Police of Gangdhar, on receiving the information of the suspects being in Barod, instructed constables PW-7, PW-9 and one Dilip Singh,to bring them for interrogation.
37. PW-7 who was the constable in Gangdhar Police Station, deposed that he and his two colleagues had been entrusted by the Incharge with the job of bringing the three suspects namely Radhey Shyam, Lalu & Balu from Barod for interrogation of Criminal Case No 65/99 registered in the Police Station. In compliance thereof he and his other two colleagues PW-9 and Dilip constable went to Shahjahanpur and apprehended the three suspects named Balu, Lalu and Radhey Shyam from outside the jail of Shahjahanpur and brought them in the evening of 5.5.99 and handed them over to the accused SHO, Raju Singh.
38. PW-9 was the other constable who had gone with PW-7 and Dilip Singh for the job entrusted by Raju Singh. He has corroborated the statements of PW-7 that they apprehended the suspects Lalu, Balu and Radhey Shyam from near Shahjahanpur jail and not from inside jail and brought them to Gangdhar Police Station and handed them over to Raju Singh Incharge.
39. PW-1 and PW-11 are the other two suspects who were brought by PW-7 and PW-9 alongwith Radhe Shyam. They also support PW-7 and PW-9 in this regard and state that they alongwith Radhey Shyam were apprehended and brought by three Police Constables of Gangdhar and on reaching Police Station at night, PW-11 was locked in lockup whereas PW-1 and Radhey Shyam were kept in separate rooms.
40. PW-38 and PW-39 who were in lockup in the Police Station on the night of 5th May 99 and 6th morning, deposed that on that night Lalchand, Balchand and Radhey Shyam were brought in the evening at about 6:30 to the Police Station by constables Tola Ram, Rajesh and Dilip Singh. Further that PW-11 Lal Chand was locked with them in the custody. Next day the witnesses PW-38 and PW-39 were taken to the Court from where they were remanded to judicial custody but they saw Lalchand, Balchand and Radhey Shyam in the Police Station on the sixth morning.
41. In his cross-examination PW-38 stated that he knew Radhey Shyam Darji because he was of village Bajpur where the maternal uncle of the witness lived.
42. PW-39 also claimed that the three suspects brought by the constables on the evening of 5.5.99 namely Radhey Shyam Darji, Balu chamar and Lalu chamar were known to him.
43. PW-8 Head Constable who was in Gangdhar Police Station for wireless training on the 5th of May corroborated the statements of PW-7 and PW-9 stating that three suspects were brought to Gangdhar Police Station by PW-7,9 and Dilip Singh Constable and produced before the Incharge Raju Singh.
44. PW-40 also corroborates the statements of PW-7,9 and other witnesses when he states that on 5.5.99 PW-7 , PW-9 and Dilip Singh had brought three suspects who, at the instructions of Raju Singh, were made to sit in the Police Station at different places.
45. PW-47 was Sub Divisional Magistrate who conducted an enquiry under Section 176 Cr.P.C, by the orders of District Magistrate, also deposed that on enquiry he found that Radhey Shyam Darji , Balu and Lalu were detained in Police custody without officially recording their arrest.
46. Thus from the statements of these witnesses it is established that the three suspects Balu, Lalu and Radhey Shyam Darji were apprehended from outside of Shahjahanpur jail and were brought to Police Station Gangdhar and were entrusted to the accused Raju Singh in the evening of 5.5.99 and they were kept in Police custody without officially recording the same.
47. During cross-examination these witnesses were not given any suggestion that the suspect brought from Shahjhanpur was Radhey Shyam Chamaar and not Radheyshyam Darjee or that no one as Radhey Shyam was brought to the Police Station, Gangdhar on the 5th of May 99 and detained in the Police custody.
48. Now the next question is whether the prosecution has been able to establish the fact that the deceased Radhey Shyam Darji died during the intervening night of 6th & 7th of May 99 in the police station-Gangdhar. In this regard the evidence of staff on duty on that night is important.
