Amitava Roy, J.
1. The appellants, four service men of the State Police Service have been indicted, tried and convicted for causing the death of one Bhrigu Malakar alias Bibhuti Malakar alias Kere (thereinafter referred to as 'Kere') while in their custody at Malugram outpost/Silchar, Cachar. By the impugned judgment dated 18.8.2001 passed by the learned Additional Session Judge, Cachar, Silchar in Session Case No. 6/97 the appellants in Criminal Appeal Nos. 274/01 and 292/01 have been convicted Under Section 302 IPC and sentenced to Rule 1, for life with a fine of Rs. 1000 each in default to suffer S.I. for one month. They were also convicted Under Section 342 IPC and sentenced to undergo R.I. for one month each. The appellants in criminal Appeal No. 272/01 have been convicted Under Section 304(11) IPC and sentenced to undergo R.I. for a period of 4 years with a fine of Rs. 500 each in default to suffer further S.I. for 15 days.
2. We have heard Mr. J. M. Choudhury, learned Senior Advocate Mr. A. K. Bhattacharjee, learned Senior Advocate, assisted by Mr. P. Katakey and Mr. B. Singh as well as Mr. N. Choudhury, Advocate for the appellants. Mr. P. Bora, learned P. P. Assam appeared on behalf of the State.
3. The case of the prosecution unfolds with the FIR lodged by Sri Biplab Malakar, brother of the deceased 'Kere' on 28.8.1996 with the Officer-in-charge, Silchar (Sadar) P.S. It was alleged therein that Shri Harekrishna Das, Daroga, Silchar, Malugram outpost with his companion police men and officers had arrested 'Kere' in the night on 24.8.1996 and thereafter brought him to the outpost. The informant named the appellants as well as one Shri Subodh Dutta, Constable and Shri Yatin Talukdar, Town Daroga, Silchar (Sadar) P. S. and alleged that they kept his brother at the outpost for 2 days and 2 nights and assaulted him there to death. The FIR disclosed that in the afternoon of 26.8.1996 the body of the deceased was taken to the Silchar Sadar Hospital where he was declared dead.
4. On this FIR Silchar P.S. Case No. 867/96 was registered on 28.8.1996 under Section 302 IPC. The police conducted the Investigation thereafter and eventually laid a charge sheet against the appellants and one Subodh Dutta, constable Under Section 342/302/34 IPC.
5. The case of the prosecution, in short is that at about 2/2.30 a.m. on 24.8.1996/25.8.1996 the accused-appellants along with the Constable Shri Subodh Dutta and other police personnel of Malugram Town outpost apprehended 'Kere' from Larsingpar Sawtaltilla in connection with Silchar P. S. Case No. 398/96 Under Section 333/307 IPC, and was brought to the Malugram T.O.P. at about 4/4.30 a.m. on 25.8.1996 and was detained in the lock up of the Outpost.
The accused-persons thereafter on 25.8.1996 and in the night of 25.8.1996/26.8.1996 from time to time took out the victim from the lock up and with the common intention assaulted him at the outpost which resulted in injuries on his person. When the victim at about 8.30 a.m. on 26.8.1996 complained about pain in the stomach he was sent for medical treatment initially at the Silchar Civil Hospital and thereafter to the Medical College and Hospital at Silchar. On examination 'Kere' was declared to be dead. According to the prosecution 'Kere' died due to the injuries sustained by him as a result of the assaults made on him by the accused persons at the police outpost during 25.8.1996 and 26.8.1996.
