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CASE NO.: Appeal (crl.)  919 of 1999

PETITIONER: Munshi Singh Gautam (D) & Ors.                           

RESPONDENT: State of M.P.                                                    

DATE OF JUDGMENT: 16/11/2004

BENCH: ARIJIT PASAYAT & C.K.THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       "If you once forfeit the confidence of our fellow citizens you  can never regain their respect and esteem. It is true that you can fool  all the people some of the time, and some of the people all the time,  but you cannot fool all the people all the time", said Abraham Lincoln.  This Court in Raghubir Singh v. State of Haryana (AIR 1980 SC 1087) and  Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Another  (2003 (7) SCC 749), took note of these immortal observations while  deprecating custodial torture by the police.  

       Custodial violence, torture and abuse of police power are not  peculiar to this country, but it is widespread. It has been the concern  of international community because the problem is universal and the  challenge is almost global. The Universal Declaration of Human Rights  in 1948 which marked the emergence of a worldwide trend of protection  and guarantee of certain basic human rights stipulates in Article 5  that "No one shall be subjected to torture or to cruel, inhuman or  degrading treatment or punishment". Despite this pious declaration, the  crime continues unabated, though every civilized nation shows its  concern and makes efforts for its eradication.  

If it is assuming alarming proportions, now a days, all around it  is merely on account of the devilish devices adopted by those at the  helm of affairs who proclaim from roof tops to be the defenders of  democracy and protectors of peoples’ rights and yet do not hesitate to  condescend behind the screen to let loose their men in uniform to  settle personal scores, feigning ignorance of what happens and  pretending to be peace loving puritans and saviours of citizens’  rights.    

       Article 21 which is one of the luminary provisions in the  Constitution of India, 1950 (in short the ’Constitution’) and is a part  of the scheme for fundamental rights occupies a place of pride in the  Constitution. The Article mandates that no person shall be deprived of  his life and personal liberty except according to the procedure  established by law. This sacred and cherished right i.e. personal  liberty has an important role to play in the life of every citizen.  Life or personal liberty includes a right to live with human dignity.  There is an inbuilt guarantee against torture or assault by the State  or its functionaries. Chapter V of the Code of Criminal Procedure, 1973  (for short the ’Code’) deals with the powers of arrest of persons and  the safeguards required to be followed by the police to protect the  interest of the arrested person. Articles 20(3) and 22 of the

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Constitution further manifest the constitutional protection extended to  every citizen and  the guarantees held out for making life meaningful  and not a mere animal existence. It is, therefore, difficult to  comprehend how torture and custodial violence can be permitted to defy  the rights flowing from the Constitution. The dehumanizing torture,  assault and death in custody which have assumed alarming proportions  raise serious questions about the credibility of rule of law and  administration of criminal justice system. The community rightly gets  disturbed. The cry for justice becomes louder and warrants immediate  remedial measures. This Court has in a large number of cases expressed  concern at the atrocities perpetuated by the protectors of law. Justice  Brandies’s observation which have become classic are in following  immortal words:

       "Government as the omnipotent and omnipresent  teacher teaches the whole people by its example, if  the Government becomes a law breaker, it breeds  contempt for law, it invites every man to become a  law into himself". (in (1928) 277 U.S. 438, quoted  in (1961) 367 U.S. 643 at 659).  

       The diabolic recurrence of police torture resulting in a terrible  scare in the minds of common citizens that their lives and liberty are  under a new and unwarranted peril because guardians of law destroy the  human rights by custodial violence and torture and invariably resulting  in death. The vulnerability of human rights assumes a traumatic torture  when functionaries of the State whose paramount duty is to protect the  citizens and not to commit gruesome offences against them, in reality  perpetrate them. The concern which was shown in Raghubir Singh’s case  (supra) more than two decades back seems to have fallen to leaf ears  and the situation does not seem to be showing any noticeable change.  The anguish expressed in Gauri Shanker Sharma v. State of U.P. (AIR  1990 SC 709), Bhagwan Singh and Anr. v. State of Punjab (1992 (3) SCC  249), Smt. Nilabati Behera @ Lalita Behera v. State of Orissa and Ors.  (AIR 1993 SC 1960), Pratul Kumar Sinha v. State of Bihar and Anr. (1994  Supp. (3) SCC 100), Kewal Pati (Smt.) v. State of U.P. and Ors. (1995  (3) SCC 600), Inder Singh v. State of Punjab and Ors. (1995(3) SCC  702), State of M.P. v. Shyamsunder Trivedi and Ors. (1995 (4) SCC 262)  and by now celebrated decision in Shri D.K. Basu v. State of West  Bengal (JT 1997 (1) SC 1) seems to have caused not even any softening  attitude to the inhuman approach in dealing with persons in custody.   Rarely in cases of police torture or custodial death, direct  ocular evidence of the complicity of the police personnel alone who can  only explain the circumstances in which a person in their custody had  died. Bound as they are by the ties of brotherhood, it is not unknown  that the police personnel prefer to remain silent and more often than  not even pervert the truth to save their colleagues \026 and the present  case is an apt illustration \026 as to how one after the other police  witnesses feigned ignorance about the whole matter.