49. PW-7 who was on guard duty from 2.00 pm to 10.00 pm on 6th of May 99 deposed that at about 9.30 pm accused Raju Singh came and asked him to bring Radhey Shyam to his office for interrogation. Since Radhey Shyam had to go to the toilet, he was asked by SHO Raju Singh to bring the other suspect PW-1 Balu, to his room for interrogation. Radhey Shyam was taken to the canteen and by then his shift ended and he handed over the charge of guard duty to PW-8.
50. PW-8 Manna Singh, constable who was on guard duty from 10.00 pm to 2.00 am on the night of 6th May also deposed that when he came for his shift of guard duty, accused Raju Singh had called the suspect Balu who was sitting next to him. Accused Rajesh and Khem Singh took Balu to his office and Raju Singh ordered the witness to wait there. After taking the suspect Balu PW-I in, Raju Singh closed his room and beating was caused upon him for about two hours as the noise could be heard. After about two hours' beating, Balu was brought out in a half-dead condition.
51. After Balu was brought out, accused Rajesh and Khem Singh took deceased Radhey Shyam to the office of accused Raju Singh and accused Kailash was also taken inside the room. The door of the room was closed and they started beating him with Patta. The witness, as instructed by SHO, stayed outside. According to him at about 1.30 am, the accused Kailash and Khem Singh brought Radhey Shyam to him in a half dead condition and threw him. The words used by the witness are ???? ???? ?????????? ?? ??? ???? . At that time, accused Rajesh was also standing there. The witness made Radhey Shyam drink water and at 2.00 am he handed over the charge to PW-14 and went to his Barrack. In the morning, he came to know that Radhey Shyam died and that his body was burnt by these accused persons and thrown in the well.
52. In his cross-examination he admits that he had left at 2.00 am and he did not know as to what happened thereafter. But according to him, when he left, the deceased Radhey Shyam was alive and he was not seen thereafter. He reiterated that he had heard cries from the office of accused Raju Singh, when Radhey Shyam was being beaten in the room. This witness could not be shattered during his cross-examination. No suggestion was given by any of the accused persons.
53. In this regard as a part of chain of circumstantial evidence of last seen, the statements of PW-14, Narayan lal who was on guard duty in police station on the intervening night of 6th & 7th May, 1999 from 2.00 am to 6.00 am, is very important. He claimed to have taken over the charge at 2:00 am from PW-8 Manna Singh. According to him, PW-8, while handing him over the charge at 2:00 am, informed him about three persons being in custody. Out of whom, one was in the lock up, one in the office and the third one lying outside, was crying in pain complaining of stomachache and was asking for water. The name of that person was later known as Radhey Shyam Darji. According to him, accused Raju Singh was present in police station at that time.
54. This witness further stated that PW-52 Danmal, who was also on night duty, came out at about 3.00 am and seeing the condition of Radhey Shyam Darji, asked the witness to take care of him and make him drink water as his condition was serious. He further deposed that at about 3.30 am, his condition worsened and therefore he went to wake the Head Constable up who, in turn, asked him to wake up the SHO Raju Singh. Thereupon, he went to the SHO's room and informed him about the serious condition of Radhey Shyam Darji. Raju Singh came out and woke up the Head Constable and they spoke something to each other and Head Constable immediately left the police station by motor bike. At that time, Radhey Shyam Darji was very serious.
55. According to him at about 3.45 am, around five minutes after the Head Constable left by bike, Raju Singh asked the witness to wake up accused Kailash & also asked about the keys of the government jeep, which were not with the witness. Then Kailash who was waken up, starting the jeep by push, drove the accused Raju Singh out of police station.