6. The case being exclusively triable by the Court of Sessions, the same was committed to the Court of the learned Sessions Judge, Cachar Silchar who on 5.1.1998 framed a charge against the appellants and Shri Subodh Dutta Under Section 302 of the IPC. The charge when read over and explained to the accused persons, they pleaded 'not guilty' and claimed to be tried. The prosecution examined 13 witnesses including the Doctor and the Investigating Officer. A number of documents including the FIR, Post Mortem Report, the sketch map, the statements of witnesses recorded Under Section 164 Cr.PC, etc., were proved by the prosecution. In course of the cross-examination of the prosecution witnesses, the defence also introduced several documents, inter alia, the General Diary and the duty register of the outpost for the relevant time. The statements of the accused-persons were thereafter recorded Under Section 313 Cr.PC and the arguments were heard. In course of the arguments, the prosecution insisted for an amendment of the charge. The learned trial court after hearing the parties extensively on the issue, by order dated 20.2.1999 allowed the prayer. Accordingly, charge was framed against all the accused-persons Under Section 302/34 IPC. In addition, a charge Under Section 342/302 IPC was framed against the appellants in Criminal Appeal No. 274/01 and Criminal Appeal No. 292/01. The prosecution witnesses thereafter were recalled for further cross-examination of whom only one was cross-examined. The statements of the accused persons Under Section 313 Cr.PC were recorded again whereafter one defence witness was examined. Finally the arguments were heard and by the impugned Judgement the accused appellants were convicted add sentenced as referred to above. The accused Subodh Dutta was acquitted. While entertaining the present appeals only the appellants in Criminal Appeal No. 272/01 were granted bail by this Court.
7. The impugned judgment and order has been assailed by the appellants on various counts. As the grounds put forward by the learned counsel for the appellants are mostly with reference to the evidence on record, we consider it apposite, being the final court of facts to place on record the relevant pieces of evidence before embarking upon the rival arguments.
8. The contents of the FIR, Ext. 1 has been set out hereinabove. The informant, Biplab Malakar PW 1 in his evidence stated that 'Kere' was his brother. He was arrested in the mid-night on 24.8.1996 by the Police of the Malugram outpost and was taken to the said outpost. Next morning he was informed by two unknown persons about, his brother's arrest and thereafter he visited the outpost to ascertain the fact. His brother at the outpost requested him to take him out immediately on bail. As that day, i.e., 25. 8.1996 was a Sunday, he assured 'Kere' that steps would be taken with regard to bail on 26.8.1996. On the next day 26.8.1996 the witness was informed by Lutfur Rahman-PW-8 and Salimuddin Borbhuyan-PW-9 that they too had been arrested by the Police on 24.8.1996 and had been taken to the Malugram outpost along with 'Kere'. The witness was informed that on the way to the outpost, his brother was assaulted severely and thereafter for the whole of Sunday. The witness testified that the two persons informed him that the accused appellants along with Subodh Dutta and Yatin Talukdar assaulted 'Kere'. The witness stated that he was also informed about the assaults on that day, by one Rahul Malakar and that he had seen Yatin Talukdar and accused Subodh Dutta assaulting 'Kere'. The witness thereafter along with his father went to the outpost at about 9/10 a.m. on 26.8.1996 and came to know that 'Kere' had been taken to the Silchar Civil Hospital. They thereafter rushed to the Civil Hospital where they were told that 'Kere' had been removed to the Silchar Medical College and Hospital. At 2/2.30 P.M. On the same day, the informant was told that Kere had expired. He thereafter contacted his Advocate for taking steps for Post Mortem Examination of the body by a Medical Board and for preservation of his viscera for chemical examination. An FIR was thereafter lodged on 28.8.1996. In course of the cross examination, the witness stated that he had not personally seen the assaults on his brother. He admitted that in the FIR he did not mention the source from which he had obtained the names of the accused persons. He reiterated that Lutfur Rahman and Salim had informed him about the assaults at about 8/ 8.30 a.m. on 25.8.1996 at the Madhura Ferry Ghat. He denied the suggestion that he had not stated before the police that Lutfur and Salim had told him the names of the accused persons and that they had assaulted his brother. He also denied the suggestion that he had stated before the police that on 25.8.1996 at 9 a.m. he saw his brother well in the police outpost.
