SADASHIO MUNDAJI BHALERAOversusSTATE OF MAHARASHTRA

                      SADASHIO MUNDAJI BHALERAO                               A
                                     v.
                         STATE OF MAHARASHTRA

                              NOVEMBER 28, 2006

                    [G.P. MATHUR AND A.K. MATHUR, JJ.]                        B

    .I)   Penal Code, 1860:

       ss. 302 rlw ss. 34 and 201134-Custodial death-A person involved in
a dacoity case stated to have been beaten to death by police-Prosecution C
of I 7 police officials of the police station-Deceased last seen in their
custody-Acquittal by trial court-Conviction by High Court-Held,
statements of witnesses cannot be accepted on their face-Keeping in view
antecedents of witnesses and the manner in which they described the beating,
inference of commission of crime by police officials cannot be drawn-Dead D
body found could not be established as that of victim-The view taken by
trial court appears to be just and proper and on facts it was not proper for
High Court to have reversed the finding-Order of acquittal passed by trwl
court restored-Evidence-Circumstantial evidence-Appeal against
acquittal-Interference by appellate court-Scope of
                                                                               E
      Seventeen police officials were prosecuted for offences punishable under
Sections 302/34 and 201/34 JPC. The prosecution case was that during the
investigation of a dacoity case, seven persons were arrested and brought to
the police station. One of them was taken, with his hands tied, to the Detention
Branch room for interrogation by some of the accused police officials, where
he was allegedly administered beating as a result of which he died. Jn order F
to cover up this, the police registered a case under Section 224 IPC alleging
that the said decoity-accused escaped from the police custody. Thereafter a
dead body was found in a decomposed condition which was cremated. The finger
prints of the said dead body }'i'ete matched with that of the dacoity-accused and
it was found that the finger prints matched. The trial court held that the G
prosecution failed to substantiate the allegation against the accused police
personnel, and giving benefit of doubt, acquitted all of them. But the High
Court reversed the order of acquittal and convicted all of them of the offences
charged. Aggrieved, the accused-police officials filed the present appeal.

                                     733                                      H
    734                    SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A         It was contended for the appellants that all the eye-witnesses who were
    produced by the prosecution had criminal records and were inimically disposed
    against the appellants; and that there were discrepancies and several
    omissions in the depositions of the witnesses regarding as to where the
    beating took place and who were the police officials involved in the beating.
    On the other hand, it was contended for the State that, assuming some
B   shortcomings in the testimony of the witnesses, the fact remained that the
    deceased was in police custody, the police did not account for him except by
    registering a case under Section 224 IPC and did not pursue the investigation
    further, and the theory of escape was nothing but a false story.        '

C         Allowing the appeal, the Court

           HELD: 1.1. The statements of the witnesses cannot be accepted on their
    face. It is true that the deceased was not found alive. Keeping in view the fact
    that the investigation has been done by the police personnel against the police
    personnel and also keeping in view the previous antecedents of the prosecution
D   witnesses and the way they have described the beating, it is very difficult to
    rope in all the 17 accused persons for commission of the crime. In fact, the
    police should have properly scrutinized the evidence and pinpointed the person
    who was responsible for beating. But unfortunately, they have not taken
    enough care to produce material evidence' in this regard. [743-D, E)

E         1.2. The Court is conscious that there is rise in incidents of custodial
    deaths but cannot completely de hors the evidence and its admissibility
    according to law to convict the accused. The Court cannot act merely on a
    strong suspicion or assumption and presumption. It can draw only presumption
    which is permissible under the law and cannot rush to the conclusion just
F   because the deceased has died in the police custody without there being any
    proper link with the commission of the crime. As regards the presumption of
    the guilt of the accused, the strongest circum~tance which stands against
    the appellants is that the deceased was last seen in the custody of the police,
    but inference of commission of crime with reference to this type of
    presumption, is perverse. It is true that the accused involved are police
G   personnel but,the Court cannot stand to condemn the whole police-station just
    on the basis of only this circumstance. (743-G-H; 744-A-B)

