Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1511 OF 2003

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

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.

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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.

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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.

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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

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