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PETITIONER: GAURI SHANKER SHARMA ETC.

       Vs.

RESPONDENT: STATE OF U.P. ETC.

DATE OF JUDGMENT12/01/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) FATHIMA BEEVI, M. (J)

CITATION:  1990 AIR  709            1990 SCR  (1)  29  1990 SCC  Supl.  656     JT 1990 (1)     6  1990 SCALE  (1)9

ACT:     Indian  Penal  Code: Sections 201, 218,  304  and  330-- Death  in  police  custody--To be seriously  viewed  by  the Court.

HEADNOTE:     Three police personnel were charged with offences  aris- ing  out  of the death of one Ram Dhiraj  Tiwari  in  police custody. Rafiuddin Khan (accused No. 1) was the Sub  Inspec- tor  of Police Station Kure Bhar, Shamsher Ali (accused  No. 2)  was a Beat Constable, and Gauri Shankar Sharma  (accused No. 3) was the Head Moharrir.     The prosecution version was that AI directed A2 and  two police  chowkidars, to apprehend Ram Dhiraj,  deceased,  who was  a  suspect  in a dacoity case.  Pursuant  thereto,  Ram Dhiraj  was  arrested from his residence  on  19.10.1971  at about  11.00  a.m. and brought to the  police  station.  The prosecution case against A1 was that he was responsible  for having beaten the suspect Ram Dhiraj in the presence of  two other constables, whose identity was not established,  which resulted  in as many as 28 injuries to which  he  ultimately succumbed. It was also alleged that A1 had demanded a  bribe of  Rs.2000 to desist from meeting out third degree  punish- ment to the suspect. The case against A3 was that he  delib- erately  and  wilfully posted false entries in  the  General Diary to help A1.     The  defence  version  on the other hand  was  that  the deceased was arrested on 20.10.1971 by A2 and his companions from  near a culvert in the village and he was beaten up  by them as he resisted arrest.     The  Trial  Court accepted the prosecution  version  and convicted  A1 under section 304 (Part II) section 330,  sec- tions 201 and 218/34 and 161, IPC, and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption  Act, 1947.  Accused No. 2 was acquitted of all  charges.  Accused No. 3 was convicted under sections 201 and 218, IPC.     The  High Court, however, accepted the  defence  version that  A1  was not at the police station on  19.10.1971  till 7.30  p.m. The High Court found that the  three  prosecution witnesses were not eye witnesses 29

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30 to  the incident and hence their story about beating in  the police station and the demand of bribe could not be  accept- ed.  The High Court accepted the evidence of DW  1,  Jaswant Singh,  Station  Officer, Machilishahr Police  Station,  who claimed  to  have  come  to  Kure  Bhar  Police  Station  on 19.10.1971  for investigation of another offence.  According to  DW 1, AI was not at the police station till  about  7.30 p.m.     While dismissing the appeal filed by accused No. 3,  and allowing  the State appeal against the acquittal of  accused No.  1, and restoring his conviction recorded by  the  trial court by setting aside his acquittal by the High Court, this Court,     HELD:  (1)  Both the courts have recorded  a  concurrent finding of fact that the deceased was arrested on 19.10.1971 at  about 11.00 a.m. from his village Khajapur.  That  means that  the entry in the general diary that the  deceased  was arrested on 20.10.1971 and was brought to the police station later  can  be brushed aside as false. The need  to  make  a false entry speaks for itself. [36E-F]     (2)  It is true that PW 5 and PW 8 were the  brother-in- law  of  the deceased and PW 10 his neighbour, but  that  by itself,  without anything more, was not sufficient to  doubt their  tastimony which receives corroboration  from  medical evidence.  Unless  there are sound grounds to  reject  their evidence  it would not be proper to brush aside  their  evi- dence on the specious plea that they are interested witness- es. [37F-G]     (3) It is difficult to understand how the learned  Judge could persuade himself to accept the evidence of DW 1 on the specious  plea that if he did not tell the truth he ran  the risk of losing his job. The High Court should have  realised that cases are not unknown where police officers have  given inaccurate accounts to secure a conviction or to help out  a colleague from a tight situation of his creation. [41B]     (4)  The  High  Court should have realised  that  it  is generally difficult in cases of deaths in police custody  to secure  evidence against the policemen responsible  for  re- sorting to third degree methods since they are in charge  of police  station records which they do not find difficult  to manipulate as in this case. It is only in a few cases,  such as the present one, that some direct evidence is  available. [41F-G]     (5) After carefully considering the reasons given by the High  Court  for setting aside the conviction  of  AI,  this Court is satisfied beyond any manner of doubt that the  High Court had completely misdi- 31 rected  itself  and hence interference by this  Court  under Article 136 of the Constitution, was justified. [42A-B]     (6) The offence is of a serious nature aggravated by the fact  that it was committed by a person who is  supposed  to protect the citizens and not misuse his uniform and authori- ty  to  brutally assault persons in his  custody.  Death  in police  custody  must be seriously viewed for  otherwise  we will  help take a stride in the direction of police raj.  It must  be curbed with a heavy hand. The punishment should  be such as would deter others from indulging in such behaviour. There can be no room for leniency. This Court does not think it would be justified in reducing the punishment imposed  by the trial court. [42D-E]

