REPORTABL E

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No(s). 581 OF 2003

Haricharan & Anr.                                … Appellant (s)

VERSUS

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

WITH

Criminal Appeal No(s). 582 OF 2003

Nathuram                                             … Appellant (s)

VERSUS

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

WITH

Criminal Appeal No(s). 583 OF 2003

Ram Ujagar Singh                                … Appellant (s)

VERSUS

State of Madhya Pradesh             …Respondent (s)

WITH

Criminal Appeal No(s). 584 OF 2003

Anil Kumar Singh Kushwaha                … Appellant (s)

VERSUS

1

State of Madhya Pradesh                   …Respondent (s) J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. These appeals have been filed against the judgment  

of the High Court of Judicature of Madhya Pradesh  

in Criminal Appeal No. 79 of 1990 whereby the High  

Court accepted the appeal of the State of Madhya  

Pradesh and convicted the appellants herein for an  

offence  under  Section  304  Part  II  and  sentenced  

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

and further convicted the appellants under Section  

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

so doing, the High Court reversed the judgment of  

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

7th March,  1989  whereby  the  appellants  were  

acquitted of all the offences under Section, 343, 330  

and 304 Part II IPC.

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

officers and posted at Police Station Indar, District  

Shivpuri.   Anil   Kumar Kushwaha,  appellant   in  

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Criminal Appeal No. 584 of 2003  was  posted  as  

the  Station House  Officer  of  the  aforesaid  Police  

Station.  Ram Ujagar, appellant in Criminal Appeal  

No.  583  of  2003  was  posted  as  Head  Constable.  

Nathuram, appellant in Criminal Appeal No. 582 of  

2003  was  also  posted  as  Head  Constable.  

Haricharan  and  Mazid  Hussain,  appellants  in  

Criminal  Appeal  No.  581 of  2003 were  posted  as  

Constables.  

3. Briefly  stated the prosecution case,  as noticed  by  

the High Court is that Mathura was called to the  

Police Station through Head Constable Ram Ujagar  

with regard to the investigation of Crime Case No.  

57  of  1983  for  offence  punishable  under  Section  

457 and 380 IPC.  He was interrogated at the Police  

Station and was confined in the lock up.  While he  

was confined in the lock up, he was subjected to  

third degree torture.  He was given electric shock on  

his  scrotum  with  the  intention  to  extort  the  

confession for the crime of the alleged theft.  As due  

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to  the  torture  and  electric  shocks,  condition  of  

Mathura  deteriorated,  he  was  released  on  11th  

October,  1983.   According  to  the  prosecution,  

Mathura  was  unlawfully  detained  in  the  Police  

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

1983.  The police had neither made any entry about  

his  detention  in  the  police  records  nor  about  his  

discharge.   

4. Mathura  was  handed  over  to  Takhat  Singh,  PW1  

and Parmal Singh, PW16, who took Mathura to his  

house.  He was looked after by the family members.  

However, the condition of Mathura worsened on 13th  

October, 1983.  Takhat Singh, PW1 alongwith his  

brother  Amrit  Lal  sent  a  private  doctor  Jagdish  

Prasad Soni, PW18 for his treatment. On seeing that  

Mathura  was  unconscious,  Jagdish  Prasad  Soni  

advised  that  he  should  be  immediately  taken  to  

hospital at Shivpuri.   Takhat Singh, PW1 brought  

him  to  Shivpuri  by  bus.   He  also  intimated  

Superintendent of Police about the ill-treatment and  

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torture of Mathura by the police personnel at Police  

Station Indar.  He requested the Superintendent of  

Police  to  ensure  that  proper  medical  treatment  is  

given to Mathura.  He also made a request for an  

enquiry against the police officers at the aforesaid  

police  station.    Accepting  the  request  made  by  

Takhat  Singh,  Superintendent  of  Police,  R.K.  

Tripathi, PW28 directed Town Inspector, Shivpuri to  

get the injured Mathura medically examined and to  

submit his report.   

