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PETITIONER: BHAGWAN SINGH AND ANR. ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB ETC.

DATE OF JUDGMENT08/05/1992

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PATNAIK, R.C. (J)

CITATION:  1992 AIR 1689            1992 SCR  (3) 180  1992 SCC  (3) 249        JT 1992 (3)   216  1992 SCALE  (1)1274

ACT:      Indian Penal Code:      Sections  34,  201,  302, 323,  364  and  365-Custodial death-Disappearance of dead body-Whether raises doubt  about complicity of accused.      Code of Criminal Procedure :      Sections  160  and  161-  Third  degree  treatment   of arrested  person-Action  of  police  personnel   deprecated- Adoption of scientific  methods -Necessity for.

HEADNOTE:      The  prosecution  alleged  that the  four  accused  one Assistant  Sub-Inspector, 2 Head Constables and a  Constable who  were  working in the C.I.A Staff of  the  State  Police Department,  went in a jeep to a Hotel on 6.8.78 at about  4 P.M. brought the deceased along with P.Ws. 4, 5 and 6 to the C.I.A Staff Room in the Police Station, and interrogated him about  smuggled narcotic powder.  The A.S.I. and  the   head Constables  were  armed  with a leather  patta.   While  the deceased was being interrogated a constable was sitting out- side.   The  A.S.I.  and  the  two  Head  Constables  caused injuries  to  the  deceased with their  weapons  who  became unconscious.  P.Ws.  4,5 and 6 were kept outside  under  the guard  of  P.W. 7 another Constable, when the  deceased  was being interrogated and beaten in the room.  Thereafter P.Ws. 4,5  and  6  were also taken inside the  room  and  all  the accused inflicted injuries on them also while  interrogating them  and  they were detained there till 9th  August,  1978. Later  they were dropped near a by-pass road.  They went  to the  Hospital and got themselves medically treated by  P.W.I Surgeon.      The  prosecution further alleged that the deceased  was taken in  a car but he expired on the way and the dead  body was thrown into a river and the same could not be  recovered during  investigation, P.W. 8 who was in the company of  the deceased in the  Hotel of P.W. 6 when the deceased was                                                      181 taken by the accused was also beaten. P.W. 9 the wife of the deceased  made  a  report  which was sent  by  P.W.  20  the Superintendent   of  Police  to  the  Police   Station   for investigation.

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    The concerned Sub-Inspector registered a crime, took up the investigation, recorded the statement of the  witnesses, visited the scene of occurrence, and found the walls of  the interrogation room stained with blood.  After completion  of investigation a charge-sheet was laid.      The  accused were put up for trial before the  Sessions Court  P.Ws. 4 to 7 figured as eye-witnesses.   The  accused pleaded  not guilty and stated that they were  all  innocent D.Ws. 1 to 4 who belonged to the Police staff  were asked to produce certain files.      Three  questions  arose for  determination  before  the trial court:-(1) whether the injured P.Ws. and the  deceased were  kidnapped  from the Hotel of P.W.  6;(2)  whether  the accused caused injuries to them, and (3) whether the accused caused  the  death of the deceased and  destroyed  the  dead body?      The trial court accepted the version of the prosecution only  to the extent that the injured P.Ws. and the  deceased were  kidnapped  from the Hotel of P.W. 6 and  rejected  the rest of the prosecution case and accordingly convicted  them only under Section 365, I.P.C.      The  High  Court in appeal, however, took  a  different view.   It accepted particularly the evidence of PWs 4 to  6 and reached the conclusion that when once it is proved  that the  injured   witnesses  along  with  the  deceased    were kidnapped,  confined  and beaten up and later  if  the  dead body  was not to be traced the only inference that could  be drawn  was  that the accused also caused the death   of  the deceased.  In the case of the constable who was waiting  out side  when the deceased was being interrogated  and  beaten, it  held that being a constable he obeyed the orders of  his superior  the  A.S.I. and that therefore he  had  no  common intention to cause the death of the deceased.  In that  view of  the matter he  alone was acquitted of the murder  charge but convicted for other offences.      Dismissing the appeals, this Court,      HELD  :1  Both  the  courts  below  have  accepted  the evidence  of  P.Ws 4  to 6 and 7 and that the  four  accused forcibly  took away the deceased and P.Ws. 4 to 6 in a  jeep to the C.I.A Staff Room.  There are no cogent                                                       182 and convincing reasons as to why the Sessions Judge did  not accept  the rest of the prosecution case.  The  evidence  of P.Ws.  4 to 6 who are the injured witnesses is  trustworthy. Their  evidence establishes that after forcibly taking  them to  the Staff room, the A.S.I. and the two Head   Constables took  the  deceased inside for interrogation  and  inflicted injuries  on him and that later they were also taken  inside and beaten up by all the accused.  When the deceased  became unconscious the A.S.I. and the two head constables, put  the deceased  on  a  cot  with a view  to  take  him  somewhere. Thereafter  the whereabouts of the deceased was  not  known. The  accused have no explanation whatsoever.    They  simply pleaded innocence. [187H- 188C]      2.  The  only inference that can be drawn is  that  the deceased  expired  because  of the injuries  caused  by  the accused  and they must have caused the disappearance of  his dead  body.   There is absolutely no ground what  soever  to come to a different conclusion.  [189 C]      3.  If  a  person is in police custody  then  what  has happened  to him is peculiarly within the knowledge  of  the police officials who have taken him into custody.  [188 D]      4.  When  the other evidence is  convincing  enough  to establish  that  the deceased died because of  the  injuries inflicted  by the accused the circumstances would only  lead

