1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 382 OF 2003

K.H. Shekarappa & others ... Appellants

Versus

State of Karnataka         ..Respondent

J U D G M E N T

J.M. PANCHAL, J.

The appellants, who were original accused Nos. 1 to 7 and 9,  

were  members  of  police  force  of  the  Doddapet  Police  Station  at  

Shimoga City,  Karnataka.   The  challenge  in this  appeal  by  special  

leave  is  to  judgment  dated  November  14,  2002,  rendered  by  the  

Division Bench of High Court  of Karnataka,  Bangalore,  in Criminal

2

Appeal  No.  455 of  1995,  by which judgment  dated July  28,  1995,  

passed  by  the  learned  Additional  Sessions  Judge,  Shimoga,  in  

Sessions Case No. 14 of 1998 convicting them under Sections 143,  

148, 326, 201, 218 and 302 read with Section 149 of Indian Penal  

Code  (IPC)  and  imposing  different  punishments  for  commission  of  

those  offences,  is  set  aside  and instead  they  are  convicted  for  the  

offences punishable under Section 304 Part II IPC read with Section  

34 IPC for having caused the death of two persons, i.e., Rajakumar  

and Gurumurthy and under Section 324 read with Section 34 IPC for  

causing hurt to injured  Prakash and each one of  them is imposed  

sentence of R.I. for one year and fine of Rs.5,000/- and in default to  

undergo R.I. for 2 years for commission of offence punishable under  

Section 304 Part  II  read  with Section 34 IPC whereas  no separate  

sentence  is  awarded  for  conviction  under  Section  324  read  with  

Section 34 IPC.

2. Though  several  constitutional  and  statutory  provisions  have  

been  enacted  to  safeguard  the  personal  liberty  and  life  of  

citizens, incidents of torture and death in the police custody are  

ever on the rise.  In spite of condemnation of such acts by this  

Court  and  High  Courts,  certain  police  officials  conduct  

themselves  in  a  manner  resulting  into  gruesome  torture  and

3

death of suspects in the police custody.  There is no manner of  

doubt  that these  are  the  most  heinous  crimes  committed  by  

persons, who claim to be the protectors of the citizens.  What is  

distressing to note is that the incidents of torture and death in  

the police custody take place under the shield of uniform and  

authority, in the four walls of a police station or in the lock-up,  

where the victims are totally helpless.

3. This is one such case which brings to light an incident in which  

two persons lost  their  lives  and others  were  injured while  in  

police custody.  The facts emerging from the record of the case  

are as under:

On the night of December 31, 1987, a fight broke out  

between  Gurumurthy,  Rajakumar,  Prakash,  Nallakumar  and  

Purushotham on one hand and some engineering students on  

the other, at a liquor bar, called Shilpa Bar, at Shimoga, where  

all were merrymaking to welcome the new year of 1988.  The  

students  lodged a complaint  of  assault  on them.  Therefore,  

criminal  cases  were  registered  against  Gurumurthy,  

Rajakumar,  Nallakumar,  Prakash  and  Purushotham  at  

Doddapet  Police  Station,  Shimoga  City.   In  wee  hours  of  

January 12,  1988 a reliable  information was received  at the

4

said Police Station that Gurumurthy, Rajakumar, Nallakumar,  

Prakash and Purushotham were  taking  shelter  in a room at  

Sujatha Building, Tilak Nagar, Shimoga.  The appellants Nos. 1  

to 7, who were Police Constables,  rushed to the place.  They  

apprehended and brought Gurumurthy and others to the Police  

Station.  At the relevant time, the appellant No. 8 was the Head  

Constable  and  was  present  in  the  Police  Station.   The  

appellants gave Gurumurthy, Rajakumar, Nallakumar, Prakash  

and  Purushotham  severe  beating.   Unable  to  withstand  the  

same Gurumurthy and Rajakumar lost their consciousness and  

collapsed in the Police Station.  The appellants thereafter took  

both of them to the hospital at different times.  But doctor on  

duty declared them “dead on arrival”.  Prakash and Nallakumar  

were  also severely  beaten  and they received serious injuries.  

Therefore, they were also taken to the hospital.  When the news  

of death of Gurumurthy and Rajakumar at the hands of the  

police  spread,  a  public  disturbance  near  the  hospital  took  

place.  On coming to know about this incident, Varadaraj, who  

was another  P.S.I.  of  the same Police  Station,  rushed  to the  

hospital  and  recorded  statement  of  injured  Prakash.   After  

recording  the  same,  P.S.I.  Varadaraj  returned  to  the  Police

5

Station.   On  the  basis  of  the  contents  of  the  statement  of  

injured Prakash, Crime No. 14/88 was registered against the  

appellants Nos. 1 to 7 for commission of offences punishable  

under  Sections 302,  324 read with Section 34 IPC.   On the  

basis  of  said  FIR,  P.S.I.  Varadaraj  commenced  the  

investigation.   He  recorded  statements  of  those  persons  who  

were  found to be  conversant  with the facts of  the case.   He  

prepared a spot mahazar and submitted the FIR to his superior  

officer  Mr.  Mahadev  Naik,  who  was  then  Deputy  

Superintendent of Police.  Mr. Mahadev Naik also took part in  

the investigation of the case and mobilized the police force for  

maintaining  public  peace,  as  there  was  an  apprehension  of  

disturbance of public order.  On the next day, i.e., on January  

14,  1988,  the  Deputy  Superintendent  of  Police  visited  the  

hospital and recorded the statement of injured Purushotham,  

Prakash  and  Nallakumar.   He  also  made  necessary  

arrangements for sending the dead bodies of the deceased for  

Post  Mortem  examination.   On  the  same  day,  the  Deputy  

Superintendent of Police directed Mr. Patil, who was then P.S.I.  

of Kote Police Station, to register a case against the appellants.  