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

Hospital at Shivpuri.  He was first examined by   Dr.  

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

Mathura  was  unconscious  but  his  pulse  and  

breathing  was  normal.   He  admitted  Mathura  in  

hospital and kept him under observation.  On 13th  

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

Mathura  further  deteriorated.   At  that  stage,  Dr.  

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

examined Mathura and found Mathura was on the  

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verge of  death.   He had,  therefore,  given artificial  

respiration, oxygen and extra massage to Mathura.  

In  spite  of  following  the  aforesaid  procedures  for  

about ten minutes, Dr. Tripathi could not revive the  

heartbeats of  Mathura.   He was declared dead at  

6.20 p.m. in the evening.   

6. The  Town  Inspector  was  given  intimation  of  the  

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

postmortem of  the dead body.   The  dead body of  

Mathura  was  examined  in  the  presence  of  PW1,  

Takhat  Singh  and  PW37,  Laxminarayan  

Kulshreshtha,  Sub-Divisional  Magistrate.  

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

prepared.   Thereafter,  a  direction  was  issued  for  

performing the postmortem.  On 14th October, 1983  

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

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

charring wound on each side of the anterior of the  

scrotum.  A black charring wound oval in shape 2.5  

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

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

According  to  this  postmortem,  no  other  external  

injuries  were  found.   On  internal  examination,  it  

was found that arachnoid membrane of  the brain  

was  congested.   He  also  found  sub  arachnoid  

Hemorrhage at the base of the near circle of Willis.  

The vessels of the circle were diluted and ruptured.  

Haematoma in  the  substance  of  the  brain  at  the  

middle portion of the brain near base.  According to  

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

Vaswani found that the cause of death was coma  

caused by intracranial Hemorrhage, which might be  

due to hyper tension.   

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

against all the appellants.  Upon completion of the  

investigation, the appellants were put on trial.  The  

trial court vide its judgment dated 7th March, 1989  

acquitted  all  the  appellants  of  all  the  charges.  

Feeling aggrieved against the judgment of the trial  

court, the State of Madhya Pradesh challenged the  

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

judgment dated 1st August, 2002 allowed the appeal  

and reversed the findings of acquittal  recorded by  

the trial  court.   All  the appellants  were convicted  

and sentenced as noticed above. Aggrieved by the  

aforesaid  judgment,  the  appellants  have  filed  the  

present four appeals.            

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

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

in  Criminal  Appeal  No.  582 of  2003 on behalf  of  

Head Constable, Nathuram submitted that the High  

Court committed a grave error in reversing the well  

reasoned judgment of the trial court.  He relied on a  

judgment of this Court in the case of State of Uttar  

Pradesh Vs.   Nandu Vishwakarama and Ors.  1  , to  

point out that in reversing the judgment of the trial  

court, the High Court has disregarded the principles  

within  which  the  High  Court  was  to  exercise  its  

1 (2009) 14 SCC 501

8

appellate powers.  In the aforesaid judgment, this  

Court  notices  and  reiterates  the  principles  laid  

down  in  the  case  of  Chandrappa Vs.  State  of  

Karnataka  2  , which are as follows:-

“42.  From  the  above  decisions,  in  our  considered  view,  the  following  general  principles  regarding  powers  of  the  appellate  court while dealing with an appeal against an  order of acquittal emerge: (1) An appellate court has full power to review,  

reappreciate  and  reconsider  the  evidence  upon  which  the  order  of  acquittal  is  founded.

(2) The  Code  of  Criminal  Procedure,  1973  puts no limitation, restriction or condition  on exercise of such power and an appellate  court on the evidence before it may reach  its  own conclusion,  both on questions  of  fact and of law.

(3) Various expressions, such as, “substantial  and  compelling  reasons”,  “good  and  sufficient  grounds”,  “very  strong  circumstances”,  “distorted  conclusions”,  “glaring mistakes”, etc. are not intended to  curtail  extensive  powers  of  an  appellate  court in an appeal against acquittal. Such  phraseologies  are  more  in  the  nature  of  “flourishes of language” to emphasise the  reluctance of an appellate court to interfere  with acquittal than to curtail the power of  the  court  to  review  the  evidence  and  to  come to its own conclusion.

