HARICHARAN & ANR.versusSTATE OF MADHYA PRADESH & ORS,

                      [2011) 3 S.C.R. 769

                     HARICHARAN & ANR.                                A
                                v.
           STATE OF MADHYA PRADESH & ORS,
             (Criminal Appeal No.· 581 of 2003)
                        MARCH 9 , 2011
                                                                      B
    [B. SUDERSHAN REDDY AND SURINDER SINGH
                   NIJJAR, JJ.]

       Custodial death: Allegation of custodial death against the
  accused-police officials on the ground that detenu-deceased         C
  was kept in illegal custody and subjected to third degree
  torture for extracting confession that the deceased was guilty
  of the offence of theft - Conviction ul ss.304 (Part-II), 330 -
  On appeal, Held: The fact that deceased was tortured and
- subjected to electric shock whilst in police custody was Well       D
  established by medical evidence - Prosecution proved
  beyond reasonable doubt that deceased was taken to the
  police station and upon his release, the police personnel
  terrorized the entire family - This was evident from the fact
  that widow, son and brother of the deceased all fumed hostile       E
  - However, evidence on the record clearly showed that death
  of the deceased was a direct consequence of the inexcusable
  and inhuman torture by the police - No reason to interfere
  with the order of conviction - Penal Code, 1860 - ss.304
  (Part-II), 330.                                                     F
      Appeal: A'ppea/ against acquittal - Acquittal by trial court
 - Power of appellate court to interfere with the order of
 acquittal - Held: Appellate court would not interfere with the
 order of acquitt~I, unless the conclusion recorded by the lower
 court is held to be perverse and has resulted in miscarriage G
 of justice - Appellate court should also not interfere with an
 order of acquittal if two reasonable conclusions are possible.
                                                          ''
      Criminal law: Suspicion, no matter how strong cannot be
                               769 _                           ,>,,   H
    770      SUPREME COURT REPORTS                  [2011] 3 S.C.R.


A the basis of conviction - Even in cases of custodial death, it
  is for the prosecution to establish beyond reasonable doubt
  a proper link between the accused and the commission of
  crime.

8         Constitution of India, 1950: Articles 21 and 22 (1) - Held:
    The expression ·ufe or Personal Liberty" in Article 21 includes
    right to live with human dignity - Therefore, it includes within
    itself guarantee against the torture and assault by the States
    or his functionaries - Custodial death.

C      The prosecution case was that the victim-deceased
  was taken into custody and subjected to torture with a
  view of obtain confession from him for the alleged theft
  committed by him. After two days, the deceased was
  released. The condition of the deceased deteriorated and
D he died. The case was registered against the accused-
  police officers for the offence of custodial death.

      The trial court acquitted the accused. The High Court
  convicted the accused under Section 304 Part II IPC and
E sentenced them to five years R.I. and fJne and further
  convicted them under section 330 IPC and sentenced
  them to three years R.I. The instant appeals were filed
  challenging the order of the High Court.

          Dismissing the appeals, the Court
F
      HELD: 1. The appellate court would not interfere with
  the order of acquittal, unless the conclusion recorded by
  the lower court is held to be perverse and has resulted
  in miscarriage of justice. The appellate court should also
G not interfere with an order of acquittal if two reasonable
  conclusions are possible. (Para 20] (786-E-F]

        2. Suspicion, no matter how strong cannot form the
  basis of a conviction. Even in cases of custodial death,
  it is for the prosecution to establish beyond reasonable
H doubt a proper link between the accused and the
    HARICHARAN & ANR. v. STATE OF MADHYA                   771
              PRADESH & ORS.
commission of crime. Custodial death is perhaps one of             A
the worst crimes in a civilized society governed by rule
of law. It is aggravated by the fact that crimes in custody
are committed by persons, who are charged with the
solemn responsibility to protect the fundamental rights
of all the citizens. These crimes are committed under the          B
shield of uniform and authority within the four walls of
police station or lock up, the victim being totally helpless.
The fundamental rights under Articles 21 and 22 (1) of the
Constitution are required to be zealously and
scrupulously protected. The expression "Life or Personal           c
Liberty" in Article 21 includes right to live with human
dignity. Therefore, it also includes within itself, guarantee
against the torture and assault by the States or his
functionaries. In *D.K. Basu case, the Supreme Court, as
the custodian and protector of the fundamental and the             D
basic human rights of the citizens, viewed with deep
concern allegation made against the police officials about
custodial crimes. Using any form of torture for extracting
any kind of information, from a suspect was declared to
be "neither right, nor just, nor fair." It was specifically laid
                                                                   E
down that though a crime suspect must be interrogated
- indeed subjected to sustain and scientific interrogation
- determined in accordance with the provisions of law, he
cannot, however, be tortured or subjected to third degree
methods or eliminated with a view to elicit information or
extract a confession. Rarely in cases of police torture or.        F
custodial death, direct ocular evidence of the complicity
of the police personnel would be available. Generally
speaking, it would be police officials alone who can
explain the circumstances in which a person in their
custody had died. Bound as they are by the ties of                 G
brotherhood, it is not unknown that the police personnel
prefer to remain silent and more often than not even
pervert the truth to save their colleagues, and the instant
case is an apt illustration, as to how one after the other
police witnesses feigned ignorance about the whole                 H
    772       SUPREME COURT REPORTS            [2011) 3 S.C.R.