9. PW 2 is Rahul Malakar. He stated on oath that on the night of 25.8.1996 while he was returning from his aunts place at about 10 p.m. he heard cries inside the outpost and saw 'Kere' being assaulted by subodh Dutta and Yatin Talukdar with gollas in a room near the lock up. In cross examination the witness stated that the room had no curtain. He denied the suggestion that he had stated to the police that there were curtains on the windows of the room of the incharge. He also denied the suggestion that he did not state before the Magistrate or the police that 'Kere' was assaulted in the adjacent room of the lock up.
10. Nazim Uddin PW 3 testified that at about 8/9 p.m. on 24.8.1996 he was arrested by Harekrishna Das Incharge of Malugram outpost and Jyotirmoy Choudhury and 2/3 police personnel and was brought to the outpost. He was detained there till he was forwarded to the Sadar Thana next day, i.e., on 25.8.1996 at about 10 p.m. He stated that after his arrest the incharge and Jyotirmoy Choudhury along with other police personnel again went for a raid in the night, on 24.8.1996 and at about 2/3 a.m., they brought 'Kere' and 2 other persons under arrest and put them in the lock up. He stated that sometime thereafter 'Kere' was brought out from lock up by Harekrishna and Jyotirmoy and two other constables and was assaulted by them by laying him on the flour. The two constables assaulted 'Kere' on his feet and the accused Alok Deb Roy was one of them. The accused Jyotirmoy pressed the fact and navel portion of the body of 'Kere' with his feet and thereafter put him back in the lock up. When 'Kere' asked for water, his mouth was opened by accused Jyotirmoy with his stick and he asked the constable to urinate in his mouth and the constable did so. The witness further stated that on the next day, i.e., 25.8.1996 'Kere' was again brought out from the lock up at about 9/10.30 p.m. and Harekrishna, Jyotirmoy, Alok and Sukhamoy assaulted him. There was a bag of paddy in the outpost from which some paddy was brought out by Subodh and placed on the navel portion of 'Kere' and thereafter Harekrishna, Jyotirmoy, Alok and Sukhamoy pressed the abdomen of 'Kere' with their heels one after another. They also assaulted 'Kere' as they liked and knocked his head against the walls 'Kere' was thereafter made naked by Jyotirmoy and Harekrishna and pushed a lathi inside his rectum. As the condition of 'Kere' became serious, they dragged him inside the lock up. They asked the witness to lift 'Kere' who was lying on the floor. Harekrishna again kicked 'Kere' and thereafter left the outpost instructing Jyotirmoy to finish 'Kere'. The witness stated that soon thereafter he was forwarded to the Silchar Sadar Police Station. In his cross examination, the witness stated initially that there was one lock up in the outpost, butiater on testified that there were two lock ups. He stated that after 2 days of the occurrence, his statement was recorded by the Magistrate. He deposed that when the Police Officer examined him in Jail, he did state the name of Sukhamoy as he did not know his name then. The witness was extensively confronted with the police statements pointing out the omissions on his part to mention about the sequence and details of the assaults by the accused persons as stated on oath. The witness, however, denied the suggestion made on behalf of the defence with regard to omissions in the police statement.