(4) An appellate court, however, must bear in  mind  that  in  case  of  acquittal,  there  is  double  presumption  in  favour  of  the  accused.  Firstly,  the  presumption  of  

2 (2007) 4 SCC 415

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innocence  is  available  to  him  under  the  fundamental  principle  of  criminal  jurisprudence  that  every  person  shall  be  presumed  to  be  innocent  unless  he  is  proved guilty by a competent court of law.  Secondly, the accused having secured his  acquittal,  the  presumption  of  his  innocence is further reinforced, reaffirmed  and strengthened by the trial court.

(5) If two reasonable conclusions are possible  on the basis of the evidence on record, the  appellate  court  should  not  disturb  the  finding  of  acquittal  recorded  by  the  trial  court.”

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

Ali & Anr. Vs. State of Kerala  3  .   

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

been  justified  in  interfering  with  the  order  of  

acquittal only in case, the High Court had recorded  

a conclusion that the findings recorded by the trial  

court were perverse and resulted in miscarriage of  

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

to interfere with the findings of the facts recorded by  

the trial  court,  upon due appreciation of  evidence  

and  recording  plausible  conclusions.   He  further  

submitted  that  if  two  views  are  possible  on  the  

3 (2010) 4 SCC 573

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evidence adduced in the case, one pointing to the  

guilt of the accused and other to his innocence, the  

view which is  favorable  to the accused should be  

adopted.   In  support  of  the  submissions,  learned  

counsel relied on  Allarakha K. Mansuri Vs.  State  

of Gujarat  4  , and Raghunath Vs. State of Haryana  

& Anr.  5  .   

11. Mr.  Tulsi  further  submitted  that  there  were  

discrepancies  between the  charges  as  laid  by  the  

prosecution and medical evidence.  According to the  

postmortem,  injury  had  been  caused  within  two  

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

rule out the case of torture.  Even according to the  

prosecution,  Mathura  had  been  taken  into  the  

custody on 8th October, 1983 and had been released  

on  11th October,  1983.   The  postmortem  was  

conducted on 14th October, 1983 at around 11.50  

a.m.

4 (2002) 3 SCC 57 5 (2003) 1 SCC 398

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12. Mr.  Tulsi  then  submitted  that  the  discrepancies  

between  the  oral  evidence  of  the  prosecution  

witnesses  and the  medical  evidence  would clearly  

show that the prosecution has failed to prove the  

case beyond reasonable doubt.  The appellants have  

been  convicted  by  the  High  Court  merely  on  the  

basis  of  assumption  and  presumptions  based  on  

suspicion.  He relied on the observations made by  

this Court in Paragraph 31 of the judgment in the  

case of  Sadashio Mundaji  Bhalerao Vs.  State of  

Maharashtra  6  , which are as follows:-

“We  are  conscious  that  there  is  a  rise  in  incidents  of  custodial  deaths  but  we  cannot  completely  dehors  the  evidence  and  its  admissibility  according  to  law  convict  the  accused.  We  cannot  act  on  presumption  merely  on a  strong  suspicion  or  assumption  and  presumption.  We  can  only  draw  presumption  which  is  permissible  under  the  law and we cannot rush to the conclusion just  because  the  deceased has died  in  the  police  custody  without  there  being  any  proper  link  with the commission of the crime.”

13. Mr.  Mahabir  Singh,  learned  senior  counsel  

appearing for appellants in Criminal Appeal No. 581  

6 (2007) 15 SCC 421

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of  2003,  submitted  that  the  appellant  Majid  

Hussain was a mere constable and he had no role to  

play in the illegal custody of Mathura.  He has not  

been named in the FIR.  No specific role has been  

attributed  to  him.   He  has  only  been  implicated  

because he was posted in the police station at that  

relevant time.  He further submitted that appellant  

Haricharan similarly had only been involved in the  

entire  episode because he was posted as a guard  

outside the police station.  He submits that no role  

is  attributed  to  this  appellant  inside  the  police  

station.  The High Court failed to notice any of the  

circumstances, which would clearly show that these  

two  appellants  were  innocent  victims  of  the  

fortuitous  circumstance  of  having  been  posted  at  

the police station at the relevant time.  

