Holding

The Supreme Court restored the conviction of Sub‑Inspector Rafiuddin Khan and upheld the conviction of G.S. Sharma, holding that the High Court’s acquittal was a misdirection of law.

Summary

The case concerned the death of Ram Dhiraj Tiwari while in police custody. The prosecution alleged that Sub‑Inspector Rafiuddin Khan (Accused No.1) beat the deceased with lathis and dandas after his arrest on 19 Oct 1971, causing 28 injuries that led to death, and also demanded a bribe. The defence claimed the arrest occurred a day later and that the beating was done by other constables, relying on a police officer’s alibi and alleged false entries in the General Diary. The trial court convicted the Sub‑Inspector and the Head Moharrir, but the High Court set aside the Sub‑Inspector’s conviction, accepting the alibi and dismissing key prosecution witnesses. The Supreme Court held that the High Court misdirected itself, found the diary entries false, rejected the alibi, and affirmed that the injuries were inflicted after arrest in custody. Consequently, the Court restored the Sub‑Inspector’s conviction and upheld the conviction of the Head Moharrir, refusing to reduce the sentences.

Issues considered

The factual question of when and where Ram Dhiraj Tiwari was arrested and whether the injuries causing his death were inflicted in police custody.
Whether the General Diary entries were falsified and can be relied upon as evidence.
The credibility of the defence alibi presented by DW‑1 (Jaswant Singh) and its impact on the Sub‑Inspector’s liability.
Whether the High Court erred in acquitting the Sub‑Inspector and setting aside his conviction.
The appropriate quantum of punishment for offences under IPC sections 304, 330, 201, 218 and the Prevention of Corruption Act.

Legislation cited

Code of Criminal Procedures. 176, s. 313, s. 363, s. 366, s. 90
Indian Evidence Act, 1872s. 90
Indian Penal Code, 1860s. 161, s. 201, s. 218, s. 304, s. 330
Prevention of Corruption Act, 1947s. 5(1)(d), s. 5(2)

Subjects

death in police custodypolice brutalityfalse diary entrythird degree tortureIPC sections 304 330 201 218appeal under Article 136evidence evaluationmisdirection of court

Judgment

I

GAURI SHANKER SHARMA ETC.
A
v.
STATE OF U.P. ETC.

JANUARY 12, 1990.

[A.M. AHMADI AND M. FATHIMA BEEVI, JJ.] B

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

Three police personnel were charged with offences arising out of
the death of one Ram Dhiraj Tiwari in police custody. Rafiuddin Khan
(accused No. 1) was the Sub Inspector of Police Station Kure Bhar, c
Shamsher Ali (accused No. 2) was a Beat Constable, and Gauri Shankar
Sharma (accused No. 3) was the Head Moharrir.
).
The prosecution version was that Al directed Al and two police
chowkidars, to apprehend Ram Dhiraj, deceased, who was a suspect in D
a dacoity case. Pursuant thereto, Ram Dhiraj was arrested from his
residence on 19.10.1971 at about 11.00 a.m. and brought to the police
station. The prosecution case against Al was that he was responsible for
having beaten the suspect Ram Dhiraj in the presence of two other
constables, whose identity was not established, which resulted in as
many as 28 injuries to which be ultimately succumbed. It was also E
alleged that Al had demanded a bribe of Rs.2000 to desist from meting
out third degree punishment to the suspect. The case against A3 was
that he deliberately and wilfully posted false entries in the General
Diary to help Al.

The defence version on the other hand was that the deceased was F
arrested on 20.10.1971 by A2 and his companions from near a culvert in
the village and he was beaten up by them as he resisted arrest.

The Trial Court accepted the prosecution version and convicted
Al under section 304 (Part II) section 330, sections 201 and 218/34 and
161, !PC, and under section S(l)(d) read with section 5(2) of the Preven- G
lion of Corruption Act, 1947. Accused No. 2 was acquitted of all
charges. Accused No. 3 was convicted under sections 201and218, lPC.
''!"
The High Court, however, accepted the defence version that A I
was not at the police station on 19.10.1971 till 7.30 p.m. The High
Court found that the three prosecution witnesses were not eye witnesses H
29
30 SUPREME COURT REPORTS [1990] 1 S.C.R.