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JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 111 and 477 of 1979.     From  the  Judgment  and Order dated  19.4.1978  of  the Allahabad High Court in Criminal Appeal No. 661 of 1975.     N.P. Midha and B.D. Sharma for the Appellant in Crl.  A. No. 111 of 1979.     Prithvi Raj, Prashant Choudhary and D. Bhandari for  the Respondent in Crl. A. No. 111 of 1979 and Appellant in  Crl. A. No. 477 of 1979.     M. Qamaruddin and Mrs. M. Qamaruddin for the  Respondent in Crl. A. No. 477 of 1979. The Judgment of the Court was delivered by     AHMADI, J. In Criminal Case No. 3 of 1975, three persons were  put  up for trial before the  learned  Special  Judge, Sultanpur (U.P.). The case arose out of the death of one Ram Dhiraj  Tiwari  in police custody. Accused No.  1  Rafiuddin Khan (Respondent in Criminal Appeal No. 477 of 1979) was the Sub-Inspector  of Police Station Kure Bhar in District  Sul- tanpur  at all material times during the commission  of  the crime.  Accused  No. 2 Shamsher Ali  (since  acquitted)  was posted  at the said police station as Beat Constable No.  3. His  companion Accused No. 3 (Appellant in  Criminal  Appeal No.  111 of 1979) was the Head Moharrir of the  said  police station.  Crime  No. 71 of 1971 under Section 395,  IPC  was registered at the said police station on 25.5. 1971 concern- ing a dacoity committed at Village Khara within 32 the jurisdiction of the said police station. In that connec- tion one Jagdamba was arrested on 20.9.1971. During interro- gation  by  AI the said suspect is alleged  to  have  made.a confessional  statement involving Ram Dhiraj Tiwari. On  the basis of this information A 1 directed A2 and Ram Jas (PW 6) and Harakh, both police chowkidars, to apprehend Ram  Dhiraj and  produce  him before him. Pursuant thereto  A2  and  his companions  apprehended  Ram Dhiraj from  his  residence  in village  Khajapur on 19.10.1971 at about 11.00 a.m.  in  the presence of his mother Kamaraji (PW 7), sister’s husband Ram Niranjan Misra (PW 8) and labourer Jiyalal (PW 9). After his arrest Ram Dhiraj was brought to police station Kure Bhar at about 4.00 p.m. on the same day and handed over to A1. PW  8 and Ram Baran Dubey (PW 10) are stated to have followed  him to the police station. It is alleged that soon charge of A1, he  was given a severe beating with lathi and dandas  by  A1 and two constables, whose identity is not established,  with a view to extracting a confessional statement from him. When PW  8  and PW 10 tried to intervene., A1 demanded a  sum  of Rs.2000  from them to refrain from ill-treating Ram  Dhiraj. Thereupon  PW 8 went to Village Pure Neelkanth  three  miles away  to fetch Bindeshwari Prasad Shukla (PW 5) the  husband of Ram Dhiraj’s eider sister. On the arrival of PW 5 at  the police station, A1 is alleged to have repeated his demand of Rs.2000. Since the bribe was not paid A1 and his two compan- ions  renewed the torture with vengeance which  lasted  till about 9 or 10 p.m. As a result of the merciless beating  Ram Dhiraj  was badly injured. It is alleged that the fact  that he  was apprehended from his village and was brought to  the police station on 19.10.1971 was not entered in the  general diary  register  but a false entry was posted  in  the  said general diary register regarding his arrest on the next  day i.e.  20.10.1971, at about 6.00 a.m. from near a culvert  in village  Hanna-Harora  by  A2 and his  two  chowkidars.  The defence version was that as he tried to resist arrest A2 and his  two  companions  beat him up as a result  of  which  he sustained  the injuries in question. Another entry was  made