       The exaggerated adherence to and insistence upon the  establishment of proof beyond every reasonable doubt by the  prosecution, at times even when the prosecuting agencies are themselves  fixed in the dock, ignoring the ground realities, the fact-situation  and the peculiar circumstances of a given case, as in the present case,  often results in miscarriage of justice and makes the justice delivery  system suspect and vulnerable. In the ultimate analysis the society  suffers and a criminal gets encouraged. Tortures in police custody,  which of late are on the increase, receive encouragement by this type  of an unrealistic approach at times of the courts as well because it  reinforces the belief in the mind of the police that no harm would come  to them if one prisoner dies in the lock-up because there would hardly  be any evidence available to the prosecution to directly implicate them

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with the torture. The courts must not lose sight of the fact that death  in police custody is perhaps one of the worst kind of crimes in a  civilized society, governed by the rule of law and poses a serious  threat to an orderly civilized society.  Torture in custody flouts the  basic rights of the citizens recognized by the Indian Constitution and  is an affront to human dignity. Police excesses and the mal-treatment  of detainees/under-trial prisoners or suspects tarnishes the image of  any civilised nation and encourages the men in ’Khaki’ to consider  themselves to be above the law and sometimes even to become law unto  themselves. Unless stern measures are taken to check the malady of the  very fence eating the crops, the foundations of the criminal justice  delivery system would be shaken and the civilization itself would risk  the consequence of heading, towards total decay resulting in anarchy  and authoritarianism reminiscent of barbarism. The courts must,  therefore, deal with such cases in a realistic manner and with the  sensitivity which they deserve, otherwise the common man may tend to  gradually lose faith in the efficacy of the system of judiciary itself,  which if it happens will be a sad day, for any one to reckon with.                         

       Though Sections 330 and 331 of the Indian Penal Code, 1860 (for  short the ’IPC’) make punishable those persons who cause hurt for the  purpose of extorting the confession by making the offence punishable  with sentence up to 10 years of imprisonment, but the convictions, as  experience shows from track record have been very few compared to the  considerable increase of such onslaught because the atrocities within  the precincts of the police station are often left without much traces  or any ocular or other direct evidence to prove as to who the offenders  are. Disturbed by this situation the Law Commission in its 113th Report  recommended amendments to the Indian Evidence Act, 1872 (in short the  ’Evidence Act’) so as to provide that in the prosecution of a police  officer for an alleged offence of having caused bodily injuries to a  person while in police custody, if there is evidence that the injury  was caused during the period when the person was in the police custody,  the court may presume that the injury was caused by the police officer  having the custody of that person during that period unless the police  officer proves to the contrary. The onus to prove the contrary must be  discharged by the police official concerned. Keeping in view the  dehumanizing aspect of the crime, the flagrant violation of the  fundamental rights of the victim of the crime and the growing rise in  the crimes of this type, where only a few come to light and others  don’t, the Government and the legislature must give serious thought to  the recommendation of the Law Commission and bring about appropriate  changes in the law not only to curb the custodial crime but also to see  that the custodial crime does not go unpunished. The courts are also  required to have a change in their outlook approach, appreciation and  attitude, particularly in cases involving custodial crimes and they  should exhibit more sensitivity and adopt a realistic rather than a  narrow technical approach, while dealing with the cases of custodial  crime so that as far as possible within their powers, the truth is  found and guilty should not escape so that the victim of the crime has  the satisfaction that ultimately the majesty of law has prevailed.  