to the incident and hence their story about beating in the police station
A
and the demand of bribe could not be accepted. The High Court
accepted the evidence of DW I, Jaswant Singh, Station Officer,
Machilishahr Police Station, who claimed to have come to Kure Bhar
Police Station on 19.10.1971 for investigation of another offence.
According to DWI, Al was not at the police station till about 7.30 p.m.
B
While dismissing the appeal filed by accused No. 3, and allowing
the State appeal against the acquittal of accused No. 1, and restoring his , . ./..
conviction recorded by the trial court by setting aside his acquittal by
the High Court, this Court,

HELD: (1) Both the courts have recorded a concurrent finding of
c fact that the deceased was arrest1~d on 19.10.1971 at about 11.00 a.m.
from his village Khajapur. That means that the entry in the general
diary that the deceased was arrested on 20.10.1971 and was brought to
the police station later can be brushed aside as false. The need to make a ,.!-,
false entry speaks for itself. [36E-Fl
D
(2) It is true that PW 5 and PW 8 were the brother-in-law of the
deceased and PW 10 his 'neighbour, but that by itself, without anything
more, was not sufficient to doubt their tastimony which receives corrob-
oration from medical evidence. Unless there are sound grounds to reject
their evidence it would not be proper to brush aside their evidence on
E the specious plea that they are interested witnesses. [37F-G I

(3) It is difficult to understand how the learned Judge could
persuade himself to accept the evidence of DW 1 on the specious plea
that if he did not tell the truth he r:an the risk oflosing his job. The High
Court should have realised that cases are not unknown where police
F officers have given inaccurate accounts to secure a conviction or to help
out a colleague from a tight situation of his creation. [41B]

(4) The High Court should lttave realised that it is generally dif-
ficult in cases of deaths in police custody to secure evidence against the
policemen responsible for resorting to third degree methods since they
G are in charge of police station rec01rds which they do not find difficult to
manipulate as in this case. It is onlly in a few cases, such as the present
one, that some direct evidence is available. [41F-G] . ..,.
!
(5) After carefully considering the reasons given by the High
Court for setting aside the conviction of Al, this Court is satisfied
H beyond any manner of doubt that the High Court had completely misdi-
G.S. SHARMA v. STATE OF U.P. [AHMADI, J.] 31

rected itself and hence interference by this Court under Article 136 of
A
the Constitnti~n, was justified. [42A-B]

(6) The offence is of a serious nature aggravated by the fact that it
was committed by a person who is supposed to protect the citizens and
not misnse his uniform and authority to brutally assault persons in his
custody. Death in police custody must be seriously viewed for otherwise B
we will help take a stride in the direction of police raj. It must be·curbed
J.· with a heavy haitd. The punishment should be such as would deter
f
others from indulging in such behaviour. There can be no room. for
leniency. This Conrt does not think it would be justified in reducing the
punishment imposed by the trial court. [420-E]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal c
No. 111and477 of 1979.

_) From the Judgment and Order dated 19.4.1978 of the Allahabad
High Court in Criminal Appeal No. 661of1975.
D
N.P. Midha rrnd B.D. Sharma for the Appellant in Crl. A. No.
111of1979.

Prithvi Raj, Prashant Choudhary and D. Bhandari for the
Respondent in CrL A. No. 111of1979 and Appellant in Crl. A. No.
477 of 1979. E

M. Qamaruddin and Mrs. M. Qamaruddin for the Respondent in
Cr!. A. No. 477 of 1979.

The Judgment of the Court was delivered by
F
AHMADI, J. In Criminal Case No. 3 of 1975, three persons
were put up for trial before the learned Special Judge, Sultanpur
(U.P.). The case arose out of the death of one Ram Dhiraj Tiwari in
police custody. Accused No. 1 Rafiuddin Khan (Respondent in Cri-
minal Appeal No. 477 of 1979) was the Sub-Inspector of Police Station
l(ure Bhar in District Sultanpur at all material times during the com- G
mission of the crime. Accused No. 2 Shamsher Ali (since acquittec!)
was posted at the said police station as Beat Constable No. 3. His
companion Accused No. 3 (Appellant in Criminal Appeal No. 111 of
1979) was the Head Moharrir of the said police station. Crime No. 71
of 1971 under Section 395, IPC was registered at the said police station
on 25.5.1971 concerning a dacoity committed at Village Khara within. H
32 SUPREME COURT REPORTS [1990] 1 S.C.R.