14. Mr. Nagendra Rai, learned senior counsel appearing  

for the appellant in Criminal appeal No. 584 of 2003  

submitted  that  even  though  the  appellant  was  

posted as the Station House Officer at the relevant  

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time,  he  has  been  convicted  without  any  direct  

evidence of his involvement in the illegal custody or  

alleged  torture  of  Mathura.   He  submits  that  no  

specific  role  has  been  attributed  to  him.  In  fact,  

PW6, Kamal Singh, who had stated that “Mathura  

told  him  that  Nathuram  has  caused  him  severe  

beatings.   At  that  time,  the  condition of  Mathura  

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

any injury on his person and even he also did not  

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

PW6,  the  High  Court  without  any  justification  

reversed  the  findings  recorded  by  the  trial  court.  

Learned counsel  then submits that the trial court  

on  examination  of  the  evidence  of  PW6,  Kamal  

Singh discarded the same, concluding that he was a  

manufactured witness and could not be relied upon.  

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

ignored the settled principle of law that the findings  

of fact recorded by the trial court can not be ignored  

unless the conclusions have led to a miscarriage of  

justice.  Learned senior counsel further submitted  

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that  there  is  no  evidence  on record  to  show that  

Mathura  was  kept  in  custody  from  8th October,  

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

stated that “then Mathura was kept  in the  police  

station  for  about  two  days”.  According  to  Mr.  

Nagendra  Rai,  learned  senior  counsel  that  the  

custody  of  Mathura  being  doubtful,  the  appellant  

can  not  be  connected  with  the  crime  of  alleged  

torture.  He then pointed out to a communication  

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

and  Health  Officer,  District  Shivpuri,  Madhya  

Pradesh  to  the  concerned  Inspector  dated  29th  

October,  1983.   This  communication  was  in  the  

context of a query regarding the postmortem report  

of deceased Mathura, which had been addressed by  

the concerned Inspector on 20th October, 1983.  It  

was stated in this communication that on passing  

electric  current  on  scrotum,  intracranial  

hemorrhage is not possible.  The postmortem report  

dated  14th October,  1983  clearly  stated  that  “the  

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

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intracranial  Hemorrhage,  which  might  be  due  to  

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

that the two aforesaid facts would clearly raise the  

doubt as to whether the injuries were sustained by  

Mathura  on  account  of  electric  shock.   Learned  

senior counsel pointed out that there is evidence on  

the  record  to  show that  Mathura  was  a  habitual  

drunkard.   He  was  also  suffering  from  some  

dangerous disease.  He was being treated by   Dr.  

Jagdish Prasad Soni, PW18 for a number of years.  

16. Learned senior counsel further submitted that the  

cumulative  affect  of  all  the  evidence  raises  a  

reasonable doubt about the events as projected by  

the prosecution.  Learned senior counsel submitted  

that  the  reasoning  adopted  by  the  trial  court  in  

Paragraph 20 of the judgment can not be said to be  

either  perverse  or  based  on  no  evidence.   The  

conclusions drawn by the trial court being plausible  

conclusions  could  not  have  been  reversed  by  the  

Appellate  Court.   Learned  senior  counsel  also  

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reiterated the observations made by this Court  in  

the  case  of  Sadashio  Mundaji  Bhalerao  (supra)  

that  suspicion,  however,  strong  can  not  take  the  

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

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

learned counsel submits that the judgment of the  

High Court does not call for any interference.  It is  

well within the findings of the appellate jurisdiction  

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

this case, the prosecution has presented systematic  

evidence,  in  four  stages  to  connect  the  accused  

appellants with the crime.  She submits that there  

is evidence that :-

i) Mathura was taken to the Police Station.  

ii) That he was given electric shocks and he was  

taken to the hospital.

iii) The postmortem report clearly shows that the  

injuries suffered by Mathura had been caused  

as he had been subjected to electric shock.

