Criminal Appeal No. 64 of 1997

12th July, 2011

Petitioner Counsel: Mr. S.N. MARDIKAR
Respondent Counsel: Mr. R.S. NAYAK

Cases Cited:
Ramjee Rai & others Vs. State of Bihar, 2006 (4) Crimes 225 [Para 7]
Paramjeet Singh @ Pamma Vs. State of Uttarakhand, (2011) 1 SCC (Cri) 98 [Para 7]
Smt. Varsha Baba Itankar Vs. State of Maharashtra, 2008 ALL MR (Cri) 3190 [Para 7]
R. P. Tyagi Vs. State (Govt. of NCT of Delhi), (2011) 1 SCC (Cri) 1062 [Para 7]
Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217 [Para 7]
Beti Padia s. State of Orissa, 1981 Cri. L.J. 626 [Para 7]
State of Rajasthan Vs. Smt. Kalki & another, (1981) 2 SCC 752 [Para 7]
Jaspal Singh Vs. State of Punjab And Jindra & another Vs. State of Punjab, 1979 Cri. L.J. 1386 [Para 7]
Mohan Lal & another Vs. Ajit Singh & another, (1978) 3 SCC 279 [Para 7]
Sadhu Ram & another Vs. State of Rajasthan, (2003) 11 SCC 231 [Para 9]
Anil Phukan Vs. State of Assam, AIR 1993 SC 1462 [Para 9]
Satyanarayan Vithal Ambat Vs. State of Maharashtra, 2006 ALL MR (Cri) 2578 [Para 9]
Shyam Nalalla Kantayya Nalalla Vs. State of Maharashtra, 2009 ALL MR (Cri) 2969 [Para 9]
State of Maharashtra Vs. Shivdas Nana Bhagat & others, 2005 ALL MR (Cri) 2102 [Para 9]
Sube Singh Vs. State of Haryana & others, 2006 ALL MR (Cri) 1486 (S.C.) [Para 9]
Jotiram Indrajeet Gore Vs. State of Maharashtra, [Para 9]
State of Maharashtra Vs. Pappu Suresh Salve @ Sunil Bharat Jadhav, 2010 ALL MR (Cri) 1755 [Para 9]
Musheer Khan @ Badshah Khan & another Vs. State of M.P., 2010 ALL MR (Cri) 933 (S.C.) [Para 9]
Hate Singh Bhagat Singh Vs. State of Madhya Bharat, AIR 1953 S.C. 468 (Vol.40 C.N. 114) [Para 9]
Mool Chand Vs. Jagdish Singh Bedi & others, State of U.P. Vs. Kashmiri Lal & another, State of U.P. Vs. Jagdish Singh Bedi & another, and State of U.P. Vs. Babu Ram, 1992 Cri. L.J. 1539 [Para 9]

JUDGMENT

A. H. JOSHI, J. :- Criminal Appeal No. 88 of 1997 is preferred by State. All the respondents were tried in Sessions Case No. 21 of 1996 for various offences. State is aggrieved due to the acquittal of various accused persons in relation to different charges. The acquittal of Accused Nos. 8 and 9 is not challenged.

Remaining five appeals are preferred by different accused persons who are aggrieved by conviction and sentence ordered against them.

2. The accused were charged for intentionally and knowingly causing custodial homicidal death of Shama alias Kalia son of Nanu Uke between 15 and 22nd December, 1995 at Police Station Gondia City, Gondia. Some amongst them were charged for extortion of confession for commission of offence and for recovery of stolen property from [1] deceased Shama alias Kalya, [2] Smt. Amrutabai, wife of deceased, [3] Smt. Manjulabai, mother of deceased, [4] Smt. Tarsanbai, mother-in-law of deceased, [5] Smt. Vimal Sahare, and [6] Ku. Rekha Sahare.

All accused were charged for screening the evidence of offence committed by Accused Nos. 1 to 7. The analysis of charge is as follows:-

Sr.No.	Accused number and his name	Sections as to offence
a.	Accused No.1 – Manik, Accused No.2 – Ravindra, Accused No.2 – Ravindra, Accused No. 3 – Manohar, Accused No. 4 – Hansraj, Accused No.5 – Vishnu, Accused No.6 – Vishwanath, and Accused No.7 – Dilip.	1. 302 read with Section 34 of Indian Penal Code. 2. 330 and 331 read with Section 34 of Indian Penal Code. 3. 342, 343, 348 read with Section 34 of Indian Penal Code. 4. 385 and 387 read with Section 34 of Indian Penal Code. 5. 201 read with Section 34 of Indian Penal Code. 6. 193 read with Section 34 of Indian Penal Code. 7. 203 read with Section 34 of Indian Penal Code. 8. 218 read with Section 34 of Indian Penal Code.
b.	Accused No.1 – Manik, Accused No.2 – Ravindra, Accused No.2 – Ravindra, Accused No. 3 – Manohar, and Accused No. 4 – Hansraj.	1. 354 read with Section 34 of Indian Penal Code.
c.	Accused No.1 – Manik, Accused No.2 – Ravindra, Accused No.2 – Ravindra, Accused No. 3 – Manohar, Accused No. 4 – Hansraj, Accused No. 5 – Vishnu, Accused No. 6 – Vishwanath, Accused No. 7 – Dilip, Accused No.8 – Sudhir Rambhau Kayarkar, and Accused No.9 – Ganesh Raghuji Turkar.	1. First Part of Section 201 read with Section 34 of Indian Penal Code. 2. 202 read with Section 34 of Indian Penal Code.

3. For handy information, the conviction and sentence as ordered by Sessions Court is as follows:-

Accus -ed no.	Name	Provision under which convicted/acquitted.	Sentence awarded
1.	Manik Jibhkate, PSI.	Conviction :- [a] 304-II r/w 34 of IPC. [b] 331 r/w 34, IPC. [c] 330,348,387 r/w 34, IPC. [d] 201, 218 r/w 34, IPC. Acquittal –302,354 r/w.34, IPC.	[a] 7 years RI, fine of Rs.4000/- each. [b] 3 years RI, fine of Rs.1000/-each. [c] 1 years RI, Rs.1000/- fine. [d] 1 year RI, Rs.1,000/- fine.
2.	Ravindra Agalave, Police Constable, B. No.915	Conviction – Same as for Accused No.1. Acquittal –302,354 r/w.34, IPC.	Same as for Accused No.1.
3.	Manohar Bawankar, Police Constable, B.No.409.	Conviction - [a] 331 r/w 34,IPC. [b] 201, 218, r/w 34, IPC. [c] 330, 348, 387 r/w 34, IPC. [d] 202 r/w 34, IPC. Acquittal –302,354 r/w.34, IPC.	[a] 3 years RI, Rs.1000/- fine each. [b] 1 year RI, Rs.1000/- fine. [c] -do- [d] 3 months RI, Rs.500/- fine each.
4.	Hansraj Vaidya, Police Constable B.No.1301.	Conviction – Same as for Accused No.1. Acquittal -302,354 r/w.34, IPC.	Same as for Accused No.1.
5.	Vishnu Malevar, Police Constable B. No. 735.	Conviction – Same as for Accused No.3. Acquittal –302,354 r/w.34, IPC.	Same as for Accused No.3.
6.	Vishwanath Gawande, Police Constable B.No.997.	Conviction - [a] 201,218, r/w 34 of IPC [b] 202 r/w 34 of IPC. Acquittal –302,354 r/w.34, IPC.	[a] 1 year RI Rs. 1000/- fine. [b] 3 months RI, Rs.500/- fine each.
7.	Dilip Dongre, Police Constable B.No.91.	Conviction – Same as for Accused No.6. Acquittal –302,354 r/w.34, IPC.	Same as for Accused No.6.

4. Heard respective learned Advocates who have advanced their submissions at length. Perused the record.

5. State has argued for conviction of all accused nos. 1 to 7 towards all charges, and for suitable sentence. In contrast, learned Advocates for the defence have argued claiming acquittal in totality, urging that the entire prosecution was impelled due to media trial, intervention of journalists and social activists.

6. The points agitated by the State in support of its appeal and for opposing the appeals filed by the accused persons are summarized as below :-

[a] The accused persons have not disputed certain crucial facts, namely:-

[1] Deceased Shama was required by police for investigation of crime registered against him on the complaint of PW 6 Vijaykumar Rameshwarlal Agrawal in Crime No. 315/99.

[2] Shama was called in Detective Branch Room of Gondia Police Station for interrogation. He was with the police for a considerable time, though specific days are not admitted by the accused persons.

[3] Other witnesses, namely PW 1- Amrutabai Ukey, PW 2 - Manjulabai Ukey and PW 17 - Rekha Sahare were also called in police station.