A the jurisdiction of the said police station. In that connection one
Jagdamba was arrested on 20.9.1971. During interrogation by Al the
said. SUS.Peet is alleged to have made.a confessional statement involving
Ram Dhiraj Tiwari. On the basis of this information Al directed A2
and Ram Jas (PW 6) and Harakh, both police chowkidars, to
apprehend Ram Dhiraj and produce him before him. Pursuant thereto
B A2 and his companions apprehended Ram Dhira j from his residence
in village Khajapur on 19.10.1971 at about 11.00 a.m. in the presence
of his mother Kamaraji (PW 7), sister's husband Ram Niranjan Misra
(PW 8) and labourer Jiyalal (PW 9). After his arrest Ram Dhiraj was
brought to police station Kure Bhar at about 4.00 p.m. on the same
day and handed over to Al. PW 8 and Ram Baran Dubey (PW 10) are
stated to have followed him to the police station. It is alleged that soon
C after Ram Dhira j was brought to the police station and placed in
charge of A I, he w_as given a severe beating with Jathi 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, Al demanded a sum of Rs.2000 from them to
D refrain from ill-treating Ram Dhiraj. Thereupon PW 8 went to Village
Pure Neelkanth three miles away to fetch Bindeshwari Prasad Shukla
(PW 5) the husband of Ram Dhiraj's elder sister. On the arrival of PW
5 at the police station, Al is alleged to have repeated his demand of
Rs.2000. Since the bribe was not paid Al and his two companions
renewed the torture with vengeance which lasted till about 9 or 10 p.m.
E 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
p and his two chowkidars. The defonce 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
Q sent from Sardar police station at about 12.15 noon for admission to
the District Jail as he had sustained injuries. It, however, transpired
later that Ram Dhiraj died at about 4.00 p.m. on the same day while
he was being taken to the residence of one of the Magistrates at ·Y
Sultanpur for remand. On his d1:mise his dead body was taken to
Kotwali Sultanpur where an entry No. 30 regarding his death was
H made in _the general diary at about 4.20 p.m. On 21.10.1971 an inquest
G.S. SHARMA v. STATE OF U.P. [AHMADI, J.] 33

was made on the dead body and thereafter the dead body was sent for A
post mortem examination. PW 1 Dr. Mitra performed the autopsy and
·ct found as many as 28 ante-mortem injuries on the body of the deceased.

The prosecution case agaomst Al was that he was responsible for
having beaten the suspect Ram Dhiraj in the company of two others
which resulted in as many as 28 injuries to whic_h he ultimately B
succumbed. It was also alleged that he had demanded a bribe of
.,_l. Rs.2000 to desist from meting out third degree punishment to the
l suspect. He was, ·therefore, charged. under Section 304, 330, 201, 218/
34, l.P.C., while his companion A3 was charged under Section 201 and
218, l.P.C. All the three accused persons denied the charges levelled
against them and claimed to be tried. They however did not deny the
c
' fact that Ram Dhiraj died in police custody. The case set up by Al was
that he was away from the police station between 5.00 p.m. and 7.30
p.m., on 19.10.1971 and, therefore, the allegation that h~ had tortured
) Ram Dhiraj is fabricated and wholly false. A2 admitted the fact that
Ram Dhiraj was arrested outside his village house at Khajapur on
~9.10, 1971 and was brou~t to the police station Kure Bhar on the D
same day at iibout 4.00 p.m. He, however, denied having caused any
injury io him during arrest. A3 denied the prosecution allegation that
he had deliberately and wilfully posted false entries in the General
Diary to help Al.
)
The learned Special Judge before whom the accused were tried E
can;ie to the conclusio.n that the deceased was arrested from his resi-
dence on 19. 10. 1971 as alleged by the prosecution and not from near
the culvert of village Hanna-Harora on 20.10.1971; that no beating
was given to him at the time of his arrest and that he was beaten in
police station Kure Bhar where he was taken on 19. 10.1971 itself after
his arrest by Al and two other constables who could not be identified. F
He also found that the fact that he was brought to the police station on
· 19, 10.1971 was deliberately suppressed and A3 omitted to perform his
. duty by not posting an entry in that behalf in the General Diary and
instead posting a false entry No. 10 (E~h. Ka 13) on the next day,
20.10. 1971. He also found that a false entry was posted in the diary to
show that he was sent to Sadar police station where he died before G
. ·admission tci jail. Lastly he found that A2 had counter-signed the
. general diary entry No. 10 without knowing the contents thereof, On
'"""' facts found proved, the trial court convicted A 1 under Section 304
(Part II) and sentenced him to suffer Rigorous Imprisonment for 7
years, ullder Section 330 and sentenced him to suffer Rigorous Impri-
sonment for 3 yea~s, 11nder Section 201and218/34 and 161 I.P.C. and H
34 SUPREME COURT REPORTS [1990] 1 S.C.R.