A matter. [Paras 21, 24, 25 & 26] [784-G; 785-A-E-H; 786-A-
  B-F-H]

         *D.K. Basu v. State of West Bengal (1997) 1 SCC 416 -
    relied on

B     State of Uttar Pradesh v. Nandu Vishwakarama and Ors.
  (2009) 14 SCC 501; Chandrappa v. State of Kamataka (2007)
  4 SCC 415; M.C. Ali & Anr. v. State of Kera/a (2010) 4 SCC
  573; Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC
  57; Raghunath v. State of Haryana & Anr. (2003) 1 SCC 398;
C Sadashio Mundaji Bhalerao v. State of Maharashtra (2007)
  15 SCC 421; State of M.P. v. Shyamsunder Trivedi & Ors.
  (1995) 4 SCC 262 Sahadevan Alias Sagadevan v. State
  Represented By Inspector of Police, Chennai (2003) 1 SCC
  534; Munshi Singh Gautam (Dead) & Ors. v. State of Madhya
D Pradesh (2005) 9 SCC 631 - Referred to.

        3.1. The High Court had correctly concluded that there
    was sufficient evidence on record to prove that the
    deceased was taken into an illegal custody. This fact was
E   adverted to by PW6. When this witness appeared in court,
    he was absolutely terror stricken. Upon being given the
    assurance by the court, the witness proceeded to state
    that the deceased was his uncle's son. He stated that
    appellant no.3, had taken the deceased with him to the
F   police station. He was kept in the police station for about
    two days. PW1 and PW16 had brought the dece-ased from
    the police station. He had talked to the deceased when
    he came back from the police station. The deceased told
    him that appellant no.3 had given him severe beatings.
    This statement clearly showed that the deceased was
G   kept in Illegal custody, as claimed by the prosecution.
    Apart from PW6, the other witnesses were also under
    constant pressure, not to depose against the police. This
    was evident from the fact that virtually all the witnesses
    turned hostile and failed to support the prosecution case.
H   PW3, the brother of the deceased, his widow and his son
          I
    HARICHARAN & ANR. v. STATE OF MADHYA              773
              PRADESH & ORS.
did not support the prosecution version. The terror of the A
police was such that even the family members of the
deceased refrained from speaking the truth. PW1, the
brother of the deceased, had plucked up enough
courage to state that the police had called the deceased
to the police station. He, however, stated that the B
deceased came back in the morning. This witness had
also stated that the police had beaten up his brother and
he was rendered unconscious. He had been taken to the
hospital from the Shivpuri Kotwali. He had also lodged a
complaint with the Superintendent of Police, PW28, as the c
condition of the deceased was serious. [paras 28 to 30)
[788-F-H; 789-A-H]
     3.2. The fact that the deceased had been tortured and
subjected to electric shock whilst in police custody was
welt established by the ptedical evidence-given by PW23,     D
and PW24. In accepting the evidence of PW6 and the
medical evidence of PW23 and PW24, the High Court did
not commit any error. The evidence on the record clearly
showed that death of the deceased was a direct
consequence of the inexcusable and inhuman torture by        E
the police. The prosecution has proved beyond
reasonable doubt that the deceased was taken to the
pol.ice station. Whilst at the police station, he was
subjected to third degree torture. He was given electric
shocks in the scrotum. Such torture was inflicted on the     F
deceased merely for the purpose of extracting a
confession that he was guilty of the offence of theft.
Upon his release, the police personnel terrorized the
entire family. This was evident from the fact that the
widow, the son and the brother of the deceased all turned    G
hostile. However, there was sufficient evidence on the
record given by PW6, PW23 and PW24 to prove beyond
reasonable doubt that the deceased died due to the
inhuman torture inflicted upon him by the appellants.
[Paras 31, 32] [790-A-H; 791-A-C]                            H
    774       SUPREME COURT REPORTS             [2011] 3 S.C.R.


A                         Case Law Reference:

          2009 14 sec 501         referred to          Para 9
          2001 4 sec 415          referred to          Para 9
          201 o 4 sec 573         referred to          Para 9
B
          2002 3 sec 57           referred to          Para 10

          2003 1 sec 398          referred to          Para 10
          2001 15 sec 421         referred to          Para 12
c
          1997 1 sec 416          referred to          Para 19

          1995 4 sec 262          referred to          Para 19
          2003 1 sec 534          referred to          Para 19
D         2005 9 sec 631 b        referred to          Para 19

          1997 1 sec 416          referred to          Para 23

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 581 of 2003.
E
        From the Judgment & Order dated 1.8.2002 of the High
    Court of Judicature of Madhya Pradesh, Jabalpur Bench at
    Gwalior in Criminal Appeal No. 79 of 1990.

F                               WITH
          Crl. A.Nos. 582, 583 & 584 of 2003.

      Mahabir Singh, Nagendra Rai, K.T.S. Tulsi, Nikhil Jain,
  Gangandeep Sharma, Ajay Pal, Arnita Gupta, Rahat Bansal,
G Vikas Upadhyaya, Niraj Sharma, Atul Sharma, Rekha Palli,
  Ravinder Singh, Maheen Pradhan, Prem Malhotra, Vibha Datta
  Makhija for the appearing parties.