          A.E.G. Carapietv. A. Y. Derderian, AIR (1961) Cal. 359; State of MP. v.
    Shyamsunder Trivedi & Ors., [1995) 4 SCC 262; Sahadevan alias Sagadevan
    v. State represented by Inspector of Police, Chennai, (2003] 1 SCC 534; Mani
H
             SADASHJO MUNDAJI BHALERAO v. STATE OF MAHARASHTRA            735

Kumar Thapa v. State of Sikkim, (20021 7 SCC 157 and Devender Kumar             A
Sing/av. Ba/dev Krishan Sing/a, (2005) 9 SCC 15, cited.

       2.1. Apart from this direct shaky evidence, it is very difficult to accept
the evidence to connect the dead body with that of the deceased which came to
light after two years i.e. 1989. An attempt was made to connect the body with
that of the deceased, by examining P.W.22 who took the finger prints of the B
body. Though he admitted that the prints were not visible, these finger prints
were sought to be corroborated with the receipt of an alleged sale of a cow by
the deceased, which was produced by the brother of the deceased, and is said
to have contained the finger prints of the deceased. For this, the prosecution
has also led evidence of P.W.10, the scribe of the receipt and P.W.11. Both C
the witnesses turned hostile. Consequently, it is very doubtful how could the
receipt given to the purchaser be with the seller i.e. the deceased. {744-C, DJ

       2.2. Besides, that fact that the thumb impression on the receipt was of
deceased has not been proved, as P.W.10 turned hostile. Since P.W.10 has
denied that the thumb impression of deceased was taken in his presence and . D .
since the receipt produced by the' prosecution bearing the thumb impression
of deceased is not proved, therefore, the comparison of the finger prints of
the deceased with the thumb impression of the body is of no consequence.
More so, the brother of the deceased, and his wife have also declined to identify
the dead body. Therefore, under these circumstances, the prosecution has
failed to establish that the dead body was that of the deceased. As such, this E
circumstantial evidence is also not of worth that it can connect the accused
persons with the commission of the crime. [744-F-H; 745-A-B]

       3.1. Therefore, the view taken by the Division Bench of the High Court
in reversing the judgment of the trial court does not appear to be well founded. F
The reasons given by the High Court are not cogent and do not appeal to the
reason so as to justify the conviction of the appellants. Normally, the appellate
court is very slow in interfering with the order of acquittal unless there are
compelling circumstances to do so. After going through the judgment of the
trial court, the view taken by it appears to be just and proper in the given
facts and circumstances of the case. The impugned judgment of the High G
Court is set aside and that of the trial court is affirmed and all accused-
appellants are acquitted of all the charges. (745-D-EJ

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 478 of
2005.
                                                                                H
    736                     SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A         From the Judgment and Order dated I 7-1-2005 of the High Court of
    Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Appeal No. 242 of
    1996.

          Uday Umesh Lalit, R. Sundaravardhan, A.K. Sanghi, Aditya Kumar,
    Shivaji M. Jadhav, Himarrshu Gupta, Brij Kishor Sah and Rahul Joshi for the
B   Appellant.

         Shekhar Naphade, S.S. Shinde, Chinmoy Khaladker, V.N. Raghupathy
    and Aniruddha P. Mayee for the Respondent.