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iv) That  the  death  was  the  direct  result  of  the  

torture inflicted on Mathura.  

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

medical evidence is the crucial link.  She has made  

detailed reference to the evidence given by PW23,  

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

Learned counsel submits that the evidence of these  

witnesses  have  been  carefully  scrutinized  by  the  

High Court.  The High Court has also demonstrated  

the implausibility of the conclusions recorded at the  

trial court.  Learned counsel emphasized that there  

is  clear  evidence  that  Mathura  was  called  to  the  

police  station.   He  was  kept  there  for  two  days.  

Injuries were caused during that period.   Injuries  

were  torturous  in  nature.   All  these  facts  are  

adverted  to  by  PW6.   The  trial  court  wrongly  

discarded  the  evidence  of  this  witness.   Learned  

counsel then submitted that the High Court rightly  

relied  on  the  evidence  of  DW1,  Suresh  Singh  

Sikarwar, who had clearly stated that Mathura had  

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been called to the police  station and that he had  

been illegally confined.    

19. Learned  counsel  further  submitted  that  the  trial  

court  has  not  given  sufficient  attention  to  the  

evidence of the brother PW1, Takhat Singh.  It can  

not be said that he did not support the prosecution,  

merely because he stated that he had no knowledge  

about the torture.  This witness had not stated that  

Mathura was not taken to the police station.  Once  

it was established that Mathura had been taken to  

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

injuries  suffered  by  Mathura.   Finally,  learned  

counsel submitted that in case of custodial death,  

normal rules with regard to appreciation of evidence  

can not always be made applicable.  In support of  

her  statement,  the  learned  counsel  relied  on  

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

State of West Bengal  7  .   According to the learned  

counsel, the guidelines laid down in this judgment  

7 (1997) 1 SCC 416

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have been flouted by the police totally.  She relied  

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

Vs. Shyamsunder Trivedi & Ors.  8   and Sahadevan  

Alias  Sagadevan Vs.  State  Represented  by  

Inspector  of  Police,  Chennai  9  ,  in  support  of  the  

submission with regard to the manner in which the  

evidence has to be appreciated in cases relating to  

custodial  death.   Learned  counsel  also  relied  on  

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

Madhya Pradesh  10  .

20. We  have  considered  the  submissions  made  by  

learned counsel  for  the parties.  In principle,  as a  

pure statement of law, Mr. Tulsi is entirely correct  

in the submission that the Appellate Court would  

not interfere with the order of acquittal, unless the  

conclusion recorded by the lower court is held to be  

perverse and has resulted in miscarriage of justice.  

The Appellate Court would also not interfere with an  

8 (1995) 4 SCC 262 9 (2003) 1 SCC 534 10 (2005) 9 SCC 631

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order of acquittal if two reasonable conclusions are  

possible.  

21. We also find much substance in the submissions of  

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

suspicion,  no matter  how strong cannot  form the  

basis  of  a conviction.   Even in cases of  custodial  

death, it is for the prosecution to establish beyond  

reasonable doubt a proper link between the accused  

and the commission of crime.

22. Similarly,  the  submissions  made  by  senior  

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

Singh cannot be said  to be without merit as legal  

propositions.   

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

appellants could take advantage of any of the legal  

submissions  made  by  the  learned  counsel  in  the  

facts and circumstances of this case.  It has become  

necessary to remind ourselves of the principles laid  

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

State of West Bengal  11  .  In the aforesaid landmark  

judgment,  this  Court  declared  that  custodial  

violence,  including rape,  torture  and death in the  

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

24. It was emphasised that custodial death is perhaps  

one  of  the  worst  crimes  in  a  civilized  society  

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

that crimes in custody are committed by persons,  

who are charged with the solemn responsibility to  

protect  the  fundamental  rights  of  all  the  citizens.  