11. N. K. Abdul Matlib, a constable of the outpost who was present at the relevant time and examined as PW 4 stated that on 24.8.1996 he accompanied incharge Harekrishna and Anil Choudhury, ASI Jyotirmoy Choudhury and the police party went to Saotal tilla at Dudpatil and conducted raid in two houses, in course of the raid, 'Kere' was arrested. His hands were tied on the back. On the way to the outpost two other persons were also arrested. All of them were brought to Malugram outpost at about 4 a.m. and thereafter he left for home. He stated that on the following day 25.8.1996 he was detailed for patrolling duty which was however cancelled subsequently and about 10.30 p.m. he was informed by the incharge Harekrishna and Subodh that he was detailed for lock up duty with Sanjib Roy, constable. At 2 a.m. in the night, ASI Jyotirmoy Choudhury came to the outpost and asked Sanjib Roy to bring out 'Kere' from the lock up. Jyotirmoy told them that he had been advised by Harekrishna to record the statement of the accused, 'Kere' was thereafter taken out from the lock up and taken to the room of Incharge with handcuffs. After putting some questions 'Kere' was assaulted by Jyotirmoy with a lathi along with sukhamoy, and Alok. Alok and Sukhamoy pressed the hands of 'Kere' with their feet and Jyotirmoy with his feet pressed the navel portion of 'Kere'. Jyotirmoy also assaulted 'Kere' with a lathi. On hearing the cries, the witness and Sanjib went there. The witness left the outpost at 8 am next day after handing over charge. He proved his statement before the Magistrate as Exta 3. In the cross-examination. The witness stated that whenever any instruction is given by the Incharge, it is entered in the General Diary. After the arrest of a person a G. D. entry is made and an entry is also made after he is put in the lock up. He stated that when an accused is put in a lock up, without the order of the incharge, he cannot be brought out and any such order is to be recorded in the General Diary with the time thereof. He deposed that when 'Kere' was arrested, the accused Harekrishna was the incharge of the outpost. According to him on 25.8.1996 he had come to the top at 8 p.m. and left for home at 11 p.m. for taking meal. He stated that at 2 a.m. of 25.8.1996/26.8.1996 no other police personnel except Sanjib Roy and he were present at the time of assaults on 'Kere'. In the cross examination the witness testified that after the roll call on Sunday, he left for his home at 8.30 p.m. and at that time the accused persons along with others were present in the outpost. He however stated that till then he had not seen any assault on 'Kere'. He stated that between 10.30 pm to 8 a.m of 25/26.8.1996 he did not see Harekrishna at the outpost. He deposed that from the room of-the incharge the lock up was not visible.
12. Sanjib Roy, PW 5 is another constable of the outpost. He stated that in the night on 24.8.1996 at about 11.30pm/12 mid-night, he along with incharge Harekrishna Das, constable NK Abdul Matlib Laskar, ASI Jyotirmoy Choudhury and others visited Dudpatil-Saotaltilla and in course of the raid 'Kere' was apprehended. On the way to the outpost, 2 other persons were also arrested. The party reached the outpost at 4 a.m. and thereafter the witness left for his quarter. On the same day 25.8.1996 he reported at the outpost for duty. As his reliever did not arrive he was asked to continue. Constable NK Abdul Matlib Laskar was attached with him as sentry guard at the out post. At about 8.45 p.m. Harekrishna asked the witness to bring out 'Kere' from the lock up. Then ASI Jyotirmoy was also present. Sometime thereafter, the witness was asked to take 'Kere' back to the lock up. At about 9.30 p.m. Harekrishna Das entered the lock up and assaulted 'Kere' with a lathi. The incharge left the outpost at 10 p.m. with the instruction not to give the key of the lock up to any police officer other than the staff of the outpost. At about 2 a.m. of 26.8.1996 Jyotirmoy Choudhury along with constables Alok and sukhamoy came to the outpost and demanded the keys of the lock up. Jyotirmoy thereafter asked the witness to bring out 'Kere' from the lock up to the room of the incharge, which was done. After about 10 to 15 minutes cries of 'Kere' were heard. The witness along with Abdul Matlib Laskar then Went inside the room and found Jyotirmoy pressing the abdomen of 'Kere' with his foot and the constable Alok and Sukhamoy pressing the two hands of 'Kere' with their feet. Jyotirmoy also assaulted 'Kere'. 'Kere' was thereafter put back in the lock up. The witness handed over the charge at 8 a.m. next morning. In the cross examination the witness stated that at 12 noon on Sunday the Officer-incharge of the Silchar P.S. and the Deputy Superintendent of Police. H.Q. visited the outpost and interrogated 'Kere'. He denied the suggestion that he did not state before the Magistrate that Alok and Sukhamoy had pressed the two hands of 'Kere' while he was assaulted.