Accordingly Mr. Patil also registered a case as Crime No. 8/88

6

at Kote Police Station against the appellants Nos. 1 to 7 and  

arrested them.  On January 16, 1988 the Investigating Officer  

visited the Police Station at Doddapet and conducted search in  

the presence of independent witnesses.  At that time he noticed  

two cars  parked  in  the  compound  of  the  Police  Station  and  

found three service lottis kept below the cars.  The same were  

seized  under a mahazar.  Thereafter  the sketch of the Police  

Station  was  got  prepared  through  an  engineer.   Other  

incriminating  articles  were  also  seized.   After  obtaining  

necessary  reports  including  the  Post  Mortem  reports,  the  

Forensic Science Laboratory report, etc. charge-sheet was filed  

initially against appellants Nos. 1 to 7.

4. On committal of the case, the learned Sessions Judge framed  

charges against the appellants Nos. 1 to 7 for commission of  

offences  punishable  under  Sections 143,  148,  341 read with  

Section 149 IPC, Section 326 read with Section 149 IPC and  

Section  302  read  with  Section  149  IPC.   Later  on  it  was  

revealed that original accused Nos. 8 and 9 had also played role  

in the incident and, therefore, they were arrayed as accused in  

the case and were charged along with the appellants Nos. 1 to  

7.  As all  the accused denied the charges and claimed to be

7

tried, they were tried in Sessions Case No. 14 of 1988.

5. In order to establish the guilt of the accused, the prosecution  

examined in all 45 witnesses and got marked 106 documents  

as  well  as  produced  MOs  1  to  6.   The  incriminating  

circumstances appearing against the appellants were explained  

to them by the learned Judge and their further statements were  

recorded  as  required  by  Section  313  of  Code  of  Criminal  

Procedure, 1973.

6. In the further statements the appellants denied in general the  prosecution case.  However in answer to the last question, the  appellants Nos. 1 to 7 stated that on January 13, 1988 at about  7.00 A.M. all of them had gone to apprehend the accused in  Crime Nos. 2/88 and 3/88 and when an attempt to apprehend  the deceased near a park was made, they had tried to escape  and in the process Gurumurthy had fallen in a mori (a small  open drainage) while Rajakumar had fallen on a barbed wire  and as such both of them had sustained injuries.  It was  further mentioned by them that as the condition of  Gurumurthy was not good, he was taken to the hospital, but  had died on the way to the hospital.  The original accused No. 9  in his further statement mentioned that while he was S.H.O.  the appellants Nos. 1 to 7 produced Gurumurthy and  Rajakumar, who were accused in Crime Nos. 2/88 and 3/88  and on inquiry by him he was informed that they had received  injuries due to fall and they wanted medical treatment.  According to the original accused No. 9, he tried to get medical  help in the Police Station but no private doctor was available  and, therefore, he could not secure medical help for those  injured accused.  What was mentioned by him was that  thereafter he was not knowing as to what happened in the  incident.  On appreciation of evidence as also the defence theory,  

the  trial  court  found  that  the  appellants  were  guilty  of  the

8

offences under Sections 143, 148, 326 read with Section 149  

IPC, Section 201 read with Section 149 IPC, Section 218 read  

with Section 149 IPC and Section 302 read with Section 149  

IPC  on  two  counts.   Insofar  as  original  accused  No.  8  was  

concerned, he was found guilty of the offences under Section  

201  read  with  Section  511  IPC  and  Section  218  read  with  

Section 511 IPC, but not guilty of other offences.  After hearing  

the appellants on the question of sentence, the learned Judge  

imposed  sentence  of  life  imprisonment  on  the  appellants  for  

commission of  offences  under  Section 302  read  with Section  

149 IPC and also other punishments for commission of other  

offences.

7. Feeling aggrieved, the appellants filed Criminal Appeal No. 455  of 1995 whereas the original accused No. 8 filed Criminal  Appeal No. 456 of 1995 before the High Court of Karnataka,  Bangalore.  The matters were placed for hearing before the  Division Bench comprising M.F. Saldanha and S.R.  Bannurmath, JJ.  Mr. Justice M.F. Saldanha was of the opinion  that the prosecution had failed to prove its case against the  appellants beyond reasonable doubt and, therefore, they were  entitled to acquittal.  Mr. Justice Bannurmath expressed the  view that conviction of the appellants recorded by the learned  Additional Sessions Judge was well founded and, therefore, the  appeals deserved to be dismissed.  In view of the fact that the  learned Judges of Court of Appeal were equally divided in their  opinion, the appeals with their opinions were laid before  another learned Judge of that Court.  The third learned Judge  of the High Court of Karnataka, after hearing the parties and  considering the record of the case, delivered his opinion  mentioning that the guilt of the appellants was proved, but they