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in  the  same general diary on the same  day  purporting  to transfer Ram Dhiraj to police station Sadar for admission to the  District Jail. General Diary Entry No. 14 was  made  to show that Ram Dhiraj was sent from Sardar police station  at about  12.15 noon for admission to the District Jail  as  he had  sustained injuries. It, however, transpired later  that Ram Dhiraj died at about 4.00 p.m. on the same day while  he was  being taken to the residence of one of the  Magistrates at  Sultanput  for remand. On his demise his dead  body  was taken  to Kotwali Sultanpur where an entry No. 30  regarding his  death was made in the general diary at about 4.20  p.m. On 21.10.1971 an inquest 33 was  made on the dead body and thereafter the dead body  was sent  for post mortem examination. PW 1 Dr. Mitra  performed the autopsy and found as many as 28 ante-mortem injuries  on the body of the deceased.     The prosecution case against A1 was that he was  respon- sible for having beaten the suspect Ram Dhiraj in the compa- ny of two others which resulted in as many as 28 injuries to which  he ultimately succumbed. It was also alleged that  he had  demanded a bribe of Rs.2000 to desist from  meting  out third  degree punishment to the suspect. He was,  therefore, charged under Section 304, 330, 201, 218/ 34, I.P.C.,  while his  companion  A3 was charged under Section  201  and  218, I.P.C.  All  the three accused persons  denied  the  charges levelled against them and claimed to be tried. They  however did not deny the fact that Ram Dhiraj died in police  custo- dy.  The  case set up by A 1 was that he was away  from  the police   station  between  5.00  p.m.  and  7.30  p.m.,   on 19.10.1971  and, therefore, the allegation that he had  tor- tured Ram Dhiraj is fabricated and wholly false. A2 admitted the  fact that Ram Dhiraj was arrested outside  his  village house  at  Khajapur  on 19.10.1971 and was  brought  to  the police station Kure Bhar on the same day at about 4.00  p.m. He,  however, denied having caused any injury to him  during arrest.  A3  denied the prosecution allegation that  he  had deliberately and wilfully posted false entries in the Gener- al Diary to help A 1.     The  learned Special Judge before whom the accused  were tried came to the conclusion that the deceased was  arrested from his residence on 19.10.1971 as alleged by the  prosecu- tion  and not from near the culvert of village  Hanna-Harora on 20.10.1971; that no beating was given to him at the  time of his arrest and that he was beaten in police station  Kure Bhar  where  he  was taken on 19.10.1971  itself  after  his arrest  by  A1  and two other constables who  could  not  be identified. He also found that the fact that he was  brought to  the police station on 19.10.1971 was  deliberately  sup- pressed and A3 omitted to perform his duty by not posting an entry in that behalf in the General Diary and instead  post- ing  a  false  entry No. 10 (Exh. Ka 13) on  the  next  day, 20.10.1971.  He also found that a false entry was posted  in the  diary to show that he was sent to Sadar police  station where he died before admission to jail. Lastly he found that A2 had counter-signed the general diary entry No. 10 without knowing  the  contents thereof. On facts found  proved,  the trial  court  convicted A1 under Section 304 (Part  II)  and sentenced  him to suffer Rigorous Imprisonment for 7  years, under  Section  330  and sentenced him  to  suffer  Rigorous Imprisonment  for 3 years, under Section 201 and 218/34  and 161 I.P.C. and 34 under Section 5(1)(d) read with Section 5(2) of the  Preven- tion  of Corruption Act, 1947 and sentenced him to  Rigorous