But at the same time there seems to be disturbing trend of  increase in cases where false accusations of custodial torture are  made, trying to take advantage of the serious concern shown and the  stern attitude reflected by the courts while dealing with custodial  violence. It needs to be carefully examined whether the allegations of  custodial violence are genuine or are sham attempts to gain undeserved  benefit masquerading as victims of custodial violence. The case in hand  is unique case in the sense that complainant filed a complaint alleging  custodial torture while the accused alleged false implication because  of oblique motives.   

       It is the duty of the police, when a crime is reported, to  collect evidence to be placed during trial to arrive at the truth. That

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certainly would not include torturing a person, be he an accused or a  witness to extract information. The duty should be done within four  corners of law. Law enforcers can not take law into their hands in the  name of collecting evidence.              Facts of the present case as unfolded by prosecution during trial  are as follows:

On the night intervening 19th and 20th June, 1984 to extort a  confession from one Shambhu Tyagi (hereinafter referred to as the  ’deceased’), he was brought to the police station where he was beaten  as a result of which he died and thereafter to remove the traces of the  crime and conceal the acts, the dead body was thrown near a Nala. The  accused persons, five in number, who were police officers of Police  Station, Shahjahanabad, Bhopal thus committed offences punishable under  Sections 330, 302 and 201 IPC.  In relation to a scooter theft, Mahesh  Sharma and Rajkumar Sharma (PW-12) were brought to Police Station,  Shahjahanabad.  As name of deceased was disclosed by these persons,  around 1.30 A.M. (after mid-night) the accused persons went to the  house of deceased from where he was brought to the Police Station. When  the deceased was brought Jawahar (PW-14) had seen the accused persons.  Thereafter to extort confession the deceased was badly beaten as a  result of which he died.  These accused-police officers forged the  Rojnamacha report to conceal the crime by recording that they received  an information that some person was lying in the Nala bed and the said  person was intoxicated badly. As the witnesses and public at large  raised hues and cries, the then Supdt. of Police, Bhopal wrote a letter  to the District Magistrate and also sent a letter to the Inspector  General of Police for getting the matter investigated through some  independent agency.  On basis of said letters, the District Magistrate  got the matter enquired through the C.I.D. Police. Statements were  recorded; the medical reports were obtained; documents were seized;  panchnamas were prepared; and on completion of the investigation, the  charge-sheet was filed in the concerned court. Each of the accused  persons denied allegations. The trial was conducted by learned II  Additional Sessions Judge, Bhopal. The Trial Court after recording the  evidence and hearing the parties found each of the accused persons  guilty and sentenced them. The trial Court convicted each of the  accused persons for offences punishable under Sections 304 Part I, 330  and 201 of the Indian Penal Code, 1860 (in short the ’IPC’) sentencing  each to undergo RI for 7 years, 3 years and 2 years respectively. All  the sentences were directed to run concurrently. Being aggrieved by the  said judgment, conviction and sentence, the accused appellants have  filed appeal before the High Court.

       The appellants filed appeals before the Madhya Pradesh High  Court. By the impugned judgment the High Court dismissed the appeals.  During pendency of the present appeal before this Court, accused no.1  Munshi Singh Gautam expired and by order dated 2.10.2004 the appeal was  held to have abated so far as he is concerned.   

       In support of the appeal, Mr. Uday U. Lalit, learned senior  counsel submitted that the prosecution version as unfolded is not  supported by any cogent and credible evidence. The prosecution version  mainly rests on the evidence of Rajkumar (PW-12) and Jawahar (PW-14).  While the latter’s version has been relied upon by the prosecution to  contend that he had witnessed the deceased being taken away by the  police officers,  PW-12 on the other hand claimed to have witnessed  beatings given by the accused persons to the deceased. It is pointed  out that the medical evidence tendered by Dr. D.K. Satpathy (PW-16)  clearly rules out time of beatings as claimed to have been witnessed by  Raj Kumar (PW-12). His evidence is clearly to the effect that the  deceased was suffering from T.B. and one lung was totally damaged.   Taking into account the quantity of liquor found in his stomach, the  time of death was fixed about 4 hours before post-mortem which started