            The Judgment of the court was delivered by
c
           A.K. MATHUR, J. These appeals are directed against the order dated
     17.1.2005 passed by the Division Bench of the Bombay High Court at Nagpur
    Bench in Criminal Appeal No.242 of I 996 whereby the Division Bench has
    reversed the acquittal of all the accused- appellants and convicted them under
    Sections 302 read with Section 34 of the Indian Penal Code (for short, 'IPC')
D   and sentenced them to suffer life imprisonment. The Division Bench also
    directed payment of fine of Rs.30,000/- each by original accused Nos.1,2 &
    3; Rs. I 5,000/- by original accused No.6; Rs. I 0,000/- each by original accused
    Nos.10, I I, 13, 15, 16 & 17. In default of payment of fine, they were also
    directed to undergo rigqrous imprisonment for five years. So far as the
E   offence under section 201 read with 34, IPC was concerned, the original
    accused Nos.l,2,3,6,10,l l,13,15,16 & 17 were sentenced to undergo rigorous
    imprisonment for five years. Original accused Nos. I to 3 were directed to pay
    a fine of Rs. I 0,000/-each; accused No.6 to pay fine of Rs.5,000/- and accused
    Nos.10,ll,13,15,16 & 17 were directed to pay a fine ofRs.2,500/- each. In
    default of payment of fine, they were to suffer further rigorous imprisonment
F   for two years. The substantive sentences under section 302 read with 34,
    I.P.C. and under section 201 read with section 34, I.P.C. were directed to run
    concurrently. Hence, the present appeals by the accused-appellants.

           This is one of the unfortunate case where the deceased has died in the
G   police custody. We are conscious that such incidents of su~pect dying in the
    police custody has lately increased. This is an unfortunate scenario. But
    nonetheless we have to examine the matter objectively though keeping in
    mind the fact that the accused involved in all these appeals are nobody else
    that the Police officers and the investigation was being undertaken by their
    colleagues only. Therefore, w_e have to examine all the aspects objectively
H   keeping in mind the fact that the accused involved in the present appeals are
     SADASHIOMUNDAJI BHALE~Ov. STATEOFMAHARASHTRA[A.K. MATHUR,J.]            737

 nobody else but the colleagues of another investigating agency.                   A
          Brief facts giving rise to filing of the present appeals are that the
   deceased Dilip along with other suspects were involved in a dacoity case
   which took place in the village Takarheda within the jurisdiction of Police-
   station, Arvi. One Namdeo Tulshiram Taywade, filed a complaint to this effect
   that the alleged dacoity has taken place in his house in which the inmates B
   of the house were injured and certain ornaments had been taken away from
   his house. On the basis of this report, a case was registered on 24.10.1987
   against unknown persons under sections 395, 397 & 398, IPC vide Crime
   No.254 of 1987. The investigation of the case was taken over by P.I. Bhadikar-
   the accused appellant. During the course of investigation, on 5.11.1987 the C
   police arrested seven persons namely ( l) Bastam Devidas Pawar, (2) Comrade
   Bhimrao Pawar, (3) Dilip Khusmya Ghosale, (4) Chaubharat Ramchandra
   Ghosale, (5) Partya Khusmya Ghosale, (6) Navbharat Ramachandra Ghosale
   and (7) Gangacharan Sukhadeo Pawar. The police arrested these persons and
. sought for judicial remand from the Judicial Magistrate for the purpose of
   investigation. The police was granted custody remand for seven days for the D
   purpose of recovery of weapons of offence as well as stolen property. Till this
 · time there was no complain of any ill-treatment of the accused. After taking
   remand from the Magistrate, the accused persons brought them to the Police-
   station.