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Imprisonment  for  2 years on  each  count--all  substantive sentences  to run concurrently. A2 was acquitted of all  the charges  levelled  against him. A3 was,  however,  convicted under Sections 201 and 218 I.P.C. and was ordered to  suffer Rigorous  Imprisonment for 2 years on each count.  The  sub- stantive  sentences were ordered to run  concurrently.  Both the  convicted accused preferred Criminal Appeal No. 661  of 1975  in  the  High Court. The State did  not  question  the acquittal of A2. The High Court accepted the defence version that  A1  was not at the police station on  19.10.1971  till 7.30 p.m. as proved through DWI and DW2 and, therefore,  the prosecution version was unacceptable. It also found that the three prosecution witnesses PW5, PW8 and PW 10 were not  eye witnesses to the incident and hence their story about  beat- ing in the police station and the demand of bribe cannot  be accepted. It lastly held that A 1 could not be held  respon- sible for the omission to post an entry in the general diary about  the arrival of the deceased to the police station  at 4.00  p.m. as he himself had returned to the police  station at  7.30 p.m. On this line of reasoning the High  Court  al- lowed  A1’s  appeal  and set aside  the  conviction  on  all counts.  The High Court, however, maintained the  conviction of A3 but reduced the sentence to Rigorous Imprisonment  for 6 months.     Criminal  Appeal  No.  111 of 1979 is  preferred  by  A3 questioning his conviction while Criminal Appeal No. 477  of 1979 is preferred by the State questioning the acquittal  of A1. As both these appeals arise out of the same judgment. We think  it  would be convenient to dispose them  of  by  this common judgment.     The  fact that Ram Dhiraj died of injuries  received  by him  after his arrest and while he was in police custody  is not  seriously disputed. The prosecution version is that  he was beaten in the police station on 19.10.1971 by A1 and his two companions after he was arrested from his residence  and brought  to the police station. The defence version  on  the other  hand is that the deceased was arrested on  20.10.1971 by A2 and his two companions from near a culvert in  village Hanna-Harora  and  he was beaten up by them as  he  resisted arrest.  Of course A2 has denied this in his  statement  re- corded under Section 313 of the Criminal Procedure Code.  Be that as it may, both the prosecution as well as the  defence version suggest that the deceased had received a beating  at the  hands of the police after his arrest. The  evidence  of PW1, Dr. Misra shows that the deceased had received as  many as  28 injuries. by some blunt weapon or weapons  which  re- sulted in his death due to 35 shock  and haemorrhage on the afternoon of 20.10.197 1.  The trial  court  has come to a firm conclusion that  these  in- juries  were  caused to the deceased in the  police  station after  his  arrest.  The High Court  also  opines  that  the "number  of  injuries speaks that most probably he  had  not received  those injuries only during arrest and that he  was subjected to severe assault sometime after his arrest". Even this halting.. finding recorded by the High Court shows that both the courts felt that the deceased was seriously  beaten while  in  police custody. The fact that Ram Dhiraj  died  a homicidal death is, therefore, rightly not contested  before us.     Having  regard to the rival versions, the crucial  ques- tion which must be answered is regarding the date, time  and place  of  arrest. It is not in dispute that an  offence  of dacoity  at village Khera was registered at  Police  Station Kure  Bhar on 25.5.1971.  One Jagdamba was arrested in  that