13. PW 6 Sri Harendra Ch Das was also a constable attached to the outpost at the relevant time. He stated on oath that on 24.8.1996 the Incharge of the outpost was Harekrishna and he along with Jyotirmoy Choudhury, the incharge and others in the night of 24.8.1996 conducted a raid and arrested 'Kere' from a house. The hands of Kere were tied and thereafter brought to the outpost. Two more persons were also arrested. The party reached the outpost at 4.30 a.m. and 'Kere' was put in the lock up. The witness thereafter left for his quarter only to return in the evening and was at the outpost upto 9/10 p.m. He thereafter left for patrolling duty along with Jyotirmoy Choudhury and constable Sukhamoy Barman and on completion of the patrolling duty at 1.30/2.00 a.m. they returned to their respective quarters. This witness was declared hostile by the prosecution and was cross examined with reference to his police statement, in which he substantially narrated the facts as deposed by him on oath in course of the trial. He confirmed that 10/10.30 p.m. on Sunday night Nazim Uddin, PW 3 was forwarded to the Silchar Sadar P. S. He denied of having seen assault on 'Kere' by anybody in the lock up. He testified that the room of the incharge was not visible from the lock up and that during his stay at the outpost in the evening upto 10.30 p.m. on 25.8.1996, he did not see Harekrishna entering the lock up and assaulting 'Kere'. He also stated that during that time he did not hear any sound of assault or Screaming from inside the room of in-charge.
14. PW 7 Sri Anil Choudhury is another constable of the outpost. He confirmed that on 24.8.1996 in the night, he along with the incharge Harekrishna, ASI Jyotirmoy Choudhury and others went on a raid and arrested 'Kere'. On their way back to the outpost 'Kere' fell down from a tilla as his hands were tied. 'Kere' was brought to the outpost at 4/5 a.m. on 25.8.1996. The witness thereafter returned to his quarter. This witness was not declared hostile by the prosecution. In cross examination, the witness stated that incase an accused is brought out from the lock up for the purpose of interrogation a G.D. entry to the said effect has to be made. He proved the application Ext-A filed by Incharge Harekrishna before the Officer-in charge, silchar P.S. praying for registering a U.D. case on the death of 'Kere'. The witness deposed that in the outpost there were two lock ups-one meant for males and the other for females. He stated that from the lock up the room of the Incharge though can be seen nothing inside is visible.
15. PW 8, Lutfur Rahman who claims to be a eyewitness to the assault made on the deceased in the night on 24.8.1996 stated that in August 1996, one night at about 2 a.m. he was apprehended by police and at the same time 'Kere' was also arrested. The witness found him with his hands and legs tied. He stated that the Sub-inspector of Police and other police personnel assaulted 'Kere'. On the way, PW 9, Salimuddin Borbhuyan was also arrested. All of them were boarded in a Motor boat and there also S. I. Harekrishna and other constables assaulted 'Kere'. After reaching the outpost S. I. Harekrishna gave a kick to 'Kere'. Other constables along with ASI Joytirmoy Choudhury also assaulted 'Kere'. When 'Kere' asked for water, one constable, at the instance, of Harekrishna urinated in 'keres' mouth which was kept open by a lathi by the S. I. 'Kere' became senseless. The witness stated that there after he and Salimuddin PW 9 were released- In cross examination, he stated that he did not name any accused before the I. 0. except Harekrishna. He denied the suggestion that he did not state before the Magistrate that 'Kere' wanted water and the S. I. put a lathi in his mouth.
16. PW 9, Salimuddin Borbhuyan stated that in one night of August 1996 he was arrested by the police and when taken to the road, he found Lutfur and Kere. The latter was tied with a rope. They were taken on a Motor Launch where Harekrishna and Jyotirmoy along with the constables assaulted 'Kere'. On reaching the outpost 'Kere' was kicked by Harekrishna and other constables also assaulted him. When 'Kere' asked for drinking water a constable urinated in his mouth. The witness stated that at that time Nazim Uddin Laskar, PW 3 was also present in the lock up. The witness and PW 8, Lutfur Rahman were released at 2 p.m. on that day. In cross-examination he denied the suggestion that he did not state the name of Jyotirmoy before the I.O. to have assaulted 'Kere'. He further stated that there were many constables at the police outpost but all of them did not assault 'Kere'.