        On the night intervening between 5. l l. l 987 and 6. l l .1987 when all the E
  accused above mentioned were in police custody on remand by the Magistrate,
  the police was interrogating all the accused at the Police-station, Arvi. Dilip
  Khusmya Ghosale (hereinafter to be referred to as 'Dilip') who was one of the
  Suspects in the aforesaid crime was taken up from the police lock up to
 Detection Branch room for interrogation by some of the accused-appellants F
 and it is alleged that his hands were tied down and he was administered
 beating by kicks and fist blows and during this interrogation, Dilip died in the
 Detection Branch centre. It is alleged that though Dilip died on account of
 beating , but in order to cover up this fact, the police registered a case under
 section 224, IPC on 6.11.1987 at 2.15 O' clock that the accused- Dilip has
 escaped from the police custody and thereafter wireless message was sent all G
 over the State describing the general features of the accused-Dilip. It is
 alleged by the prosecution that a dead body was found lying in Adilabad,
 Andhra Pradesh and the post-mortem was conducted on the dead body by
 the P. S.Adilabad. The dead body was in a decomposed condition and it was
 cremated. During the course of investigation this fact came to the light. It was H
    738                    SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A alleged that this dead body was that of deceased-Dilip and his finger prints
    were taken and it was sought to be matched with the finger prints on one
    receipt of purchase of a cow and it was sought to be connected with that of
    the deceased so as to establish that this was the dead body of deceased Dilip
    who was taken away by the police jeep and the same was disposed of at
    Adilabad in A.P. by the accused persons.
B
           It appears that for some time nothing happened but some public spirited
    persons got a scent of it that some accused has died in police custody.
    Therefore, one Dr. Shyam Sundr Bhutada approached the concerned
    Superintendent of Police and informed him that it was a rumour in the town
C   that one Dilip has died in the police custody. Thereafter, he lodged a written
    complaint in the police-station and this report was taken up by the In-charge
    of the Police-station. Accused No.2- Bhadikar registered the offence under
    section 302 read with 34, I.P.C. vide crime No.263/87. Accused appellant No. I
    took up the investigation. It appears that after some time the higher-ups in
    the Department came to know about this fact and therefore, this case was
D   taken up by the C.l.D., Crime and it was entrusted to P. W.,28, Deputy
    Superintendent of Police- Bhagwangir Goswami on 24.12.1987. Thereafter, the
    investigation was taken up by Shri Goswami who recorded the statement of
    all the co-accused who were held up in that dacoity case along with deceased
    Di lip and after completion of necessary investigation all the 17 accused
E   persons including one D.S.P., incharge of the Police-station were charged
    under sections 302, 201 read with Section 34, IPC. The case was committed
    to the court of session. The prosecution examined a large number of witnesses
    in order to substantiate the allegation that accused- Dilip died in the police
    custody. Learned Second Additional Sessions Judge after recording necessary
    evidence came to the conclusion that the prosecution has failed to substantiate
F   the allegation against the accused police personnel and gave the benefit of
    doubt to all the accused persons and acquitted all of them. Aggrieved against
    the order of acquittal passed by learned Second Additional Sessions Judge
    dated 30.4.1996, the State preferred an appeal before the High Court against
    all the accused persons. The Division Bench of the High Court, Bombay;
    Bench at Nagpur reviewed the whole evidence on record and reversed the
G   order of acquittal of all the accused persons and convicted them as aforesaid
    by its order dated 17.1.2005. Hence, the present appeals by the accused-
    appellants.

          We have heard learned counsel for the parties and have perused the
H   records. It is an admitted fact that the deceased was arrested in a dacoity case
    SADASHIO MUNDAJI BHALERAO v. STATE OF MAHARASHTRA [A.K. MATHUR, J.]   739