          The Judgment of the Court was delivered by
H
    HARICHARAN & ANR. v. STATE OF MADHYA                       775
              PRADESH & ORS.
     SURINDER SINGH NIJJAR, J. 1. These appeals have                   A
been filed against the judgment of the High Court of Judicature
of Madhya Pradesh in Criminal Appeal No. 79 of 1990 whereby
the High Court accepted the appeal of the State of Madhya
Pradesh and convicted the appellants herein for an offence
under Section 304 Part II and sentenced them to five years R.I.        B
and fine of Rs.5,000/- each and further convicted the appellants
under Section 330 IPC and sentenced them to three years R.I.
In so doing, the High Court reversed the judgment of the trial
court in Sessions Case No. 8 of 1988 dated 7th March, 1989
whereby the appellants were acquitted of all the offences under        c
Section, 343, 330 and 304 Part II IPC.

      2. At that relevant time, all the appellants were police
officers and posted at Police Station lndar, District Shivpuri. Anil
Kumar Kushwaha, appellant in Criminal Appeal No. 584 of
2003 was posted as the Station House Officer of the aforesaid          D
Police Station. Ram Ujagar, appellant in Criminal Appeal No.
583 of 2003 was posted as Head Constable. Nathuram,
appellant in Criminal Appeal No. 582 of 2003 was also posted
as Head Constable. Haricharan and Mazid Hussain, appellants
in Criminal Appeal No. 581 of 2003 were posted as                      E,
Constables.                                                     ,

      3. Briefly stated the prosecution case, as noticed by the
High Court is that Mathura was called to the Police Station
through Head Constable Ram Ujagar with regard to the                   F
investigation of Crime Case No. 57 of 1983 for offence
punishable under Section 457 and 380 IPC. He was
interrogated at the Police Station and was confined in the lock
up. While he was confined in the lock up, he was subjected to
third degree torture. He was given electric shock on his scrotum
                                                                       G -
with the intention to extort the confession for the crime of the
alleged theft. As due to the torture and electric shocks,
condition of Mathura deteriorated, he was released on 11th
October, 1983. According to the prosecution, Mathura was
unlawfully detained in the Police Station from 8th October, 1983       H
    776      SUPREME COURT REPORTS                [2011) 3 S.C.R.


A till 11th October, 1983. The police had neither made any entry
  about his detention in the police records nor about his
  discharge.

       4. Mathura was handed over to Takhat Singh, PW1 and
  Parmal Singh, PW16, who took Mathura to his house. He was
8
  looked after by the family members. However, the condition of
  Mathura worsened on 13th October, 1983. Takhat Singh, PW1
  alongwith his brother Amrit Lal sent a private doctor Jagdish
  Prasad Soni, PW18 for his treatment. On seeing that Mathura
  was unconscious, Jagdish Prasad Soni advised that he should
C be immediately taken to hospital at Shivpuri. Takhat Singh,
  PW1 brought him to Shivpuri by bus. He also intimated
  Superintendent of Police about the ill-treatment and torture of
  Mathura by the police personnel at Police Station lndar. He
  requested the Superintendent of Police to ensure that proper
D medical treatment is given to Mathura. He also made a request
  for an enquiry against the police officers at the aforesaid police
  station. Accepting the request made by Takhat Singh,
  Superintendent of Police, R.K. Tripathi, PW28 directed Town
  Inspector, Shivpuri to get the injured Mathura medically
E examined and to submit his report.

       5. PW34, R.P. Upadhyay took Mathura to the District
  Hospital at Shivpuri. He was first examined by Dr. L.D. Vaswani,
  PW24. Dr. Vaswani found that Mathura was unconscious but
F his pulse and breathing was normal. He admitted Mathura in
  hospital.and kept him under observation. On 13th October,
  1983 at about 6.10 p.m., condition of Mathura further
  deteriorated. At that stage, Dr. C.M. Tripathi, PW23, who was
  on casualty duty also examined Mathura and found Mathura was
  on the verge of death. He had, therefore, given artificial
G respiration, oxygen and extra massage to Mathura. In spite of
  following the aforesaid procedures for about ten minutes, Dr.
  Tripathi could not revive the heartbeats of Mathura. He was
  declared dead at 6.20 p.m. in the evening.

H         6. The Town Inspector was given intimation of the death ·
    HARICHARAN & ANR. v. STATE OF MADHYA                      777
  PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
vide Ex.P7 and a request was made for a postmortem of the             A
dead body. The dead body of Mathura was examined in the
presence of PW1, Takhat Singh and PW37, Laxminarayan
Kulshreshtha, Sub-Divisional Magistrate. Panchnama of the
dead body (Ex.P3) was duly prepared. Thereafter, a direction
was issued for performing the postmortem. On 14th October,            B
1983 at about 11.50 a.m., the postmortem was performed by
Dr. L.D. Vaswani. He found one oval shaped charring wound
on each side of the anterior of the scrotum. A black charring
wound oval in shape 2.5 cm x 3 cm on the right side and a black
charring oval in shape 2 cm x 1.5 cm on the left side. According      c
to this postmortem, no other external injuries were found. On
internal examination, it was found that arachnoid membrane of
the brain was congested. He also found sub arachnoid
Hemorrhage at the base of the near circle of Willis. The vessels
of the circle were diluted and ruptured. Haematoma in the             D
substance of the brain at the middle portion of the brain near
base. According to the report Haematoma was 4 cm. in
diameter. Dr. Vaswani found that the cause of death was coma
caused by intracranial Hemorrhage, which might be due to
hyper tension.
                                                                      E
     7. After the death of Mathura, FIR was duly registered
against all the appellants. Upon completion of the investigation,
the appellants were put on trial. The trial court vide its judgment
dated 7th March, 1989 acquitted all the appellants of all the
charges. Feeling aggrieved against the judgment of the trial          F
court, the State of Madhya Pradesh chaUenged the same by
way of an appeal. The High Court by its judgment dated 1st
August, 2002 allowed the appeal and reversed the findings of
acquittal recorded by the trial court. All the appellants were
convicted and sentenced as noticed above. Aggrieved by the            G
aforesaid judgment, the appellants have filed the present four
appeals.