56. After a while, Head Constable came back and went to sleep. About 10-12 minutes later, accused Raju Singh and Kailash came back to the Police station without jeep which was brought by appellants Khem Singh and Rajesh after about 5 minutes. The witness further deposed that accused Khem Singh, Rajesh, Raju Singh and Kailash lifted Radhey Shyam Darji's body as he was unconscious, in the jeep and drove out of the police station.
57. According to this witness, all the four accused came back to the police station after about an hour and on his asking the SHO about Radhey Shyam Darji, he was told to tell the next guard that Radhey Shyam Darji had run away. Thereafter, Rajesh and Khem Singh drove the motor cycle and left police station whereas Raju Singh went to his quarter. Further that his shift was over at 6.00 am and while handing over the duty to the next guard PW-7, he informed that SHO Raju Singh, Kailash, Rajesh and Khem Singh had taken Radhey Shyam Darji unconscious but did not bring him back. According to him at about 2.00 am when he took over the charge from PW-8 Manna Singh, he was informed that during his duty hours also accused Raju Singh, Khem Singh, Kailash and Rajesh had caused severe beatings on the person of Radhey Shyam that night.
58. In his cross examination this witness could not be shattered. He reiterated that at the time when deceased Radhey Shyam Darji was put in his jeep by appellants, he was unconscious.
59. Statements of PW-52 are also very important as he deposed that on 6.5.99 at about 10.00 pm, he was writing the case diary of case no.45/99 and preparing its report in compliance of order of accused Raju Singh. At that time, accused Khem Singh, Kailash, Rajesh and Raju Singh were interrogating in the room of Incharge and noise of beating could be heard from the room of Incharge. He left at about 3.00 am to go home and while leaving, he saw the person crying in pain on account of stomachache and his pant was unbuttoned. He made him drink water and told PW-14 Narayan Singh who was on guard duty from 2.00 am to take care of him and inform the head and Incharge if his condition worsened.
60. Next morning, he came to know from head Constable Tripathi that the person who was crying was Radhey Shyam Darji and that he died in the police station.
61. PW-56 Abdul Latif claims that on the night of incident he was on duty. The accused Raju Singh, Rajesh, Khem Singh, Kailash & Tej Singh were interrogating the accused and he could hear the interrogation. He left at about 2.00 am and in the morning he heard that the person being interrogated in the night died during the interrogation and that his name was Radhey Shyam Darji.
62. PW-57 Banney Singh who was LC in the police station, corroborated PW-7 and PW-9, stating that he had made Roznamcha rapat when PW-7, PW-9 & Dilip Singh Constable had gone to Agar, Barod and on 5th May, 1999, they came back with three suspects but he was asked not to make the entry of the three suspects because SHO had instructed to enter after the investigation. At about 10-11 pm on 6th night when he came, the Incharge along with accused Rajesh, Kailash, Khem Singh and Tej Singh was interrogating a person and later he came to know that the person was Radhey Shyam and that he died of injuries and was burnt.
63. Other important witness is PW-40 Udai Singh who was a driver of Government jeep No.RJ 17C-670. He also deposed that on 5.5.99, PW-7, 9 & 11 had brought three persons who, as per orders of Raju Singh, SHO were made to sit separately in the police station.
64. According to him, he had gone on checking duty with Head constable and other staff at 7.30 pm and returned at about 12.30 mid night. Raju Singh, SHO had not gone with them and he was in the police station. At 12.30 am when they came back, Khem Singh, Raju Singh, Kailash, Rajesh and Tej Singh were beating the accused in the room. He parked the vehicle and went to sleep.
65. He further categorically reiterated that when he went to dug for excise checking duty from 7.30 pm to 12.30 am, Raju Singh, SHO had not gone with them but he made a false entry at rapat no.215 and 219 of Rojnamcha showing that he had also gone with them; whereas he was in the police station. The witness further deposed that at 12.30 am when he parked the car, he wrote the log book and in the morning when he saw the vehicle, it showed that jeep had been driven 20 kms between 12.30 am, and morning when he came on duty, and that he entered this fact in the log book in the morning and this log book entry was correctly written. The witness has further stated that he was told by PW-8 that accused persons had caused beating to Radhey Shyam and other two suspects and Radhey Shyam Darji died in the police custody and that Raju Singh, Khem Singh, Kailash, Rajesh have disposed of his body somewhere.
