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PETITIONER: RAM CHANDER AND ORS..

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT12/05/1983

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. ERADI, V. BALAKRISHNA (J)

CITATION:  1983 AIR  817            1983 SCR  (3) 257  1983 SCC  (3) 335        1983 SCALE  (1)638

ACT:      Criminal   Procedure-Appeal   against   acquittal-while reversing acquittal  High Court has to deal with each one of the reasons which prompted trial court to record acquittal.

HEADNOTE:      The appellants  were tried  along with one other person for offences  under ss. 302 and 323 read with s. 34, I.P.C., as also  under ss.  218 and 302, I.P.C., on allegations that they had  taken one Balwant Singh into custody, tortured him to death  and thereafter  created false evidence with a view to escape  from legal  punishment  in  connection  with  the murder of  Balwant Singh.  The Sessions  Judge acquitted all the  accused   after  coming  to  the  conclusion  that  the prosecution story  was highly  improbable. He dealt with the prosecution  evidence   elaborately  and   gave  substantial reasons for rejecting the same.      In the  appeal preferred  by the  State, the High Court reversed the  acquittal  and  convicted  and  sentenced  the appellants without  dealing with  or discussing  the reasons given by  the Sessions  Judge for  acquitting them. The High Court was  principally influenced  by the nature of injuries that had  been noticed  on the  dead body  at  the  time  of autopsy. Based  on the  injuries  found  on  the  soles  and buttocks  of  the  deceased  the  High  Court  came  to  the conclusion that  the deceased had been given a sound bearing while he  was in  police custody.  The High  Court mentioned that its  conclusion had  been strengthened by the fact that appellant No.  2 had,  while preparing  the inquest  report, made a  deliberate effort to minimise the number of injuries sustained by  the deceased  inasmuch as  in  column  No.  10 thereof, injuries  on file  different parts  of the body had been mentioned  without giving the actual number of injuries in those  parts, while according to the doctor’s post mortem report there were 33 external injuries.      Allowing the appeal, ^      HELD: The duty of the High Court while dealing with the appeal against  acquittal was  quite clear.  It should  have dealt with  each one of the reasons which prompted the trial court to  record the  acquittal and  should have pointed out how, if  at all,  those reasons  were  wrong  or  incorrect.

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Without undertaking  such exercise  the High Court could not reverse the acquittal. [267 A-B]      The High  Court was  clearly in error in solely relying upon the  nature of  some of  the injuries  for drawing  the conclusion that the deceased must have 258 been assaulted by the appellant in custody. In doing so, the High Court  indulged in conjectures and surmises. There were only two  injuries  which  could  properly  be  regarded  as injuries on  the soles of the two feet of the deceased which may be  indicative of  the police using third degree methods but the  injuries on the buttocks could not be indicative of user of  third degree  methods. Apart  from injuries  on the soles and the buttocks, there were other injuries on several other parts of the body which could not be regarded as being necessarily consistent with the assault on the deceased only in police  custody. The criticism made against appellant No. 2 that  he made  deliberate attempt to minimise the injuries sustained by the deceased while writing column No. 10 of the inquest report also cannot be accepted. rt is quite possible that he may not have noticed all the injuries or, even after noticing them,  he may  not have mentioned in detail all the injuries that  were present  on the dead body at the time of the inquest. In any event it cannot be forgotten that he has broadly indicated  five parts  of the  body on  which it has been stated several injuries were noticed. His only fault is that the  actual number  of injuries  were not mentioned but from this  alone it  will be  difficult to impute the motive that he had deliberately done so with a view to minimise the number of injuries sustained by the deceased. [266 B-H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 584 of 1976.      Appeal From  the Judgment  and  order  dated  the  22nd November, 1976  of  the  Punjab  &  Haryana  High  Court  in Criminal Appeal No. 501 of 1973.      Prem Malhotra for the Appellants.      R.N. Poddar for the Respondent.      The Judgment of the Court was delivered by      TULZAPURKAR, J.  The three appellants alongwith one Ram Kishan (since  acquitted) were  tried for offences under ss. 302 and 323 read with s. 34 I.P.C. as also under ss. 218 and 342 I.P.C.  before the  learned Sessions  Judge,  Karnal  in Sessions Case  No. 3  of 1973 but the learned Sessions Judge on an appreciation of the evidence led by the prosecution as well as  by the defence acquitted them of all the charges on the ground  that the  prosecution had  failed to  prove  the offences charged.  The State  of Haryana preferred an appeal being Criminal  Appeal No.  501 of  1973 to  the High  Court challenging the  said acquittal  and the  High Court  by its judgment and  order dated  22nd November,  1976 allowed  the State appeal  so far  as the  three appellants before us are concerned, but  confirmed the  acquittal of  Ram Kishan. The High Court convicted the appellants under s. 302 259 read with  s. 34 I.P.C. and sentenced each of them to suffer imprisonment for  life and  further convicted  the first two appellants (Ram  Chander and  Chand Ram) under s. 218 I.P.C. and sentenced  them to  suffer rigorous imprisonment for two years each;  the substantive  sentences were directed to run concurrently. In other words, so far as the three appellants are concerned,  their acquittal  has been  reversed and  the