     8. We have heard the learned counsel for the parties.

     9. Mr. K.T.S. Tulsi, learned senior counsel, appearing in        H
    778           SUPREME COURT REPORTS                 [2011] 3 S.C.R.


A Criminal Appeal No. 582 of 2003 on behalf of Head Constable,
  Nathuram submitted that the High Court committed a grave error
  in reversing the well reasoned judgment of the trial court. He
  relied on a judgment of this Court in the case of State of Uttar
  Pradesh Vs. Nandu Vishwakarama and Ors., 1 to point out that
B in reversing the judgment of the trial court, the High Court has
  disregarded the principles within which the High Court was to
  exercise its appellate powers. In the aforesaid judgment, this
  Court notices and reiterates the principles laid down in the case
  of Chandrappa Vs. State of Karnataka 2, which are as follows:-
c         "42. From the above decisions, in our considered view, the
          following general principles regarding powers of the
          appellate court while dealing with an appeal against an
          order of acquittal emerge:

D           (1)    An appellate court has full power to review,
                   reappreciate and reconsider the evidence upon
                   which the order of acquittal is founded.
            (2)    The Code of Criminal Procedure, 1973 puts no
                   limitation, restriction or condition on exercise of
E
                   such power and an appellate court on the evidence
                   before it may reach its own conclusion, both on
                   questions of fact and of law.

         · (3)      Various expressions, such as, "substantial and
F                   compelling reasons", "good and sufficient grounds",
                    "very strong circumstances", "distorted conclusions",
                    "glaring mistakes", etc. are not intended to curtail
                    extensive powers of an appellate court in an appeal
                    against acquittal. Such phraseologies are more in
G                   the nature of "flourishes of language" to emphasise
                    the reluctance of an appellate court to interfere with
                    acquittal than to curtail the power of the court to

    1.    (2009) 14 sec 501.
H 2. (2007) 4 sec 415.
   HARICHARAN & ANR. v. STATE OF MADHYA                      779
 PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
            review the evidence and to come to its own             A
            conclusion.

      (4)   An appellate court, however, must bear in mind that
            in case ofacquittal, there is double presumption in
            favour of the accused. Firstly, the presumption of
                                                                   8
            innocence is available to him under the
            fundamental principle of criminal jurisprudence that
            every person shall be presumed to be innocent
            unless he is proved guilty by a competent court of
            law. Secondly, the accused having secured his
            acquittal, the presumption of his innocence is further C
            reinforced, reaffirmed and strengthened by the trial
            court.

      (5)   If two reasonable conclusions are possible on the
            basis of the evidence on record, the appellate court   D
            should not disturb the finding of acquittal recorded
            by the trial court."
     The same principles were laid down in the case of M. C.
Ali & Anr. Vs. State of Kera/a 3•
                                                                    E
     10. Mr. Tulsi submitted that the High Court would have been
justified in interfering with the order of acquittal only in case, ·
the High Court had recorded a conclusion that the findings
 recorded by the trial court were perverse and resulted in
 miscarriage of justice. It was not in the domain of the High Court F
to interfere with the findings of the facts recorded by the trial
court, upon due appreciation of evidence and recording
 plausible conclusions. He further submitted that if two views are.
 possible on the evidence adduced in the case, one pointing to
the guilt of the accused and other to his innocence, the view G
which is favorable to the accused should be adopted. In support
•Of the submissions, learned counsel relied on Al/arakha K.
.Mansuri Vs. State of Gujarat4, ahd Raghunath Vs. State of
 3. c2010) 4 sec.
4. c2002) 3 sec 57.                                                  H
    780      SUPREME COURT REPORTS                 [2011] 3 S.C.R.

A Haryana & Anr. 5 .