66. The witness further stated that on 8.5.99, he had seen Lalu and Balu but Radhey Shyam was not there.
67. During his cross-examination, he stated that Raju Singh, SHO used to drive government vehicle and that he had entered in the log book about those 20 kms which was not driven by him after 12.30 am till the morning time.
68. PW-11 Lalu who was one of the suspects with Radhey Shyam Darji also deposed that when Radhey Shyam Darji was being beaten in Raju Singhs room, he heard Radhey Shyam saying ?? ???? ?? ????.
69. The narration given by PW-14 with regard to the different acts, movements, discussion of the accused and also of Head Constable Tripathis assistance to the accused persons, is corroborated by the statements of PW-17 Jiyauddin and PW-59 Satyadev both Head Constables of outpost Chaumehla on duty that night.
70. PW-59 Satyadev HC795 deposed that accused Rajesh, Khem Singh and Danmal (PW-52) were on duty in PS-Gangdhar on that night and that Rajesh & Khem Singh did not come to outpost Chaumehla the whole night. At about 4.30 am Head Constable Tripathi came by motor bike to take Rajesh and Khem Singh. The witness asked him that Rajesh and Khem Singh had just come back from police station why were they needed again. Without answering the witness, Head Constable made Khem Singh sit on the bike saying that he will pick Rajesh from his room who was reported to have gone to his room.
71. In the same manner, PW-17 Jiyauddin also deposed that at about 4-4.30 am on 7th May, Head Constable Tripathi from PS-Gangdhar had come to out post Chaumehla and asked for Rajesh & Khem Singh to which PW-59 replied in his presence that Khem Singh and Rajesh had just come. Khem Singh was sleeping and Rajesh was in his room. Head Constable took Khem Singh on his bike and Khem Singh returned to the outpost Chaumehla at 7.30 am.
72. The above evidence brings on record the facts which are so connected with the fact in issue as to form part of the same transaction, hence become relevant. Section 6 of the Indian Evidence Act which lays down the principles of Res gestae is an exception to the general rule whereunder the hearsay evidence becomes admissible within the provisions of Section 6. The statements here as forming part of Res gestae are contemporaneous with the acts and there is no interval which allows any fabrication. As discussed supra, the principle aptly applies in the present case.
73. Thus from the above statements of witnesses, it is clearly established that Radhey Shyam Darji was one of the three suspects who were brought to Gangdhar Police station and was handed over to the SHO on the evening of 5th May 99. it is also established that on the night of 6th May, said Radhey shyam Darji was taken by the accused persons in the room of Raju Singh for interrogation where beating was caused on his person and he was brought out in a half dead condition at mid night.
74. It is also proved that Radhey shyam, when brought out of the room of Raju Singh, was crying in pain and complaining of stomachache and he was made to drink water by PW-14 the guard on duty as well as by Danmal PW-52. His condition worsened within no time, his crying stopped and he became unconscious.
75. On being informed, the four accused persons put him in the government jeep at about 3:45 am and drove out of the police station. The four accused returned to the Police Station about an hour later without Radhey Shyam Darji and on being asked the SHO told PW-14 to tell the morning guard that Radhey Shyam had fled away from the Police Station.
76. The witnesses claim to have heard that the body of Radhey Shyam was burnt in the early hours of 7th May.
77. From the discussion of evidence made herein above, it can be stated that the prosecution has established that Radhey Shyam Darji was interrogated in Raju Singh's room by four accused and severe beating was caused upon him. He was brought out and thrown in a serious condition and was crying of pain and his voice stopped and his condition worsened within no time and who thereafter was never seen.