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question in  this appeal  is whether the High Court is right in that behalf.      The prosecution  case against  the three appellants and Ram Kishan  may briefly  be stated  as follows.  Ram Chander (appellant No 1) had been posted as a Station House officer, Police  Station,   Sadar  Panipat  a  few  days  before  the occurrence, while  appellants Nos  2 and  3 (Chand  Ram  and Baljeet Singh)  and Ram Kishan were working as Assistant Sub Inspector, Head  Constable and  Constable respectively under him at  that Police Station. According to the prosecution on the evening  of September  6, 1972, appellant No. 1 summoned some persons  suspected of  having committed  a theft to the Police Station;  Banta (P.W.7)  on  being  summoned  through appellant No. 3 held reached the Police Station at about 4/5 p.m. while  Vir Singh  (P.W.6)  and  one  Sukha  Singh  were personally brought  by appellant No. l to the Police Station at about  7 p.m.;  at about  10 p.m. appellants Nos. 2 and 3 and Ram  Kishan went  to the  house of  Balwant  Singh,  the deceased, and  proclaimed that  Balwant Singh  was wanted by the appellant No. I at the Police Station whereupon Joginder Singh (P.W.4)  his brother  and other  members of his family requested that  Balwant Singh  should not  be taken  to  the police station  at that  odd hour  and that  they themselves would produce him before the S.H.O. on the following morning but their  request went  unheeded  and  reluctantly  Balwant Singh and  his servant  Harnam Singh  (PW5)  went  with  the police party  in a  tempo driven by Som Nath (P.W.14) to the police station  while Joginder  Singh (PW4),  Amarjeet Singh (P.W.12) another  brother of  Balwant Singh  and two  others followed the  police party on their bicycles; on the way the police party  told them  (the witnesses)  to  go  back,  but Joginder  Singh  and  his  companions  did  not  listen  and followed the  police party  right up  to the Police Station. Joginder  Singh  (P.W.4)  approached  appellant  No.  I  and enquired from  him about  the matter  for which the deceased Balwant Singh had been summoned but appellant No. l told him to go  back and  to make  inquiries about  the matter on the following morning.  According to  the  prosecution  further, within their sight Balwant Singh deceased and Harnam Singh 260 (P.W.5) were  taken in  a room  of the  police station where Moharrir A Head Constable (Balwant Singh PW 15) used to sit, and while  Joginder Singh  (P.W. 4)  and his companions were standing just  outside the  police station  they  heard  the cries of  Balwant Singh  deceased who was saying that he was innocent and  should not  be beaten.  In short, according to the prosecution,  Balwant Singh was tortured to death by the three appellants  and Ram  Kishan while  he  was  in  police custody on the night between 6th and 7th September, 1972.      In the morning at about 6.30 (on September 7, 1972) Vir Singh (PW6) who came out of the police station told Joginder Singh (PW4)  and his  companions,  who  were  still  waiting outside the  police station,  that the  three appellants and Ram Kishan  had continuously beaten Balwant Singh inside the police station  for the whole night and that he was not sure whether  Balwant  Singh  was  alive  or  not  and  that  the appellants were  conspiring to  some how or other dispose of the dead  body. At  the instance  of Joginder  Singh  (PW4), Amarjit  Singh   (P.W.12)  went   to  the   Sub   Divisional Magistrate’s Court,  Panipat and got an application (Ex. PM) drafted and  presented it  to the Sub Divisional Magistrate, who marked  it to  the Station  House officer, Sadar Panipat (appellant No.  I) for  report. Smt.  Harnam  Kaur  (P.W.13) mother of  Balwant Singh deceased, after waiting in vain for her sons  to come  back till  11 a.m.  herself went  to  the