9

had not committed offences punishable under Sections 143,  148, 326, 218 and 302 read with Section 149 IPC but had  committed offences punishable under Sections 304 Part II and  324 both read with Section 34 IPC for having caused death of  two persons Rajakumar and Gurumurthy and causing hurt to  injured Prakash respectively.  The learned Judge further opined  that the appellants should be sentenced to R.I. for one year  each and fine of Rs.5,000/- in default R.I. for two years for  commission of the offence punishable under Section 304 Part II  read with Section 34 IPC.  The learned Judge was of further  opinion that no separate sentence was needed to be awarded  for conviction of the appellants under Section 324 read with  Section 34 IPC.  The learned Judge was also of the opinion that  on realization of the entire amount of fine from the appellants,  the same should be paid to the heirs of the two deceased in  equal proportion by way of compensation.  The opinion  rendered by the third learned Judge of the High Court was laid  before the Division Bench of the High Court.  The judgment  delivered by the Division Bench of the High Court has followed  the opinion expressed by the learned third Judge, giving rise to  the instant appeal.

8. This  Court  has  heard  the  learned  counsel  for  the  parties  at  

length and in great detail.  This Court has also considered the  

record summoned from the Trial Court.

9. The fact that the deceased Rajakumar died a homicidal death is  

not disputed before this Court.  Dr. O.A. Mahipal (PW-1) has  

stated that on January 13, 1988 at about 4.40 P.M., he had  

received  a  requisition  from  the  concerned  Police  Station  to  

conduct the Post Mortem examination on the dead body of the  

deceased  Rajakumar.   According  to  him  he  had  performed  

autopsy on the dead body of the deceased on January 14, 1988

10

between 8.20 and 10.00 A.M. and found following injuries: -

“1. A  circular  brownish  contusion  of  1  cm.  diameter  present over the right side of forehead.

2. 2  minute  brownish  contusions  over  the  middle  of  the  forehead.

3. Forehead is diffusely swollen.

4. A  contusion  of  reddish  brown  colour  1”  in  diameter  present  over  the  right  maxillary  region,  ½”  below  the  right eye.

5. Multiple brownish black abrasions of various sizes and  shapes  present  in  different  directions  over  the  right  mandible,  right side of the chin, right angle of the jaw  and right side of the anterior portion of neck and behind  the right ear.

6. Fullness over both clavicular area present.

7. Fourth  brownish  black  abrasion  circular  and  linear  present over the clavicular areas.

8. Multiple transverse blackish contusions with their margins  half C.M. wide, centre being clear present over the front of  chest and abdomen.

9. Multiple brownish contusions, some circular some other  are transversely linear of various sizes and shapes eight  in number present over left scapular area and middle of  the left lumbar area.

10.An  area  of  5”  x  2”  blackish  burnt  area  over  the  left  buttock present.  Surrounding this injury a smokey area  of 3” diameter present.

11. An oblique brownish black contusion of 3½” x 3/4th of an inch  over the left iliac crust present.

12.Multiple transverse brownish abrasions of 2½” x 1” size  present over the right buttock.

13. Four transverse blackish linear burnt out marks 3” x 1/8th of  an inch each present over the right buttock.

11

14.Multiple  brownish contusions,  10 in numbers  present  over the right lumbar area.

15.The whole of the right upper limb is diffusely swollen.

16.A  reddish  brown  contusion  of  9”  x  3”  size  over  the  medical aspect of lower half of right arm extending upto  upper third of the right fore arm.

17.A blackish brown burnt area of 2½” diameter, 1” below  the right elbow joint present over the right fore arm.

18.3 blackish oblique burnt out areas 2½” x 1½”, 3” x 1”  and 1” diameter respectively  present  over the posterior  aspect of right arm, elbow and forearm.

19.Three distinct punched out blackish burnt marks of ½”,  ¼ of an inch and ¾” diameter present over dorsum of  right hand.

20.Tips of all the fingers are smokey.

21.A  contusion  (brownish)  contusion  of  3”  x  1½”  size  present over the lateral aspect of upper third of left arm.

22.Left elbow and shoulder joints are swollen.

23.Multiple  deep abrasion and burnt  out areas  obliquely  placed six in number measuring 1½”, 1½”, 2½”, 2”, 3”,  3½”  along  and  each  being  ½”  wide  present  over  the  posterior aspect of left arm and left elbow.

24.A transversely placed ‘U’ shape burnt out mark over the  back of left forearm present.

25.A brownish contusion  of  3”  x  1”  size  over  the  lateral  aspect of left elbow joint present.

26.Multiple  distinct  brownish  black  contusion  over  the  dorsum of left hand and wrist.

27.Multiple brownish black obliquely placed contusion 5” x  2” present over the posterior aspect of left thigh.

28.A transversely placed II Degree burnt out area of 3” x 2”  present over the left knee joint.

12

29.Two burnt out areas,  one transversely  placed 2” x ¾”  and another  longitivenely  placed 2” x ½” both present  over the middle of the anterior aspect of left thigh.

30.A punctured wound of ½ cm. diameter and ¼ cm deep  over the middle of front of left leg seen.

31.Multiple blackish burnt out marks of varying sizes from  1 cm to 7 cms long and each 1 cm. wide, distributed in  various  directions  of  various  shapes,  present  over  the  whole of the anterior aspect of left leg.”