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connection on 20.9.1971. A1 was investigating that crime. In the  course  of interrogation by A1, Jagdamba is  stated  to have revealed the name of Ram Dhiraj as his accomplice.  The evidence  of PW 6 Chowkidar Ram Jas is that A1 had  directed A2 to arrest Ram Dhiraj and produce him before him. A2, PW 6 and  Chowkidar Harakh then went to fetch Ram Dhiraj. In  the absence  of  any specific information, the  first  place  to visit to locate the wanted man would be his residence. PW  6 also  deposed  that the police party went in search  of  the deceased  to his village and apprehended him from  near  his residence.  However, the evidence of PW 6 was challenged  on the ground that he had in his statement before M.M.  Swarup, Executive  Magistrate, affirmed the defence of AI  that  the deceased  was  apprehended from near a  culvert  in  village Harma-Harora  on 20.10.1971. The learned trial  Judge  nega- tived this contention as the certified copy of the statement said  to have been made to M.M. Swarup in an  enquiry  under Section 176 of the Code of Criminal Procedure was inadmissi- ble in evidence since the said enquiry could not be  equated to  a judicial proceedings and was, therefore,  inadmissible in  evidence. He was of the view that the same could not  be admitted  in evidence under Section 90 of the Evidence  Act. In this view the proper course was to call for the  original statement, confront the witness with the contradictory  part and on proof use it as evidence to discredit the witness. We agree  with the learned trial judge that the contents  of  a certified  copy of the statement recorded under Section  176 of  the Code would not be admissible in evidence unless  the contradiction  is  proved by putting it to  the  witness  in cross-examination  and the maker has had an  opportunity  to admit  or deny it. In our view it has to be proved like  any other previous state.meat. The trial judge also opined  that even if the statement was admis 36 sible  under Section 90, Evidence Act that statement per  se cannot  efface  his substantive evidence in  court  for  the simple  reason that at the time of recording of that  state- ment  he was under the direct influence of A1 his  superior, and  was,  therefore, not a free agent.  The  learned  trial judge was, therefore, of the opinion that the  contradiction even  if  proved cannot militate against the  truth  of  his statement.  The High Court has endorsed the finding  of  the trial court that as PW 6 was a chowkidar under the  adminis- trative control of A1 he could be prevailed upon to  support the  defence theory in t, he inquiry under Section 176.  The High  Court  also held that the short signature of PW  7  as ’Jassi’  in the General Diary--Entry No. 10 must  have  been obtained  by A3 to add sanctity to the defence version.  The High Court finally stated that even if absolute reliance  is not  placed  on  the evidence of PW 6 in  this  behalf,  his evidence  is  duly  corroborated by the  evidence  of  other witnesses, viz., PW 7 Karamraji, PW 8 Ram Niranjan Misra and PW 9 Jai Lal, the mother, brother-in-law and labourer of the deceased.  These three witnesses have also deposed that  the deceased  was  arrested from his village Khajapur  at  about 11.00  a.m.  on 19.10.1971. The High Court has  rightly  ob- served that barring minor discripancies in their evidence as to dress of members of the police party, presence of others, etc.,  there is nothing brought out in their  cross-examina- tion to discredit their evidence in this behalf. The  prose- cution  also examined PW 3 Baij Nath and PW 4 Mewa Lal,  who have their shops near the culvert of village Hanna-Harora to negative  the  defence version regarding the arrest  of  the deceased from there. Therefore, both the courts have record- ed  a concurrent finding of fact that the deceased  was  ar-

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rested  on 19.10.1971 at about 11.00 a.m. from  his  village Khajapur.  That  means that the entry in the  general  diary that the deceased was arrested on 20.10.1971 and was brought to  the police station later can be brushed aside as  false. The need to make a false entry speaks for itself.     The  next question is where, when and by whom  were  the injuries inflicted on the deceased. The High Court  observes that the medical evidence on record shows that the  injuries found  on  the  person of the deceased were  caused  on  the evening  of 19.10.1971. In fact according to the High  Court the medical evidence lends credence to the prosecution  case that the deceased was arrested on 19.10.1971. The High Court holds as under: "After  considering the injuries of the deceased I have  not the  least  doubt in my mind that those  injuries  were  not caused to him during arrest, and that he was beaten some- 37 times  after his arrest and before he was sent to jail  from police station Kure Bhar". There is, therefore, no doubt that the High Court reached  a firm finding that the arrest was made on 19.10.1971 at about 11.00 a.m. from village Khajapur and the injuries noticed by the  medical  officer on the person of the deceased  at  the time of the autopsy were inflicted after his arrest and  not during the course of arrest.     Now  it  is not in dispute that A 1 was serving  as  the Station   Officer  of  police  station  Kure  Bhar  on   the 19/20.10.197 1. He was in charge of the investigation of the dacoity  case in which Jagdamba was arrested. It was he  who had  interrogated  Jagdamba and had secured  a  confessional statement  from  him. The information divulged  by  Jagdamba necessitated  the arrest of the deceased. It is,  therefore, reasonable  to infer that AI would interrogate the  deceased also.  Since the arrest was made from village Khajapur,  the presence  of PW 7, PW 8 and PW 9 at the time of  the  arrest cannot  be  doubted. PW 8 and PW 10 deposed  that  they  had followed  the deceased to the police station after  his  ar- rest.  PW  8, the brother-in-law of the deceased and  PW  10 have deposed that after the deceased was taken to the police station he was subjected to third degree treatment by AI and two  policemen  whom  they have not  identified.  Both  have stated on oath that A 1 and his two unidentified  companions beat the deceased with lathi and danda to extract a  confes- sion  from him and when they entreated A 1 not to  beat  the deceased,  he demanded Rs.2000 from them. PW 8 then went  to village Desarwa of Pure Nilkanth to fetch PW 5, the  husband of the eider sister of the deceased. On the arrival of PW  5 at  the police station he too requested A1 not to  beat  the deceased but Ai reiterated his demand for Rs.2000. When  the witness  expressed  his  inability to meet  the  demand,  AI resumed  the ill-treatment to the deceased. It is true  that PW 5 and PW 8 were the brother-in-law of the deceased and PW 10 his neighbour but that by itself, without anything  more, was  not sufficient to doubt their testimony which  receives corroboration  from medical evidence. We are, therefore,  of the  opinion that unless there are sound grounds  to  reject their  evidence it would not be proper to brush aside  their evidence  on  the  specious plea that  they  are  interested witnesses.     Even  though the High Court came to the conclusion  that the  deceased  was beaten after his arrest, the  High  Court refused  to place reliance on the direct testimony of  these three  witnesses  insofar as the involvement of A1  is  con- cerned. The first reason assigned is that since 38