       11. Mr. Tulsi further submitted that there were
  discrepancies between the charges as laid by the prosecution
  and medical evidence. According to the postmortem, injury had
  been caused within two days. This, according to Mr. Tulsi, would
8
  clearly rule out the case of torture. Even according to the
  prosecution, Mathura had been taken into the custody on 8th
  October, 1983 and had been released on 11th October, 1983.
  The postmortem was conducted on 14th October, 1983 at
  around 11.50 a.m.
c
       12. Mr. Tulsi then submitted that the discrepancies between
  the oral evidence of the prosecution witnesses and the medical
  evidence would clearly show that the prosecution has failed to
  prove the case beyond reasonable doubt. The appellants have
D been convicted by the High Court merely on the basis of
  assumption and presumptions based on suspicion. He relied
  on the observations made by this Court in Paragraph 31 of the
  judgment in the case of Sadashio Mundaji Bhalerao Vs. State
  of Maharashtra6, which are as follows:-
E
          "We are conscious that there is a rise in incidents of
          custodial deaths but we cannot completely dehors the
          evidence and its admissibility according to law convict the
          accused. We cannot act on presumption merely on a
          strong suspicion or assumption and presumption. We can
F         only draw presumption which is permissible under the law
          and we cannot rush to the conclusion just because the
          deceased has died in the police custody without there
          being any proper link with the commission of the crime."

G         13. Mr. Mahabir Singh, learned senior counsel appearing
    for appellants in Criminal Appeal No. 581 of 2003, submitted
    that the appellant Majid Hussain was a mere constable and he
    had no role to play in the illegal custody of Mathura. He has not
    5. (2003) 1 sec 398.
H a. c2007) 15 sec 421.
      HARICHARAN & ANR. v. STATE OF MADHYA                      781
    PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
. been named in the FIR. No specific role has been attributed to        A
  him. He has only been implicated because he was posted in
  the police station at that relevant time. He further submitted that
  appellant Haricharan similarly had only been involved in the
. entire episode because he was posted as a guard outside the
  police station. He submits that no role is attributed to this         B
  appellant inside the police station. The High Court failed to
  notice any of the circumstances, which would clearly show that
  these two appellants were innocent victims of the fortuitous
  circumstance of having been posted at the police station at the
  relevant time.                                                        c
           14. Mr. Nagendra Rai, learned senior counsel appearing
     for the appellant in Criminal appeal No. 584 of2003 submitted
     that even though the appellant was posted as the Station House
     Officer at the relevant time, he has been convicted without any
     direct evidence of his involvement in the illegal custody or D
     alleged torture of Mathura. He submits that no specific role has
     been attributed to him. In fact, PW6, Kamal Singh, who had
     stated that "Mathura told him that Nathuram has caused him
·. · severe beatings. At that time, the condition of Mathura was very
     serious buthe was speaking. I did not see any injury on his E
     person an_d even he also did not show him any injury." In spite
     of such statement of PW6, the High Court without any.
    justification reversed the findings recorded by the trial court.
     Learned counsel then submits that the trial court on examination
     of the evidence of PW6, Kamal Singh discarded the same, F
     concluding that he was a manufactured witness and could not
     be relied upon.

       15. According to Mr. Nagendra Rai, the High court ignored
  the settled principle of law that the findings of fact recorded by    G
- the trial court can not be ignored unless the conclusions have
  led to a miscarriage of justice. Learned senior counsel further
  submitted that there is no evidence on record to show that
  Mathura was kept in custody from 8th October, 1983 to 11th
  October, 1983. In fact, PW6 clearly stated that "then Mathura         H
    782      SUPREME COURT REPORTS               [2011] 3 S.C.R.


A was kept in the police station for about two days". According
  to Mr. Nagendra Rai, learned senior counsel that the custody
  of Mathura being doubtful, the appellant can not be connected
  with the crime of alleged torture. He then pointed out to a
  communication addressed by Dr. K.L. Singh, Chief Medical and
B Health Officer, Oistrict Shivpuri, Madhya Pradesh to the _
  concerned Inspector dated 29th October, 1983. This
  communication was in the context of a query regarding the
  postmortem report of deceased Mathura, which had been
  addressed by the concerned Inspector on 20th October, 1983.
c  It was stated in this communication that on passing electric
   current on scrotum, intracranial hemorrhage is not possible. The
   postmortem report dated 14th October, 1983 clearly stated that
   "the cause of death in the case is due to coma caused by
   intracranial Hemorrhage, which might be due to hyper tension".
D It is submitted by Mr. Nagendra Rai that the two aforesaid facts
   would clearly raise the doubt as to whether the injuries were
   sustained by Mathura on account of electric shock. Learned
   senior counsel pointed out that there is evidence on the record
   to show that Mathura was a habitual drunkard. He was also
E suffering from some dangerous disease. He was being treated
   by Dr. Jagdish Prasad Soni, PW18 for a number of years.

       16. Learned senior counsel further submitted that the
  cumulative affect of all the evidence raises a reasonable doubt
  about the events as projected by the prosecution. Learned
F senior counsel submitted that the reasoning adopted by the trial
  court in Paragraph 20 of the judgment can not be said to be
  either perverse or based on no evidence. The conclusions ·
  drawn by the trial court being plausible conclusions could not
  have been reversed by the Appellate Court. Learned senior
G counsel also reiterated the observations made by this Court in
  the case of Sadashio Mundaji Bhalerao {supra) that suspicion,
  however, strong can not take the place of legal proof, even in
  cases of custodial death.

          17. On the other hand, Ms. Vibha Datta Makhija, learned
H
    HARICHARAN & ANR. v. STATE OF MADHYA                     783
  PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
counsel submits that the judgment of the High Court does not        A
call for any interference. It is well within the findings of the
appellate jurisdiction of the High Court. On merits, she submits
that in this case, the prosecution has presented systematic
evidence, in four stages to connect the accused appellants with
the crime. She submits that there is ev.idence that :-              B

     .(i)     Mathura was taken to the Police Station.