78. In these circumstances the accused persons were the best to explain as this fact was specially in their knowledge as to where was Radhey Shyam Darji who was interrogated by them on that night. No explanation was offered by them even during their examination under Section 313 Cr.P.C whereas as per the principle given in Section 106 of the Evidence Act, this fact could exclusively be in the knowledge of the accused who did take him in the room and later lifted in the jeep and drove out of the police station.
79. The chain of circumstances against the accused does not stop here. It goes further when PW-68 who lived in front of cremation ground situated just behind the Police station, claims to have seen a body being burnt at about 4:00 am when he woke up for toilet. It is also pertinent to note that in the normal course dead bodies are never cremated at 4 in the morning i.e before sunrise and after sunset. This is one of the very important circumstances against the accused for which also accused did not offer any explanation as to where was Radhey Shyam Darji's body driven to and what happened to him.
80. Admittedly in the case in hand, corpus delicti was not found and learned counsel for the appellants vehemently argued that the prosecution has failed to prove the case beyond reasonable doubt and accused cannot be convicted of the offence without there being corpus delicti. This argument of learned counsel is not sustainable in the light of principle laid down by Honble Apex Court in the matter of Ram Gulam Chaudhary & ors. v. State of Bihar reported in (2001) 8 SCC 311, which is as under: It is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused are the persons who had committed the murder.
81. Further in the case of Mani Kumar Thapa v. State of Sikkim reported in (2002) 7 SCC 157, Honble Apex Court dealing with a similar case held in para 4 as under:
In a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without a trace. Therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case the accused would manage to see that the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. Therefore, to base a conviction for an offence of murder what is required in law is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced.
82. Although it is a cardinal principle of law that the prosecution has to prove the case against the accused beyond reasonable doubt and any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one, where the record shows that the necessary documentary record was tampered with and police personnel preferred to remain silent or resile from their previous statements so as to help their colleagues or for any extraneous reasons, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellants. In such cases the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the aggrieved party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice. (1998)4 SCC 517
83. In a peculiar case like this, peculiar in the sense that in a case of police torture, rarely there is any direct ocular evidence of the complicity of the police personnel who can explain the circumstances in which a person in their custody had died. The present case is an apt illustration of ties of brotherhood that the police personnel preferred to remain silent and even perverted the truth to save their colleagues because one after the other police witnesses feigned ignorance about the whole matter and also most of the witnesses i.e. PW-15, 16, 18, 19, 20, 35, 37, 41, 51,53,58 & 63 resiled from their previous statements and were declared hostile. But out of 73 witnesses, only 12 were hostile whereas other evidence oral, documentary and circumstantial compels one to draw an irresistable inference against the appellants and the appellants were the only persons who could offer any explanation which they did not.
84. In such circumstances, Section 106 of Indian Evidence Act comes into play because when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Here the fact of Radhey shyam Darji being brought from Shahjhanpur and locked in Police custody is established and he was seen by PW-14 in a very serious condition at 3:00 am and then unconscious in the Police station and was also seen being lifted by the accused persons in the government jeep and driven out of Police Station whereafter he was never seen. In such a situation the burden was on the accused to prove as to what did they do with Radhey shyam Darji, unfortunately no explanation was offered by the accused to discharge this burden.
85. Even during the time of questioning under Section 313 CrPC, the accused-appellants instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating them and connecting them with the crime, adopted adamant attitude of total denial of everything when those circumstances were brought to their notice by the Court.
86. Such incriminating links of facts could, if at all, have been only explained by the appellants, and by nobody else, they being personally and exclusively within their knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed. That missing link to connect the accused-appellants in this case was provided by the blunt and outright denial of every one and all of the incriminating circumstances pointed out which, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of the deceased.
