Gauri Shanker Sharma: State Of U. P. vs State Of U. P. : Rafiuddinkhan

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1990 Supreme(SC) 15

SUPREME COURT OF INDIA
A.M. AHMADI AND M. FATHIMA-BEEVI, JJ.
Gauri Shanker Sharma etc., Appellants
Versus
State of U.P. etc., Respondents
Criminal Appeals Nos. 111 and 477 of 1979, D/- 12-1-1990.
Advocates appeared :
Mr. N. P. Midha and Mr. P. D. Sharma, Advocates, for Appellants in Cri. A. No. 111 of 1979; Mr. Prithvi Raj, Sr. Advocate. Mr. Prashant Choudhary and Mr. D. Bhandari Advocates with him, for Respondent in Crl. A. No. 111 of 1979 and Appellants in Cri.A. No. 477 of 1979. Mr. and Mrs. M. Qamaruddin, Advocates, for Respondent in Cri. A. No. 477 of 1979.

Advocates:
B.D.SHARMA, DALVIR BHANDARI, M.Qamaruddin, N.P.MIDHA, PRASHANT CHAUDHARY, Prithvi Raj

Headnote:Facts: Indian Penal Code, 1860- Sections 304, 330, 201, 218/34; 201 and 218- Three accused persons, namely A.l (Sub-Inspector of Police), A.2 (Beat Constable No.3) and A.3 (Head Moharrir) were charged and tried on different counts in connection with a "death in police custody"- Trial Court convicted the accused-l(A.l) for offences under Sections 304 Part n, 330, 201 and 218/34 and Section 161 of the Indian Penal Code and under Section 5(1)(d)/5(2) of Prevention of Corruption Act, 1947 and sentenced him to various terms of imprisonment on each count; acquitted the accused No.2 (A.2) of all the charges levelled against him; and also convicted the accused No.3 (A.3) under. Sections 201 and 218 of the Indian Penal Code and ordered him to suffer 2 years R.I. on each count. (Paras 1 & 3)
       (i) Code of Criminal Procedure, 1973Section 374 - Convict (A.3) preferred an appeal against his conviction and sentences- Appellate Court maintained the conviction bid reduced the sentence from 2 years R.I. to 6 months R.I.- Constitution of India Article 136- Appeal by special leave rued by the convict- Trial Court rightly held that there is no guarantee that entry 17 is accurate when entries Nos. 15 and 21 are found to be false- The need to make an alleged false entry in the general diary speaks for itself- Whether the impugned conviction is correctly recorded? (Yes)- Whether the impugned sentence calls for any interference? (No). (Paras 3, 6, 15 & 17)
       (ii) Code of Criminal Procedure, 1973 - Section 374- Convict (A.l) assailed the judgment of his conviction and sentences Appellate Court set aside the conviction on - all counts- Constitution of India~ Article 136- State by special leave appealed against the judgment of acquittal- Undisputedly, deceased was arrested from his residence and beaten while in police custody and he tied a homicidal death- According to Doctor (P.W. 1), deceased had received as many as 28 injuries by some blunt weapon or weapons most probably after his arrest, which resulted in his death due to shock and haemorrhage- Medical evidence, lends credence to the prosecution version regarding the date of arrest- The presence of P.Ws. 7, 8, 9 and 10 at the time of the arrest cannot be doubted- Both in the telegram and the application (Ex. Ka. 3) the name of the accused is mentioned- Accused threatened P.W. 5 with dire consequences - Evidence of P.Ws. 7, 8 and 9 cannot be discarded- High Court rejected P.W. 10s evidence on thoroughly untenable grounds- The alibi set up by the accused cannot be accepted because P.Ws. 8 and 10 have in unmistakably terms stated that he was at the Police Station and had beaten the deceased- D.W. 1s evidence is not believable at all- High Court completely misdirected itself- Whether the impugned appellate order deserves to be set aside? (Yes)- Effect- Trial Courts order of the conviction and sentence is restored.
       (Paras 4 to 13, 15 & 16)