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to an  irresistible inference that the police personnel  who caused his death must also have caused the disappearance  of the body. [188 E]      5.  A  case cannot be thrown out merely on  the  ground that  the  dead body is not traced when the  other  evidence clinchingly establishes that  the deceased met his death  at the hands of the accused. [188 E]      6.  It may be a legitimate right of any police  officer to  interrogate  or  arrest any  suspect  on  some  credible material but it is needless to say that such an arrest  must be in accordance with the law and the interrogation does not mean  inflicting injuries.  It should be in its  true  sense and  purposeful namely to make the investigation  effective. [188 F]      7.  Torturing a person and using third  degree  methods are of medieval nature and they are barbaric and contrary to law.   The police would be accomplishing behind their closed doors precisely what  the                                                183 demands of our legal order forbid. [188 G]      Dagdu and others v. State of Maharashtra, [1977] 3  SCC 68, referred to.      8.  Police officers must adopt some scientific  methods than resorting to physical torture. If the custodians of law themselves  indulge in committing crimes, then no member  of the society is safe and secure. [189 B]      9. If police officers who have to provide security  and protection to the citizens indulge in such methods they  are creating a sense of insecurity in the minds of the citizens. It  is more heinous than a game-keeper becoming  a  poacher. [189 B]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal  Nos. 388 and 666 of 1981.      From  the  Judgment and Order dated  17.2.1981  of  the Punjab  & Haryana High Court in Crl. A. Nos. 1392 and 956  of 1979.      R.L. Kohli, R.C. Kohli and M.C. Dhingra (N.P.) for  the Appellants.      H.M. Singh and R.S. Suri for the Respondent.      The Judgment of the Court was  delivered by,      K.  JAYACHANDRA  REDDY, J. These two appeals are  filed against a common judgment of the Punjab & Haryana High Court in  Criminal Appeal Nos. 956/79, 1392/79 and 1310/79.  There were  four appellants in Criminal Appeal No.  956/79  before the  High  Court  namely  Joginder  Singh,  Bhagwan   Singh, Mukhtiar Singh and Uttam Chand.  Originally they were  tried by  the  Sessions Judge, Amritsar  for  offences  punishable under Sections 364, 302/34.  201,365, 325/34 & 323/34 I.P.C. The trial court, however, convicted them only under  Section 365 I.P.C and sentenced each of them to undergo R.I. for two years and to pay a fine or Rs. 500 each in default of  which to  undergo  further R.I. for six months.   Challenging  the said  convictions and sentences they filed the  said  appeal i.e.  Criminal Appeal No. 956/79. The State of Punjab  filed Criminal  Appeal No. 1392/74 against  their acquittal  under Section  364,  302/34, 201, 323/34 and  325/34.  The   State also  filed Criminal Appeal No. 1310/79 for  enhancement  of the  sentence  under  Section  365  I.P.C.  The  High  Court disposed of all the  appeals  by a                                                         184 common  judgment.   The High Court  allowed  State  Criminal