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police station  Panipat and  met Joginder  Singh  (PW4)  and others outside  the police  station and  after hearing about the beating  of Balwant  Singh in  the custody of the police station, at the instance of Joginder Singh (PW4), she sent a telegram (Ex.  PL) to the Superintendent of Police Karnal to the effect  that Station  House officer,  Sadar Panipat  and five constables  and Havildar Baljeet Singh raided her house on the  previous night  and took  her son  Balwant Singh and servant Harnam  Singh (PW5)  to  the  police  station,  that Balwant Singh  had been  beaten ruthlessly  and taken  to an unknown place and that his life was in danger and she prayed for an  early action  to save  the precious  life of Balwant Singh. At  about 7  or  7.30  p.m.  On  September  7,  1972, Joginder Singh  (PW4) contacted  Dy. S.P. Iqbal Singh (PW16) and narrated  to him  all that  had happened and Iqbal Singh assured him  that justice would be done in the case. By this time it  had become  that Balwant Singh had succumbed to the injuries  received  by  him  and  therefore  Joginder  Singh requested the  Dy. S.P. to have the autopsy on the dead body done by Chief Medical officer Karnal instead of by the local Medical officer. 261      Meanwhile, as  per the  direction of the Sub Divisional Magistrate,   endorsed    on   Ex.   PM   (Amarjit   Singh’s application), appellant  No. 1 submitted his report (Ex. DE) on September  9, 1972,  stating his  version as  to what had transpired, which  substantially became  the defence version at the  trial. In his report it was stated that on September 7, 1972  at about 5.30 a.m. Bhim Singh (D.W.2) reported that at night  two thieves  entered  his  residential  Kotha  for committing theft  which he  noticed on  returning  from  the field and  on finding  the thieves  there he raised an alarm "thief, thief".  Both the  thieves opened  an attack  on him with lathis which they were carrying but many persons of the village also gathered there carrying lathis; that one of the thieves who  was a  Sikh succeeded in running away while the other was knocked down by the people who gave him many lathi blows.  Later   on  he   was  found  to  be  Balwant  Singh; consequently a  case under s. 458 IPC had been registered at the police station Sadar Panipat on the information given by Bhim Singh  (DW2) and  that during  this operation  currency notes worth  Rs. 2260/- alongwith one gold ring belonging to Bhim Singh  had been  stolen; the investigation was still in hand and  the search  for the second accused was being made. Appellant No.  I denied  that  Balwant  Singh  deceased  and Harnam Singh  (PW5) had  been asked  to  attend  the  police station. The  appellants also pleaded that they were falsely implicated in  this case  by the  complainant and others who were not  merely related  to and  interested in the deceased but were  inimical to  them, being people of shady character and  were  aggrieved  by  the  appellant  No.  l’  s  strict surveillance over  their illegal activities. Appellant No. 1 and Ram Kishan also Raised pleas of alibi suggesting that on the night  in question they were not at police station Sadar Panipat but were away on duty elsewhere and examined defence witnesses to support their case.      It may  be stated  that as  desired by  the  deceased’s relatives the  autopsy on the dead body of Balwant Singh was performed  by  Dr.  P.N.  Kapila  (P.W.  l),  Chief  Medical officer, Karnal  on September 8,1972, who noticed as many as 33 external  injuries and  four internal injuries and opined that the  cause of  death was  shock as a result of multiple injuries which  were all  ante-mortem and were sufficient in the ordinary  course of  nature to cause death collectively. It was not disputed that Balwant Singh’s death was homicidal