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around 1.00 p.m. on 20.6.1984.  His evidence is also to the effect that  all the injuries were not of the same time; some were about 4 hours old  and the others were 12 hours old and some were one or two days old. Raj  Kumar (PW-12) is a liar as is evident from his testimony. He has given  different version as to when he was arrested. Though he claimed that he  was also beaten along with one Mahesh who was not examined, he did not  make any grievance before the Magistrate when he was produced after his  arrest. He gave varying dates so far his date of arrest is concerned.  At one place it was stated to be 20.6.1984 whereas on another place it  was stated to be 23.6.1984. Though he claimed that he was aware of the  names of the accused persons, he did not mention it in his statement  given during investigation. No explanation has been offered for it. He  was not acquainted with the accused persons. Similarly, Jawahar (PW-14)  claimed to have seen the accused persons.  He identified them for the  first time in Court.  In his cross-examination he had accepted that he  did not give the physical description of the accused persons. He  clearly admitted that he could not have given the description because  he had not seen them on the date of alleged date of occurrence.   Therefore, the Courts below in the absence of any test identification  parade should not have placed reliance on their evidence. In any event,  when Jawahar (PW-14) accepted that he had not seen the accused persons  the test identification parade would not have also improved the  situation. He had categorically stated that the deceased was wearing a  janghia when he was taken by the police.  Doctor (PW-16) who conducted  the post-mortem found that the deceased was fully dressed with pant and  shirt.  Therefore, it was submitted that the conviction as recorded by  the Trial Court and affirmed by the High Court is unsustainable.   

       In response, Mr. R.P. Gupta, learned counsel appearing for the  respondent-State submitted that as is well-known, in case of custodial  death, it is very difficult to have flawless evidence. The evidence of  Rajkumar (PW-12) is cogent and credible as found by the Courts below.  Even though there are some minor flaws here and there, they do not  affect credibility of the prosecution version.  Evidence of Jawahar  (PW-14) has been corroborated by the evidence of other witnesses. The  medical evidence which is hypothetical in nature should not be given  undue importance by-passing eye-witness’s version. Merely because  Mahesh has not been examined that does not render the prosecution  version vulnerable as claimed by the accused-appellants. It is pointed  out that in order to hide actual state of affairs a thoroughly  misconceived plea that police received information about somebody lying  injured near Nala was made out. This plea is also falsified when the  evidence of doctor is noted. Dr. K.N. Agarwalla (PW-11) has  categorically stated that the body of the deceased was brought to the  hospital around 8.15 a.m. by one police constable Shiv Prasad No.238 of  Shahjahanabad Police Station and accused Gulab Singh Chaudhary. They  told him that the deceased had come to the police station in a very bad  stage and with much difficulty he had told his name and thereafter  fallen down unconscious. It was further stated that they took him to  the emergency ward, where he was declared dead.  In the examination  under Section 313 of the Code the accused-appellant Gulab Singh  Chaudhary has taken the similar stand. This is clearly falsified by the  defence version and evidence that police officers had gone to the spot  on hearing that somebody was lying injured there.  Therefore, it was  submitted that the Trial Court and the High Court were justified in  finding the accused-appellants guilty.   

       The evidence of Rajkumar (PW-12) and Jawahar (PW-14) relate to  separate facets of the incident. The latter speaks about the accused- appellants having taken the deceased along with them after mid-night of  19th June, 1984.  Rajkumar (PW-12) spoke of the assaults made inside the  police station. Admittedly there was no test identification parade.

       As was observed by this Court in Matru v. State of U.P. (1971 (2)  SCC 75) identification tests do not constitute substantive evidence.