17. PW 10, Samsul Haque Laskar is the driver of the Autorickshaw in which 'Kere' was carried to the Silchar Civil Hospital on 26.8.1996 at about 10.30 a.m. He stated that on that day two constables put a person in his Autorickshaw and took him to the silchar Civil Hospital from there the person was taken to the Silchar Medical College. On reaching the Hospital, the person was carried inside the hospital in a trolley. After sometime the person was brought back. The witness then refused to carry the person as he was dead. He stated that he had seen injury over the navel area of the body of the deceased.
18. PW 11, Dr. K. K. Chakraborty had performed the autopsy on the dead body of 'Kere'. He stated that the Post Mortem Examination was done at 4.30 p.m. on 26.8.1996. In course of which he found the following injuries :
"1. Abrasion over the right side of the forearm on an area of 5 x 4 cm.
2. Abrasion over the right of the face in zygomatic area measuring 4 x 2.5 cm.
3. Abrasion on the right side of face measuring 2 x 1/2 on.
4. Abrasion below the angle of nondible right side 1 x 1/1 on.
5. Abrasion on the chin of right side 2.5 x 1 on.
6. Abrasion on the middle of the chin 1 1/2 x 1/2 on.
7. Abrasion on the left side of the chin 1 1/2 x 1/2 on.
8. Abrasion on the middle of the right arm laterally 4 x 1 cm.
9. Abrasions on the right fore arm in lower half laterally an area of 3.5 x 3 cm.
10. Abrasions on the right wrist, laterally over an area of 2 x 2.5 cm.
11. Abrasions on the right wrist medially over an area of 4.5 x 3.5 cm.
12. Abrasions on the right elbow over an area of 7 x 5 on.
13. Abrasions on the right iliac crest in frong and mid half measuring 2 x 11/2 cm.
14. Abrasions on the right thigh laterally in upper half measuring 1 x 1 on.
15. Contusion under the skin of the whole right fore arm.
16. Abrasion on the right leg upper half and in front 6 x 2 on with contusion of the whole right leg.
17. Lacerated injury base of right great too-1.5 x 1 cm and right middle toe the nail was missing which was fresh with contusion over the toes over an area of 6 x 3 1/1 cm.
18. Contusion on the left leg upper half in front 1 x 1/2 cm.
19. Contusion on the left leg middle half medically 1/2 x 2 cm.
20. Contusion in left leg in front and in lower half 4 x 2 cm.
21. Contusion on the left knee in front 1 x 1/2 cm.
22. Abrasion on the left knee medically 2 1/2 x 1/2 cm.
23. Contusion on the left flential region in upper half 4 x 1 cm. Multiple abrasions on the left gloutial region over an area of 8 x 5 cm.
24. Contusion on the middle of gieutial region (left) measuring 5 x 1 cm.
25. Contusion on back of left thigh measuring 10 x 6.5 cm.
26. Abrasion on the left ankle laterally 3 x 1 cm.
27. Lacerated injury on the left great toe 2 x 1/2 x 1/2 cm.
28. Contusion on the whole of the dorsun of right foot with haematoma.
29. Contusion on the left sole of left foot in all the areas.
30. Contusion on the dorsum of the whole left foot with haematoma.
31. Contusion on the left elbow laterally over an area of 5 x 4 cm.
32. Abrasion on the left fore-arm lower half over an area of 10 cm x 6 cm.
33. Abrasions on the dorsum of left hand over an area 5 x 4 cm with contusion.
34. Abrasions on the bas of left little finger, ring finger, middle finger and index finger measuring 1/2 x 1/2 cm, 1 1/2 x 1/2 cm, 1 1/2 x 1/2 cm, and 2 1/2 x 1/2 cm respectively.