      (ii)    That he was given electric shocks and he was
              taken to the hospitaL
                                                                    c
      (iii)   The postmortem report clearly shows that the
              injuries suffered by Mathura had been caused as
              he had been subjected to electric shock.

      (iv)    That the death was the direct result of the torture
              inflicted on Mathura.                                 D

      18. According to the learned counsel, in this case, the
medical evidence is the crucial link. She has made detailed
reference to the evidence given by PW23, Dr. C.M. Tripathi and
PW24, Dr. L.D. Vaswani. Learned counsel submits that the            E
evidence of these witnesses have been carefully scrutinized by
the High Court. The High Court has also demonstrated the
implausibility of the conclusions recorded at the trial court.
Learned counsel emphasized that there is clear evidence that
Mathllra was called to the police station. He was kept there for    F
two days. Injuries were caused during that period. Injuries were
torturous in nature. All these facts are adverted to by PW6. The
trial court wrongly discarded the evidence of this witness.
Learned counsel then submitted that the High Court rightly relied
on the evidence of DW1, Suresh Singh Sikarwar, who had              G
clearly stated that Mathura had been called to the police station
and that he had been illegally confifled.

    19. Learned counsel further submitted that the trial court
has not given sufficient attention to the evidence of the brother
                                                                    H
    784      SUPREME COURT REPORTS                  [2011] 3 S.C.R. ·

A PW1, Takhat Singh. It can not be said that he did not support
  the prosecution, merely because he stated that he had no
  knowledge about the torture. This witness had not stated that
  Mathura was not taken to the police station. Once it was
  established that Mathura had been taken to the police station,
B it was for the police to explain the inj1,1ries suffered by Mathura.
  Finally, learned counsel submitted that in case of custodial
  death, normal rules with regard to appreciation of evidence can
  not always be made applicable. In support of her statement, the
  learned counsel relied on judgment of this Court in the case of
c D.K. Basu Vs. State of West Bengaf. According to the learned
  counsel, the guidelines laid down in this judgment have been
  flouted by the police totally. She relied on the judgments of this
  Court, i.e., State of M. P. Vs. Shyamsunder Trivedi & Ors. 8 and
  Sahadevan Alias Sagadevan Vs. State Represented by
  Inspector of Police, Chennai, 9 in support of the submission with
0
  regard to the manner in which the evidence has to be
  appreciated in cases relating to custodial death. Learned
  counsel also relied on Munshi Singh Gautam (Dead) & Ors.
   Vs. State of Madhya Pradesh 10•
E      20. We have considered the submissions made by learned
  counsel for the parties. In principle, as a pure statement of law,
  Mr. Tulsi is entirely correct in the submission that the Appellate
  Court would not interfere with the order of acquittal, unless the
  conclusion recorded by the lower court is held to be perverse
F and has resulted in miscarriage of justice. The Appellate Court
  would also not interfere with an order of acquittal if two
  reasonable conclusions are possible.
       21. We also find much substance in the submissions of
G Mr. Tulsi, again as a pure statement of law, that suspicion, no
  matter how strong cannot form the basis of a conviction. Even
    1.  (1997) 1 sec 416.
    a. (1995) 4 sec 2a2.
    9. c2003) 1 sec 534.
H   10. (2005) 9 sec 631.
    HARICHARAN & ANR. v. STATE OF MADHYA                        785
  PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]

in cases of custodial death, ii is for the prosecution to establish     A
beyond reasonable doubt a proper link between the accused
and the commission of crime.

     22. Similarly, the submissions made by senior advocates,
i.e., Mr. Nagendra Rai, and Mr. Mahabir Singh cannot be said            8
to be without merit as legal propositions.

     23. We are, however, unable to agree that any of the
appellants could take advantage of any of the legal submissions
made by the learned counsel in the facts· and circumstances
of this case. It has become necessary to remind ourselves of            C
the principles laid down by this Court in the case of D.K. Basu
 Vs. State of West Benga/1 1• In the aforesaid landmark
judgment, this Court declared that custodial violence, including
rape, torture and death in the lock up, strikes a blow to the rule
of law.                                                                 D

     24. It was emphasised that custodial death i~. perhaps one
of the worst crimes in a civilized society governed by rule of
law. It is aggravated by the fact that crimes in custody are
committed by persons, who are charged with the solemn                   E
responsibility to protect the fundamental rights of all the citizens.
These crimes are committed under the shield of uniform and
authority within the four walls of police station or lock up, the
victim being totally helpless. The Judgment further declared that
the fundamental rights under Articles 21 and 22 (1) of the              F
Constitution required to be jealously and scrupulously
protected. It reiterated the principle that the expression "Life or
Personal Liberty in Article 21 includes right to live with human
dignity. Therefore, it also includes within itself guarantee against
the torture and assault by the States or his functionaries."
                                                                        G
     25. The Supreme Court, as the custodian and protector
of the fundamental and the basic human rights of the citizens,
would view with deep concern any allegation made against the
police officials about custodial crimes. In the present case, we
11. (1997) 1 sec 416.                                                   H
      786       SUPREME COURT REPORTS                  [2011] 3 S.C.R.