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Appeal  No. 1392/79 and convicted Joginder Singh, A.S.I.  of Police  and  Bhagwan  Singh and Mukhtiar  Singh,  two  Head- constables under  Section 302/34 I.P.C. and  sentenced  each of  them to imprisonment  for life and to pay a fine of  Rs. 2,000  each in default of which to undergo further R.I.  for one year.  The fine, if realised, was directed to be paid to the  widow  of the deceased in the case.   The  High  Court, however, held that an offence under Section 302 is not  made out  as  against  Uttam  Chand.   The  High  Court   further convicted  all the four accused under Section 201 I.P.C  and sentenced each of them to undergo four years’ R.I. and  also sentenced to two years R.I. under Section 325/34 I.P.C.  and further  sentenced  them to one year’s  R.I.  under  Section 323/34.   The High Court also accepted  the  State  Criminal Appeal No. 1310/79 and enhanced  the sentence under  Section 365  I.P.C. to five years’ R.I. The sentences were  directed to  run  concurrently. Accused Bhagwan  Singh  and  Mukhtiar Singh  have filed Criminal Appeal No. 388/81 in  this  Court under  Section  379  Cr.P.C. Joginder  Singh,  A.S.I.  filed Criminal Appeal No. 535/81 under Section 379 Cr. P.C. but as he  died during the pendency of the appeal we  have  already dismissed the appeal as abated.  Uttam Chand filed a special leave  petition which was  granted by this Court and  it  is numbered as Criminal Appeal No. 666/81.      The  High  Court has interfered in  an  appeal  against acquittal and convicted two  of the appellants and sentenced them to imprisonment for life.  Therefore we have heard  the counsel  for  the appellant at length and he  has  taken  us through  the  entire  record in an  elaborate  manner.   The prosecution case is as follows:      Joginder  Singh,  A.S.I. and the  other  three  accused namely  two Head Constables and a Constable were working  in the  C.I.A.  Staff,  Amritsar.  On 6.8.78 at  about  4  P.M. Joginder Singh A.S.I. along with three other went in a  jeep to  the  Hotel of Virsa Singh, P.W. 6 and  brought  Joginder Singh  deceased  alont with P.Ws. 4,5 and 6  to  the  C.I.A. Staff  Room in Rambagh Police Station and interrogated  them about  the smuggled narcotic powder. Joginder Singh,  A.S.I. and  Bhagwan Singh Head Constable were armed with sotas  and Mukhtiar  Singh,  Head Constable was armed  with  a  leather patta.  While  the deceased was being  interrogated  by  the first  three  accused,  Uttam Chand  Constable  was  sitting outside.  A.S.I. and the two Head Constables caused injuries to  the deceased with their weapons who  became  unconscious P.Ws 4,5 and 6 were  kept outside under the guard of Uttam                                                        185 Chand  and  P.W. 7 another Constable when the  deceased  was being  interrogated  and  beaten in  the  room.   Thereafter P.W.S. 4, 5 and 6 were also taken inside the room and it  is alleged  that  all the accused inflicted  injuries  on  them also  while  interrogating them about the  smuggled  powder. P.Ws. 4,5 and 6 were taken to the main building of the C.I.A Staff  and they were detained their till 9th  August,  1978. Later  they were dropped near a by-pass road.  They went  to the  Hospital and got themselves medically treated by P.W.1, Civil  Surgeon, Amritsar at about 9.05 P.M. Further case  of the  prosecution is that the unconscious deceased was  taken in  a  car but he expired on the way and the dead  body  was thrown   into  a river and the same could not  be  recovered during  investigation. P.W.8 who was in the company  of  the deceased  in the Hotel of P.W.6 when the deceased was  taken by the accused, went to the C.I.A. Staff room on 7th August, 1978  and happened to meet P.W. 5 there .  He told him  that the  deceased became  unconscious when being beaten  and  he was  taken  away from there. There upon P.W.8  went  to  the