[4] Any station diary entry relating to calling these persons for investigation was not taken, nor was produced in defence.

[5] Entries relating to jumping of custody by the accused were made in the Station Diary.

[6] Certain Muddemal property was recovered at the behest of the suspect Shama.

[7] The dead body of Shyama was exhumed on the basis of memorandum statement of the accused persons. This was recovery of evidence under Section 27 of the Evidence Act.

[8] Finger prints of dissected fingers of the dead body which was exhumed were taken.

[b] The prosecution has proved that Shama got injured while he was with police for investigation due to the ill-treatment given to him by the police.

[c] Due to merciless beating, Shyama became unconscious and immobile while in police custody.

[d] Shama died while in police custody itself.

[e] Though the Accused Nos. 8 and 9 have been acquitted and hence it may have to be presumed that the mode of transportation of dead body is not proved, it would not matter considering the fact that the dead body was exhumed on being shown by the accused persons.

[f] The prosecution has proved that the dead body, which was exhumed, was that of Shama by matching the finger prints of the dead body with those which were already in possession of police.

7. To substantiate the prosecution case, learned APP has placed reliance on following judgments:-

[a] Ramjee Rai & others Vs. State of Bihar [2006 (4) Crimes 225].

Proposition :-

Discovery of dead body is not an essential condition for basing conviction when the death is proved. It would always be decided on the facts of the case where discovery of dead body is imperative on the facts.

[b] Paramjeet Singh @ Pamma Vs. State of Uttarakhand [(2011) 1 SCC (Cri) 98].

Proposition :-

In the process of appreciation of evidence, what is important is to find out the truth of the matter. There is no yardstick or hard and fast rule as regards intrinsic worth and animus of witnesses.

[c] Smt. Varsha Baba Itankar Vs. State of Maharashtra [2008 ALL MR (Cri) 3190],

A N D

R. P. Tyagi Vs. State (Govt. of NCT of Delhi) [(2011) 1 SCC (Cri) 1062].

Proposition :-

Hostile witness can be relied, upon careful assessment.

[d] Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat [ (1983) 3 SCC 217],

A N D

Beti Padia s. State of Orissa [1981 Cri. L.J. 626].

Proposition :-

The discrepancies and contradictions in the statements of witnesses, who are villagers, and are rustic men, need to be assorted like fringed differences to discover the truth and strongest probability. If the discrepancies in the statements of witnesses do not go to the root and impeach the credibility, the discrepancies can be ignored.

[e] State of Rajasthan Vs. Smt. Kalki & another [(1981) 2 SCC 752].

Proposition :-

Normal discrepancies creeping in the statements of witnesses are not material discrepancies. The discrepancies, which arise due to lapse of time, error or loss of memory need to be given due allowance for.

[f] Jaspal Singh Vs. State of Punjab And Jindra & another Vs. State of Punjab [1979 Cri. L.J. 1386].

Proposition :-

Science of identifying thumb impression is exact science, and does not admit mistakes or doubts and, therefore, can be safely relied upon.

[g] Mohan Lal & another Vs. Ajit Singh & another [(1978) 3 SCC 279].

Proposition :-

The proof of finger print by opinion based on eight or lesser points can be worthy of reliance.

8. In answer to the State appeal and for urging in favour of acquittal, the learned Advocates for the defence have put forth following points:-

[a] Prosecution witnesses, namely PW 1 - Amrutabai Ukey, PW 2 - Manjulabai Ukey, PW 4 - Mulchand Nanha, PW 5 - Radhelal Ukey, and PW 16 - Tarasanbai Meshram, who are all relatives of deceased Shama, do not depose that they have actually seen Shama in the custody of police, that too in injured condition.

[b] There are no eye-witnesses of any overt act on the part of any particular accused person, which act must have, according to witnesses, resulted into the death of Shama.

[c] PW 3 - Sureshkumar Soni, whose statement was recorded before Magistrate in the process of investigation under Section 164 of Criminal Procedure Code, had stated that he had found that Shama was not alive on 22nd December, 1995, however, in his cross-examination by the accused he has denied his version contained in the statement recorded by the Magistrate about Shama being not found alive. Though this witness has again confirmed his statement made under Section 164 of Criminal Procedure Code to be true, the trustworthiness of this witness comes under a serious doubt.

[d] It would be unsafe to rely upon the hostile witness - PW 3 - Sureshkumar Soni.

[e] Oral evidence of charge of destruction of evidence against the convicted accused is liable to be disregarded, since said charge is a common charge against convicted accused along with accused nos. 8 and 9. As it is held that accused nos. 8 and 9 are not guilty of charge of Sections 201 and 203 of Indian Penal Code, later charge against all other accused persons is also liable to be held as not proved.

[f] Finger Print Experts have opined that the marks of dissected fingers of dead body match with the finger prints of Shama, which was a matter of record. The finger print with which the marks from the dissected fingers of dead body were compared was not proved to be the finger print of deceased Shama, and in absence of proof of that fact, the comparison becomes no comparison in eye of law at all, and worthiness of the opinion to become relevant to take place of 'facts proved.' is lost.

[g] In order to have the opinion of Finger Print Expert some weightage, the opinion must satisfy scientific norm to regard it as an expert opinion to conform to sixteen-point test is a must. The expert has admitted that the test satisfies only eight points.

[h] Finger Print Expert does not have a value of evidence being opinion.

[i] The conviction is based on suspicion than on evidence.

[j] It is not a case where though prosecution may have proved certain facts, yet due to certain arguable points, the accused may be claiming benefit of doubt. It is a case where the accused persons are contending that there is 'no evidence' of the charge that the accused persons have 'killed and murdered deceased Shama alias Kalya, and have thereafter tried to screen the evidence.'

[k] In so far as all other charges pertaining to wrongful confinement, threatening, pressurizing, torturing etc., for securing confession and recovery of property etc., are concerned, those are also based on oral evidence which is of approximate nature and no specific facts are proved.

[l] Torture to accused Shyama in the manner stated is not proved. All witnesses contradict each other. Their testimonies are full of contradictions and omissions.

[m] Death of deceased Shyama in custody is not proved.

[n] Dead body, which was found, is not scientifically proved to be of Shyama, as DNA test was not conducted. The finger print test is unreliable. Maggots found on the unknown dead body disprove the prosecution story that the dead body was of Shyama, as the body found is of a person who had died prior to 4-5 days, whereas if it was that of Shyama, the death should have been of 10 to 11 days older.

[o] Identification of accused is faulty, as Criminal Manual was not followed.

[p] The investigation carried out by accused persons was under direct supervision of PW 38 - Sahebrao Bhagwanji Harne, Police Inspector, and PW 31 - Chandrakant Keshav Pawar, SDPO, and the alleged detention and wrongful arrest of Shyama could never have gone unnoticed and unchecked by these officers.

[q] The accused persons have been convicted barely on suspicion.

9. In support of defence case, respective learned Advocates have placed reliance on following judgments:-

[1] Sadhu Ram & another Vs. State of Rajasthan [(2003) 11 SCC 231],

A N D

[2] Anil Phukan Vs. State of Assam [AIR 1993 SC 1462].

Proposition :-

Conviction can be based on solitary eye-witness, provided the testimony is worth credence and that is not shaken.

[3] Satyanarayan Vithal Ambat Vs. State of Maharashtra [2006 ALL MR (Cri) 2578].

Proposition :-

A witness, who turns out unnatural in his testimony, would be relied with extreme caution.

[4] Shyam Nalalla Kantayya Nalalla Vs. State of Maharashtra [2009 ALL MR (Cri) 2969].

Proposition :-

Medical evidence in murder cases does not constitute proof of guilt of the accused. It would always be a piece of corroboration to the death being homicidal.

[5] State of Maharashtra Vs. Shivdas Nana Bhagat & others [(2005) ALL MR (Cri) 2102].

Proposition :-

Expert's opinion is the supporting evidence, and ought to be relied upon in corroboration.

[6] Sube Singh Vs. State of Haryana & others [2006 ALL MR (Cri) 1486 (S.C.)].

Proposition :-

In absence of positive evidence of custodial torture, the death could not necessarily be liable to be termed and regarded as custodial death, culpable as well as warranting award of compensation.

[7] Jotiram Indrajeet Gore Vs. State of Maharashtra [2006 ALL MR (Cri) N.O.C. 14].

Proposition :-

When there are too many contradictions and omissions in the statements of witnesses, such evidence must be set apart.

[8] State of Maharashtra Vs. Pappu Suresh Salve @ Sunil Bharat Jadhav [2010 ALL MR (Cri) 1755].