These  crimes  are  committed  under  the  shield  of  

uniform and authority within the four walls of police  

station or lock up, the victim being totally helpless.  

The  Judgment  further  declared  that  the  

fundamental rights under Articles 21 and 22 (1) of  

the  Constitution  required  to  be  jealously  and  

scrupulously protected.  It  reiterated the principle  

that  the  expression  “Life  or  Personal  Liberty  in  

11 (1997) 1 SCC 416

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Article 21 includes right to live with human dignity.  

Therefore,  it  also  includes  within  itself  guarantee  

against the torture and assault by the States or his  

functionaries.”

25. The Supreme Court, as the custodian and protector  

of the fundamental and the basic human rights of  

the  citizens,  would  view  with  deep  concern  any  

allegation  made  against  the  police  officials  about  

custodial  crimes.   In  the  present  case,  we  are  

dealing  with  the  torture  of  detenue,  resulting  in  

death.  Using any form of torture for extracting any  

kind of information, from a suspect was declared to  

be  “neither  right,  nor  just,  nor  fair.”  It  was  

specifically laid down that though a crime suspect  

must  be  interrogated  ---- indeed  subjected  to  

sustain and scientific interrogation — determined in  

accordance with the provisions of law,  he cannot,  

however,  be  tortured or  subjected to  third  degree  

methods  or  eliminated  with  a  view  to  elicit  

information or extract a confession.  The aforesaid  

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observations  of  this  Court,  in  our  opinion,  have  

been totally disregarded in the present case.  

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

direct  evidence  of  the  involvement  of  Anil  Kumar  

Singh Kushwaha in the legal  custody and alleged  

torture  of  Mathura.   He  also  submitted  that  no  

specific  role  had been attributed  to  him.   In  our  

opinion,  both  the  submissions  are  without  any  

merit.   This  submission  of  Mr.  Nagendra  Rai  is  

completely answered by the observations made by  

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

Shyamsunder  Trivedi  &  Ors.  (supra).   We  may  

notice here the observations made in Paragraph 16  

and 17 of the aforesaid judgment:-

16.…………..The  High  Court  erroneously  overlooked  the  ground  reality  that  rarely  in  cases  of  police  torture  or  custodial  death,  direct ocular evidence of the complicity of the  police  personnel  would  be  available,  when it  observed  that  ‘direct’  evidence  about  the  complicity  of  these  respondents  was  not  available.  Generally  speaking,  it  would  be  police officials alone who can only explain the  circumstances  in  which  a  person  in  their  

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custody had died. Bound as they are by the  ties of brotherhood, it is not unknown that the  police  personnel  prefer  to  remain  silent  and  more often than not even pervert the truth to  save their colleagues, and the present case is  an  apt  illustration,  as  to  how  one  after  the  other police witnesses feigned ignorance about  the whole matter.

17. From  our  independent  analysis  of  the  materials on the record, we are satisfied that  Respondents  1  and  3  to  5  were  definitely  present at the police station and were directly  or indirectly involved in the torture of Nathu  Banjara and his subsequent death while in the  police custody as also in making attempts to  screen  the  offence  to  enable  the  guilty  to  escape  punishment.  The  trial  court  and  the  High  Court,  if  we  may  say  so  with  respect,  exhibited  a  total  lack  of  sensitivity  and  a  “could not care less”  attitude in appreciating  the  evidence  on  the  record  and  thereby  condoning the barbarous third degree methods  which  are  still  being  used  at  some  police  stations, despite being illegal. The exaggerated  adherence  to  and  insistence  upon  the  establishment  of  proof  beyond  every  reasonable doubt, by the prosecution, ignoring  the  ground  realities,  the  fact-situations  and  the peculiar circumstances of a given case, as  in  the  present  case,  often  results  in  miscarriage  of  justice  and makes  the  justice  delivery  system  a  suspect.  In  the  ultimate  analysis the society suffers and a criminal gets  encouraged. Tortures in police custody, which  of  late  are  on  the  increase,  receive  encouragement by this type of an unrealistic  approach  of  the  courts  because  it  reinforces  the  belief  in  the  mind  of  the  police  that  no  harm would come to them, if an odd prisoner  dies  in  the  lock-up,  because  there  would  