 along with other persons and he was in the police custody. The case of the A
  prosecution was that he was taken for interrogation in the interrogation room
  on the relevant date and he expired and in order to substantiate the allegation,
  the prosecution produced some of the .witnesses who were already in the
  custody along with accused- Dilip, namely; P.Ws. 2,3,4 & 5. These witnesses
  alleged that deceased Dilip was detained along with them and Dilip was being B
  taken with his hands tied for interrogation and he was administered beating
  and he shouted for sometime but after some time no shouting was heard and
 thereafter the deceased died. The police prepared a defence that the accused
 escaped from the Police-station and therefore, registered a case being crime
 No.624/87 under Section 224, IPC on 6.11.1987. The first part of the evidence
 has to be closely examined whether the testimony of these witnesses is to C
 be accepted and to what extent ? P.W.2 was an accused who was being
 prosecuted under Sections 302 & 307, IPC. He was also arrested along with
 th~ deceased Dilip and another accused detained in the police custody. Other
 accused were also there with him i.e. Babarao Neware and Sadashiv Uike
 involved in some other crime. He deposed that there is a police lock up which
 is separate from the Magistrate lock up. The distance between the two is qo D
 feet. He stated that one Paradhi boy was brought out of the Police-station
 and the accused persons were beating him with sticks, fist and kicks. They
 were assaulting the boy in front of the temple of the Police-station. He
 deposed that there are three windows in the room and that he heard the
shrieks, therefore he woke up and noticed the incident through that window E
 and he found that as a result of beating the paradhi boy i.e. the deceased Di lip
 became unconscious. He further stated that some water was brought and
 sprinkled on the face of the deceased. Then some of the accused persons told
 that the deceased was knowingly pretending to be unconscious and therefore,
they further subjected him to beating. Then the deceased boy did not regain
his consciousness and a police jeep was called and he was taken with F
handcuffed. This witness has an outstanding criminal records i.e. 35-36 criminal
cases are pending against him. He has also stated that he could not say as
to how the blows landed on what part of the body as it was dark and he was
at some distance. He also denied some suggestions made to him that he has
not deposed that accused Kishore was asked to bring water and he has also G
deposed that the police jeep returned back in the Police-station at about 10
A.M. A suggestion was also given to hi'll that since he has been implicated
in number of cases by the Arvi Police therefore, out of vengeance he is
deposing against the police. He went to the extent of implicating the DSP, In-
charge of th_e Police-station. He also admitted that he has not deposed before
the Police but for the first time he is deposing in the Court. P. W.3- Babarao H
    740                    SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A    Naware, another witness who was also there in the police lock up along with
     the deceased. He deposed that he knew accused Nos.1,2,3, 7,9,J I, 13 and 16
     and he admitted that he along with deceased Dilip were held up in a dacoity
     case. He also deposed that the accused No.2 along with other members of
     the Staff of police administered beating to the deceased and he went to the
B    extent of implicating Deputy Superintendent of Police. He stated that he saw
     the whole incident through the window· of the lock up and he noticed the
     incident from IO to 15 feet. He also deposed that it was about 2.30 A.M., the
     police jeep took the dead body of the deceased Dilip and returned at about
     7 to 8 A.M. This witness has also deposed that he has 31 criminal cases
    pending against him. He also admitted that one Deputy Superintendent of
C   Police, Mr.Sharma met him but he did not state anything to him about this
     incident. According to him, the incident of beating continued for about three
    hours. He did not make a complain about this incident before the lock up
    guards nor did he tell them about this incident of kicks and blows being
    administered on the deceased during investigation but for the first time he
    deposed in the court, he made a lot of improvement in his testimony, du.ring
D   the trial. P. W.4, who was also held up in a dacoity case, has admitted that he
    was arrested along with other accused persons. He also deposed that he
    heard the screaming of Dilip in the night at about 12 to 2 A.M. Thereafter,
    it is alleged that the deceased Dilip was not brought back alive in the Police-
    station. He also made a lot of improvements in his testimony like that he
E   involved Deputy Superintendent of Police, Wardha who is one of the assailants
    and according to him, accused Kishore assaulted. P.W.5 was also arrested
    along with the deceased Dilip. He only deposed that the police took accused
     Dilip handcuffed from the room and he heard the shout of Dilip of beating.
    After some time the beating stopped and Dilip was not brought back to the
    room. P.W.5 did not state who did the beating. Though he was called to
F   identify the dead body of Dilip but he deposed that he failed to identify the
    dead body of the deceased Dilip. He was the brother of deceased Dilip. He
    was shown the photograph of the dead body of the deceased Dilip at Adi la bad
    Police-station but he failed to identify the dead body. He also deposed that
    Dilip had sold his cow to Baraku Wadi ( carpenter) and a receipt was executed
G   to that effect. He has deposed that this receipt was given by him to the Police.
    He has categorically denied that the body which was shown to him was that
    ofDilip. This receipt is alleged to have been received by him from his mother.
    This is the total eye witnesses produced by the prosecution to substantiate
    the allegation against the accused. After appreciating the evidence the trial
    court disbelieved all these witnesses. Apart from this evidence, circumstantial
H   evidence was also sought to be pressed into service that the dead body
               SADASHIO MUNDAJI BHALERAO "· STATE OF MAHARASHTRA [AK. MATHURJ] 741