Proposition :-

When the dead body was decomposed and its identification was not possible, failure to undertake DNA test - the finding that the dead body pertained to the victim - subject-matter of offence, would be a guess work.

[9] Musheer Khan @ Badshah Khan & another Vs. State of M.P. [2010 ALL MR (Cri) 933 (SC)].

Proposition :-

Evidence of Finger Print Expert is not substantive evidence, and can be used only for corroboration.

[10] Hate Singh Bhagat Singh Vs. State of Madhya Bharat [AIR 1953 S.C. 468 (Vol.40 C.N. 114)].

Proposition :-

The accused is protected with presumption of innocence, even when he is not in a position to prove the truth of his story. In such situation, his explanation should be accepted, if it is reasonable and is supported by proposition, unless the prosecution is able to prove beyond reasonable doubt that the defence is false.

[11] Mool Chand Vs. Jagdish Singh Bedi & others, State of U.P. Vs. Kashmiri Lal & another, State of U.P. Vs. Jagdish Singh Bedi & another, and State of U.P. Vs. Babu Ram [1992 Cri. L.J. 1539].

Proposition :-

When the testimony of an eye-witness is highly artificial and it does not fit into human probabilities, it cannot be relied upon.

[12] The Finger Print System at Scotland Yard by Frederic R. Cherrill.

This book is cited by the defence in order to urge that the opinion of Finger Print Expert to be correct and reliable has to be based on sixteen points.

[13] Finger Palm and Sole Prints by Salil Kumar Chatterjee.

The opinion may be reliable if it is based on minimum nine points.

10. After considering the charge and rival submissions, the points, which fall for consideration of this Court in this appeal, are formulated as follows:-

Has the prosecution proved that the:-

[A] Accused Nos. 1 to 7 with a common intention did following acts and committed respective offences:-

[1] Wrongfully confined :-

1. Shyama @ Kalya between 15th and 22nd December, 1995.

2. Amrutabai wife of Shyama between 18th and 22nd December, 1995.

3. Smt. Manjulabai on 16th December, 1995.

4. Smt. Vimalbai Sahare and Ku.Rekha Sahare from 15th to 17th December, 1995, and,

5. Mulchand and Radhelal from 16th to 19th December, 1995, at Police Station, Gondia, and thereby committed offence punishable under Sections 342, 343 and 348 read with Section 34 of Indian Penal Code?

[2] Put Shyama, Amrutabai, Manjulabai, Tarsanbai, Vimal and Ku. Rekha under fear of injury or grievous hurt and death, for inducing them to deliver the property, subject-matter of theft in Crime No. 315/95, and committed offence punishable under Sections 385 and 387 read with Section 34 of Indian Penal Code?

[3] Between 16th and 22nd December, 1995 in Police Station Gondia, Accused No.1 by use of criminal force assaulted Tarsanbai, Smt. Manjulabai, and Rekha Sahare?

[4] Accused Nos. 1 to 4 with common intention used criminal force and assaulted Smt. Amrutabai, wife of accused Shyama?

[5] Voluntarily caused grievous hurt to Shyama son of Nanu Uke with intention and for the purpose of extorting from him and his wife Amrutabai a confession or information which would lead to detection of offence of theft registered vide Crime No. 315/95 under Sections 457 and 380 by Gondia Police Station?

[6] Accused Nos.2,3,5 and 7 with common intention between 15th and 17th December, 1995 assaulted Vimalbai Sahare and Ku. Rekha Sahare in their house and outraged their modesty, and thereby committed offence punishable under Section 354 read with Section 34 of Indian Penal Code?

[7] Voluntarily caused simple hurt to Smt. Amrutabai wife of Shyama Uke, Smt. Manjulabai, mother of suspect Shyama, Smt. Tarsanbai, mother in law of the suspect Shyama, Smt. Vimala Sahare and Ku. Rekha Sahare with intention and for the purpose of extorting from them confession or information which would lead to detection of said offence of theft and house breaking, or to restore the property, subject-matter of said theft and house breaking, and thereby committed offence punishable under Sections 330, 331 read with Section 34 of Indian Penal Code?

[B] [8] Did Shyama succumb to injuries suffered by him while in the domain of police?

[9] If the prosecution has succeeded in proving point Nos. 1 to 8, has the defence succeeded in shattering the worthiness of proof of facts done by the prosecution?

[C] If the prosecution succeeds on Point Nos. 1 to 8, and defence fails on Point No.9, following points need to be decided :-

[10] Was suspect Shyama son of Nanu Uke murdered by Accused Nos. 1 to 7, between 15th and 22nd December, 1995, which act, if proved, constitutes an offence punishable under Section 302 read with Section 34 of Indian Penal Code?

[11] Knowing or having reasons to believe that offence of murder of Shyama has been committed, knowingly gave false information that Shyama Uke had absconded from police custody and made false Station Diary entries on 24th, 25th, 26th, 27th, and 30th all of December, 1995, and 1st and 7th January, 1996, and thereby committed offence punishable under Section 201 read with Section 34 of Indian Penal Code?

[D] Did the Accused Nos. 1 to 7 :-

[12] Record false entries in Station Diary and Log Book between 15th December, 1995 and 7th January, 1996, and thereby fabricated evidence with intention of using those in judicial proceedings, and thereby committed offence punishable under Sections 193 and 218 read with Section 34 of Indian Penal Code?

[13] Give false information about suspect Shyama's absconding, knowing fully well about the fact of Shyama's death while in the domain of police, and have committed offence punishable under Section 203 read with Section 34 of Indian Penal Code?

[14] Cause disappearance of evidence by destroying the dead body of Shyama by pouring acid and petrol on the dead body and setting it to fire furtherance to common intention of screening the evidence of the offence committed by them between 22nd and 23rd December, 1995, and thereby committed offence punishable under Section 201 read with Section 34 of Indian Penal Code?

11. In order to test as to whether the prosecution has proved the case, this Court has scrutinized entire evidence in the light of rival submissions.

12. This Court has to re-appreciate the evidence. In order that the revelations to this Court are expressed conveniently, it is necessary to analyze the witnesses falling in different categories. Some of the categories do overlap. Therefore, those are clubbed together for convenience. The testimonies of those witnesses would be referred to first in order and discussed later as hereinafter.

13. It would be useful to refer to the testimonies of witnesses on the different points referred to in the foregoing para. Those are discussed hereinafter.

WITNESSES AS TO ARREST, OR CUSTODY OF SHYAMA - AMRUTA UKEY [PW 1], WIDOW OF DECEASED SHYAMA, MANJULABAI UKEY [PW 2], MOTHER OF DECEASED, AND TARSANBAI MESHRAM [PW 16], MOTHER-IN-LAW OF DECEASED SHAMA, REKHA [PW 17] AND MULCHAND [PW 4] AND RADHELAL [PW 5], AND TORTURE DONE TO VARIUS WITNESSES BY THE ACCUSED PERSONS.

14. [i] PW 1 - Amrutabai Shamrao Ukey :-

[page 605 onwards]

Amrutabai [PW 1] is the widow of deceased Shama Uike. She has narrated brief background, and then the relevant chain of events, which runs into approximately three pages of the paper-book. Substance of her testimony can be summarized as follows:-

[a] Amruta's daughter told her that on 16th December, 1995, police had again visited her house, scattered the belongings in order to search something, and took Manjulabai with them. Manjulabai told her that police arrested Shama on 15th December, 1995.

[b] On 18th December, 1995, police again visited her house. Police Constable - Malewar informed that she was required for recording her statement before his superior, asked her to accompany and took her on his motorcycle to the Detective Branch.

[c] She saw that when Shama was being taken for urination, she had noticed that he was bleeding from his hands and legs.

[d] In that night, after 11.00 or 11.45, she was brought to Verandah, was beaten by Accused No.1 with belt, and by Accused Nos. 2 and 4 with sticks.

[e] In another room, for production of stolen property, she was hanged to the ceiling fan and again beaten by the accused by belts, sticks, kick and fist blows etc. She was kept in the said hanging position for twothree hours. She was not provided water though she was thirsty.

[f] Shama was brought in the same room by accused Jibhkate, Aglawe, Bawankar and Malewar. At that time, he was bleeding from his legs. On enquiry, Shama told that police had cut his veins of legs, he was not likely to survive and she will have to look after the children. While Shama was speaking with her, accused were still beating him.

[g] Next day morning, at about 6.00 a.m., Shama was brought from the ceiling fan room to the inner room of Detective Branch Office. There was a swelling on his feet, and were bleeding. Compounder Soni was brought to treat him. He gave treatment to Shama as well as to her. She was there for five days.