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and those  responsible for assault on him would be guilty of murder. Main question was whether the prosecution discharged the onus  of proving  convincingly that  the appellants were involved in such assault ? 262      In  view  of  the  aforementioned  rival  versions  put forward by  the prosecution  and  the  defence,  three  main questions arose  for  determination:  (a)  whether  deceased Balwant Singh  was taken to the Police Station Sadar Panipat by the  appellants Nos.  2 and 3 and Ram Kishan in the tempo driven by Som Nath (P.W.14) on the night between 6th and 7th September, 1972 ? (b) what transpired at the Police Station, that is  to say,  whether deceased Balwant Singh was given a beating by  the three appellants and Ram Kishan while he was allegedly in  their custody ? and (c) whether the appellants particularly appellant  No.  I  created  false  evidence  by preparing documents  in connection  with the  theft said  to have been  committed in the house of Bhim Singh (DW2) with a view to  escape from legal punishment in connection with the murder of  Balwant Singh  ? on  the  first  two  points  the prosecution  mainly   relied  upon   the  evidence   of  Som Nath(P.W.14),the driver of the tempo, Vir Singh (PW6), Banta Singh (PW7),  Harnam Singh  (PW5), Joginder  Singh (PW4) and Amarjeet Singh  (PW12), out  of whom  Banta Singh and Harnam Singh were  said to  be  ’stamped  witnesses’  as  they  had injuries on  . their  persons allegedly  suffered by them at the time  of causing  injuries to deceased Balwant Singh. On analysing the entire material on record the learned Sessions Judge came  to the conclusion that the prosecution story was highly improbable  and that  the evidence  of the  aforesaid witnesses was not reliable. The pleas of alibi were accepted and the  defence version  of theft  at the  house of DW Bhim Singh involving  deceased Balwant Singh was held to be true. Leaving aside  the defence case, it must be observed that he dealt with  the prosecution  evidence quite  elaborately and gave substantial reasons for rejecting the same.      As regards Som Nath (P.W. 14), aged about 18 years, who is alleged to have brought Harnam Singh and Balwant Singh in his tempo to the Police Station in the company of the police officials, the  learned Judge  found that though the witness asserted that  he was driving the tempo for the last about 5 years, he was not in possession of any licence till the date of his  evidence,  that  it  was  surprising  how  he  could remember the  date 6th  of September,  1972 as  the date  on which he  brought Balwant  Singh in  his tempo to the police station when  he could  not remember  other dates  of  other occasions when  his tempo  had  been  requisitioned  by  the police and  who were  the police officials who had travelled in his  tempo on  those occasions and that his statement had been recorded  by the  police as  late as on 17th September, 1972 though he was shown to have remained in 263 Panipat throughout.  For these reasons the learned Judge was not prepared to accept Som Nath’s evidence and if that be so the very  A basis  of the  prosecution story  that  deceased Balwant Singh  was taken  to the police station on the night in question,  was kept in custody there and was assaulted by the appellants,  would fall  to the  ground. As  regards the other prosecution  witnesses mentioned  above,  the  learned Judge referred  to the  admitted position  that each  one of them had  past antecedents and history of shady character to his credit and being inimical towards the police attached to Panipat Police  Station had  shown anxiety  to  involve  the Police officials  in  the  case.  With  this  background  he examined their evidence with great care and caution and came