A under Section 5(1)(d) read with Section 5(2) of the Prevention of
Corruption Act, 1947 and sentenced him to Rigorous Imprisonment
for 2 years on each count-all substantive sentences to run concur-
rently. A2 was acquitted of all the charges levelled against him. A3
was, however, convicted under Sections 201 and 218 I.P.C. and was
ordered to suffer Rigorous Imprisonment for 2 years on each count.
13 The substantive· sentences were ordered to run concurrently. Both the
convicted accused preferred Criminal Appeal No. 661 of 1975 in the
High Court. The State did not question the acquittal of A2. The High
Court accepted the defence version that Al was not at the police
station on 19.10.1971 till 7.30 p.m. as proved through DWl and DW2
and, therefore, the prosecution version was unacceptable. It also
found that the three prosecution witnesses PWS, PW8 and PWlO were
C not eye witnesses to the incident and hence their story about beating in
the police station and the demand of bribe cannot be accepted. It lastly
held that A 1 could not be held responsible for the omission to post an
entry in the general diary about the arrival of the deceased to the
police station at 4.00 p.m. as he himself had returned to the police
D station at 7.30 p.m. On this line of reasoning the High Court allowed
A 1's appeal and set aside the conviction on all counts. The Hig\l
Court, however, maintained the conviction of A3 but reduced the
sentence to Rigorous Imprisonment for 6 months.

Criminal Appeal No. 111 of 1979 is preferred bv A3 questioning
E his conviction while Criminal Appeal No. 477 of 1979 is preferred by
the State questioning the acquittal of Al. As both these appeals arise
out of the same judgment. We think it would be convenient to dispose
them of by this common judgment.

The fact that Ram Dhiraj died of injuries received by him after
JI'
his arrest and while he was in police custody is not seriously disputed.
The prosecution version is that he was beaten in the police station on
19.10.1971 by Al and his two companions after he was arrested from
his residence and brought to the police station. The defence version on
the other hand is that the deceased was arrested on 20.10.1971 by A2
and his two companions from near a culvert in village Hanna-Harora
G and he was beaten up by them as he resisted arrest. Of course A2 has
Jenied this in his statement recorded under Section 313 of the Cri-
minal Procedure Code. Be that as it may, both the prosecution as well
as the defence version suggest that the deceased had received a beating
at the hands Of the police after his arrest. The evjdence of PW 1,
Dr. Misra shows that the deceased had recieved as many as 28 injuries
H by some blunt weapon or weapons which resulted in his death due to
G.S. SHARMA v. STATE OF U.P. [AHMADI, J.] 35

shock and haemorrhage on the afternoon of 20.10.1971. The trial court
has come to a firm conclusion that these injuries were caused to the
A
deceased in the police station after his arrest. The High Court al~o
opines that the "number of injuries speaks that most probably·he had.
·11ot received those injuries only during arrest and that he was sub-
i.ected to severe assault sometime after his arrest". Even this halting
finding recorded by the High Court shows that both the courts felt that B
the deceased was seriously beaten while in police custody. The fact
tliat Ram Dhiraj died a homicidal death is, therefore, rightly not con-
tested before us.