87. In the matter of Ram Gulam Chaudhary & ors. vs. state of Bihar-(2001)8 SCC 311 Honble Apex Court held:-
Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the Section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused appellants, by virtue of their special knowledge must have offered an explanation which might lead the court to draw a different inference.
88. It is pertinent to note that no such attempt was made by the accused. Except emphasizing upon the minor discrepancies with regard to the evidence of stairs or no stairs in the well or delay in lodging the FIR or finding defects in investigation or emphasizing against the connectivity of accused with the link evidence of half burnt flesh and bones and on the unreliability of PW-6, no concrete explanation came in this regard. It is settled by now that it is not every discrepancy or contradiction which matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straight away condemned and their evidence discarded in its entirety.
89. The accused did not give any explanation except pleading innocence. There is convincing evidence to establish that the deceased died because of the injuries inflicted by the accused, the circumstances only lead to an irresistible inference that the police personnel who caused his death have also caused the burning of his dead body. The only inference which can be drawn is that the deceased expired because of the injuries caused by the accused and they must have caused the burning of the body.
90. Another important aspect of this case is the post conduct of the accused, which all the more, establishes the guilt of accused. The evidence of PW-2, PW-3, PW-4, PW-5, PW-6 and PW-12, who are the mother, brother, cousin, uncle and father of the deceased Radhey Shyam Darji, is important. These witnesses have categorically stated that some police walas came to their house in Bajpur and threatened them saying that they should tell the investigating officer that Radhey Shyam Darji died in Bajpur and that he was cremated by them in the village else they will face the same fate as Radhey Shyam.
91. Aforesaid deposition of these family members of deceased Radhey Shyam Darji is corroborated by the evidence of Banney Singh, constable PW-57 who stated that he was told by Raju Singh on the 10th May to accompany him to Radhey Shyam Darji's village Bajpur to inform his family about his death. According to him, he along with two public men who were deceased Radhey Shyam's maternal uncle and brother and one Om Tiwari of Chaumehla as well as PW-52 Danmal Constable went by Marshal jeep and SHO Raju Singh followed them in the other jeep to Radhey Shyam Darji's house in Bajpur (MP) on 10th May and reached there at 11.00 am. They were made to sit in the jeep outside and Raju Singh went to Radhey Shyam Darji's house and that he had also bought some stamp papers on the way to Bajpur from village Taal and got thumb impressions of Radhey Shyam Darji's family members.
92. PW-36 Nathmal Upadhyay, the notary public resident of Taal village has stated that he had notarised the affidavits of PW-12 Ramlal (the father of deceased), PW-4 Prabhulal, PW-5 Gordhan and PW-2 Lila Bai (mother of deceased) which were numbered as 255 to 258 and entered at S.No.79 of his register.
93. This statement of PW-36 is also corroborated by the witnesses PW-2,3,4,5 and 12 who are father, mother, brother, cousin and uncle of deceased Radhey Shyam Darji and claim that they were made to put thumb impression on some papers by police walas in their village.
94. PW-4 (maternal uncle of deceased) claimed that his nephew Gordhan PW-5 had informed him about Gangdhar police personnel visiting his house at 10.00 pm the previous night asking him to depose before the enquiry officer that Radhey Shyam Darji died in Bajpur and was cremated there and also accompany them to Bajpur on the 10th May 99 and according to PW-4 & PW-5, they accompanied the Gangdhar police personnel to Radhey Shyam's house in Bajpur.
95. At this stage, the evidence of PW-23,24,25,26,27,28,29,30,31,32,33 & 34 becomes relevant. All these witnesses are residents of Bajpur (MP) wo have deposed that Bajpur village consists of only 100 families and out of them, 5 to 6 families are Darji by caste. Further that there is only one cremation ground where corpses of all the castes living in that village are cremated. Further that village Bajpur being small, the death taking place in any family is known to and attended by everybody. According to all these witnesses, Radhey Shyam Darji did not die in Bajpur nor was he cremated there. Their evidence corroborates the allegation of PW-2,3,4,5 & 12 that they were threatened by the SHO to depose about Radhey Shyam's death and cremation in the village.