[h] On 22nd December, 1995 at 12.00 noon, by rope her hands were tied to the iron rod fixed at the top of the room. Accused nos. 1 to 5 beat her with sticks, belt, fist and kick blows. Around 2.00 or 2.30 p.m., she was untied.

[i] Then Shama was brought to the room where she was earlier tied. He was also similarly tied. He was bleeding and she started crying.

[j] When she went upto Shama to speak to him, his eyes and mouth were shut. He was not speaking. She shouted that they had killed him. Police responded, saying that he was pretending.

[k] She was released from Police Station with a Lady Constable Suman, who took her to her [Suman] house, was given Rs.50/- and a saree by Suman, and let her free at her house.

[l] On 24th December, 1995, police came and told that Shama had jumped the arrest.

This witness was cross-examined to test her capacity to identify the accused and her worthiness in totality.

15. PW 2 - Manjulabai Ukey :-

[page 640 onwards]

She is the mother of deceased Shama @ Kalya. She was examined to have been called to Police Station, dealt with torture and her having identified Shama by listening his voice.

16. PW 3 - Sureshkumar Kharagchand Soni :-

[page 652 onwards]

- This witness was examined by the prosecution to prove that the suspect Shyama was brought by police for investigation. He had suffered injuries which had occurred due to beating.

- Statement of this witness was already recorded before Magistrate under Section 164 of Criminal Procedure Code.

- This witness had supported the prosecution in the Examination-in-Chief, and when cross-examined by the accused, fully supported them. When this witness was cross-examined by the prosecution, he turned hostile.

- In the cross-examination by learned Public Prosecutor, in reply to the Court question, this witness admitted as follows:-

"To the Court - Now I am realising that I should speak the truth. I admit that whatever I stated before Court in the morning session was completely false."

[Quoted from page no. 658 of the Appeals paper-book],

and then deposes further that he had visited Police Station frequently and treated the suspect Shyama alias Kalya at the behest of the accused persons from 18th to 24th December, 1995. He has admitted everything which he had stated before Magistrate under Section 161 of Criminal Procedure Code.

17. PW 16 - Tarasanbai Jaipal Meshram :-

[page 771 onwards].

She is the mother-in-law of deceased Shama alias Kalya. She narrated as follows:-

[a] On 16th December, 1995, accused searched her house.

[b] She was having Rs. 6,000/- with her, i.e., sale proceeds of paddy - Rs.2500/- and wages of her husband - Rs.3500/-, which police took away.

[c] She saw Shama had injuries on his person. Blood was oozing therefrom.

[d] Police also beat her on her head and hip.

[e] Police kept her in Police Station for two days where herself and deceased Shama were beaten.

[f] Herself and Shama were taken to village Survai.

[g] She identifies accused nos. 1 and 2 by their call names and description, and does not identify other accused persons.

[h] Again search of her house was taken and they were then brought back to Gondia.

[i] Amruta was brought to police station next day morning. She was detained in police station for six days, and was released on Friday.

[j] Shama was beaten mercilessly. He was bleeding all the while from his feet. His veins were cut.

[k] Accused Nos. 1 and 2 told her not to reveal the information to anyone.

[l] Accused Nos. 1 and 2 and his companions visited Survai with two motor vehicles.

[m] Accused no.1 came and told her that Shama was brought with them.

[n] Someone sitting in the jeep was having entire face covered. She was unable to see the face and thought that he was not Shama.

18. PW 17 - Rekha Gyaniram Shahare :-

[page 778 onwards].

[a] This witness knows Shama.

[b] At the request of Shama, she and her mother went with him to Survai.

[c] Shyama handed over Rs. 1,000/- of Rs.10/- denomination to his sister, who did not accept it, but sister's husband accepted the amount.

[d] They moved to Bhanpur. At that time, Shyama was having a suitcase of blue colour which he left there.

[e] On 15th December, 1996, she and other persons returned to Gondia.

[f] On Friday, at 7-00 p.m., accused persons came and made enquiries about the suitcase, which was kept by Shyama with her father.

[g] Two days after they all went to Salekasa, accused persons took search of the house and seized utensils etc., and the suitcase of blue colour.

[h] Accused persons brought them by a jeep and told that they would be taken to Survai.

[I] Shyama was made to sit in another jeep, but was not shown to her.

[j] Afterwards, she saw that Shyama had bandages, and his body was swollen etc.

19. PW 4 - Mulchand Appaji Nanhe :-

[page 666 onwards]

[a] This witness had visited Police Station and found that Shama was present in the room.

[b] His arms and legs were swollen and those were bleeding.

[c] Shama was being treated by one person who had come there with a bag.

[d] Thereafter, Shama was made to sit in another jeep, who was fully covered and police told that he was Shama.

[e] This witness claims to have seen Amrutabai being tortured.

[f] This witness does not identify Shama and also does not state that he had seen Shama in the police jeep.

20. PW 5 - Radhelal P Uikey :-

[page 677 onwards]

- This witness does not know Shyama.

- His version discloses that he knows wife and mother of Shyama.

- He has seen Shyama being taken in another jeep to Survai village, and that Shyama's legs were swollen and he had injuries.

- He states in the Examination-in-Chief that he has not seen the face of Shyama while he was in another jeep with police.

21. PW 6 - Vijaykumar Rameshwarlal Agrawal :-

[page 685 onwards].

This witness had accompanied police to bring Shama @ Kalya from Balaghat Police Station. He also proves that there was a person who was completely covered with a bed sheet, and was made to sit in another jeep, while police made effort to trace stolen property from different places.

22. PW 7 - Vishwanathsingh Gulabsingh Kaushik :-

[page 702 onwards]

He was on duty in the Govt. Railway Police Outpost, Balaghat Railway Station, and proves that Ravindra Aglawe had come to the Outpost and telephoned to Gondia for securing a jeep, telling that Kalya was arrested and he was to be taken to Gondia.

23. PW 8 - Deepak Dayaram Lokhande :-

[page 710 onwards]

This witness was declared hostile at the request of Special Public Prosecutor. However, in the cross-examination, he admits that Shama was beaten by accused persons, namely Jibhkate, Aglawe, Bawankar, Doongre, Malewar, Vaidya, and Gosewade.

24. PW 9 - Kuwarlal Buddusao Dohare :-

[page 737 onwards]

This witness states that on 17th December, 1995, accused persons had hired Room Nos. 31,21 and 20 with some accused,

The accused in custody of police was having injuries and was bleeding from his hands and was unable to walk.

This witness has proved the entries made in the register.

25. PW 10 - Tejlal Karulal Panchbhaye :-

[page 742]

This witness was attendant in Hotel Anand. He corroborates the testimony of PW 9 - Kuwarlal.

26. PW 11 - Gopal Dinaji Bansod :-

[page 743 onwards]

This witness was examined to prove disposal of dead body of Shama by police. At the request of Special Public Prosecutor, he was declared hostile.

He was cross-examined, but nothing crucial seems to have been elicited.

27. PW 12 - Indrakumar Chhotelal Basena :-

[page 762 onwards]

He is a Panch witness. He is declared hostile. Nothing much is elicited from him during cross-examination.

28. PW 13 - Yashoda Pandaji @ Beni Waghmare :-

[page 764 onwards]

This witness is examined to prove that the deceased Shama gave discovery of a bag from the heap of grass. This witness does not throw any light on any incident crucial for the purpose of this case.

29. PW 14 - Sham Dasaram Bisen :-

[page 766 onwards].

This witness is examined to prove recovery of a cloth bag which was like a pillow cover from the place below heap of earth. This witness is also not of much use for advancing the prosecution case.

30. PW 15 - Suresh Rajaram Mane :-

[page 769 onwards]

This witness proves that he had nitric acid, which police took away from him forcibly. This witness does not in specific terms name any of the accused persons to be those who had taken the acid.

31. PW 20 - Dilip Sawwalakhe:-

[page 801 onwards].

- This witness deposes that he was on duty between 5th November, 1995 and 19th December, 1995.

- On 16th December, 1995, at 3-00 p.m., when he visited D.B. Room, he found that accused nos. 1 to 6 were present along with one suspect Shyama and one old woman with a girl of sixteen years of age.

- Accused No.1 was interrogating old woman.

- On the say of Accused No.1, he went to call the compounder - Soni and returned after 15 to 20 minutes with the compounder Soni.

- Compounder Soni did dressing etc., gave injection to Shyama.

- Thereafter, Shyama was taken by Mr. Jibhkate, Aglawe, Bawankar and Dongre. But he did not know where he was taken.

- On 17th December, 1995 at 7-30 in the evening, he was asked to fetch Compounder Shri Soni.