Having regard to the rival versions, the crucial question which
must be answered is regarding the date, time and place of arrest. It is
not in dispute that an offence of dacoity at village Khera was registered c
at Police Station Kure Bhar on 25.5.1971. One Jagdamba was arrested
in that connection on 20.9.1971. Al was investigating that crime. In
) the course of interrogation by A 1, J agdamba is stated to have revealed
the name of Ram Dhiraj as his accomplice. The evidence of PW 6
Chowkidar Ram Jas is that Al had directed A2 to arrest Ram Dhiraj D
and produce him before him. A2, PW 6 and Chowkidar Harakh then
went to fetch Ram Dhiraj. In the absence of any specific information,
the first place to visit to locate the wanted man would be his residence.
PW 6 also deposed that the police party went in search of the deceased
to his village and apprehended him from near his residence. However,
the evidence of PW 6 ""1S challenged on the ground that he had iq his E
statement before M.M. Swarup, Executive Magistrate, affirmed the
defence of A 1 that the deceased was apprehended from near a culvert
in village Hanna-Harora on 20.10.1971. The learned trial Judge
negatived this contention as the certified copy of the statement said to
have been made to M.M. Swart!p in an enquiry under Section 176 of
the Code of Criminal Procedure was inadmissible in evidence since the F
said enquiry could not be equated to a judicial proceedings and was,
ther1>fore, inadmissible in evidence. He was of the view that the same
could not be admitted in evidence under Section 90 of the Evidence
Act. In this view the proper course was to call for the original state-
ment, confront the witness with the contradictory part and on proof
use it as evidence to discredit the witness. We ai;ree with the learned G
. trial judge that the contents of a certified copy of the statemem
recorded under Section 176 of the Code would not be admissible in
evidence unless the contradiction is proved by putting it to the witness
in cross-examination and the maker has had an opportunity to admit or
deny it. In our view it has to be proved like any other previous state-
ment. The trial judge also op_!ned that even if the statement was admis-
36 SUPREME COURT REPORTS [1990] 1 S.C.R.

A
sible under Section 90, Evidence Act that statement per se cannot
efface his substantive evidence in court for the simple reason that at
the time of recording of that statement he was under the direct in-
fluence of Al his superior, and was, therefore, not a free agent. The
learned trial judge was, therefore, of the opinion that the contradic-
tion even if proved cannot militate against the truth of his statement.
B The High Court has endorsed the finding of the trial court that as PW 6
was a chowkidar under the administrative control of Al he could be
prevailed upon to support the defence theory in the inquiry under
Section 176. The High Court also held that the short signature of PW 7
as 'Jassi' in the General Diary-Entry No. 10 must have been obtained
by A3 to add sanctity to the defence version. The High Court finally
stated that even if absolute reliance is not placed on the evidence of
c PW 6 in this behalf, his evidence is duly corroborated by the evidence
of other witnesses, viz., PW 7 Karamraji, PW 8 Ram Niranjan Misra
and PW 9 Jai Lal, the mother, brother-in-law and labourer of the
deceased. These three witnesses have also deposed that the deceased
was arrested from his village Khajapur at about 11.00 a.m. on
D 19.10.1971. The High Court has rightly observed that barring minor
discripancies in their evidence as to dress of members of the police
party, presence of others, etc., there is nothing brought out in their
cross-examination to discredit their evidence in this behalf. The pro-
secution also examined PW 3 Baij Nath and PW 4 Mewa Lal, who have
their shops near the culvert of village Hanna-Harora to negative the
E defence version regarding the arrest of the deceased from there.
Therefore, both the courts have recorded a concurrent finding of fact
that the deceased was ;irrested on 19.10.1971 at about 11.00 a.m. from
his village Khajapur. That means that the entry in the general diary
that the deceased was arrested on 20.10.1971 and was brought to the
police station later can be brushed aside as false. The need to make a
F false entry speaks for itself.

The next question is where, when and by whom were the injuries
inflicted on the deceased. The High Court observes that the medical
evidence on record shows that the injuries founct on the person of the
deceased were caused on the evening of 19.10.1971. In fact according
G to the High Court the medical evidence lends credence to the prosecu-
tion case that the deceased was arrested on 19 .10.1971. The High
Court holds as under:

"After considering the injuries of the deceased I have not
the least doubt in my mind that those injuries were not
H caused to him during arrest, and that he was beaten some-
G.S. SHARMA v. STATE OF U.P. [AHMADI, J.] 37

times after his arrest and before he was sent to jail from
A
police station Kure Bhar" .
,..,.
.

There is, therefore, no doubt that the High Court reached a firm
finding that .the arrest was made on 19.10.1971 at about 11.00 a.m.
from village Khajapur and the injuries noticed by the medical officer
on the person of the deceased at the time of the autopsy were inflicted B
after his arrest and not during the course of arrest.