96. Another very important circumstance showing the post conduct of the accused Raju Singh is that he as per PW-1 Balu and PW-11 Lalu, the two suspects gave Rs.100/- and Rs.50/- respectively on the 8th May and asked them to leave the place immediately and not come back. It is a strange act of an SHO to set free the suspects of a criminal case pending investigation especially when they had been brought with considerable effort.
97. Moreover the defence evidence in the form of Ex.D6-A, the roznamcha of out post Chaumehla said to have been written by Jiauddin, is belied by the fact that the direct evidence of all the police personnel on duty in the police station Gangdhar has established that Kailash & Khem Singh were in the interrogation and had gone to outpost in the early morning and after a while were brought back by Head Constable on his bike on Raju Singhs summoning them through the Head Constable, so as to help SHO to dispose of the body. Because as per PW-17 Jiyauddin and PW-59 Satyadev, Head Constable Tripathi had come on bike at about 4-4.30 am and had taken Rajesh and Khem Singh with him. This witness is stated to have told Head Constable Tripathi that Rajesh and Khem Singh had just come back from police station Gangdhar and had gone to sleep but Head Constable Tripathi made Khem Singh sit on the bike saying that he will take Rajesh from his room.
98. This evidence clearly establishes that when Radhey Shyam Darji became serious and unconscious after beating, Raju Singh surrounded through Head Constable Tripathi. The accused Khem Singh & Rajesh who had just gone to outpost Chaumehla, a bit before that, and it shows their attempt to create defence. As is often said men may lie but circumstances do not. Here also, the accused, by their own conduct have established the chain against themselves.
99. As regards PW-6 and the link evidence of half burnt flesh and bones, it can be said that even if this evidence as well as the evidence of PW-6 is ignored, then too in view of the principle laid down in Ram Gulam Chaudhary's case (supra), that the accused can be convicted even if corpus delicti is not found, when there is direct or circumstantial evidence conclusively showing that the victim had died and that accused committed his murder.
100. It is relevant to mention here that the half burnt flesh, bones and blood found on the rear seat of the jeep were sent for serological examination as well as for DNA test but because of there being unknown inhibitors and the DNA obtained from the sources of Exhibits A,B,C were not amenable for analysis because of degradation, comparison could not be made and hence no opinion was given. The prosecution also took blood samples from PW-2 & PW-12, mother & father of deceased but comparison could not be made because of the sample being insufficient. This DNA report was not exhibited and does not help the prosecution in any manner.
101. In the light of discussion made herein above, the conclusion is irresistible that although the truth was attempted to have been obliterated in such a manner so as to screen the real offenders or create doubt about the person put in the dock as accused but there is a clinching evidence of circumstances which establish a complete chain against the accused.
102. Hon'ble Apex Court in catena of judgments and now in celebrated decision in Shri D.K.Basu v. State of West Bengal- (JT) 1997(1) SC, seems to have caused not even any softening approach in dealing with persons in custody. It was observed as under:
The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation 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 suspect and vulnerable. 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 at times by the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would 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 civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under- trial prisoners or suspects tarnishes the image of any civilized 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 of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which, if it happens, will be a sad day, for any one to reckon with.
103. For the foregoing reasons, and in the light of principles of law laid down by Hon'ble Apex Court from time to time, we do not find any illegality or perversity in the judgment and order passed by learned Trial Court, hence we concur with the findings arrived at by learned Sessions Judge and uphold the conviction and sentence awarded to the appellants as mentioned hereinabove.
104. Since the judgment of Trial Court calls for no interference, appeals are without any merit, hence deserve to be dismissed and are hereby dismissed. The appellants are behind the bars. The copy of the order be sent to the concerned and also to the Superintendent of Jail. The record of Trial Court be returned forthwith.