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lo the  conclusion that  none of them was worth relying upon and their  evidence hopelessly  fell short of connecting any of the  appellants with  the offences  charged. The  learned Judge further  pointed out That in Ex. PM dt. 7th September, 1972, the  earliest application made by Amarjeet Singh (P.W. 12) to the Sub Divisional Magistrate, the names of appellant No. I (Ram Chander) and Ram Kishan had not been mentioned at all and  this fact assumed importance especially when it was immediately after  getting information  about the assault on Balwant Singh  from Vir  Singh (PW 6) in the morning at 6.30 a.m. Amarjit  Singh made  that application  as  directed  by Joginder Singh (PW 4). The learned Judge further pointed out that in  the telegram Ex. PL sent by Harnam Kaur (PW 13), to the Superintendent  of Police,  Karnal, it  was stated  that S.H.O Sadar  Panipat alongwith  five constables and Hawaldar Baljeet Singh  had taken  away her  son  Balwant  Singh  and servant Harnam  Singh to  the police  station whereas it was never the  case of  the prosecution  that S.H.O. Ram Chander (appellant No.  1) was  among those police officials who had gone to  the Dera  of Balwant  Singh. In view of these facts and the  other material  on record the learned Judge came to the conclusion  that Ex.  PG, the  regular First Information Report lodged by Joginder Singh as late as on 9th September, 1972 had  been got  drafted after  holding deliberations and consultations  in   which  detailed  allegations  were  made against the  appellants mentioning  even the sections of the Penal Code. One more crucial circumstance was referred to by the learned  Sessions Judge and that was that Joginder Singh (PW 4), Amarjeet Singh (PW 12) had claimed that they had not allowed the dead body of Balwant Singh to be taken away from the police  station and  that it  was  brought  out  in  the morning in the immediate presence of hundreds of persons and if that  were  so  there  should  have  been  no  dearth  of independent persons, who could have been examined for 264 substantiating the  prosecution case  that at  some stage of the other  the dead  body of Balwant Singh was at the police station but  nothing of  the kind  was done.  What is  more, Amarjit Singh (P.W. 12) had stated before the Dy. S.P. Iqbal Singh (PW 16), with which portion he was confronted, that he had seen  the dead  body of Balwant Singh for the first time at  the  morgue.  The  learned  Sessions  Judge,  therefore, concluded that  there was  no satisfactory  proof  that  the deadbody of  Balwant Singh  had ever  remained in the police station of Sadar Panipat either during the night intervening between 6th and 7th September, 1972 or any time subsequently and prior  to its  post mortem.  As regards  the two injured witnesses Banta Singh and Harnam Singh, the learned Sessions Judge pointed  out that  neither in Ex. PM dt. 7th September 1972 the  fact that  Banta Singh  too had  received injuries while at police station was mentioned and further, since Dr. R. S.  Naiyar, who  had examined  Banta Singh’s injuries had stated that  Banta Singh  could have received those injuries within 3  to 7  days of  his examination,  which was done on 13th September,  1972, it  could  not  be  pin-pointed  with certainty that  he had  received those  injuries during  the night of  the occurrence.  As  regards  injuries  on  Harnam Singh, the  learned Judge  observed that  the possibility of Harnam Singh  being the  other thief alongwith Balwant Singh during the  theft that  occurred on the night in question at the house  of Bhim Singh (D.W. 2) and he being the thief who had escaped  on that  occasion with  minor injuries  at  the hands of  the villagers  could not  be ruled out. It was for this state  of evidence  and for the reasons indicated above that the  learned Sessions Judge acquitted the appellants of

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the charge  of murder.  Consequently, the other charge under s. 218 also failed.      When the  matter was  taken in  appeal by the State, we are surprised  to find  that the  High  Court  reversed  the acquittal without  dealing with  or discussing  any  of  the aforesaid reasons  given by  the learned  Sessions Judge for acquitting the  appellants. The  High Court, it appears, was principally influenced  by the  nature of injuries that were noticed by  the doctor  on the dead body of Balwant Singh at the time  of autopsy  and in  its view  some of the injuries which were  on  the  soles  and  buttocks  of  the  deceased convinced it  that the  deceased was  given a  sound beating while he  was in police custody. This is what the High Court has observed in that behalf:           "Injuries Nos. 21’, 22, 23, 25, 29, 30 and 31 were      on the  soles and  the buttocks  of the  deceased. Such      injuries 265      are sustained by a person when he is subjected to third      degree methods  by the  police. The  reason is obvious.      Injuries  inflicted   on  the   soles,   unless   given      continuously for  a longer  period, do not leave behind      tell-tale marks.    This consideration  apart, we  have      to see  in the  light of the two versions before us the      probability  of   the  circumstances  under  which  the      injuries were sustained by the deceased; assuming while      not admitting,  that the  deceased did  go to  commit a      burglary at the house of Bhim Singh, D.W. 2, and he was      knocked down  by his  co-villagers, it  would be wholly      improbable on  the part  of such villagers to aim their      blows at  the soles  of a fallen thief. They would much      rather break  the shin  bones of  the thief  instead of      particularly aiming  their blows  at that  part of  the      body where  injuries do  not leave  any mark.  When  we      asked  the  learned  counsel  for  the  respondents  to      explain these  injuries, the  only explanation which he      could put  forth  was  that  the  deceased  could  have      sustained them  by jumping  on to  the ground.  We  are      unable to  accept this  explanation because  nature has      endowed the  human sole with more elasticity than which      he is  required for  jumping about.  If a  person falls      from a  height, it  is more probably for him to sustain      fractures of  his ankles  and  shin  bones  instead  of      getting redness on the soles. Furthermore, the presence      of the contusions on both the soles unmistakably points      out to  the infliction  of injuries  thereupon with the      help of  a small  rule which  the  police  men  usually      carry. We  are accordingly  convinced that the deceased      was given  these injuries  while he  was in custody. In      fact the  deceased was  brutally basted, his tongue was      caught in  between the  teeth, there  was bleeding from      the right nostril, mouth and left ear.  There       was      seminal discharge  from the  urethra on  the  posterior      surface of  the trunk  and back  of neck.  Human beings      possessed with  the spirit  of the  devil alone could -      have caused. such injuries." The High  Court has  further gone  on to  observe  that  its conclusion  mentioned   in  the  above  quoted  portion  was strengthened by  the fact that when Chand Ram (appellant No. 2) prepared  the inquest  report he made a deliberate effort to  minimise   the  number  of  injuries  sustained  by  the deceased, for, in column No. 10 of the inquest 266 report injuries  on S  different  parts  of  the  body  were mentioned A  without giving the actual number of injuries in