35. Abrasion with contusion over the anterior abdominal wall around the umbilicus over an area of 11 x 9 cm.
36. Abrasion with contusion on the left side upper abdomen 7 x 1/4 cm.
37. Abrasion with contusion on the right scapular region 7 x 4 cm.
38. Abrasion on the middle of the chest wall in back in between the two scapulars measuring 6 x 2 cm.
39. Multiple abrasions on the left scapular region measuring 11 x 7 cm.
40. Abrasion with contusion on the right floutial upper half measuring 6 x 6 cm.
41. Multiple abrasions on the back of the lower part of thorasic vertebras and upper part of the lumber vertobras measuring 10 x 5 cm. Abrasions are all varying colour from red to reddish brown, contusions are all blue colour. All the injuries are about 1 to 2 days old caused by blunt object and ante mortem."
19. The witness further stated that the viscera was preserved on 27.8.1996 and at the time of submitting the post mortem report he did not give any opinion. A Medical Board was constituted as per the order of the learned Chief Judl. Magistrate, Silchar to render the opinion regarding the cause of death of the deceased, of which, the witness was a member. The Board opined that the death occurred due to shock resulting from the injuries sustained which were ante mortem. The witness proved the post mortem report Ext. 6 and the option of the Board Ext. 7. In course of the cross-examination the Doctor stated that the injuries were of varying colours and 1 to 2 days old. He deposed that there was no external haemorrhage and that it was not possible to rule out that some of the injuries might have been caused by fall. He testified that individually all the injuries were simple and none of the injuries by itself was sufficient or likely to cause death. He stated that the shock developed as a result of the effect of all the injuries. He indicated that varying colours of injuries show that the injuries were inflicted at different points of time.
20. Sri Shymal Kanti Deb who was posted as A.D.M. on 26.8.1996 was examined as PW 12. He had performed the inquest upon the dead body at the silchar Medical College Mortuary at about 3.30 p.m. on 26.8.96. He proved the inquest report Ext 9.
21. The Investigating Officer has been examined as PW 13 (Samiran Kanta Nath). He stated that on 29.8.1996 he received an order from the Superintendent of Police, Cachar is to investigate the case. He visited the place of occurrence and recorded the statements of witnesses. He also forwarded about 10 persons for recording their statements Under Section 164 Cr.PC by the Magistrate. As the post mortem report did not reveal any specific cause of death, the witness sent the viscera to the F.S.L. for scientific examination and report. He proved the report as Ext. 10 which did not disclose any positive test of common poisoning. He seized the General Diary of Malugram outpost for the relevant period vide seizure list Ext-11. He also prepared a ske.tch map Ext. 12. On the completion of investigation he laid a charge sheet against the accused persons Under Section 302/342/34 IPC.
22. The witness stated that accused Harekrishna was arrested by him on 1.9.1996 from Silchar Police Station. He referred to the General Diary Entry No. 629 dated 24.8.1996 and G.D. Entry No. 652 dated 25.8.1996 relating to arrest of Nazim Uddin Laskar and despatch to the Silchar P. S. respectively. He deposed that whenever a person is arrested and brought to the TOP and whenever any person is put into the lock up and taken out there from entries are to be made in the General Diary to that effect. He proved the G.D. of the outpost for the period 14.8.1996 to 28.8.1996 as Ext. B. He admitted that the General Diary did not contain any entry showing that Lutfur Rahman and Salim Uddin Barbhuyan were arrested or brought to the outpost and kept in the lock up on 24.8.1996 or 25.8.1996. He stated that the General Diary Entry No. 656 dated 26.8.1996 indicated that ASI Harendra Chandra Das, PW 6 had returned to the outpost at 4 a.m. on 26.8.1996 after performing night; patrol duty. The witness proved the duty register of the outpost for the period 2.7.1996 to 12.11.1996 as Ext. C and stated that the pages containing the entries of 25.8.1996 and 26.8.1996 were torn. The witness proved General Diary Entry No. 649 Ext. B(2). According to which Abdul Matlib Laskar, PW 4 was entrusted lock up duty. He also proved G.D. Entry No. 645 dated 25.8.1996 Ext. B(4) from which it appears that the Deputy Superintendent of Police, H.Q. and O/C Silchar P.S. had arrived at the outpost at 12 noon on 25.8.1996 and interrogated 'Kere' in connection with Silchar P.S. Case No. 398/96 Under Section 333/307 IPC. The witness admitted that there was no entry in the General Diary to the effect that 'Kere' was taken out from the lock up from 2 p.m. on 25.8.1996 to 5 a.m of 26.8.1996. He stated that the office room and the lock up in the outpost were contiguous. He stated that there was no entry in the General Diary from 2 p.m. of 25.8.1996 to 5 a.m. of 26.8.1996 in respect of any untoward incident in the outpost.