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hardly  be  any  evidence  available  to  the  prosecution to directly implicate them with the  torture. The courts must not lose sight of the  fact  that  death  in  police  custody  is  perhaps  one of the worst kind of crimes in a civilised  society, governed by the rule of law and poses  a serious threat to an orderly civilised society.  Torture in custody flouts the basic rights of the  citizens recognised by the Indian Constitution  and  is  an  affront  to  human  dignity.  Police  excesses  and  the  maltreatment  of  detainees/undertrial  prisoners  or  suspects  tarnishes the image of any civilised nation and  encourages  the  men  in  ‘Khaki’  to  consider  themselves to be above the law and sometimes  even to become law unto themselves.  Unless  stern measures are taken to check the malady,  the foundations of the criminal justice delivery  system would  be  shaken and the  civilization  itself  would risk the  consequence  of  heading  towards perishing. The courts must, therefore,  deal with such cases in a realistic manner and  with  the  sensitivity  which  they  deserve,  otherwise the common man may lose faith in  the judiciary itself, which will be a sad day.

27. Keeping in view the aforesaid salutary observations,  

we may now examine the question as to whether the  

High  Court  committed  an  error  in  reversing  the  

judgment of acquittal as recorded by the trial Court.  

It was the case of the prosecution that Mathura was  

suspected  of  having  committed  theft.   He  was,  

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therefore, picked up for interrogation on 8th October,  

1983,  with  regard  to  a  case  registered  under  

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

trespass  and  theft  respectively.   He  was  kept  in  

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

The objective of keeping him in custody was to get a  

confession  from  him  of  having  committed  the  

offence of house trespass and theft. At the relevant  

time,  Anil  Kumar  Singh  Kushwaha,  appellant  in  

Criminal Appeal No. 584 of 2003 was Station House  

Officer  of  the Police  Station Indar.   Ram Ujaagar,  

appellant in Criminal Appeal No. 583 of 2003 and  

Nathu Ram, appellant in Criminal Appeal No. 582 of  

2003 were both working as Head Constables.

28. In  our  opinion,  the  High  Court  has  correctly  

concluded that there is sufficient evidence on record  

to prove that Mathura had been taken into an illegal  

custody.  This fact has been adverted to by PW6,  

Kamal Singh. When this witness appeared in Court,  

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he was absolutely terror stricken.  He categorically  

stated as follows:-

“I will give statement in favour of the accused  persons because if I speak against them then I  will be beaten up in the police station.  I am a  poor person.  That is why I am so frightened  that if I give the statement against the accused  persons then they will cause loss to me in the  police  station.   None of  the accused persons  came to me asking for giving such a statement.  I  feared  because  my  nephew  Lalji  has  been  murdered  and  we  have  not  been  heard  anywhere.   (The  witness  was  told  that  he  would  get  full  protection  as  per  his  requirement.  Hence tell  all  this truth to the  Court).”

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

noticed above, the witness proceeded to state that  

Mathura  was  his  uncle’s  son.   He  stated  that  

Nathuram, appellant No.3, had taken Mathura with  

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

station for about two days.  Takhat Singh, PW1 and  

Parmal Singh, PW16 had brought Mathura from the  

police station.  He had talked to Mathura when he  

came back from the police station.   Mathura told  

him that Nathuram had given him severe beatings.  

This  statement  clearly  shows  that  Mathura  was  

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kept  in  illegal  custody,  as  claimed  by  the  

prosecution.   

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

other witnesses were also under constant pressure,  

not  to depose against  the  police.   This  is  evident  

from the fact that virtually all the witnesses turned  

hostile and failed to support the prosecution case.  