The doctor further mentioned in his testimony that on dissection of  

the dead body, he had found the following internal injuries: -

“a. Left  knee  joint  contains  clotted  blood  about  300  cc  blood, no fracture or dislocation found.

b. Right knee joint contains clotted about 100 cc of blood  no fracture of dislocation found out.

c. Left ankle joint shows presence of sub cutaneous blood  clots about 100 cc.

d. Left elbow joint shows no fracture of dislocation.

e. Right elbow joint contains blood clots about 100 cc. of  blood, no fracture of dislocation observed.”

According to the Medical Officer, the cause of death of the deceased  

was shock as a result of the multiple injuries sustained by him.  The  

Medical  Officer  is  completely  corroborated  by  the  contents  of  Post  

Mortem report produced on the record of the case as Exh. P-9.  The  

doctor further opined that clotting of blood found in the joints as per  

(a) to (e) would be due to the assault by the sticks like MOs 1 to 3

13

whereas the burn injuries that were found on the dead body could be  

caused  by  any  heated  substance  like  metal  or  rubber  tyre.   The  

Medical Officer further explained that a single fall would not cause  

such injuries that were sustained by the deceased.  It was explained  

by him that individually the injuries were simple, but collectively they  

could cause the death of an individual.  In cross-examination also the  

Medical Officer maintained that the cause of death was shock as a  

result of multiple injuries.  What is important to be noticed is that it  

was further stated by him in cross-examination that the said injuries  

could not have been caused simultaneously.  After mentioning that  

the  age of  the injuries  sustained by the deceased Rajakumar were  

ranging from 24 hours to four days, the Medical Officer stated that the  

age of injuries were mentioned by him on the basis of colour of the  

injuries.   The doctor  further  stated  that the death of  the deceased  

might have been caused about 24 hours prior to the commencement  

of the Post Mortem examination.  According to the doctor, it was a  

case  of  rapid  death  due  to  injuries  sustained  by  the  deceased  

Rajakumar.  On reappraisal of the evidence of the Medical Officer this  

Court finds that the Sessions Court and the High Court were justified  

in  concluding  that  the  deceased  Rajakumar  had  died  a  homicidal  

death.

14

10. Similarly, the testimony of Dr. Dodda Gowda (PW-2) shows that  

on January 13,  1988 he had received  a requisition from the  

Sub-Divisional  Magistrate,  Shimoga  to  conduct  the  Post  

Mortem on the dead body of deceased Gurumurthy and that on  

the same day he himself with Dr. Srinivasa had conducted Post  

Mortem on the said  dead  body  between  4.15  P.M.  and 5.45  

P.M.  According to the doctor the Post Mortem examination had  

revealed following injuries: -

“1. Dark brown contusion 1” below the right angle of the  mouth measuring ¾” x ½”.

2. Dark brown contusion on right to the traches 1” above  the supra tranol notch irregular in shape.

3. Dark brown contusion in front of right shoulder ½” x 1”.

4. Multiple  irregular  contusions  four  in  number  outer  aspect of right arm.

5. Irregular contusion front of right elbow (Cubital Fossa).

6. Diffuse dark brown contusion outer part of right lower  half of forearm.

7. Dark brown contusion back of right forearm 1½” x 1½”.

8. Diffuse  dark  brown contusion front  of  right  thigh and  right knee outer aspect.

9. Contusion front and middle of right leg ½” x ¼”.

10.Dark brown contusion outer and middle part of left arm.

11.Diffuse contusion front of left elbow and left forearm.

12.Diffuse contusion back of left elbow.

15

13.Contusion at the outer part of left thigh upper half 3” x  1” and another measuring 4” x 1” two inches apart from  each other.

14.Dark brown contusion front of left knee and lower third  of left thigh.

15.Lacerated  wound  appear  third  of  left  leg  in  front  measuring ½” x ¼” with dark blood clots.

16.Dark  brown  contusion  over  the  medial  part  of  right  thigh and knee.

17.Dark  brown  contusion  back  of  left  shoulder,  and  trepious region.

18.Dark  brown  irregular  contusion  at  the  left  scapular  region,  outer  part  of  left  chest  and  outer  part  of  left  lumber region.

19.Multiple  irregular  dark  brown  contusion  at  the  right  shoulder and scapular region.

20.Diffuse dark brown contusion lower part of right chest  right lumber region, at the outer and lower aspect.

21.Diffuse  multiple  dark  brown contusion  irregular  right  glutial region, upper part of the thigh.

22.Diffuse irregular dark brown contusion on back of right  knee.

23.Diffuse  dark  brown  contusion  with  an  abrasion  measuring ½” x ¼” at the left glutial region.

24.Irregular dark brown contusion back of left writst.”

His  evidence  further  shows  that  on  dissection  following  internal  

injuries were noticed by him: -

“Skull and Vertebra and Membranes were intact.

Brain: Pale, Spinal Cord: not opened.

16

Chest Wall : Intact Pluscae: intact;

Larynx: Healthy, Right and left lungs: Pale,

Pericordium : Intact.

Heart: Pale and empty, large vessels: intact,

Abdomen walls: intact; Peritoneum: intact,

Mouth and Pharynx and Exophagus: Healthy,

Stomach and its contents: Pale and empty,

Small  intestine  and its  contents:  Pale  and contains semi  digested food;

Large Intestine: Pale distended with gas and fecol matter;  Liver: Pale;

Spleen:  Pale.  Kidney:  Pale,  Bladder:  contains  4  ounce  of  clear urine,

Organs of Generation: Healthy.”