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They are primarily meant for the purpose of helping the investigating  agency with an assurance that their progress with the investigation  into the offence is proceeding on the right lines. The identification  can only be used as corroborative of the statement in court. (See  Santokh Singh v. Izhar Hussain (1973 (2) SCC 406). The necessity for  holding an identification parade can arise only when the accused are  not previously known to the witnesses. The whole idea of a test  identification parade is that witnesses who claim to have seen the  culprits at the time of occurrence are to identify them from the midst  of other persons without any aid or any other source. The test is done  to check upon their veracity. In other words, the main object of  holding an identification parade, during the investigation stage, is to  test the memory of the witnesses based upon first impression and also  to enable the prosecution to decide whether all or any of them could be  cited as eyewitnesses of the crime. The identification proceedings are  in the nature of tests and significantly, therefore, there is no  provision for it in the Code and the Evidence Act. It is desirable that  a test identification parade should be conducted as soon as after the  arrest of the accused. This becomes necessary to eliminate the  possibility of the accused being shown to the witnesses prior to the  test identification parade. This is a very common plea of the accused  and, therefore, the prosecution has to be cautious to ensure that there  is no scope for making such allegation. If, however, circumstances are  beyond control and there is some delay, it cannot be said to be fatal  to the prosecution.          It is trite to say that the substantive evidence is the evidence  of identification in Court. Apart from the clear provisions of Section  9 of the Evidence Act, the position in law is well settled by a catena  of decisions of this Court. The facts, which establish the identity of  the accused persons, are relevant under Section 9 of the Evidence Act.  As a general rule, the substantive evidence of a witness is the  statement made in Court. The evidence of mere identification of the  accused person at the trial for the first time is from its very nature  inherently of a weak character. The purpose of a prior test  identification, therefore, is to test and strengthen the  trustworthiness of that evidence. It is accordingly considered a safe  rule of prudence to generally look for corroboration of the sworn  testimony of witnesses in Court as to the identity of the accused who  are strangers to them, in the form of earlier identification  proceedings. This rule of prudence, however, is subject to exceptions,  when, for example, the Court is impressed by a particular witness on  whose testimony it can safely rely, without such or other  corroboration. The identification parades belong to the stage of  investigation, and there is no provision in the Code which obliges the  investigating agency to hold or confers a right upon the accused to  claim, a test identification parade. They do not constitute substantive  evidence and these parades are essentially governed by Section 162 of  the Code. Failure to hold a test identification parade would not make  inadmissible the evidence of identification in Court. The weight to be  attached to such identification should be a matter for the Courts of  fact. In appropriate cases it may accept the evidence of identification  even without insisting on corroboration. (See Kanta Prashad v. Delhi  Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others v.  State of Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another v.  State of U.P. (AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu  and Kashmir (AIR 1972 SC 102).  In Jadunath Singh and another v. The State of Uttar Pradesh  (1970) 3 SCC 518), the submission that absence of test identification  parade in all cases is fatal, was repelled by this Court after  exhaustive considerations of the authorities on the subject. That was a  case where the witnesses had seen the accused over a period of time.  The High Court had found that the witnesses were independent witnesses  having no affinity with deceased and entertained no animosity towards  the appellant. They had claimed to have known the appellants for the  last 6-7 years as they had been frequently visiting the town of Bewar.

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This Court noticed the observations in an earlier unreported decision  of this Court in Parkash Chand Sogani v. The State of Rajasthan   (Criminal Appeal No. 92 of 1956 decided on January 15, 1957), wherein  it was observed :-  "It is also the defence case that Shiv Lal did not  know the appellant. But on a reading of the evidence  of P.W. 7 it seems to us clear that Shiv Lal knew  the appellant by sight. Though he made a mistake  about his name by referring to him as Kailash  Chandra, it was within the knowledge of Shiv Lal  that the appellant was a brother of Manak Chand and  he identified him as such. These circumstances are  quite enough to show that the absence of the  identification parade would not vitiate the  evidence. A person who is well-known by sight as the  brother of Manak Chand, even before the commission  of the occurrence, need not be put before an  identification parade in order to be marked out. We  do not think that there is any justification for the  contention that the absence of the identification  parade or a mistake made as to his name, would be  necessarily fatal to the prosecution case in the  circumstances."  

The Court concluded:  "It seems to us that it has been clearly laid down  by this Court, in Parkash Chand Sogani v. The State  of Rajasthan (supra) (AIR Cri LJ), that the absence  of test identification in all cases is not fatal and  if the accused person is well-known by sight it  would be waste of time to put him up for  identification. Of course if the prosecution fails  to hold an identification on the plea that the  witnesses already knew the accused well and it  transpires in the course of the trial that the  witnesses did not know the accused previously, the  prosecution would run the risk of losing its case."  