It is noteworthy that Shrikrishna, PW3, Mathura’s  

brother, his widow and his son did not support the  

prosecution version.  The terror  of  the police  was  

such that even the family members of the deceased  

refrained from speaking the truth.   Takhat Singh,  

PW1,  the  brother  of  the  deceased  Mathura,  had  

plucked up enough courage to state that the police  

had  called  Mathura  to  the  police  station.   He,  

however,  stated  that  Mathura  came  back  in  the  

morning.   This  witness  had  also  stated  that  the  

police  had  beaten  up  his  brother  and  he  was  

rendered unconscious.  He had been taken to the  

hospital  from the  Shivpuri  Kotwali.   He  had also  

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lodged  a  complaint  with  the  Superintendent  of  

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

Mathura was serious.   

31. The  fact  that  Mathura  had  been  tortured  and  

subjected to electric shock whilst in police custody  

is well established by the medical evidence given by  

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

Vaswani.   Dr.  Tripathi  had clearly  stated  that  he  

had found two burn injuries on the scrotum.  The  

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

was  oval  shape  charring  of  the  skin,  which  had  

become irony.  Similar wound was found on the left  

side of the scrotum, which was also oval shape and  

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

opinion of Dr. Tripathi that the wounds had been  

caused  by  electric  shock.   This  witness  further  

stated that as the result of the electric shock, the  

brain  was  found  to  be  congested  in  aragonite  

membrane.   He  stated  that  Mathura  had  died  of  

Hemorrhage  of  the  vessels  of  the  brain.   This  

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witness, in cross-examination, totally ruled out the  

possibility that the injuries could have been caused  

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

be ascertained as to how the  burn injuries  could  

have been caused. When the body is burnt with a  

hot object blisters are caused and if the blisters are  

absent  then  the  skin  at  that  place  squeezes  and  

below the skin on the raptor and on the muscles  

becomes red.  Whereas the marks formed by electric  

current are black and hard. (The meaning of word  

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

post mortem burns.”  During the cross examination,  

he further clarified that “ when low voltage shocks  

are given to anyone, as a result  of it Brenticoolar  

Fredania is caused due to which the heart beats are  

increased  very  much  and  the  speed  of  the  heart  

increases.  It  is  wrong to suggest that Intracranial  

hemorrhage is not possible due to electric shocks”.  

This witness also clarified that  due to the impact of  

electric shocks the blood pressure of Mathura was  

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

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accept any of the submissions made by the learned  

counsel  for  the  parties  that  Mathura  was  not  

subjected to electric shock.    

32. We are of the considered opinion that in accepting  

the  evidence  of  PW6 and the  medical  evidence  of  

PW23 and PW24, the High Court has not committed  

any error.  The evidence on the record clearly shows  

that death of Mathura was a direct consequence of  

the inexcusable and inhuman torture by the police.  

The  prosecution  has  proved  beyond  reasonable  

doubt that Mathura was taken to the police station.  

Whilst  at  the  police  station,  he  was  subjected  to  

third degree torture.  He was given electric shocks  

in  the  scrotum.   Such  torture  was  inflicted  on  

Mathura  merely  for  the  purpose  of  extracting  a  

confession that he was guilty of the offence of theft.  

Upon his release, the police personnel terrorized the  

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entire family.  This is evident from the fact that the  

widow,  the  son  and  the  brother  of  the  deceased  

Mathura,  all  turned  hostile.   However,  there  is  

sufficient  evidence  on  the  record  given  by  PW6,  

PW23 and PW24 to prove beyond reasonable doubt  

that  Mathura  died  due  to  the  inhuman  torture  

inflicted upon him by the appellants.  

33. We  see  no  reason  to  differ  with  the  findings  

recorded  by  the  High  Court.   The  appeals  are  

dismissed.  

    ……………………………..J.                                                [B.Sudershan Reddy]

……………………………..J.   [Surinder Singh Nijjar]

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New Delhi; March 9, 2011.          

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