Judgment

AHMADI, J.:- In Criminal Case No. 3 of 1975, three persons were put up for trial before the learned Special Judge, Sultanpur (U.P.). The case arose out of the death of one Ram Dhiraj Tiwari in police custody. Accused No. 1 Rauddin Khan (respondent in Criminal Appeal No. 477 of 1979) was the Sub-Inspector of Police of Police Station Kure Bhar in District Sultanpur at all material times during the commission of the crime. Accused No. 2 Shamsher Ali (since acquitted) was posted at the said police station as Beat Constable No. 3. His companion Accused No. 3 (appellant in Criminal Appeal No. 111 of 1979) was the Head Moharrir of the said police station. Crime No. 71 of 1971 under Section 395, I.P.C. was registered at the said police station on 25-5-1971 concerning a dacoity committed at village Khara within the jurisdiction of the said police station. In that connection one Jagdamba was arrested on 20-9-1971. During interrogation by AI the said suspect is alleged to have made a confessional statement involving Ram Dhiraj Tiwari. On the basis of this information A 1 directed A2 and Ram Jas (PW 6) and Harakh, both police chowkidars, to apprehend Ram Dhiraj and produce him before him. Pursuant thereto A2 and his companions apprehended Ram Dhiraj from his residence in village Khajapur on 19-10-1971 at about 11.00 a.m." in the presence of his mother Kamaraji (PW 7), sisters husband Ram Niranjan Misra (PW 8) and labourer Jiyalal (PW 9). After his arrest Ram Dhiraj was brought to police station Kure Bhar at about 4.00 pm. on the same day and handed over to A 1. PW 8 and Ram Baran Dubey (PW 10) are stated to have followed him to the police station. It is alleged that soon after Ram Dhiraj was brought to the police station and placed in charge of A 1. he was given a severe beating with lathi and dandas by A 1 and two constables, whose identity is not established, with a view to extracting a confessional statement from him. When PW 8 and PW 10 tried to intervene, A 1 demanded a sum of Rs. 2000/- from them to refrain from ill-treating Ram Dhiraj. Thereupon PW 8 went to village Pure Neelkanth three miles away to fetch Bindeshwari Prasad Shukla (PW 5) the husband of Ram Dhirajs elder sister. On the arrival of PW 5 at the police station, A 1 is alleged to have repeated his demand of Rs. 2000/-. Since the bribe was not paid A 1 and his two companions renewed the torture with vengeance which lasted till about 9 or 10 p.m. As a result of the merciless beating Ram Dhiraj was badly injured. It is alleged that the fact that he was apprehended from his village and was brought to the police station on 19-10-1971 was not entered in the general diary register but a false entry was posted in the said general diary register regarding his arrest on the next day i.e. 20-10-1971, at about 6.00 a.m. from near a culvert in village Hanna-Harora by A2 and his two chowkidars. The defence version was that as he tried to resist arrest A2 and his two companions beat him up as a result of which he sustained the injuries in question. Another entry was made in the same general diary on the same day purporting to transfer Ram Dhiraj to police station Sadar for admission to the District Jail. General Diary Entry No. 14 was made to show that Ram Dhiraj was sent from Sadar police station at about 12.15 noon for admission to the District` Jail as he had sustained injuries. It, however, transpired later that Ram Dhiraj died at about 4.00p.m. on the same day while he was being taken to the residence of one of the Magistrates at Sultanpur for remand. On his demise his dead body was taken to Kotwali Sultanpur where an entry No. 30 regarding his death was made in the general diary at about 4.20 p.m. On 21-10-1971 an iquest was made on the dead body and thereafter the dead body was sent for post mortem examination. PW 1 Dr. Mitra performed the autopsy and found as many as 28 ante-mortem injuries on the body of the deceased.

2. The prosecution case against A1 was that he was

Click Here to Read the rest of this document