- On 19th December, 1995, he was shifted to other duties.

32. PW 21 - Shakunbai Punaram Uikey :-

[page 806 onwards]

- She is a Lady Police Constable.

- She was called in D.B. Room and was asked to remain present during house search, for which Accused Nos. 1 to 7 had taken her and another woman suspect accompanied by one girl who were Vimalbai and Rekha respectively which she came to know from the accused persons.

- They went to Balaghat.

- House search was made at the instance of Vimal and Rekha.

- Thereafter, she accompanied other accused to Survai.

- She remained in the jeep while other accused got down.

- The vehicles stopped at Bharweli, where she saw in another jeep the accused suspect sitting, tied up with rope.

- On 16th and 17th December, 1995, she was accompanying Vimal and Rekha, who were required to stay in one amongst the rooms along with one lady from Survai.

- She saw Shyama @ Kalya limping while he was having dirty and stained clothes.

33. PW 22 - Sumanbai Bharatram Madavi :-

[page 812 onwards] -

On 20th December, 1995, when she was called on duty, she found that two female suspects were sitting in front room.

- Accused No. 2 told her that they were Amrutabai and her mother.

- Inside the room, one suspect was kept, whose name is not known to her, and was told to be husband of Amrutabai.

- Accused Bawankar, Vaidya, Gosewade, Dongre and Jibhkate were present in the office.

- On 21st December, 1995, she again visited Detective Branch, and found that Amrutabai and her mother were present, sitting outside the Detective Branch warming themselves in the Sun.

- In third room, male suspect was present.

- She performed her duty by accompanying Amrutabai.

- On 22nd December, 1995, female accused suspects were sitting in Verandah.

- Male suspect was called outside. He was taken to a tin shed.

- He was normal when he came out of the room.

- Female suspects were thereafter released.

- She took Amrutabai to her house, who stayed with the witness for the night.

- After giving Amrutabai a green colour saree and Rs.25/-, she was reached home by auto rickshaw.

- She had no occasion to visit Detective Branch thereafter.

WITNESSES AS TO DETENTION WITHOUT RECORDING ARREST, CREATING RECORD ABOUT ABSCONDING OF ACCUSED SHYAMA @ KALYA IN CRIME NO. 315/95.

34. PW 23 - Shalikram Sarasram Nimkar :-

[page 818 onwards]

This witness is a Head Constable, and states as follows:-

- On 18th December, 1995, he had seen swelling on the feet of Kalya. He was handcuffed. He accompanied the investigation team.

- On 19th December, 1995, he saw injured Shyama @ Kalya present in the D.B. Room and Mr. Soni had come there to treat Shyama @ Kalya.

- From 20th to 22nd December, 1995, he performed general duties.

- On 24th December, 1995, he had performed Station Diary Duty between 2-00 and 8-00 p.m.

- Accused Mr. Jibhkate informed him to take an entry that he had come to know that suspect Shyama was seen in the vicinity of Railway area, and his departure be shown for searching Shyama, and an entry for that purpose was taken.

- On the instructions of Mr. Jibhkate, he took entry [Exh.185].

35. PW 24 - Radheshyam Shivram Chamat :-

[page 827]

This witness testifies that he took Station Diary entry [Exh.193] for having enquired about the whereabouts of Shyama to his wife at her house.

36. PW 25 - Maroti Shivram Lanjewar :-

[Page 829].

This witness has taken Station Diary Entry [Exh.195] that Constable Shri Dongre had left for Balaghat to take search of accused in Crime No. 315/95 along with Police Constable - Bawankar, as well as Station Diary Entry [Exh.196] for search of Shyama @ Kalya.

37. PW 26 - Suresh Shrawan Kawale :-

[page 832]

This witness is examined to prove that he was the Lock-up In-charge in the D.B. Room and that from 9th December, 1995 to 8th January, 1996, nobody was brought in the lock-up.

In cross-examination, he admits that on 20th December, 1995, four persons were brought in the lock-up.

WITNESSES AS TO REGISTRATION OF FIR, EXHUMING DEAD BODY, DISSECTION OF FINGERS, TAKING FINGER PRINTS AND OPINION AS TO FINGER PRINTS.

38. PW - 31 - Chandrakant Keshav Pawar :-

[page 1274 onwards]

- This witness is SDPO.

- The Superintendent of Police had referred to him the complaint furnished by Smt. Amrutabai.

- He has recorded statement of Amrutabai on 6th January, 1996, and forwarded the same for enquiry to Shri Harne.

- Amrutabai was referred for medical examination.

- The investigation was handed over to CID and thereafter he was not concerned with the matter.

- In cross-examination, he admits that at the relevant time, the investigation was being carried out by Dy.S.P. He further admits that the enquiry in Crime No. 315/95 was handed over by Mr. Harne to the Accused No.1. He claims that he was busy in other work.

39. PW 38 - Sahebrao Bhagwanji Harne :-

[Page 1406 onwards]

This witness is examined to prove that he was immediate superior of Accused No.1 and other accused persons.

- He was on Bandobast duty on arrival of President of India, and entire investigation of Crime No. 315/95 was undertaken by accused no.1.

- This witness has directed registration of Crime No. 4/96 on the complaint of Amrutabai against accused persons.

40. PW - 27 - Bhagwandas Balmukund Gupta :-

[Page 1196 onwards]

This witness is examined to prove the photographs and negatives of the room near D.B. Room, blood spots therein etc.

41. PW - 28 - Diwakar Shridhar Phatak :-

[page 1204 onwards]

This witness had accompanied CID Police to the spot where the dead body was found, viscera was extracted etc.

42. PW - 32 - Mohd. Israil Mohd. Ibrahim :-

[page 1286]

This witness is examined to prove the photographs of the dead body, which was lying near Garra Chowky.

43. PW - 33 - Pramod Ambadas Deshmukh :-

[page 1292]

He is examined to prove the photographs, negatives whereof are Art.100, which were collected by the Police under Seizure Memo [Exh.390].

44. PW - 35 - Ramesh Atmaram Shambharkar :-

[page 1395 onwards]

This witness is a Technical Photographer attached to CID [Crimes], Nagpur. He has been examined to prove the photographs of dead body and negatives etc.

45. PW - 36 - Dinesh Shambhuji Bhatiya :-

[page 1398 onwards]

He is a witness of Panchanama of opening of D.B. Room and seizure of certain articles.

FINGER PRINT EXPERTS :-

46. PW 40 - Laxman Mulchand Chopkar :-

[page 1466 onwards]

This witness is a Finger Print Expert.

- He proves that he had taken thumb impression of suspect Shyama @ Kalya on 14th June, 1995, when he was arrested furtherance to Crime No. 156/95.

- Search Slips consisting of finger prints of Shyama taken by predecessor of this witness, namely Shri Girhipunje, were seized by Mr. Masurkar from him.

- He admits that the date is not mentioned when finger prints were taken by Mr. Girhipunje, nor he is able to tell whether Mr. Girhipune had taken those prints prior or after the arrest.

- This witness was suggested that writing of Crime No. 156/95 on Search Slips on which finger prints were taken by Mr. Girhipunje was done by this witness on the force of Mr. Masurkar, CID Inspector.

47. PW 41 - Sharad Dayaram Girhepunje :-

[page 1471 onwards]

This witness deposes that he had taken finger prints of Shyama @ Kalya on simple papers in the year 1993-94.

- He admits that the date was not mentioned on those papers, nor a crime number was mentioned.

48. PW 37 - Ravishekhar Patiram Marbate :-

[page 1400 onwards]

This witness is examined to prove the identity of prints of dissected fingers being that of Shyama @ Kalya on the basis of record, authenticity whereof is identified by him by identifying the signature of Mr. Shewade. This witness admits as follows:-

"4. .............................. ........It is true that expert gave opinion about only one finger of right hand and one thumb of left and he did not give any opinion about remaining four fingers of each hand. I cannot assign any reason for the same. It is not true that all the fingers were unfit for taking impressions and therefore, it has affected on the comparison by expert. Borikar has not signed Exh.406, and also the panchas. It Gis not necessary to take the signatures of panchas. There were lables on plastic bottles denoting that one bottle bears fingers of right hand and other bottles bears fingers of left hand. They were not only denoted with letters 'C' and 'D'."

[Quoted from page nos. 1402 and 1403 of the appeals paper-book].

49. PW 47 - Arun Marotrao Borikar :-

[page 1562 onwards]

- This witness is a Finger Print Expert, holding requisite qualification and experience of examining lakhs of finger prints.

- This witness has examined finger prints of Shyama @ Kalya which were referred to him.

- On 17th January, 1996, he was attached to Finger Prints Bureau at Nagpur.