According  to  the  Medical  officer  the  death was  due  to  shock  as  a  

result of multiple injuries and all the injuries were ante mortem.  The  

Medical Officer further gave opinion that the injuries might have been  

caused by sticks like MOs 1 to 3 and death might have occurred 24  

hours prior to the commencement of the Post Mortem examination.  

According to the  doctor,  the  age  of  the  injuries  varied  from 1 to 3  

days.   During cross-examination the  witness  explained  that  except  

injury  No.  15,  all  other  injuries  were  contusions  and  the  injuries  

might have been caused about 48 hours prior to the commencement  

of Post Mortem examination.  The defence wanted to know from this  

witness  as  to  whether  the  injuries  found on the  dead  body  of  the

17

deceased  could  have  been  caused  simultaneously  or  at  different  

intervals but the Medical officer replied that he was not in a position  

to say whether all the injuries were caused simultaneously.  During  

his cross, the witness further stated that some of the external injuries  

were  on  the  vital  parts  but  had  not  damaged  the  vital  parts.  

According to the doctor, the deceased had died because of irreversible  

shock.  A fair reading of the testimony of this witness makes it evident  

that the deceased Gurumurthy had also died a homicidal death.

The  testimony  of  the  Medical  Officer  Dr.  O.A.  Mahipal,  

examined as PW-1, further shows that at 4.45 P.M. on January 13,  

1988 he had examined one Nallakumar, who was referred to him for  

treatment.   According  to  the  Medical  Officer  the  injured  had  

mentioned history of assault by the police with rubber, rod and lottis  

on December 31, 1987 at 1.00 P.M. at Gopi Circle, Shimoga and that  

he had recorded the same on the medical  papers.   The doctor has  

further  mentioned  that  on  examination  he  had  found  following  

injuries on the body of Nallakumar: -

“1. A  linier  crusted  laceration  over  the  middle  of  the  forehead 2” x ¼” size.

2. Multiple  oblique  brownish  abrasions  over  the  right  forearm and right elbow present.

3. Vague tanderness all over the body present.

4. A transverse crusted laceration of 1” x ½” present over

18

the front of the right leg.”

The Medical Officer has further stated that the injured was advised X-

ray but the X-ray revealed no fracture.  The witness mentioned that  

injured Nallakumar was treated as an indoor patient till January 21,  

1988.  It was further mentioned by the doctor that injuries Nos. 1 to 4  

were simple in nature caused due to external violence with hard and  

blunt objects and that the injuries might have been caused by the  

sticks like MOs 1 to 3.  The doctor explained that the age of injuries  

Nos. 1 and 4 was about one week whereas injury No. 2 was two days  

old and injury No. 3 might have been caused within 24 hours.

The testimony of this witness further shows that on the same  

day at 5.00 P.M., he had examined injured Prakash.  According to the  

Medical  Officer  injured  Prakash had narrated  history of  assault  by  

eight  police  officials  at  Doddapet  Police  Station  at  7.00  A.M.  on  

January 13, 1988 and that he had recorded the same in the medical  

papers of the injured.  The Medical Officer has further stated that on  

examination of the injured Prakash he had found following injuries on  

his person: -

“1. Multiple  crusted  abrasions  of  varying  sizes  and  shapes present over the extremities.

2. Diffuse tender swelling of both upper extremities and  both knee joints present.”

19

The doctor has further mentioned that the injured was advised to go  

for X-ray examination and the report of the said examination did not  

reveal  any  fracture,  but  another  X-ray  was  taken  on  January  16,  

1988, report of which showed incomplete fracture of the head of left  

fibula.  The Medical Officer explained that injury No. 1 was simple in  

nature whereas injury No. 2 was grievous.  According to the doctor,  

the fracture found in injury No. 2 was separately marked as injury No.  

3 in wound certificate and it was grievous.

The doctor further mentioned in his testimony that at 5.15 P.M.  

on the same day, he had examined injured Purushotham.  According  

to the doctor the injured had narrated history as assault by ten police  

officials  at Doddapet  Police  Station, Shimoga at 12.00 midnight on  

January 12, 1988 extending upto early hours of January 13, 1988  

and  that  he  had  recorded  the  same  in  the  medical  papers  of  the  

injured.   

What is to be noted is that this Medical Officer was not cross-

examined  by  the  defence  on  the  question  of  injuries  sustained  by  

Nallakumar, Prakash and Purushotham or history of assault recorded  

by him on the medical papers of the injured.  Thus there is no manner  

of  doubt  that  the  High  Court  was  justified  in  concluding  that  

Nallakumar,  Prakash  and  Purushotham  were  injured  at  Doddapet

20

Police  Station  during  the  midnight  of  January  12,  1988  extending  

upto early hours of January 13, 1988.

11. This  brings  the  Court  to  consider  the  question  whether  the  

prosecution has been successful  in proving that the death of  

the two deceased and injuries on the injured were caused by  

the appellants.