Now it is not in dispute that A 1 was serving as the Station Officer
of police station Kure Bhar on the 19/20.10.1971. He was in charge of
the investigation of the dacoity case in which Jagdamba was arrested.
It was he who had interrogated Jagdamba and had secured a confes- C
;ional statement from him. The information divulged by Jagdamba
necessitated the arrest of the deceased. It is, therefore, reasonable to
infer that A 1 would interrogate the deceased also. Since the arrest was
made from village Khajapur, the presence of PW 7, PW 8 and PW 9 at
the time of the arrest cannot be doubted. PW 8 and PW 10 deposed
that they had followed the deceased to the police station after his D
arrest. PW 8, the brother-in-law of the deceased and PW 10 have
deposed that after the deceased was taken to the police station he was
subjected to third degree treatment by A 1 and two policemen whom
they have not identified. Both have stated on oath that A 1 and hi; two
unidentified companions beat the deceased with lathi and danda to
extract a confession from him and when they entreated A 1 not to beat E
the deceased, he demanded Rs.2000 from them. PW 8 then went to
village Desarwa of Pure Nilkanth to fetch PW 5, the husband of the
elder sister of the deceased. On the arrival of PW 5 at the police
station he too requested Al not to beat the deceased but Al reiterated
his demand for Rs.2000. When the witness expressed his inability to
meet the demand, Al resumed the ill-treatment to the deceased. It is F
true that PW 5 and PW 8 were the brother-in-law of the deceased and
PW 10 his neighbour but that by itself, without anything more, was not
sufficient to doubt their testimony which receives corroboration from
medical evidence. We are, therefore, of the opinion that unless there
are sound grounds to reject their evidence it would not be proper to
brush aside their evidence on the specious plea that they are interested G

•
witnesses .

Even though the High Court came to the conclusion that the
deceased was beaten after his arrest, the High Court refused to place
reliance on the direct testimony of these three witnesses insofar as the
involvement of A1 is concerned. The first reason assigned is that since H
1
38 SUPREME COURT REPORTS I1990] 1 S.C.R.
A the village of PW 5 is 11 or 12 miles from Kha japur which in turn is
about 10 miles from Kure Bhar, it is not possible that he could have
reached the police station by about 4.30 p.m. In the first place the }
exact time of arrival of deceased to the police station is not known.
Secondly when the witnesses spoke about the time-factor they merely
mentioned the approximate time: and not the exact time of PW S's
B departure and return to the police station with PW 5. We are, there-
fore, of the opinion that the evidence of the prosecution witnesses
cannot be thrown overboard on such an infirjll ground.

The High Court has also cast doubts on the evidence of PW 5 on
the ground that he told a deliberate lie that there was no sentry at the
C police station to make his entry in the police station probable. This too
appears to us to be a weak reason for discarding his evidence. His
presence at the police station is established by the telegram that he
sent to the superior police officers complaining about the beating given
·to the deceased. We, therefore, do not think that the High Court was
J
justified in refusing to act on his evidence on this ground.

In the application Ex. Ka 3 the name of A2 was mentioned as
one of the constable who was assisting Al in beating the deceased to
extract a confession from him. However, in the substantive evidence
the witness did not name A2 but merely stated that A 1 and two other
• -<
constables had beaten the deceased. The High Cort, therefore, infer-
It: red that he had wrongly named A2 as one of the assailants in Ex. Ka. 3
and was, therefore, not a reliable witness. But both in the telegram,
and application Ex. Ka. 3 the name of Al is mentioned. The omission
to name A2 as one of the constables involved in the beating cannot
absolve A 1. We are, therefore, inclined to think that the High Court
was not right in refusing to act on the evidence of the witness on such
F consideration.

The High Court rejects th'" evidence of the three prosecution
witnesses on the ground that the telegram was sent by PW 5 as late as
23.10.1971. In our opinion the High Court failed to appreciate that
19th and 20th were lost in trying to secure the release of the deceased
4 from Al. After the suspect died on the 20th the next day i.e., 21st was
lost in post mortem examination and securing the dead body of the
deceased for funeral. His evidence discloses that the dead body was
not delivered io him till 4.30 p.m. On that day he went to village
Khajapur and broke the news of death to PW 7 and other family
members. He has deposed ihat he sent the telegram only after he
H received threats from A 1. The trial court has discussed this aspect of
G.S. SHARMA v. STATE OF U.P. !AHMADI, J.I 39