- Finger prints of fingers taken out from a bottle by Police Constable Marbate were taken.

- After the fingers were taken out from the bottle, those were dried with a piece of cloth and were cleaned, and finally the prints were taken.

- This witness had compared the finger prints taken by Mr. Marbate with Record Slips dated 26th October, 1983 and 20th October, 1978 already available in his office.

- He found from enlarged finger prints that the recently taken prints match with homologous sequence in relative positions, and the patterns of tented arch were alike with no dissimilarities, and he gave opinion that newly taken finger prints match with the finger prints of Shyama @ Kalya already on record.

- This witness admits that concurrence of superior officers was oral.

- The dissected fingers were not preserved in formalin, which is, in fact, a requirement.

- Director's concurrence for the opinion was taken orally.

- No photographs were taken by the Director himself, nor any reasoning given by him is separately maintained.

- He had opined on the basis of photographs already supplied to him.

- The opinion does not express that it is based on reasoning and the photographs.

- Finger prints were not taken by using cadaver spoon required for taking finger prints of a dead body, and he claims that because the fingers were already dissected, use of such instrument was not necessary.

- Other impressions on Exh.406 are blurred, and he denies that this blurred position was because of burn or decomposition.

- He admits that his opinion does not incorporate the reasoning that the finger print impressions tally on all eight points.

- He also admits that he has not mentioned dissimilarities while writing the opinion.

ABOUT VISCERA :

50. PW - 44 -Shriram Hiralal Sonekar :-

[page 1548 onwards]

This witness is Asstt. Sub-Inspector and a messenger who has handed over the papers and viscera of unidentified dead body along with photographs to Constable Sontakke of Crime Branch, Nagpur, and Station Diary entry in that regard.

WITNESS AS TO POST-MORTEM EXAMINATION :-

51. PW 39 Dr. Mukund Duliram Wasnik :-

[page 1448 onwards]

This witness gives the description of the dead body, which was kept in the mortuary on 1st January, 1996, as follows:-

"1. ................... ........It was burnt and also decomposed. Skull hairs were burnt. Eyes were missing from its sockets. Mouth partially opened. Tongue inside the mouth. Testicles missed from scrotum, penis present, yellowish like paint, like material present over the sole of both the legs. Both palms pelvic region and face. Maggots crawling over the eye sockets, pelvic region, axillary region, ankle joint region.

2. Whole body superficial burnt. Skull hairs burnt. In mouth fourteen teeth on upper jaw present. Burnt is post mortem in nature.

3. Brain material was liquified. Both chambers of heart were empty. Both intestines were decomposed and also abdomen."

4. ................... "

"5. Time after death had passed about 4 to 5 days. No definite about cause of death could be given due to decomposition of the body. ...."

"6. ............... ........I replied the queries. It is at Exh.419. I have opined that yellowish pigmentation found on dead body may be because of nytric acid and petrol reaction, and also opined that period of death may be extended upto 10 days before the actual post mortem.

7. Maggots are normally formed at the place where there had been any injuries and because of bleeding, flies are attracted.

8. I have dissected the fingers of dead body on the base of the fingers. They were not affected due to burning. However, yellowish paint like material was present. I had preserved the viscera in salt solution."

[Quoted from page nos. 1448 to 1450 of the appeals paper-book].

WITNESS AS TO IDENTIFICATION PARADE

52. PW 34 - Devaji Sadashiv Krupan :-

[page 1296 onwards]

This witness is examined to prove the Identification Parade.

Admittedly, all accused were not identified.

WITNESSES AS TO INVESTIGATIONS

1. PW - 42 - Sukhadeoprasad Badamilal Patel :-

[page 1473 onwards]

This witness pertains to telephone record, and is of no much significance.

2. PW - 43 - Laxmikant Babarao Maserkar :-

[page 1475 onwards]

This witness proves various Panchanamas and steps taken by him in investigation, including exhuming the dead body, referring of samples etc.

3. PW - 45 - Vishwanath Bhikaji Chavhan :-

[page 1554 onwards]

He is a formal witness and he brings on record admitted documents signed by Accused No.1.

4. PW - 46 - Gajanan Bhagwan Shinde :-

[page 1556 onwards]

This witness has collected hand writing samples of Accused No.1.

DISCUSSION OF EVIDENCE AND CONCLUSIONS

53. Discussion as regards Point Nos. 1 to 7 is to be done, and followed thereby, the discussion on Point Nos. 8 and 9 is necessary.

Need of discussion on Point Nos. 11 to 15 is contingent upon the fate of decision and conclusions on Point Nos. 1 to 9.

DISCUSSION AS TO POINT NOS. 1 TO 7

54. It would be convenient to deal with Point Nos. 1 to 5 together. Those are dealt with as herein below:-

Revelations from testimonies of various witnesses, which are proved, even when screened through the approach which the cross-examiners had adopted, are summarized as follows:-

[a] Shyama was called in Police Station.

[b] At the time of calling or bringing Shyama, it was not declared that he was arrested.

[c] Apparently, Shyama must have been brought with an intention to interrogate him, or for arresting him. He was not told that he was being arrested.

[d] However, Shyama was in the premises of the room of Detective Branch and the room annexed thereto without formally recording arrest.

[e] Shyama was not even served with a notice that he is called for interrogation.

[f] It is also proved that Shyama was practically confined in the premises under the domain of accused persons.

[g] It is, thus, proved that during the period during which Shyama was called or brought to Police Station, according to the witnesses, he was beaten, ill-treated and ultimately he succumbed to injuries, and, according to police, he ran away when he was under the domain of police.

[h] Shyama was not able to enjoy his liberties during the period he was under actual confinement, and though arrest was not formally recorded when he was brought to Police Station, he continued to be without any freedom, i.e., remained under physical domain of police.

[i] Thus, he remained under factual arrest and without any recording thereof and hence in wrongful confinement.

[j] Though the defence has made a serious effort to create a shadow of doubt as to whether witnesses have really seen that Shyama was beaten, it is duly raised to the level of preponderance of probability that he was ill-treated as the witnesses have proved that Shyama was moaning, he was found bleeding etc.

[k] Though defence urges that those statements are vague, fact remains that though witnesses did not have complete access to view each and every injury and every act of assault on Shyama, it is unambiguously established that the witnesses have either seen him hurt, bleeding and moaning on account of sufferance of hurt and injuries.

[l] PW 3 - Sureshkumar Soni has, in positive terms, stated in his statement recorded under Section 164 of Criminal Procedure Code as to how he had treated Shyama and how he was found by him injured, supine and last in a dead condition.

[m] Though PW 3 - Soni was declared hostile, since he supported the prosecution in Examination-in-Chief, and to a few questions posed in cross-examination, supported the defence, in the further cross-examination by learned Public Prosecutor, he has disclosed the truth and admitted that in an effort to support the accused, he had, in fact, departed from the truth.

[n] In further cross-examination of PW 3 - Sureshkumar Soni by the defence, nothing useful was elicited.

[o] In spite of serious attack by the defence on truthfulness and worthiness of PW 3 - Sureshkumar Soni, the fact that he had repeatedly visited the Detective Branch room of the Police Station, treated Shyama and did dressing to him etc., while he was injured, and ultimately found him dead, could not be brushed aside as a lie, particularly in the background that the entire effort of the accused persons is to cover themselves with the shield of doctrine of 'innocence until proved guilty.'

55. This Court recognizes and honours without any hesitation the binding doctrine of 'innocence unless proved guilty'. This Court is positively driven to believe due to the proof of facts raised and done by the prosecution, that the prosecution has led the case on the basis of evidence brought by it to prove that:-

[1] Shyama was brought to Police Station without formal arrest.

[2] He continued in the domain of police, and had lost all liberties. These acts of the accused tantamount to arrest. The accusedpolice had power to arrest. Failure to record the arrest does not render the presence of Shyama in the Detective Branch room a voluntary act on his part.

[3] During the period of arrest, he was manhandled and ill-treated, and he had suffered injuries.

[4] PW 3 - Sureshkumar Soni was called at the Police Station to treat Shyama.

[5] Since the suspect Shyama was not formally arrested by recording the arrest, police have enjoyed the escape from law by failing to produce him before the Magistrate within twenty-four hours, and, in the result, the statutory format of production before the Magistrate and medical examination were all bypassed.

[6] In so far as the arrest and ill-treatment to other prosecution witnesses - Amrutabai, Tarasanbai, Manjulabai and Rekha is concerned, the same has been proved by the prosecution on the lines as was done in case of Shyama.