12. It is to be noted that the appellants were charged for causing  custodial death of the two deceased and injuring the three  injured.  The evidence in this case can be divided into two parts  – (1) direct evidence relating to the incident and (2)  circumstantial evidence.  To begin with, this Court proposes to  consider the evidence relating to topography of the premises  where Doddapet Police Station is located.  In this regard the  prosecution had examined D. Dharmappa Shetty (PW-3).  His  evidence discloses that on January 16, 1988 Assistant  Executive Engineer had issued instructions to him to prepare a  sketch of the place of occurrence, i.e., the verandah in front of  the lock-up room of Doddapet Police Station.  According to him  on January 2, 1988 he had visited the spot shown to him by  P.S.I. Varadaraj and prepared the sketch, which was produced  by him at Exh. P-17.  The witness explained that the sketch  was prepared as a rough sketch showing the existing pillars,  the verandah, etc.  The witness mentioned that there was a  verandah in the Police Station and it had a door which opened  into a space situated in front of the two toilets.  The witness  mentioned that the stone pillars were supporting the room and  the pillars on the south of the verandah were high and  separated from each other by 3.20 meters.  According to him he  had seen the pillars from within the lock-up room of the Police  Station and it was possible for one to see only one central pillar  from the lock-up room, but from the eastern door of the Sub  Inspector’s room all the four pillars were visible.  In the cross- examination he admitted that on one extreme side of the  verandah there was a room of the Sub Inspector and to the  north of the entire premises there was a Taluk office.  According  to him the width of the verandah was 1.20 meters and from the

21

door, the central pillar was almost at a distance of about 2  meters or 6 feet.  In cross-examination the witness clearly  mentioned that from the lock-up room one pillar was visible.  From the testimony of this witness it becomes at once evident  that the door was fixed on the dividing wall of the verandah and  the lock-up room and therefore, there could have been difficulty  for a person to see the stone pillar between the central pillar  and the pillar next to it supporting the room on the eastern  side.

13. The injured witness Purushotham (PW-5) did not support the  prosecution and was contradicted by the prosecution with  reference to his earlier statement recorded under Section 161 of  the Code of Criminal Procedure.  In the cross-examination by  the prosecution, the witness admitted that on January 13,  1988 at about  4.30 or 5.00 P.M. he was examined by the  doctor in Mc. Gann Hospital, Shimoga as he had received  injuries due to police assault in Doddapet Police Station.  He  also admitted that in Doddapet Police Station policemen  assaulted him in the early morning of January 13, 1988 and he  sustained injuries.  It was further stated by him that he was  taken to Mc. Gann Hospital but hastened to add by making a  voluntary statement that he was taken from Mahatma Gandhi  Park to the Police Station and thereafter he was assaulted.  The  suggestion by the prosecution that on January 13, 1988 at  about 1.00 P.M. he was picked up with another pickpocketer  and taken from Doddapet Police Station to Kote Police Station  and that he was beaten in Kote Police Station from 3.30 or 4.00  P.M. in that Police Station and then taken to D.A.R. Unit, was  denied by him.  Normally, the rule of appreciation of evidence of  a hostile witness is that the same should not be considered in  support of the prosecution case.  However, it is a well settled  principle that evidence of a hostile witness can be taken into  consideration for the purpose of determining whether  prosecution case is proved or not, if the same is corroborated  by reliable independent witness.  Here in this case the Court  finds that the admissions made by this witness in cross- examination by the prosecution are fully supported by medical  evidence on record.  Before the doctor, who had examined him,  this witness had narrated history of assault on him, which was  noted down by the doctor on his medical papers.  The assertion  made by the witness in his cross-examination that he was  assaulted in Doddapet Police Station gets ample corroboration

22

from the medical evidence and, therefore, it would be safe to  conclude that this witness received injuries while in police  custody.   

14. At this stage it would be advantageous to reproduce what was  

stated by the witness in his cross-examination: -

“There were about 30 Policemen when I was assaulted and  some out of them assaulted me.  I was not tied down.  I was  taken to the Lock-up and assaulted.  Nallakumar, Prakash  and Gurumurthy, Raja Kumar and myself were put in lock  up and were assaulted.  None of us was tied.  It is false to  say  that  I  was  taken  by  the  Police  on  the  night  of  31.12.1987 itself from my house.  The C.O.D. Inspector has  recorded my statement.  I have not stated before him as per  Ex. P-19 now read over to me.  It is false to say that since  the  night  of  31.12.1987  I  was  in  the  Police  lock-up  Doddapet upto 13.01.1988.  It is not true to say that 3-4  days after my arrest Nallakumar was brought and put in  Doddapet Police Station lock-up.  When Gurumurthy was  in  the  lock-up,  he  was  asking  for  water.   Many  Police  people were there at that time.  I cannot say whether the  accused were also there.  He was given water.”

The  evidence  of  this  witness  indicates  that though initially  he  was  

hesitant in admitting the assault upon the deceased Gurumurthy and  

Rajakumar and injured Nallakumar and Prakash in his presence, he,  

in  terms, admitted in his cross-examination that he was taken into  

lock-up and assaulted and Gurumurthy, Rajakumar, Nallakumar and  

Prakash were  with him in the same lock-up.  His evidence  further  

shows  that  the  police  had  not  arrested  and  brought  Prakash,  

Rajakumar and Gurumurthy on January 13, 1988 at about 4.20 A.M.

23

along with three students to the Doddapet Police Station, Shimoga.  