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the village of PW 5 is 11 or 12 miles from Khajapur which in turn  is about 10 miles from Kure Bhar, it is  not  possible that he could have reached the police station by about  4.30 p.m.  In  the first place the exact time of arrival  of  de- ceased to the police station is not known. Secondly when the witnesses spoke about the time-factor they merely  mentioned the approximate time and not the exact time of PW 8’s depar- ture  and  return to the police station with PW 5.  We  are, therefore, of the opinion that the evidence of the  prosecu- tion witnesses cannot be thrown overboard on such an  infirm ground.     The  High Court has also cast doubts on the evidence  of PW 5 on the ground that he told a deliberate lie that  there was no sentry at the police station to make his entry in the police station probable. This too appears to us to be a weak reason  for  discarding his evidence. His  presence  at  the police  station is established by the telegram that he  sent to the superior police officers complaining about the  beat- ing given to the deceased. We, therefore, do not think  that the  High  Court  was justified in refusing to  act  on  his evidence on this ground.     In the application Ex. Ka 3 the name of A2 was mentioned as one of the constable who was assisting A1 in beating  the deceased  to extract a confession from him. However, in  the substantive evidence the witness did not name A2 but  merely stated  that  A1  and two other constables  had  beaten  the deceased.  The  High Cort, therefore, inferred that  he  had wrongly  named A2 as one of the assailants in Ex. Ka. 3  and was,  therefore,  not a reliable witness. But  both  in  the telegram,  and application Ex. Ka. 3 the name of A1 is  men- tioned.  The  omission to name A2 as one of  the  constables involved  in the beating cannot absolve A1. We  are,  there- fore, inclined to think that the High Court was not right in refusing  to  act  on the evidence of the  witness  on  such consideration.     The High Court rejects the evidence of the three  prose- cution witnesses on the ground that the telegram was sent by PW  5 as late as 23.10. 1971. In our opinion the High  Court failed to appreciate that 19th and 20th were lost in  trying to  secure  the release of the deceased from AI.  After  the suspect died on the 20th the next day i.e., 21st was lost in post  mortem examination and securing the dead body  of  the deceased  for funeral. His evidence discloses that the  dead body was not delivered to him till 4.30 p.m. On that day  he went to village Khajapur and broke the news of death to PW 7 and  other family members. He has deposed that he  sent  the telegram only after he received threats from A 1. The  trial court has discussed this aspect of 39 the case in detail and has rightly pointed out that it was a difficult  decision to take for PW 5 as he may not  like  to incur  the wrath of A1. But when A1 threatened him,  he  was left  with no choice but to inform his superiors.  The  High Court,  with respect, has failed to properly appreciate  and assess the situation. After all everyone thinks twice before deciding  to  make so serious a complaint against  a  police officer. We do not think there was so serious a delay as  to throw  out  the  evidence of the  three  witnesses  on  that ground.     PW  10’s  evidence has been rejected on a  very  flimsy. ground. He is the neighbours of the deceased. He was at  the police  station  upto 7.00 or 8.00 p.m. and claims  to  have seen  A1 beating the deceased. His evidence is  rejected  on the  ground that he was interested in getting the  policemen punished  because the deceased was beaten to death while  in