the case in detail and has rightly pointed out that it was a difficult A
decision to take for PW 5 as he may not like to incur the wrath of A 1.
But when Al threatened him, he was left with no choice but to inform
his superiors. The High Court, with respect, has failed to properly
appreciate and assess the situation. After all everyone thinks twice
before deciding to make so serious a complaint against° a police officer.
We do not think there was so serious a delay as to ihrow out the B
evidence of the three witnesses on that ground.
,.-l
I PW lO's evidence has been rejected on a very flimsy ground. He
is the neighbouts of the deceased. He was at the police station upto
7.00 or 8.00 p.m. and claims to have seen Al beating the deceased. His
evidence is rejected on the ground that he was interested in getting the
policemen punished because the deceased was beaten to death while in
c
police custody. It is further stated that all others associated with him
are keen to see that somebody gets punished for the assault on the
deceased. We find it difficult to comprehend why this witness would
falsely involve Al if he was not responsible for the injuries caused to
the deceased. The conduct of this witness is branded as unnatural D
because he did not go to inform PW 7 and others about the death of
the suspect. Since PW 5 and PW 8 were aware of the death. There was
no need for PW 10 to inform the family members of the deceased as he
would be justifieo in believing that PW 5 and PW 8 must have
informed them. We are, therefore, of the view that the High Court had
rejected the evidence of PW 10 on thoroughly untenable grounds. E

That brings us to the question whether the alibi set up by A 1 can
come to his rescue. In this connection reliance is placed on the evi-
dence of DW 1, Jaswant Singh, Station Officer, Machlishahr Police
Station. He claims to have come to Kure Bhar on 19.10.1971 for
investigation of an offence under Section 363/366.I.P.C. of his police F
station. He wants us to believe that he was at the Kure Bhar police
station from 5.00 p.m. to 9.30 p.m. According to him Al was not at the
police station till about 7.30 p.m. Reliance is placed on the general
diary entry dated 19 .10.1971 to show that A 1 had left the police station
at about 10.30 a.m. for Tikar and had returned to the police station at
7.30 a.m. This entry is proved through DW 2. Now according to DW 1 G
even though he had come to Kure Bhar for investigation, he himself
.,.. remained at the police station throughout and sent his men with A.S.I.
(II) of Kure Bhar to Dilawar-Ka-Purwa for investigation. He wants us
to believe that he came from his police station to investigate a crime
but kept sitting at Kure Bhar police station throughout from 5.00 p.m.
to 9.30 p.m. Is !Jiis natural conduct? The obvious reason for so stating· H

-
40 SUPREME COURT REPORTS I1990) 1 S.C.R.

A is to discredit PW 5, PW 8 and PW 10 who have in unmistakable terms
stated that Al was at the police station and had beaten the deceased.
D W 1 stand belied by the general diary entry made at his police station
on 20.10.1971 to the effect that on reaching Kure Bhar he took A.S.I.
(II) of that police station and went to village Dilawar-ka-Purwa for
investigation and returned to his police station at 4.00 p.m. According
B to the said entry from Dilawar-ka-Purwa he went to Sultanpur where
he passed the night, left for Ramnager next morning and returned to
his police station via Durgagan j. The learned trial judge dealt with this
part of the defence evidence thus:

"It is also improbable of belief that once station officer
Jaswant Singh had taken care to come to Kurebhar in order
c to make the investigation of the crime of his police station,
he had leisurely lingered on at PS Kurebhar and not
personally proceeded to make the investigation of the said
1
case '.

D The learned trial judge observed that he appears to have comi' forward
to help a member of his own fraternity. The learned trial judge, there-
fore, came to the conclusion:

"If general diary entries Nos. 15 and 21 may have been
falsely inncorporated, where is the guarantee that the
E general diary entry No. 17 which falls in between these,
may not have been falsdy incorporated".

The learned trial judge also felt that it was not possible to believe that
an important police officer like A 1 would spend the whole day from
10.30 a.m. to 7.30 p.m. inquiring about an application at Village ~
F Tiker.