          which was seized by the Adilabad Police-station was that of the deceased- A
           Dilip. For this the prosecution has led the evidence of some of the witnesses
           like P. Ws. 7, 20 and 21 to substantiate that the dead body of the deceased was
          seized by the Police at Adilabad (A.P.). P.W.5 produced a sale receipt of cow.
          from another person to whom the deceased Dilip had sold his cow, which
          bears his thumb impression. The finger prints which were taken by the Police
          before disposal of the dead body by the Police at Adilabad Police-station was B
          sought to be matched with the thumb impression of the deceased Dilip by
          producing handwriting expert, P.W.23 that the thumb impression was that of
          the deceased. But unfortunately, P.Ws.7, 20, 21, 9 & 10 all have been declared
          hostile. P.Ws.7, 20 & 21 were produced to substantiate that the dead body
          of the deceased was taken in a jeep and P.Ws.9 & 10 were produced to show       c
          that the receipt which was scribed by P. W.10 which bears the thumb impression
          of the deceased and the same was sought to be connected with the finger
          prints which were taken from lhe dl!ad body by spoon method but this
          circumstantial evidence has also not been accepted by the trial court. This
          is the total evidence which had been sought to be pressed by the prosecution
          to substantiate the guilt of the accused.                                        D

                 Learned counsel for the accused-appellants has seriously contested
           and submitted that all the eye witnesses who have been produced by the
          prosecution have criminal records and secondly, they are also inimically
          disposed against the accused. It was also pointed out that the incident is said
     ,.                                                                                   E
          to have taken place in the dead of the night and it is very difficult for these
          witnesses to have seen the incident of beating by the accused persons to the
           deceased Dilip. It was pointed out that firstly no evidence had been led to
           show what was the height of the window from where these eye witnesses
          could see the beating to the deceased. Some witnesses state that some
          accused persons took the deceased by handcuffing with the rope in the D.B. F
          room where they heard the shouting. But some said beating took place in
          open place near the temple. It was pointed out that there was no unanimity
          among the prosecution witnesses that who beat the deceased and how;
          whether all the 17 accused persons who were charged were all involved in
          beating to the deceased or some of them were involved in beating. Therefore,

..        learned counsel has submitted that this kind of omissions in evidence cannot G
          be accepted for convicting all the 17 accused of the P.S., Arvi, though the
          High Court has wrongly accepted their testimony on the face of it.
                                                                                            .,

               Learned senior counsel for the State, Shri Shekhar Naphade has faii:ly
          submitted that there are shortcomings in the testimony of these witnesses.
                                                                                         H
    742                     SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A But he has submitted that the fact remains that the deceased was in the
    custody of the police and the police has not accounted for him except by
    registering a case under Section 224, IPC and did not pursue the investigation
    further. He has also pointed out that the theory of escape is nothing but a
    fake make believe story by the accused and they abandoned that by closing
    the case on 29 .4.1989 because they were aware of the fact that the deceased
B   has not escaped but he has been the victim of their beating. Learned counsel
    for the State has emphasized that the investigation has also been done by
    the Police personnel i.e. by the C.I.D. and all the. accused who are the eye
    witnesses are practically won over because their dacoity case was also closed
    on 24.10.1988. Therefore, their testimony has also to be closely scrutinized
C   keeping in view the fact that they also stand to gain by siding towards the
    accused on the ·closure of the dacoity case. Learned counsel has also
    emphasized if the accused had pursued the theory of escape the case under
    section 224, IPC would not have been closed, Secondly they could have
    cross-examined the witnesses in that light but no such cross-examination has
    been done by the accused. Therefore, this theory of escape of the deceased
D   Dilip is nothing but a false theory. It is only with a view to create an evidence
    and to find an escape route for the accused persons.