In Harbhajan Singh v. State of Jammu and Kashmir (1975) 4 SCC  480), though a test identification parade was not held, this Court  upheld the conviction on the basis of the identification in Court  corroborated by other circumstantial evidence. In that case it was  found that the appellant and one Gurmukh Singh were absent at the time  of roll call and when they were arrested on the night of 16th December,  1971 their rifles smelt of fresh gunpowder and that the empty cartridge  case which was found at the scene of offence bore distinctive markings  showing that the bullet which killed the deceased was fired from the  rifle of the appellant. Noticing these circumstances this Court held:-  "In view of this corroborative evidence we find no  substance in the argument urged on behalf of the  appellant that the Investigating Officer ought to  have held an identification parade and that the  failure of Munshi Ram to mention the names of the  two accused to the neighbours who came to the scene  immediately after the occurrence shows that his  story cannot be true. As observed by this Court in  Jadunath Singh v. State of U.P. (AIR 1971 SC 363)  absence of test identification is not necessarily  fatal. The fact that Munshi Ram did not disclose the  names of the two accused to the villages only shows  that the accused were not previously known to him  and the story that the accused referred to each  other by their respective names during the course of  the incident contains an element of exaggeration.  The case does not rest on the evidence of Munshi Ram

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alone and the corroborative circumstances to which  we have referred to above lend enough assurance to  the implication of the appellant."  

It is no doubt true that much evidentiary value cannot be  attached to the identification of the accused in Court where  identifying witness is a total stranger who had just a fleeting glimpse  of the person identified or who had no particular reason to remember  the person concerned, if the identification is made for the first time  in Court.  In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court  upheld the conviction of the appellant even when the witness while  deposing in Court did not identify the accused out of fear, though he  had identified him in the test identification parade. This Court  noticed the observations of the trial Judge who had recorded his  remarks about the demeanour that the witness perhaps was afraid of the  accused as he was trembling at the stare of Ram Nath -accused. This  Court also relied upon the evidence of the Magistrate, PW-7 who had  conducted the test identification parade in which the witness had  identified the appellant. This Court found, that in the circumstances  if the Courts below had convicted the appellant, there was no reason to  interfere.  In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80),  this Court held that it is well settled that substantive evidence of  the witness is his evidence in the Court but when the accused person is  not previously known to the witness concerned then identification of  the accused by the witness soon after his arrest is of great importance  because it furnishes an assurance that the investigation is proceeding  on right lines in addition to furnishing corroboration of the evidence  to be given by the witness later in Court at the trial. From this point  of view it is a matter of great importance, both for the investigating  agency and for the accused and a fortiori for the proper administration  of justice that such identification is held without avoidable and  unreasonable delay after the arrest of the accused. It is in adopting  this course alone that justice and fair play can be assured both to the  accused as well as to the prosecution. Thereafter this Court observed:-   "But the position may be different when the accused  or a culprit who stands trial had been seen not once  but for quite a number of times at different point  of time and places which fact may do away with the  necessity of a TI parade."  

In State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC  31), this Court observed that the evidence of identification becomes  stronger if the witness has an opportunity of seeing the accused not  for a few minutes but for some length of time, in broad daylight, when  he would be able to note the features of the accused more carefully  than on seeing the accused in a dark night for a few minutes.  In Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000  (1) SCC 358) after considering the earlier decisions this Court  observed:-  "It becomes at once clear that the aforesaid  observations were made in the light of the peculiar  facts and circumstances wherein the police is said  to have given the names of the accused to the  witnesses. Under these circumstances, identification  of such a named accused only in the Court when the  accused was not known earlier to the witness had to  be treated as valueless. The said decision, in turn,  relied upon an earlier decision of this Court in the  case of State (Delhi Admn.) v. V. C. Shukla (AIR  1980 SC 1382) wherein also Fazal Ali, J. speaking  for a three-Judge Bench made similar observations in  this regard. In that case the evidence of the  witness in the Court and his identifying the accused