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village of the deceased and informed his wife P.W. 9 on that very  day.P.W. 9 along with mother of the deceased  came  to Amritsar and met Joginder Singh,  A.S.I. who told them  that the  deceased  was  not with them .   She  then  met  Senior Superintendent of Police and gave a report who forwarded the same  to P.W. 20 Superintendent of Police City Amritsar  who in  turn sent  it to the Police Station with  the  necessary endorsement.   The  Concerned  Sub  Inspector  registered  a crime.   As per the Punjab Police Rules,  superintendent  of Police,  P.W. 20 took up the investigation and recorded  the statement  of  the  witnesses.  He  visited  the  scene  o;f occurrence and found the walls of interrogation room stained with blood. After completion of the investigation a  charge- sheet  was  laid.  The prosecution examined P.Ws. 1  to  22. P.W.  1. the Doctor examined P.W.5 for his injuries  and  he found 15 injuries. Injuries Nos. 6,9 and 13 were declared to be grievous.  He opined that all the injuries must have been caused by  blunt weapons. P.W.1 also examined  P.W. 6 on the same  day  found  8 injuries.  They were  all  found  to  be simple.  He also examined P.W. 4 and found 4 injuries  which were  simple.  P.Ws. 4 to 7 figured  as  eye-witnesses.  The accused  pleaded  not guilty and stated that they  were  all innocent.  They examined D.Ws 1 to 4 all belonging to Police staff  and  were  asked to produce  certain  files.    Their evidence   is  not  material.   Three  question  arose   for determination  before  the  court  below;  (1)  whether  the injured P.Ws. and the deceased were kidnapped from the Hotel of  P.W. 6; (2) whether the accused caused injuries to  them and (3) whether  the accused caused                                                       186 the  death of the deceased and destroyed the dead body?  The trial court accepted the version of the prosecution only  to the extent that injured P.Ws and the deceased were kidnapped from  the  Hotel  of P.W.6 and  rejected  the  rest  of  the prosecution  case and accordingly convicted them only  under Section 365 I.P.C. The High Court, however, took a different view.  The learned Judges accepted the evidence of P.Ws 4 to 10  particularly that of the injured witnesses P.Ws 4 to  6. The High Court also reached the conclusion that when once it is  proved  that injured witnesses along with  the  deceased were kidnapped, confined and beaten up and later if the dead body  was not to be traced the only inference that   can  be drawn  is  that  the accused also caused the  death  of  the deceased.  So  far Uttam Chand, Constable is  concerned  the High  Court took the view that he was only  waiting  outside when  the  deceased was being interrogated  and  beaten.  He being a Constable, obeyed the orders of his  superior namely the  A.S.I.  and kept guard outside.  Therefore  he  had  no common  intention to  cause the death of the  deceased.   In that  view  of the matter he was acquitted  of   the  murder charge but convicted for other offences.      We  have gone through the evidence of P.Ws. 4,5  and  6 carefully. Their presence at the scene of occurrence  cannot be  doubted.  The Doctor, P.W. 1 who examined them  found  a number  of injuries and some of them were grievous.  All  of them  have categorically stated that the accused caused  the injuries to them while interrogating.      P.W.4  deposed that he was in the Hotel of P.W.  6  for taking  meals.  The deceased and P.Ws were also present  and were  taking  meals.  At about 4 P.M. all the  four  accused came into the Hotel in their uniforms.  They came in a  jeep and the accused caught hold of them including the  deceased, tied  their arms with the turbans and all of them were   put in  the jeep and were taken to the C.I.A Staff room.   First the deceased was taken inside the Room by the A.S.I. and the

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two Head Constables while Uttam Chand the fourth accused and P.W.  7  another   Constable remained  with  P.Ws.  4  to  6 outside the room. P.W. 4 also deposed that the accused  were armed with sotas and leather patta and the three accused who took  the deceased inside the room inflicted  injuries  with their weapons on the deceased who became unconscious.  Later the  three  witnesses  were taken  inside.  P.W.  4  further deposed  that the deceased who was unconscious was put on  a cot.  It is in his evidence  that all the three were kept in that room till 9th August, 1978 and that on 7th August, 1978 P.W.8 came and                                                     187 enquired  P.W. 5 about the deceased who told him   that  the deceased  became  unconscious and was put on  a  cot.  P.W.4 further deposed that he and P.Ws  5 and 6 were left on a by- pass  road on 9th August.  All of them went to the  Hospital and they were treated by P.W. 1 the Doctor. P.W. 4 is cross- examined   at  length  but  nothing  segnificant  had   been elicited.   The omissions and discrepancies pointed  out  in his  evidence  are  not  at all   material.   Only  a   bald suggestion  is made that injuries on P.Ws. 4 to 6 were self- inflicted  and  the  accused were involved  falsely  at  the instance  of  one  Atma  Ram.  To the  same  effect  is  the evidence  of  P.Ws.  5  and 6.  Their  evidence  is  further corroborated  by  the evidence of P.Ws 7 to 11. P.W.7  is  a Constable  in the C.I.A. Staff where the four  accused  also were working.  He deposed that on 6.8.78 at about 4.30  P.M. He  also  went  along with the accused in a  jeep  and  that before accused brought the deceased and the three  witnesses and put them in the jeep and  were taken to the C.I.A. Staff room  Rambagh  Police  Station,  he  remained  outside.   He however  did not see the injuries being inflicted  on  them. P.W. 8 is another witness who was in the Hotel of P.W.6.  He deposed  that  he alongwith the deceased went to the  Hotel. He also  deposed that the four accused came to the Hotel and took away the deceased and P.Ws 4 to 6 in a jeep.  The  next day  P.W.  8  went  to the Staff Room and  met  P.W.  5  and enquired  about  the  deceased  and  on  getting   necessary information namely that the deceased was unconscious and was put  on a cot and taken away, he went and informed the  wife of  the  deceased.P.W.  9 who is the wife  of  the  deceased deposed  that  on being informed by P.W. 8 she went  to  the C.I.A.  Staff room and enquired from the accused A.S.I.  who told her that her husband was not there and that he has  run away.   Thereupon she went to the house of the   brother  of the  deceased and she did not find him there.  Next  day  he came   to  Amritsar and gave an application  to  the  Senior Superintendent  of  Police.  Then we have  the  evidence  of P.Ws.10  and 11.P.W.10 deposed that it was 1.30 A.M. he  and P.W. 11 were going on a tractor  after seeing a picture  and on  the  way he saw the four accused carrying a  person  and lifting him into the car.  The prosecution also examined the driver of the jeep and other constables who were present  in the  Staff  room  but they turned hostile.  It  may  not  be necessary to refer to the other evidence.      Both  the  courts below have accepted the  evidence  of P.Ws  4 to 6 and  7 and held that the four accused  forcibly took  away  the deceased and P.Ws. 4 to 6 in a jeep  to  the C.I.A.  Staff  room.   There are no  cogent  and  convincing reasons as to why the learned Sessions Judge did not  accept the                                                     188 rest  of the prosecution case.  The evidence of P.Ws 4 to  6 who  are  the  injured  witnesses  is  trustworthy.    Their evidence establishes that after  forcibly taking them to the