           Learned counsel in support of this has invited our attention to a decision
    of the Calcutta High Court in A.E.G.Carapiet v. A.YDerderian, AIR (1961)
    Cal.359 wherein it had been held that the parties should put their case in
E   cross-examination of the witnesses. It was also held that this is the rule of
    one of the essential justice and not merely technical one. Learned counsel
    further invited our attention to a decision of this Court in State of MP. v.
    Shyamsunder Trivedi & Ors., [1995] 4 SCC 262 wherein it has been held that
     in a case of custodial death or police torture, generally ocular or other direct
F   evidence is not available and the police officials alone can explain the
    circumstances in which a person in their custody died. Exaggerated adherence
    to and insistence upon establishment of proof beyond every reasonable
    doubt was improper and the Court must adopt a realistic ·rather than a narrow
    technical approach. Learned counsel submitted that the deceased was last
G   seen in the. custody of the Police and he is not found alive. Therefore, this
    circumstance should alone be sufficient to hold the accused guilty. Learned
    counsel has also invited our attention to a decision of this Court in Sahadevan
    alias Sagadevan v. State represented by Inspector of Police, Chennai, (2003]
    I SCC 534 and submitted that last seen is a very important circumstance and . ·
    if a person is last seen in the company of the accused and was never .seen ..
H   thereafter: it is oblig~toi:y on the accused to explain the circumstances in
     SADASHIO MUNDAJI BHALERAOv. STA TEOF MAHARASHTRA [A.K. MATHUR, J.] 743

which the missing person and the accused parted company. It was also held A
that false explanation can be taken as a circumstance against the accused.
Learned counsel also invited our attention to a decision of this Court in Mani
Kumar Thapa v. State ofSikkim, [2002] 7 SCC 157. ln that case their Lordships
held that in case of custodial death, failure of the accused in explaining the
inculpating circumstance could form an additional link in the chain of
circumstances. Learned counsel also invited our attention to a decision of this B
Court in Devender Kumar Sing/av. Baldev Krishan Sing/a, [2005] 9 SCC 15.
This was a case of cheating. In this case it was held that the statement under
Section 313 of the Code of Criminal Procedure is not evidence. It is only a
stand of the accused o~ his part of story. It was pointed out that in the
absence of evidence, statement cannot be used to make up absence of any C
suggestion during cross-examination.