Though this  witness  denied  the  suggestion of  the  prosecution that  

Prakash, Gurumurthy and Rajakumar were tied to the three pillars of  

the verandah whereas the three students were made to sit in the room  

of S.I. to watch, the witness made following statement: -

“The Police assaulted myself and four others, i.e., Prakash,  Rajakumar, Gurumurthy and Nallakumar.  They assaulted  us with the sticks.  They caused injuries on all over our  body.  The Banian on the person of Prakasha, Gurumurthy  and  Rajakumara  were  torn.   They  sustained  bleeding  injury.  Nallakumar wiped out the blood on the person of  Prakash, Rajakumar and Gurumurthy.  Gurumurthy was  completely exhausted and tired and fell down.  He was not  given water after he fell down.  It is not true to say that his  feet were burnt.  He was taken alone to the hospital.  It is  not true to say that Prakash, Nallakumar and Rajakumar  were also taken out of the lock-up in Police-van, and that I  was in Kote Police Lock-up and that the Police brought the  dead body of Rajakumara, and Nallakumara and Prakash  to the Kote P.S.  As I was in the Hospital, I  do not know  whether  there  was  galata  in  the  City  on  the  day  when  Gurumurthy and Rajakumar died.”

From the above quoted extract, it becomes evident that this witness  

and four other  persons,  namely,  Prakash,  Rajakumar,  Gurumurthy  

and Nallakumar were assaulted with sticks resulting into injuries on  

all  over  their  person.   The  statement  also  makes  clear  that  the  

banians  of  Prakash,  Gurumurthy  and  Rajakumar  were  torn.   His  

evidence further proves that Nallakumar wiped out the blood on the  

body of Prakash, Rajakumar and Gurumurthy and that Gurumurthy

24

was not given even water after he had fallen down.

15. Similarly, the prosecution had examined injured Purushotham  

to prove its case against the appellants.  However, this witness  

did not support the prosecution case.

16. After  discussing the  evidence  of  witnesses  (1)  Renukeshwara  

(PW-6),  (2)  Shivaraja  (PW-7),  (3)  Krishna  Murthy  (PW-9),  (4)  

Shantha  Veeranaika  (PW-16),  (5)  Panchaksharai  (PW-27),  (6)  

Harish  (PW-28)  and (7)  Chinnamma (PW-11)  the  High  Court  

has come to the conclusion that deceased Rajakumar was not  

in the police  custody prior to January 12, 1988 and he was  

apprehended only in the  night of  January 12,  1988 or  early  

morning of January 13, 1988.

Nallakumar  (PW-20)  is  one  of  the  persons,  who,  

according  to  the  prosecution,  was  apprehended  by  police  

officials of Jayanagar Police Station on the night of December  

31, 1987 from near Gopi Circle in relation to the incident, which  

had taken place  at Shilpa Bar on the same night in the wee  

hours of the new year of 1988.  A close scrutiny of his evidence  

establishes that he was first apprehended by the policemen, i.e.,  

by  Lokesh,  Ameer  Jain,  Basavaraja  and  Mahadevappa  of  

Jayanagar Police Station and was kept in illegal custody.  His

25

evidence proves that he was subjected to merciless beating by  

the abovementioned policemen at the instigation of Basavaraju  

and Deffedar Muddappa.  It is further proved by his testimony  

that from that place he was shifted to Doddapet Police Station.  

His evidence would further show that though he was illegally  

detained  in  Jayanagar  Police  Station,  Sub-Inspector  of  Police  

Gangadharappa,  i.e.,  original  accused  No.  8,  who  was  

discharging duties at the Doddapet Police Station, was visiting  

Jayanagar  Police  Station  and  beating  him  enquiring  about  

Gurumurthy  and  Rajakumar,  who  were  absconding.   His  

evidence further shows that he was detained till  January 13,  

1988 and that at Doddapet Police Station also the appellants  

had subjected  him to merciless  beating.   The scrutiny of  the  

evidence of this witness would show that he had closed down  

his business and gone to Gopi Circle  to bring milk at Prithvi  

Sagar Milk Booth and while he was bringing milk, policemen  

from Jayanagar Police  Station had approached him and after  

questioning about whereabouts of Gurumurthy, Rajakumar and  

Prakash he was taken to Jayanagar Police Station where Sub-

Inspector  of  Police,  i.e.,  accused  No.  8  was  standing.   This  

witness has mentioned in his testimony that he was kept in the

26

lock-up of Doddapet Police Station roughly for six days and that  

one day when he had waken up early in the morning around  

4.00  A.M.  or  4.30  A.M.,  he  had  seen  from the  lock-up  that  

Gurumurthy,  Prakash  and  Rajakumar  were  brought  to  the  

Police Station and Rajakumar and Prakash were separately tied  

to the stone pillars supporting verandah in front of the lock-up  

room.  He further stated that he had seen Prakash being tied to  

one pillar with his hands tied backward and Gurumurthy was  

also  tied  to  another  pillar  with  his  hands  stretched  behind  

around  the  pillar.   According  to  him  Gurumurthy  was  

handcuffed whereas Rajakumar was tied to third pillar in the  

similar  way.   What  is  stated  by  the  witness  is  that  the  

appellants were beating Prakash, Rajakumar and Gurumurthy  

with lotties and tyre pieces and that the injured were bleeding.  