·- A are dealing with the torture of detenue, resulting in death. Using
     any form of torture for extracting any kind of information, from
     a suspect was declared to be "neither right, nor just, nor fair.• It
     was specifically laid down that though a crime suspect must be
     interrogated -      indeed subjected to sustain and scientific
   B inte~rogation - determined in accordance with the provisions
     of law, he cannot, however, be tortured or subjected to third
     degree methods or eliminated with a view to elicit information
     or extract a confession. The aforesaid observations of this
     Court, in our opinion, have been totally disregarded in the
   c present case.
        26. Mr. Nagendra Rai had submitted that there is no direct
   evidence of the involvement of Anil Kumar Singh Kushwaha in
   the legal custody and alleged torture of Mathura. He also
   submitted that no specific role had been attributed to him. In
:D our opinion, both the submissions are without any merit. This
   submission of Mr. Nagendra Rai is completely answered by the
   observations made by this Court in the case of State of M.P.
   Vs. Shyamsunder Trivedi & Ors. {supra). We may notice here
   the observations made in Paragraph 16 and 17 of the
 E aforesaid judgment:-

            16 .... ...........The High Court erroneously overlooked the
            ground reality that rarely in cases of police torture or
            custodial death, direct ocular evidence of the complicity of
  F         the police personnel would be available, when it observed
            that 'direct' evidence about the complicity of these
            respondents was not available. Generally speaking, it. ..
            would be police officials alone who can only explain the
            circumstances in which a person in their custody had died.
            Bound as they are by the ties of brotherhood, it is not
  G
            unknown that the police personnel prefer to remain silent
            and more often than not even pervert the truth to save their
            colleagues, and the present case is an apt illustration, as
            to how one after the other police witnesses feigned
            ignorance about the whole matter.
  H
    HARICHARAN & ANR. v. STATE OF MADHYA                     787
- PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
   17. From our independent analysis of the materials on the           A
   record, we are satisfied that Respondents 1 and 3 to 5
   were definitely present at the police station and were
   directly or indirectly involved in the torture of Nathu Banjara
   and his subsequent death while in the police custody as
   also in making attempts to screen the offence to enable             B
   the guilty to escape punishment. The trial court and the
   High Court, if we may say so with respect, exhibited a total
   lack of sensitivity and a "could not care less" attitude in
   appreciating the evidence on the record and thereby
   condoning the barbarous third degree methods which are              c
   still being used at some police stations, despite being
   illegal. The exaggerated adherence to and insistence upon
   the establishment of proof beyond every reasonable doubt,
   by the prosecution, ignoring the ground realities, the fact-
   situations and the peculiar circumstances of a given case,          D
   as in the present case, often results in miscarriage of
   justice and makes the justice delivery system a suspect.
    In the ultimate analysis the society suffers and a criminal
   gets encouraged. Tortures in police custody, which of late
   are on the increase, receive enco.uragement by this type
   of an unrealistic approach of the courts because it                 E.
   reinforces the belief in the mind of the police that no harm
   would come to them, if an odd prisoner dies in the lock-
   up, because there would hardly be any evidence available
   to the prosecution to directly implicate them with the torture.
   The courts must not lose sight of the fact that death in.           F
   police custody is perhaps one of the worst kind of crimes
   in a civilised society, governed by the rule of law and
   poses a serious threat to an orderly civilised society.
   Torture in custody flouts the basic rights of the citizens
   recognised by the Indian Constitution and is an affront to          G
   human dignity. PoUce excesses and the maltreatment of
   detainees/undertrial prisoners or suspects tarnishes the
   image of any civilised nation and encourages the men ih
   'Khaki' to consider themselves to be above the law and
   sometimes even to become law unto themselves. Unless                H-
                                                                   1
    788       SUPREME COURT REPORTS                 [2011] 3 S.C.R.

A         stern measures are taken to check the malady, the
          foundations of the criminal justice delivery system would
          be shaken and the civilization itself would risk the
          consequence of heading towards perishing. The courts
          must, therefore, deal with such cases in a realistic manner
B         and with the sensitivity which they deserve, otherwise the
          common man may lose faith in the judiciary itself, which
          will be a sad day.

        27. Keeping in view the aforesaid salutary observations,
  we may now examine the question as to whether the High Court
C committed an error in reversing the judgment of acquittal as
  recorded by the trial Court. It was the case of the prosecution
  that Mathura was suspected of having committed theft. He was,
  therefore, picked up for interrogation on 8th October, 1983, with
  regard to a case registered under Sections 457 and 380 IPC,
D i.e. lurking house trespass and theft respectively. He was kept
  in custody till 11th October, 1983 at the police station. The
  objective of keeping him in custody was to get a confession
  from him of having committed the offence of house trespass
  and theft. At the relevant time, Anil Kumar Singh Kushwaha,
E appellant in Criminal Appeal No. 584 of 2003 was Station
  House Officer of the Police Station lndar. Ram Ujaagar,
  appellant in Criminal Appeal No. 583 of 2003 and Nathu Ram,
  appellant in Criminal Appeal No. 582 of 2003 were both
  working as Head Constables.
F
        28. In our opinion, the High Court has correctly concluded
  that there is sufficient evidence on record to prove that Mathura
  had been taken into an illegal custody. This fact has been
  adverted to by PW6, Kamal Singh. When this witness
G appeared in Court, he was absolutely terror stricken. He
  categorically stated as follows:-
          "I will give statement in favour of the accused persons
          because if I speak against them then I will be beaten up
          in the police station. I am a; poor person. That is why I am
H         so frightened that if I give the statement against the
    HARICHARAN & ANR. v. STATE OF MADHYA                         789
  PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
     accused persons then they will cause loss to me in the              A
     police station. None of the accused persons came to me
     asking for giving such a statement. I feared,because my
     nephew Lalji has been murdered and we have not been
     heard anywhere. (The witness was told that he would. get
     full protection as per his requirement. Hence tell all this truth   B .
     to the Court)."                           '--