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Staff  room,  A.S.I. and the two Head  Constables  took  the deceased inside for interrogation and inflicted injuries  on him and that later they were also taken inside and beaten up by  all  the  accused.  We have no hesitation  in  accepting their version.  Then what follows is that A.S.I. and the two Head  Constables inflicted serious injuries on the  deceased and  when he became unconscious they put the deceased  on  a cot with a view to take him away somewhere.  Thereafter  the whereabouts  of   the deceased are not known.   The  accused have   no  explanation  whatsoever.   They  simply   pleaded innocence.   Learned counsel, however, submitted that  since the  dead  body  is not traced a doubt  arises  whether  the accused   were  responsible  for  causing  his   death   and disappearance  of his body.  It depends upon the  facts  and circumstances  of  each  case.   The  injured  witness  have categorically stated that the deceased became unconscious on receipt of  the injuries.  If a person is in police  custody then  what  has  happened to him is  peculiarly  within  the knowledge  of the police officials who have taken  him  into custody.   When the other evidence is convincing  enough  to establish   that the deceased died because of  the  injuries inflicted  by the accused the circumstances would only  lead to  an irresistible inference that the police personnel  who cause  his death must also have caused the disappearance  of body.      A  case cannot be thrown out merely on the ground  that the  dead  body  is  not  traced  when  the  other  evidence clinchingly  establishes that the deceased met his death  at the hands of the accused.  It may be legitimate right of any police officer to interrograte or arrest any suspect on some credible  material  but it is needless to say that  such  an arrest   must  be  in  accordance  with  the  law  and   the interogation  does not mean inflicting injuries.  It  should be  in  its  true sense and purposeful namely  to  make  the investigation effective.  Torturing a person and using third degree methods are of medieval nature and they are  barbaric and  contray  to  law.  The police  would  be  accomplishing behind their closed doors precisely what  the demands of our legal  order  forbid.   In  Dagdu and  others  v.  State  of Maharashtra, [1973] 3 SCC 68 this Court  observed as under:          "The  police  with  their wide powers  are  apt  to          overstep  their  zeal  to  detect  crimes  and  are          tempted  to  use the strong arm against  those  who          happen to fall under their secluded jurisdiction.                                                    189          that  tendency  and  that temptation  must  in  the          larger interest of justice be nipped in the bud."      It  is a pity that some of the police officers,  as  it has  happened in this case, have not shed such methods  even in the modern age.  They must adopt some scientific  methods than  resorting to physical torture.  If the  custodians  of law themselves indulge in committing crimes  then no  member of  the society is safe and secure.  If police officers  who have  to   provide security and protection to  the  citizens indulge  in  such  methods  they are  creating  a  sense  of insecurity in the minds of the citizens.  It is more henious than a game-keeper becoming a poacher.      Under   these  circumstances, the  one  and  the   only inference  that  can be drawn is that the  deceased  expired because of the injuries caused by the accused and they  must have  caused  the disappearance of his dead  body.   We  see absolutely  no  ground  whatsoever to come  at  a  different conclusion and we are in full agreement with the High  Court in this regard.  In the result both the Criminal Appeal Nos. 388/81 and 666/81 ar dismissed.

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N.V.K.                                  Appeals dismissed.                                                        190