The witness further stated that the injured were wearing only  

banian and knickers and he had continued to watch what was  

happening.  In order to appreciate as to what was seen by this  

witness, it would be relevant to reproduce his testimony, which  

reads as under: -

“One day early morning, at about 4 a.m. or 4.30  a.m. I saw near stone pillar in front of the lock up  door, they brought Gurumurthy and he was tied

27

to the said stone pillar with his hands stretched  at the back and tied.  He was handcuffed.  To the  next stone pillar, I saw they had tied Rajakumara  also in the same way.  On the next pillar I  saw  they had tied Prakash in the same way.  I  also  saw  that  all  the  accused  persons  except  Sub  Inspector Gangadharappa, were beating Prakash,  Rajakumara,  Gurumurthy.   They  were  beating  those three persons with latties and tyre pieces.  I  also saw that from the injuries sustained by those  three  persons,  blood  was  coming  out.   Those  three  persons  were  wearing  only  Banian,  (west  and kacha panties).  I  saw that after some time  when  the  accused  were  beating,  Gurumurthy  slumped with his hand, handcuff  behind to the  floor.  At that time I saw Sub Inspector of Police  Gangadharappa came to that spot.  He told the  accused as follows: -

TRANSLATED IN ENGLISH

‘He could catch hold of these bastards, bring those latties’.

So saying he took latti from Mohan Singh (A-4) and then  once again bet Gurumurthy, Prakash and Rajakumar.”

Though this witness claimed that he had seen actual act  

the  deceased  and  the  injured  being  beaten  by  the  accused  

involved in the case, it was stated by him that Sub Inspector of  

Police, i.e., the appellant No. 8 was not at that place and had  

come to the spot later on.  The evidence of this witness further  

shows that the appellants had asked him to wipe blood oozing  

out from the injuries of Prakash, Rajakumar and Gurumurthy  

and  he  had  accordingly  wiped  blood  trickling  out  from  the

28

wounds of Prakash, Rajakumar and Gurumurthy.  According to  

him when  he  had  gone  to  wipe  blood  seeping  out  from the  

wounds of Gurumurthy, he had felt that Gurumurthy was not  

breathing.  According to him he had tried to hold the head of  

Gurumurthy but the head was slumping on either side.  The  

witness has further  stated  that thereupon he had asked the  

accused No. 8 to see as to what had happened to Gurumurthy  

and  accused  No.  8  had  told  him  that  Gurumurthy  was  

pretending and then took lotti from other accused persons and  

started beating on the leg of Gurumurthy, but Gurumurthy did  

not  show any  sign of  pain  or  movement.   According  to  this  

witness thereafter accused No. 8 had checked as to whether  

Gurumurthy was dead and asked the appellants to remove his  

handcuff  and  untie  from the  stone  pillar.   The  witness  has  

mentioned  that  the  appellants  had  put  the  dead  body  of  

Gurumurthy  along  side  that  place  and  untied  Prakash  and  

Rajakumar also.  According to him, after untying Rajakumar  

and Prakash from the stone pillars, they were pushed into the  

lock-up  room.   According  to  him,  the  appellant  No.  1  had  

pushed  Rajakumar in  the  lock-up room but  Rajakumar had  

fallen with face down and was bleeding from the injuries on his

29

body.   The  witness  further  stated  that  the  appellants  had  

brought fire and tried to burn the armpit, legs and other parts  

of the body of Gurumurthy but Gurumurthy had not responded  

at all.  The witness asserted that thereafter the appellants had  

collected  themselves  and lifted  the  body of  Gurumurthy  and  

taken him to Charandi.  A fair reading of the testimony of this  

witness  makes  it  abundantly  clear  that  the  appellants  had  

subjected the two deceased to severe beating because of which  

they had died in the police station.  Thus by ocular version the  

prosecution has proved its case against the appellants beyond  

reasonable doubt.

17. The fact that the deceased and injured were arrested and  brought to the Police Station is not in dispute.  It is not in  dispute that the deceased and the injured were brought to the  Police Station on their two feet.  The testimony of the Medical  Officers, who had performed autopsy on the dead bodies of the  two deceased, would indicate that both the deceased were  brought dead to the hospital.  When the deceased, who were  brought to the Police Station, were alive and were produced  dead before the Medical officer, it is for the appellants to  explain as to in which circumstances they had died.  The  deceased were in the custody of the appellants, who were police  officials.  During the time when they were in police custody they  had expired.  Therefore, it was within the special knowledge of  the appellants as to how they had expired.  In view of the  salutary provisions of Section 106 of the Evidence Act, 1872, it  was for the appellants to offer explanation regarding the death  of the two deceased.  As noticed earlier, the appellants in their  further statements stated that both the deceased had sustained  injuries when they had made attempt to flee when their arrest  was attempted to be effected.  On preponderance of

30

probabilities, it is difficult to agree with the defence pleaded by  the appellants.  It is highly improbable that the deceased  Rajakumar would receive as many as 40 injuries while  attempting to avoid arrest.  So also it is not probable at all that  the deceased Gurumurthy would receive as many as 24 injuries  while trying to avoid his arrest.  Further it could not be  explained by the appellants at all as to how deceased  Gurumurthy had received burn injuries, when the deceased,  according to the appellants, had fallen into drainage and  sustained injuries.  Thus the appellants pleaded a false defence  which reinforces the circumstances showing the deceased had  died due to cruel thrashing given by the appellants and they  had injured three witnesses.

18. On the facts and in the circumstances of the case this Court is  

of the opinion that the appellants have not been even remotely  

able  to  probablise  their  defence  and,  therefore,  the  well  

recorded  conviction  of  the  appellants  as  well  as  sentences  

imposed upon them for commission of those offences will have  

to be upheld.

19. For the foregoing reasons the appeal fails and is dismissed.

 ………………..…………J.                         [Harjit Singh Bedi]

…………………..………J.                                                   [J.M. Panchal]

New Delhi; December 3, 2009

31