[7] The prosecution witnesses too adequately raise prosecution story to the level of preponderance of probability that they were brought to Police Station, their arrests were not recorded, they were kept in the domain of police, and had lost their freedom and they were ill-treated.

[8] This circumstance has to weigh against the accused and seriously counters the a presumption of innocence which the accused want to enjoy.

AS REGARDS POINT NOS. 6 & 7

56. In so far as the aspect of intention of the police to ill-treat the suspect and other prosecution witnesses is concerned, as proved by the prosecution witnesses, the intention of the accused persons while dealing with the witnesses with torture was in order and with intention to extract from them confession and ensure recovery of stolen property.

57. It is not a case that police claim that nothing happened and entire case was based on figment of imagination. Things, such as registration of crime and Shyama being suspect had surfaced, had very, very happened. The suspect Shyama was called for investigation in said crime, so were the other witnesses called.

58. Though initially Shyam's arrest was not shown, after Shyama died, police found it necessary to create a record of his arrest and then to show that he had absconded, in order to use this circumstance as a lever to get relief from the charge of custodial death.

59. If witnesses, namely Amrutabai, Manjulabai, Vimalbai, Rekha, Mulchand and Radhelal were to be disbelieved, their testimonies could have been rendered worthless by the revelations in their respective cross-examinations. Defence has failed to secure and elicit worth to do this. Testimonies of these witnesses rise to the level of satisfaction.

60. Alternate option available to the police was to prove by any other evidence, including defence evidence, documentary as well as oral, that these witnesses were elsewhere, and were not in the domain of police at the material time. This exercise is not done by the accused persons. The evidence led by the prosecution had raised the level of proof and belief that burden to prove contrary had shifted on the accused.

61. For the accused persons at least to create a doubt in the evidence brought by the prosecution in the mind of the Court, and some belief in favour of accused, that the accused have some defence and the prosecution story is debatable, defence could have chosen to lead any evidence including their own testimonies of denial, stating that on particular days and dates, on which the prosecution witnesses claim to have been brought to the Detective Branch Room of the Police Station, were not at all also called or detained or kept under the domain of police or were ill-treated.

62. The defence has, for the reasons best known and best advice they must have been rendered, chosen to be happy and satisfied with the device of cross-examination. They did not deem it appropriate to take recourse to any defence evidence, whatsoever.

63. The result is that the defence has to rely upon that and upon the doctrine of 'innocence till proved guilty' to such an extent as would weigh in their favour.

64. Even though the defence has been content in confining themselves to the suggestions given in the cross-examinations of prosecution witnesses, nothing has been brought on record by the defence to prove that the imputations in that regard based on the charge and sought to be proved by the evidence brought by the prosecution are totally untrustworthy to such a level that the prosecution story cannot be believed.

65. As is noticed by this Court, it is duly proved from evidence that the suspect and his relatives, who are prosecution witnesses, were called in Police Station, kept in the domain of police and ill-treated, which has gone unchallenged.

These witnesses cannot be discarded or brushed aside denying their being rustic, being related to a known criminal, the suspect - Shyama.

66. In so far as Point No.5 in respect of outraging the modesty of prosecution witnesses is concerned, an act of arrest and dealing with the accused in accordance with law would always be a matter of powers and privileges of the police. Once the arrest turns out to be without recording it, it becomes an arrest for the purposes of liabilities of officers effecting the same.

67. Had the arrest been recorded, it was a matter of exercise of powers and privileges in the course of enforcement of law, and in the event, persons sought to be arrested did not submit to the arrest and would resist, use and exercise of force to bring and keep the accused under control would not, in any manner, attract the mischief of Section 354 and Section 34 of Indian Penal Code.

68. In the present case, the arrest being one which is not done in accordance with law and not recorded, and it turns out to be an arrest, in fact, it emerges to be a wrongful confinement and the force used during such wrongful arrest automatically fructifies into the criminal force as contemplated by Section 354 of Indian Penal Code. It is, thus, liable to be held that the prosecution has proved Point Nos. 6 and 7 framed by this Court.

69. Upon consideration of evidence, we arrive at a conclusion that the prosecution has proved Point Nos. 1 to 5.

70. In so far as fact of Shyama's death is concerned, weight of witnesses results in proving following facts:-

[a] Shyama was taken from his house to Detective Branch room of the Police Station.

[b] His arrest was not recorded.

[c] He was, however, continued in confinement, tantamounting to arrest and/or wrongful confinement.

[d] He was ill-treated, injured and had suffered bleeding injuries, and had become unconscious.

[e] PW 3 - Sureshkumar Soni proves that Shyama was seen dead while under the domain of police while in the Detective Branch Room.

[f] Though Shyama's arrest was shown to show him having jumped, he was not medically examined.

[g] Thus, it is proved that Shyama died while he was in the doamin of police - the Detective Branch manned by Accused Nos. 1 to 7.

71. The defence has failed to bring any piece of evidence, whatsoever, to prove, by :-

[a] Producing Station Diary and relevant investigation papers with an endorsement of supervising officer thereon, that Shyama and other prosecution witnesses were not called to Police Station at all, or were called, and, if so, on what dates, and in what manner they were dealt with.

[b] Bringing any other evidence of policemen or other witnesses, who happened to visit Detective Branch Room, or premises of Police Station, Gondia.

[c] Stepping into witness box by accused persons and denying that Shyama and other prosecution witnesses were not called in Police Station and not ill-treated.

72. Had some amongst the accused persons stepped into witness box, the risk which they would have undertaken was to offer themselves for cross-examination, however, such evidence, including any other evidence, would have made them to travel from bare argumentative denial to a statement on oath. The accused always have a very limited burden to discharge, even when accused suffer the limited responsibility of answering the burden of Section 106 of Evidence Act.

73. In the present case, the accused persons were proved to have the domain over Shyama and other prosecution witnesses, who had deposed that Shyama and those witnesses were brought to Police Station and ill-treated etc.

74. While in law, Police Station is a Public Place or a Public Office, it is rarely "public" in the common parlance. If the witnesses say that somebody was confined and the evidence brought by the prosecution, as held by us, is raised to such a high level of probability that it compels the mind of the Judge to believe that the deceased and the witnesses were dealt with in a particular manner, which fact of the matter has no occasion for public access or knowledge.

75. The case, therefore, imperatively travels to the matter of 'personal knowledge' of the accused persons. It is particularly so in the present case where the imputations are made against police officers and police personnel who have exclusive domain on the premises under their control. None, except the accused persons, can either explain, disprove the facts which were raised to the level of preponderance of probability by virtue of evidence brought by the prosecution.

76. Had the cross-examination done by accused persons, who were having the domain over the premises and facts, created by facts or contradictions elicited, a doubt about worthiness as regards the facts proved by the prosecution, it would have been convenient for the defence to urge that they had no duty to rebut by proving existence of probability of their defence even suggestively.

77. As is found by us, the proof of facts done by the prosecution rises to such a high level of probability that the charge is proved beyond suspicion that Shyama and other women witnesses, in relation to whom offence has been reported and sought to be proved, have proved their being brought to the police station - Detective Branch room and were dealt with in the manner which they have deposed.

78. Deviations on certain facts or vagueness due to the rustic background of the witnesses do not, in any manner, falsify and/or render the facts stated by them that they were brought to Police Station - Detective Branch room and were illtreated, as untrue statement.

79. These witnesses have also proved that Shyama was brought in police station, ill-treated and ultimately he died in the Police Station.

80. In order to disprove what prosecution has proved, accused had a burden to discharge by bringing proof of facts, though not of the same height, level and/or rigour or degree which prosecution is bound to have, but at least of degree of such level, worth, weight and value that it would demonstrate probability of defence.

81. Custody of Shyama being proved, to disprove it, the defence had to prove either that :-

[a] Shyama was alive;

[b] Shyama and other witnesses were not illtreated or tortured while under the domain of the accused;

[c] Otherwise create a doubt about worthiness of evidence by discrediting the prosecution evidence.

82. In the present case, what accused have done is that they have relied upon cross-examinations and the loopholes in the prosecution evidence.

83. In so far as the aspect of identification of accused persons is concerned, the worth of identification parade and the fact that role of all accused taken together is to be considered. Identification could have gained some significance, had individual accused been attributed specific and isolated acts. Therefore, involvement of all accused nos. 1 to 7 has to be, and is held as proved.

84. None except police officers, or those who have been wrongfully confined can ever have knowledge and access to their custody barring rarest exceptions.

85. The accused persons took a positive plea to escape from the charges that the accused Shyama fled away. This specific plea is of such nature that by its utterance, the defence has attracted and took upon itself burden to prove it. Had the defence preferred silence, it could have no burden in specific. Having couched a specific plea and story, the defence has to suffer its consequences.