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those parts,  while according to doctor’s post mortem report there were 33 external injuries.      In our  view the  High Court  was clearly  in error  in solely relying  upon the nature of some of the injuries that were found on the dead body of Balwant Singh for drawing the conclusion that the deceased must have been assaulted by the appellant in  custody. In  doing  so,  the  High  Court  has unfortunately indulged  in conjectures  and surmises. In the first place there were only two injuries, namely, injury No. 22 and  23 which  could properly  be regarded as injuries on the soles  of the  two feet  of the  deceased, which  may be indicative of  the Police using third degree methods but the injuries on  the buttocks could not be indicative of user of third degree  methods,  for,  once  a  thief  is  caught  by villagers for  the purpose  of giving a sound beating he may as well fall flat on the ground and the villagers could give beating on his buttocks. Moreover, apart from these injuries on the  soles and  the buttocks there were other injuries on several  other   parts  of  the  body,  such  as  fore-head, shoulders, neck,  arms, legs,  knees, scalp, etc. The impact of these injuries cannot be ignored and these injuries could not be  regarded as  being necessarily  consistent with  the assault on  the deceased  only in police custody. It is thus not possible  to agree  with the High Court’s view which has been expressed  thus:  "Furthermore,  the  presence  of  the contusions on  both the soles unmistakably points out to the infarction of  injuries thereupon  with the  help of a small rule which  the policemen  usually carry. We are accordingly convinced that  the deceased  was given these injuries while he was in custody."      The criticism made against appellant No. 2 that he made a deliberate  attempt to  minimise the injuries sustained by the deceased while writing Col. No. 10 of the inquest report also cannot  be accepted.  It is  quite possible that he may not have  noticed all  the injuries  or even  after noticing them he  may not  have mentioned  in detail all the injuries that were  present on  the dead body of Balwant Singh at the time of  the inquest.  In any  event it  cannot be forgotten that the  appellant No.  2 has  broadly indicated 5 parts of the body  on which  it has been stated several injuries were noticed. The  only fault  on the  part of appellant No. 2 is that the  actual number  of injuries  were not mentioned but from this  alone it  will be  difficult to impute the motive that he had deliberately done so with a view to minimise the number of injuries sustained by the deceased. 267      Apart from these aspects of the High Court’s reasoning, its duty while dealing with the appeal against acquittal was quite clear  it should  have dealt  with  each  one  of  the reasons  which  prompted  the  trial  Court  to  record  the acquittal and  should have pointed out how, if at all, these reasons were  wrong or  incorrect. Without  undertaking such exercise the  High Court could not reverse the acquittal. We therefore,  allow  the  appeal,  set  aside  the  conviction recorded by  the High  Court  and  restore  the  appellants’ acquittal in  respect of  the charges levelled against them, their bail bonds are cancelled. H.L C.                                       Appeal allowed. 268