The learned judge in the High Court considers the approach of
t
the learned trial judge unacceptable because: \
"Sub-Inspector Juswan1t Singh has stated that he himself.had
G stayed at Police Station Kurebhar and had sent other mem-
bers of his party and an A.S.I. of Police Station Kurebhar
to Dilawar-Ka-Purwa. The mere fact that S.I. Jaswant
Singh happens to be a Sub-Inspector of Police is no ground
to reject his testimony. After all there should be some
reason for a police officer posted at police station Mach-
lishahr at Jaunpur to falsely depose for defending Rafi
G.S. SHARMA v. STATE OF U.P. [AHMADI, J.] 41

Uddin Khan appellant. If S.I. Jaswant Singh's evidence is
disbelieved in the present case, he himself incurs the risk of A
losing his job''

This line of reasoning does not commend to us. We fail to under-
stand how the learned judge could persuade himself to accept the
evioence of DW 1 on the specious plea that if he did not tell the truth B
he ran the risk of losing his job. The leaned trial judge gave sound
reasons for disbelieving the evidence of DW I that he did not stir out
of Kure Bhar police station from 5.00 p.m. to 9.30 p.m. The High
Court failed to appreciate that on realising that the condition of the
deceased had deteriorated, a false entry was made by A3 at the behest
of A 1 to show that (i) the deceased was not arrested on 19.10.1971 nor
was he brought to the police station Kure Bhar by about 4.00 p.m. and c
(ii) that he was actually arrested by A2 from near the culvert of village
Hanna-Harora on 20. 10.71 and was given a beating before actual
arrest, a fact which is denied by A.2 in his statement under Section 313
of the Code. Thus the foundation for absolving himself from the
responsibility of having ill-treated the deceased was laid. The trail D
court rightly holds that there is no guarantee that entry 17 is accurate
when entries 15 and 21 are found to be false. The entry in the case
diary regarding crime No. 28 of Machlishahr recorded by A.S.I.
Bankey Bihari who had accompained DW 1 clearly mentions that
when they reached Kure Bhar they met the Thana Adhiyakshakh (i.e.
Al) at about 5.00 p.m. which negatives the theory that Al had left the E
police station at 10.30 a.m. and had not returned till 7.30 p.m. of
19.10.1971. Without coming to grips with the circumstances pointed
out by the trial court for disbelieving DW 1, the High Court surpris-
ingly accepted his evidence as gospel truth only because he ran the risk
of losing his job. The High Court should have realised that cases are
not unknown where police officer have given inaccurate accounts to F
secure a conviction or to help out a colleague from a tight situation of
his creation. The High Court should also have realised that it is gener-
ally difficult in cases of deaths in police custody to secure evidence
against the policemen responsible for resorting to third degree
methods since they are in charge of police station records which they
do not find difficult to iUaliipulate as in this ·case. It is only in a few G
cases, such as the present one, that some direct evidence is available.
'-..,._ .. In our view the reasons assigned by the High .Court are too weak to
stand judicial scrutiny .
•
We are aware that so far as Al is concerned, we are called upon
to interfere in an acquittal appeal. Since it is said that an acquittal H
42 SUPREME COURT REPORTS [1990] l S.C.R.

reinforces the presumption of innoci:nce we have carefully considered
A
the reasons given by the High Court for setting aside the conviction of
Al. We are satisfied beyond any manner of doubt that the High Court
completely misdirected itself. We: have dealt with the facts at some
length to justify our interference under Article 136 of the Constitution.
Had we not been fully satisfied that gross injustice was done because
8 the High Court misdirected itself we would not have interfered in
exercise of our powers under Article 136 of the Constitution.
·.J...
For the above reasons we dismiss Appeal No. 111of1979 prefer-
red by A3 as we are satisfied that his conviction is correctly recorded.
We allow the State's appeal No. 477 of 1979 and restore the conviction
of A 1 recorded by the trial court by setting aside his acquittal by the
c High Court. On the question of sentence a fervent appeal was made by
his counsel that having regard to the passage of time and the changed
circumstances A 1 should not be sent to jail and the sentence of fine
should suffice. We are unable to accede to this request. The offence is
of a serious nature aggravated by the fact that it was committed by a
D person who is supposed to protect the citizens and not misuse his
uniform and authority to brutally assault them while in his custody.
Death in police custody must be seriously viewed for otherwise we will
help take a stride in the direction of police raj. It must be curbed with a
heavy hand. The- punishment should be such as would deter others
from indulging in such behaviour. There can be no room for leniency. <
E We, therefore, do not think we would be justified in reducing the
punishment imposed by the trial court.

A 1 is on bail. Since the trial court's order of his conviction and
sentence is restored he will surrender to his bail within a week's time to
serve his sentence.
F
R.S.S.