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police custody. It is further stated that all others associ- ated  with him are keen to see that somebody  gets  punished for  the  assault on the deceased. We find it  difficult  to comprehend  why this witness would falsely involve A1 if  he was not responsible for the injuries caused to the deceased. The conduct of this witness is branded as unnatural  because he  did not go to inform PW 7 and others about the death  of the  suspect. Since PW 5 and PW 8 were aware of  the  death. There was no need for PW 10 to inform the family members  of the deceased as he would be justified in believing that PW 5 and PW 8 must have informed them. We are, therefore, of  the view that the High Court had rejected the evidence of PW  10 on thoroughly untenable grounds.     That brings us to the question whether the alibi set  up by A1 can come to his rescue. In this connection reliance is placed  on  the  evidence of DW 1,  Jaswant  Singh,  Station Officer, Machlishahr Police Station. He claims to have  come to  Kure Bhar on 19.10.1971 for investigation of an  offence under Section 363/366 I.P.C. of his police station. He wants us  to believe that he was at the Kure Bhar  police  station from  5.00 p.m. to 9.30 p.m. According to him A1 was not  at the  police station till about 7.30 p.m. Reliance is  placed on the general diary entry dated 19.10.1971 to show that A 1 had  left the police station at about 10.30 a.m.  for  Tikar and  had  returned to the police station at 7.30  a.m.  This entry  is  proved through DW 2. Now according to DW  1  even though  he had come to Kure Bhar for investigation, he  him- self remained at the police station throughout and sent  his men  with A.S.I. (II) of Kure Bhar to  Dilawar-Ka-Purwa  for investigation. He wants us to believe that he came from  his police  station to investigate a crime but kept  sitting  at Kure  Bhar police station throughout from 5.00 p.m. to  9.30 p.m.  Is  this natural conduct? The obvious  reason  for  so stating 40 is to discredit PW 5, PW 8 and PW 10 who have in  unmistaka- ble  terms stated that A1 was at the police station and  had beaten the deceased. DW 1 stand belied by the general  diary entry made at his police station on 20.10.1971 to the effect that  on  reaching  Kure Bhar he took A.S.I.  (II)  of  that police  station  and went to  village  Dilawar-ka-Purwa  for investigation  and  returned to his police station  at  4.00 p.m.  According to the said entry from  Dilawar-ka-Purwa  he went  to Sultanpur where he passed the night, left for  Ram- nager  next morning and returned to his police  station  via Durgaganj.  The learned trial judge dealt with this part  of the defence evidence thus: "It  is also improbable of belief that once station  officer Jaswant Singh had taken care to come to Kurebhar in order to make  the investigation of the crime of his police  station, he had leisurely lingered on at PS Kurebhar and not  person- ally proceeded to make the investigation of the said case". The  learned  trial judge observed that he appears  to  have come  forward  to help a member of his own  fraternity.  The learned trial judge, therefore, came to the conclusion: "If  general  diary  entries Nos. 15 and 21  may  have  been falsely incorporated, where is the guarantee that the gener- al diary entry No. 17 which falls in between these, may  not have been falsely incorporated". The  learned trial judge also felt that it was not  possible to  believe that an important police officer like A 1  would spend  the whole day from 10.30 a.m. to 7.30 p.m.  inquiring about an application at Village Tiker.     The  learned judge in the High Court considers  the  ap- proach of the learned trial judge unacceptable because:

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"Sub-Inspector Juswant Singh has stated that he himself  had stayed at Police Station Kurebhar and had sent other members of  his  party and an A.S.I. of Police Station  Kurebhar  to Dilawar-Ka-Purwa.  The  mere fact that  S.I.  Jaswant  Singh happens  to  be a Sub-Inspector of Police is  no  ground  to reject his testimony. After all there should be some  reason for a police officer posted at police station Machlishahr at Jaunpur to falsely depose for defending Rafi 41 Uddin  Khan appellant. If S.I. Jaswant Singh’s  evidence  is disbelieved in the present case, he himself incurs the  risk of losing his job"     This  line of reasoning does not commend to us. We  fail to  understand how the learned judge could persuade  himself to accept the evidence of DW 1 on the specious plea that  if he did not tell the truth he ran the risk of losing his job. The  leaned trial judge gave sound reasons for  disbelieving the  evidence of DW 1 that he did not stir out of Kure  Bhar police  station from 5.00 p.m. to 9.30 p.m. The  High  Court failed to appreciate that on realising that the condition of the deceased had deteriorated, a false entry was made by  A3 at  the behest of A1 to show that (i) the deceased  was  not arrested  on  19.10.1971 nor was he brought  to  the  police station  Kure Bhar by about 4.00 p.m. and (ii) that  he  was actually  arrested  by A2 from near the culvert  of  village Hanna-Harora  on  20.10.71 and was given  a  beating  before actual arrest, a fact which is denied by A2 in his statement under  Section  313  of the Code. Thus  the  foundation  for absolving  himself  from the responsibility of  having  ill- treated the deceased was laid. The trail court rightly holds that  there is no guarantee that entry 17 is  accurate  when entries  15 and 21 are found to be false. The entry  in  the case diary regarding crime No. 28 of Machlishahr recorded by A.S.I.  Bankey Bihari who had accompanied DW 1 clearly  men- tions  that when they reached Kure Bhar they met  the  Thana Adhiyakshakh  (i.e. A 1) at about 5.00 p.m. which  negatives the theory that A1 had left the police station at 10.30 a.m. and had not returned till 7.30 p.m. of 19.10. 1971.  Without coming  to grips with the circumstances pointed out  by  the trial  court for disbelieving DW 1, the High Court  surpris- ingly accepted his evidence as gospel truth only because  he ran  the risk of losing his job. The High Court should  have realised  that  cases are not unknown where  police  officer have given inaccurate accounts to secure a conviction or  to help out a colleague from a tight situation of his creation. The High Court should also have realised that it is general- ly difficult in cases of deaths in police custody to  secure evidence against the policemen responsible for resorting  to third  degree  methods since they are in  charge  of  police station records which they do not find difficult to  manipu- late as in this case. It is only in a few cases, such as the present one, that some direct evidence is available. In  our view the reasons assigned by the High Court are too weak  to stand judicial scrutiny.      We  are aware that so far as A 1 is concerned,  we  are called upon to interfere in an acquittal appeal. Since it is said that an acquittal 42 reinforces  the presumption of innocence we  have  carefully considered  the reasons given by the High Court for  setting aside  the  conviction of A 1. We are satisfied  beyond  any manner  of doubt that the High Court completely  misdirected itself.  We  have  dealt with the facts at  some  length  to justify our interference under Article 136 of the  Constitu- tion.  Had we not been fully satisfied that gross  injustice

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was done because the High Court misdirected itself we  would not have interfered in exercise of our powers under  Article 136 of the Constitution.     For the above reasons we dismiss Appeal No. 111 of  1979 preferred  by A3 as we are satisfied that his conviction  is correctly  recorded. We allow the State’s appeal No. 477  of 1979 and restore the conviction of A1 recorded by the  trial court  by setting aside his acquittal by the High Court.  On the  question of sentence a fervent appeal was made  by  his counsel  that having regard to the passage of time  and  the changed circumstances A1 should not be sent to jail and  the sentence of fine should suffice. We are unable to accede  to this request. The offence is of a serious nature  aggravated by  the fact that it was committed by a person who  is  sup- posed to protect the citizens and not misuse his uniform and authority  to  brutally assault them while in  his  custody. Death in police custody must be seriously viewed for  other- wise  we will help take a stride in the direction of  police raj.  It  must be curbed with a heavy hand.  The  punishment should be such as would deter others from indulging in  such behaviour. There can be no room for leniency. We, therefore, do  not think we would be justified in reducing the  punish- ment imposed by the trial court.     A1  is  on bail. Since the trial court’s  order  of  his conviction and sentence is restored he will surrender to his bail within a week’s time to serve his sentence. R.S.S. 43