      29. Upon being given the assurance by the Court, as
·noticed above, the witness proceeded to state that Mathura was
 his uncle's son. He stated that Nathuram, appellant No.3, had           C
 taken Mathura with him to the police station. He was kept in
·the police station for about two days. Takhat Singh, PW1 and
 Parmal Singh, PW16 had brought Mathura from the police
 station. He had talked to Mathura when he came back from the
 police station. Mathura told him that Nathuram had given him
 severe beatings. This statement clearly shows that Mathura was          D
 kept in illegal custody, as claimed by the prosecution.

     30. Apart from Kamal Singh (PW6), it appears that the
other witnesses were also under constant pressure, not to
depose against the police. This is evident from the fact that            E
virtually all the witnesses turned hostile and failed to support the
prosecution case. It is noteworthy that Shrikrishna,. PW3,
Mathura's brother, his widow and his son did not support the
prosecution version. The terror of the police was such that even
the family members of the deceased refrained from speaking               F
the truth. Takhat Singh, PW1, the brother of the deceased
Mathura, had plucked up enough courage to state that the
police had called Mathura to the police station. He, however,
stated that Mathura came back in the morning. This witness had
also stated that the police had beaten up his brother and he             G
was rendered unconscious. He had been taken to the hospital
from the Shivpuri Kotwali. He had also lodged a complaint with
the Superintendent of Police, R.K. Tripathi, PW28, as the
condition of Mathura was serious.
                                                                         H
    790     SUPREME COURT REPORTS                 [2011] 3 S.C.R.


A       31. The fact that Mathura had been tortured and subjected
  to electric shock whilst in police custody is well established by
  the medical evidence given by PW23, Dr. C.M. Tripathi and
  PW24, Dr. L.D. Vaswani. Dr. Tripathi had clearly stated that he
  had found two burn injuries on the scrotum. The injury on the
B right side was 2.5 cm x 3 cm. There was oval shape charring
  of the skin, which had become irony. Similar wound was found
  on the left side of the scrotum, which was also oval shape and
  2 cm x 1.5 cm in dimensions. It was the positive opinion of Dr.
  Tripathi that the wounds had been caused by electric shock.
c This witness further stated that as the result of the electric
  shock, the brain was found to be congested in aragonite
  membrane. He stated that Mathura had died of Hemorrhage
  of the vessels of the brain. This witness, in cross-examination,
  totally ruled out the possibility that the injuries could have been
D caused with hot metal. He has clearly stated that- "It can be
  ascertained as to how the burn injuries could have been
  caused. When the body is burnt with a hot object blisters are
  caused and if the blisters are absent then the skin at that place
  squeezes and below the skin on the raptor and on the muscles
  becomes red. Whereas the marks formed by electric current
E are black and hard. (The meaning of word orne is hard). The
  skin also becomes hard due to post mortem burns.n During the
  cross examination, he further clarified that • when low voltage
  shocks are given to anyone, as a result of it Brenticoolar
   Fredania is caused due to which the heart beats are increased ·
F very much. and the speed of the heart increases. It is wrong to
  suggest that lntracranial hemorrhage is not possible due to
  electric shocks". This witness also clarified that due to the
   impact of electric shocks the blood pressure of Mathura was
   increased. In view of the aforesaid, we are unable to accept
G any of the submissions made by the learned counsel for the
   parties that Mathura was not subjected to electric shock.
      32. We are of the considered opinion that in accepting the
  evidence of PW6 and the medical evidence of PW23 and
H PW24, the High Court has not committed any error. The
    HARICHARAN & ANR. v. STATE OF MADHYA .               791
  PRADESH & ORS. [SURINDER SINGH NIJJAR, J.)
evidence on the record clearly shows that death of Mathura was A
a direct consequence of the inexcusable and inhuman torture
by the police. The prosecution has proved beyond reasonable
::toubt that Mathura was taken to the police station. Whilst at
~he police station, he was subjected to third degree torture. He
.vas given electric shocks in the scrotum. Such torture was B -
inflicted on Mathura merely for the purpose of extracting a
 ::onfession that he was guilty of the offence of theft. Upon his
•elease, the police personnel terrorized the entire family. This,
•s evident from the fact that the widow, the son and the brother
                                                                c
 ::>f the deceased Mathura, all turned hostile. However, there is
sufficient evidence on the record given by PW6, PW23 and
-"JW24 to prove beyond reasonable doubt that Mathura died
  jue to the inhuman torture inflicted upon him by the appellants.-

  . 33. We see no reason to differ with the findings recorded
lY the High Court. The appeals are dismissed.                   D

).G.                                    Appeals dismissed.