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only in the Court without previous identification  parade was found to be a valueless exercise. The  observations made therein were confined to the  nature of the evidence deposed to by the said eye- witnesses. It, therefore, cannot be held, as tried  to be submitted by learned Counsel for the  appellants, that in the absence of a test  identification parade, the evidence of an eye- witness identifying the accused would become  inadmissible or totally useless; whether the  evidence deserves any credence or not would always  depend on the facts and circumstances of each case.  It is, of course, true as submitted by learned  Counsel for the appellants that the later decisions  of this Court in the case of Rajesh Govind Jagesha  v. State of Maharashtra (AIR 2000 SC 160) and State  of H.P. v. Lekh Raj (AIR 1999 SC 3916), had not  considered the aforesaid three-Judge Bench decisions  of this Court. However, in our view, the ratio of  the aforesaid later decisions of this Court cannot  be said to be running counter to what is decided by  the earlier three-Judge Bench judgments on the facts  and circumstances examined by the Court while  rendering these decisions. But even assuming as  submitted by learned Counsel for the appellants that  the evidence of, these two injured witnesses i.e.  Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai  identifying the accused in the Court may be treated  to be of no assistance to the prosecution, the fact  remains that these eye-witnesses were seriously  injured and they could have easily seen the faces of  the persons assaulting them and their appearance and  identity would well within imprinted in their minds  especially when they were assaulted in broad  daylight. They could not be said to be interested in  roping in innocent persons by shielding the real  accused who had assaulted them."                                    These aspects were recently highlighted in Malkhansingh and  Others v. State of M.P. (2003 (5) SCC 746).

Test identification parade would be of no consequence in view of  Jawahar’s (PW-14) evidence that he did not know physical description of  the accused-appellants as he had not seen them on the date of  occurrence. What remains is the evidence of Rajkumar (PW-12).

       It was contended that the police officers had assaulted the  witness (PW-12) for a pretty long time and physical appearance and  special features had been imprinted in the mind of the witness and  merely because no test identification parade was held that is of no  consequence. This plea has to be examined in the light of evidence of  Rajkumar (PW-12). His evidence is full of unexplained contradictions.  At one place he says he was arrested on 20th June, 1984, at another  place he says he was arrested on 23rd June, 1984. He claimed that from  20th June till 22nd June, 1984 he was in police custody. In cross- examination it was accepted that it was not so because he was taken to  U.P. on 21st and 22nd June, 1984. In another vital improvement in his  statement, he claimed that he knew the names of all the accused persons  by 20th June, 1984 itself. Significantly, the names of accused persons  are not stated by him when he was examined by the police. No  explanation has been offered as to why he did not tell the names. This  witness claimed that he had suffered severed injuries. He admitted that  he had not made any grievance to the Magistrate before whom he was  produced after his arrest. He also accepted that the alleged injuries  were not bleeding. But his statement was that the blood on the floor

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was cleaned by the accused persons. It is further stated that the  police took his signatures when his statement was recorded for the  first time. Ext. D-3 was recorded on 26.6.1984 by which time he claimed  to have known the names of all the accused persons. Ext. D-3 did not  contain any signature. Therefore, the evidence of PW-12 and PW-14 are  not sufficient to fasten guilt on the accused persons.  But one  significant aspect can not be lost sight of. That is the role of  accused B.S. Chaudhury. His definite plea was that the deceased was  lying injured near the Nala and information to that effect was received  at the police station.  But his statement before Dr. K.N. Agarwal (PW- 1) was entirely different. The effect of a false stand being taken in  case of custodial death was considered by this Court in Sahadevan alias  Sagadevan v. State rep. by Inspector of Police, Chennai (AIR 2003 SC  215).   

       The plea that the deceased had come to the police station in a  severe condition and after telling his name has collapsed gets  falsified by the categorical statement made by the accused in his  statement under Section 313 of the Code  to the effect that on  receiving information  where the deceased was lying unconscious in  injured state.  In this view of the matter, the case being one of  custodial torture, accusations have been established so far as accused- appellant Gulab Singh alias Gulab Singh Chaudhury is concerned.  

       The residual question is what is the offence committed by him.  The evidence of Dr. D.K. Satpathy (PW-16) is very relevant to decide  the question. He found that the injuries were confined to the skin and  upper level of the body.  Grievous injuries were not found on vital  parts of the body like head, liver, spleen, heart, lungs etc. The  duration of the injuries were widely variant. The right lung of the  deceased was TB affected. The combined effect of alcohol and the  injuries shortened the period of death and resulted in a quicker death.   That being so, the conviction in terms of Section 304 Part II IPC  cannot be faulted. His appeal fails and is dismissed. He shall  surrender to custody to serve remainder of his sentence. So far as  other accused-appellants Bahadur Singh, Pooran Singh and Dhanraj Dubey  are concerned, the prosecution has not been able to bring home the  accusations. Therefore, their appeals deserve to be allowed which we  direct. Their bail-bonds are discharged.  

       The appeal is accordingly disposed of.