        Now, a review of the ocular evidence produced by the prosecution
 keeping in view the submission made by learned counsel for the parties, we
 are of opinion that the statements of the witnesses cannot be accepted on
 their face. It is true that the deceased was not found alive but his dead body D
 was found within the jurisdiction of Police-station, Adilabad in Andhra
 Pradesh. Keeping in view that the investigation has been done by the police
 personnel against the police personnel and also keeping in view the previous
 antecedents of the prosecution witnesses and the way they have described
 the beating, it is very difficult to rope in all the 17 accused persons for E
 commission of the crime. In fact, the Police should have properly scrutinized
 the evidence and they could have pinpointed the person who was responsible
 for beating. But unfortunately, the police has not taken enough care to
produce material evidence and pinpoint the person who was alleged to have
been involved in beating the deceased. It is true that the deceased was last
seen in the custody of the Police and thereafter he. was not found alive. F
Though the police has made an attempt to cover up the story by registering
a case under section 224, I.P.C. but that was closed shortly thereafter. Therefore,
in this background to draw inference from these circumstances, the guilt of
the accused is very difficult. We are conscious that there is rise in incidents
of custodial deaths but we cannot completely de hors the evidence and its G
admissibility according to law to convict accused. We cannot act on
presumption merely on a strong suspicion or assumption and presumption.
We can draw only 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.                                                                          H
    744                     SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A           Learned senior counsel for the State, Mr. Shekhar Naphade very fairly
    submitted that despite the strong loopholes in the prosecution case the
    strongest circumstance which stand against the appellants is that the deceased
    was in the custody of the police and that he was last seen alive in the custody
    of the Police. Thereafter, he was not seen alive. Therefore, presumption
    should be drawn of the guilt of the accused. Commission of crime with
B   reference to this type of presumption is perverse. It is true that the accused
     involved are police personnel but we cannot stand to condemn the whole
    police-station juston the basis of only circumstantial evidence of the deceased
     last seen in the custody of the police and thereafter he was not reported alive.
    Apart from this direct shaky evidence, it is very difficult to accept the
C   evidence to connect the dead body with that of the deceased Dilip which
    came to the light after two years i.e. 1989. An attempt was made to connect
    the body of the deceased with that of Dilip, the prosecution led evidence of
    P.W.22 who took the finger prints of the deceased body. P.W.22 took the
    finger prints of the deceased on I 0.11.1987 though he admitted that the prints
    were not visible -and these finger prints were sought to be corroborated with
D   the receipt which was produced by P.W.5 which also bears the finger print
    of the deceased Dilip. For this the prosecution has also led evidence of
    P.W.10, the scribe of the receipt and P.W.11. Both the witnesses turned
    hostile. Consequently, it is very doubtful how could the receipt given to the
    purchaser was with the seller i.e. Dilip which was scribed by P. W. I 0 and it
E   was said to be in possession of P.W.5, the brother of the deceased and the
    explanation was that his mother gave it to him. The thumb impression of Dilip
     in the said receipt was sought to be connected with the finger prints of the
    deceased taken by P.W.22. P.W.22 obtained the same with spoon method of
    right hand thumb impression and left hand thumb impression.ofthe deceased
    which was in highly decomposed condition, dermis and epidermis of fingers
F   were not fouild. Firstly the thumb impression on the receipt was of Dilip has
    not been proved as P. W.10 turned hostile. However, the prosecution tried to
    connect the body of the deceased by leading evidence of handwriting expert,
    P.W.23. P.W.22 was produced by the prosecution to show that he ha_s taken
    the finger prints of the deceased through spoon method and that finger prints
G   had been produced by the prosecution and P.W.23, the handwriting expert
    has been examined. P. W.23 has of course deposed that he has sent his report
    and as per his finding the thumb impression on the receipt and that of the
    dead body taken by P. W.21 are of the same person. But the question is
    whether the finger prints obtained on the receipt on sale of a cow by the
    deceased Di lip bears the thumb impression of Dilip or not. Since P.W. IO has
H   denied that the thumb impression ofDilip was taken in his presence and since
--         SADASHIOMUNDAJI BHALERAOv. STATE OF MAHARASHTRA [A.K. MATHUR,J.] 745

     the receipt produced by the prosecution bearing the thumb impression of A
     deceased Dilip is not proved, therefore, the comparison of the finger prints
     of the deceased with that of the thumb impression is of no consequence.
     More so, the brother of the deceased, Paratya and his wife- Shobha have also
     declined to identify the dead body. Therefore, under these circumstances, the
     prosecution has failed to establish that the dead body was that of the
     deceased, Dilip. As such, this circumstantial evidence is also not of worth B
     that it can connect the accused persons with the commission of the r.rime.

            As a result of our above discussion we are of opinion that the view
      taken by the Division Bench of the High Court in reversing the judgmeat of
      Second Additional Sessions Judge, does not appear to be well founded. C
      Normally, the appellate court is very slow in interfering with the order of
      acquittal unless there are compelling circumstances to do so. After going
      through the judgment of the trial court, we are of opinion that the view taken
      by the trial court appears to be just and proper in the given facts and
      circumstances of the case and it was not proper for the Division Bench of
      the High Court to reverse the finding. We are satisfied that the reasons given D
      by the High Court in reversing the order of acquittal of the accused persons
      are not cogent and does not appeal to the reason so as to justify the
     conviction of the appellants. Hence, we allow the appeals filed by the appellants
     and set aside the impugned judgment of the High Court and affirm the
     judgment of the trial court and acquit all accused- appellants from the charges. E
     The appellants shall be released forthwith if they are not required in any other
     case.

     RP.                                                          Appeal allowed.