86. While the doctrine of 'proof of personal knowledge' has been construed to have a limited rigour, yet whatever rigour which follows by way of burden to prove 'personal knowledge' to the height of preponderance of bare probability is an indelible burden.

87. The role of duty to prove by leading evidence when required under Section 106 of the Evidence Act does not stand on par equally to the rigours which the prosecution has, yet it does not, in any manner, lose its existence by virtue of doctrine of presumption of 'innocence unless proved guilty.'

88. The doctrine of a presumption of 'innocence unless proved guilty' is not to be read as a doctrine of presumption of innocence, though proved guilty in accordance with "preponderance of probabilities." Ultimately, a fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

89. In the case of present nature, Section 106 of Evidence Act does not lose its rigour. Whatever limited application Section 106 has, there is no latitude in the rigours thereof.

Applying the said test in the present case, the prosecution case is duly proved. The defence has failed to even suggest lack of probability, muchless disprove it. We, therefore, record the findings that :-

[a] Suspect Shyama and his relatives, who have stepped into witness box, were brought in domain equal to arrest;

- Were dealt with in the manner which they have deposed.

- They were brought in Police Station, kept under confinement, dealt with inappropriately and that Shyama was brought, confined, has suffered injuries. - Shyama died on the floor of Police Station Detective Branch room.

- The defence has failed in discrediting the evidence brought by the prosecution, or bring any evidence to disprove what prosecution has proved.

[b] Point Nos. 1 to 8 are proved in favour of prosecution and against the accused nos. 1 to 7.

[c] We answer Point No.9 against the accused and in favour of the prosecution, and hold that the prosecution has discharged its burden and the defence has failed to discharge its burden, which was consequently shifted on them by virtue of the peculiar situation of accused persons being in absolute domain and control of situation.

90. Now this Court has to advert to Paragraph [c] amongst the points, and we shall deal with the same.

POINT NO. 10

91. While it is proved that Shyama died while in police custody, the question is whether the said death is a murder, as incorporated in Point No.10?

92. In order to classify an act causing death to be murder, intention of killing with a knowledge that the bodily injury within the knowledge of the assailant would lead to death, knowledge that such injury is sufficient in ordinary course to cause death, or the act being so imminently dangerous, that in all probabilities the bodily injury without an excuse of incurring death would cause death, is a must.

93. No separate submissions are advanced by different accused persons of shirking one's own responsibility and throwing it on the other. The accused persons are maintaining cadre loyalty. They appear to be an ideal guild in the Police force. The prosecution has not been able to uncover the offence by their often-used mode of shirking a responsibility of an accomplice. Any such accomplice could have found a rescue for himself. However, in the present case, as mostly the witnesses, who are themselves victims and most proximate relations of the victim - the dead person, the prosecution found it content to rely on victims' evidence and has arrayed all accused for their liability.

94. Though not argued, it would have always been possible for few amongst the accused persons to protect themselves by pleading 'no involvement on their individual part.'

95. In the present case, the accused chose to maintain solidarity amongst themselves and had a consolidated type of defence. This solidarity on their part, at the same time, binds them together even for a criminal liability. They have together withheld best knowledge, if any, which, in fact, they are bound to possesses as to involvement of a particular accused being responsible for the wrongful arrest and wrongful detention, illtreatment and ultimately being responsible for death of Shyama, or at least any particular accused knowing only particular limited facts.

96. In the present case, the evidence brought by the prosecution proves ill-treatment, beating, bleeding of the victim and the fact of his death. Role of each accused cannot be segregated.

Individual role of each accused is a matter of knowledge of each accused. The accused have a right of silence which they have maintained. However, had any or few amongst them any desire to save himself, it would have been possible and burden for such accused to have opened the mouth, raised his plea of innocence to probative value by specific crossexamination, or other positive evidence. Therefore, all accused nos. 1 to 7 were those who have thereby shared intention and committed act or acts which have resulted in the death of suspect Shyama, due to the ill-treatment by them.

97. Admittedly, the defence to fall within the bracket of any exception, whatsoever, is not raised or suggested.

98. In so far as the aspect of intention, or various matters referred to in the definition of offence of murder, prescribed in Section 300 of Indian Penal Code, are concerned, those are not proved by the prosecution. Though death is proved, all ingredients of Section 300 of Indian Penal Code as regards intention to kill are not proved by the prosecution by positive evidence.

The accused had, and are bound to have knowledge of fact as to what shall be the result of brutal assault that it would in ordinary course result into death.

99. Accused Nos. 1, 2 and 4 are, therefore, held guilty for offence punishable under Section 304 Second Part of Indian Penal Code.

100. Having held that the homicide, subject-matter, does not amount to murder, the tone and shadow of offence of screening the offence of murder gets altered to that extent only.

POINT NO.11 AND POINTS IN PART [C], i.e., 12 TO 14.

101. In so far as the aspect of falsification of record, creation of record for judicial proceedings and screening the evidence is concerned, the same requires to be divided into parts. One part, which needs segregation, inevitably is destruction of evidence by mutilating and then disposing the dead body. Proof of this charge is contingent upon proof of the dead body being that of Shyama.

102. In view of the fact that the dead body was beyond identification and recognition, by patent identification marks, only sources of identification left to the prosecution were:-

[a] DNA Test.

[b] Comparison of finger print marks.

103. In so far as the DNA test is concerned, it is not the prosecution case that the dead body was not capable of DNA test. It is nobody's case that traces of DNA sample from any known sources of deceased Shyama were available. Had such evidence been available, it would have been a comparable source for matching DNA sample, if any, derived from the corpse, of which identity was to be proved.

104. For all purposes, on the basis of whatever material available on record, this Court has to arrive at a conclusion that the DNA test was not done, and had it been conducted, whether it could have resulted into a positive conclusion that the corpse relied upon by the prosecution really was that of Shyama, is an unsolved mystery.

Even it is well settled that the expert opinion as to results of DNA test is ultimately an opinion, and does not have the value of a conclusive proof as to contents thereof. This aspect, therefore, is of no consequence either in favour of prosecution, or in favour of defence.

105. In so far as the aspect of finger prints is concerned, prosecution has made efforts to demonstrate that finger prints, subject-matter, match with those of the dissected fingers of corpse, and do prove that those are of one and the same person.

106. Prosecution has proved that the finger prints of the dissected fingers, which were used, were of the dead body, subject-matter.

107. The evidence of PW 41 - Sharad Dayaram Girhepunje at pages 1471 onwards of the paper-book, however, fails to positively prove that the finger prints, which were used as a basic document to be the finger prints of Shyama, were not so proved to be that of Shyama taken by a particular person with maintenance of due record thereof, and the purpose for which those were taken by proving those to have been recorded in relation to a particular crime.

108. In the result, reliance of the prosecution to prove that the dead body, subject-matter, was that of Shyama is based on guess work than on positive evidence. Result is that unless it is proved that the dead body was that of Shyma, the evidence in relation to efforts made by the accused persons to mutilate the said body and thereby destroy the evidence are rendered like a hazy picture, and do not constitute proof of charge under Section 302 of Indian Penal Code, and, therefore, charge to destroy evidence of murder is not proved to that extent.

109. The charge in relation to screening of evidence by mutilating the dead body of Shyama is not proved, however, failure of prosecution in identification of dead body of Shyama does not exonerate the accused from the charge of screening evidence and other charges.

The charges for offences under Sections 201, 203 etc., for screening the offence under Sections 299 193, 218, 201 of Indian Penal Code, referred to in Point Nos. [12] to [15] all are duly proved, for the object that it was done for screening the offence of culpable homicide not amounting to murder.

110. In so far as the aspect of burden of the prosecution and duty of defence in regard to these points is concerned, the prosecution evidence rises to the level as expected for proof of facts, and as discussed earlier in this Judgment, the accused persons have failed in discharge of their duty of rebuttal which rests on them in an unqualified manner and the degree.

111. In the result, this Court concludes that based on facts proved by the prosecution, it has succeeded in proving all charges, except the proof of destruction of evidence as regards dead body.

112. Prosecution has failed to prove offence punishable under Section 201 read with Section 34 of Indian Penal Code for causing disappearance of evidence by destroying the dead body of Shyama, incorporated in sixth part of charge framed against accused persons.

113. Based on findings and conclusions recorded in para 112, the accused are acquitted of those charges.

114. As far as the aspect of sentence for conviction in relation to all other offences for which the accused persons are found guilty, no interference in the sentence is called for.

115. State appeal is dismissed. Appeals of accused persons are allowed limited to the extent of paras 112 and 113 foregoing.

Ordered accordingly.