23. With reference to the case diary the witness stated that PW 1 Biplab Malakar did not state before him that he came to know of the names of accused, persons from Lutfur and Salim and that they, (accused) assaulted 'Kere'. He also stated that PW 2 Rahul Malakar did not state before him that 'Kere' was assaulted in the adjacent room of the lock up. He also confirmed that PW 3, Nazim Uddin did not state before him the names of Jyotirmoy and Alok and that Jyotirmoy asked a police constable to urinate in the mouth of 'Kere'. He also testified that PW 3 did not state before him about the placing of paddy on the navel of 'Kere' and assault on him by the accused appellants by their heels on his abdomen. He also pointed out that PW 3 did not state before him that Jyotirmoy made 'Kere' naked and pushed a lathi through his rectum and Harekrishna instructed Jyotirmoy to send him (PW 3) to Silchar P.S. and directed Jyotirmoy to finish 'Kere'. PW 3 further did not state before him that 'Kere' was brought out from the lock up between 9 p.m. to 10.30 p.m. He also did not state that Harekrishna started assaulting 'Kere' on Saturday after he was brought to the outpost till 8.15 p.m. on Sunday. The Investigating Officer further stated that PW 5 Sanjib Roy did not state to him that he (PW 5) entered the room of the I/C 10 to 15 minutes after hearing the cries of 'Kere'. He further stated that PW 9 Salim Uddin did not state before him the name of Jyotirmoy to have assaulted 'Kere'.
24. In cross examination, the witness further stated that PW 2 Rahul Malakar had stated before him that there were curtains on the windows of the Incharge's room. He proved the Entry dated 24.8.1996 in the G.D., Ext. B(9) showing that constable Kuru Mia and Sukhamoy Barman were on sentry duty from 8 a.m on 24.8.1996 to 8 a.m. of 25.8.1996. He also proved the G.D. Entry No. 638 dated 25.8.1996 Ext. B(11) which indicated that 'Kere' while being taken to the outpost after the arrest had fallen down from a tilla.
25. The defence examined Kuru Mia DW 1, a constable of the outpost. The said witness stated that on 24.8.1996 he was posted at the outpost and SI, Harekrishna Das was the Incharge thereof. He deposed that on 25,8.1996 at about 4/5 a.m. 'Kere' was brought to the outpost as an accused. The incharge Harekrishna Das instructed him to put 'Kere' in the lock up after making necessary search. The witness stated that he was released from duty at 10 a.m. on that day and that during his stay no police official including accused Harekrishna Das assaulted 'Kere'. In cross examination, this witness stated that while searching the body of 'Kere' he did not notice any mark of injury.
26. In course of the statements made by the accused-appellants Under Section 313 Cr.PC they admitted that in the wee hours of 24.8.1996/25.8.1996 'Kere' was arrested and was lodged in the lock up of the Malugram outpost. They, however, denied the allegations of assault made by the witnesses for the prosecution.
27. It is in the backdrop of this evidence that the arguments advanced by the learned counsel for the parties, will have to be weighed. Mr. Bhattacharjee learned senior counsel appearing for the appellant, Jyotirmoy Choudhury argued that the prosecution had totally failed to prove the charges and the omissions and inconsistences in the evidence of the prosecution witnesses have totally destroyed the substratum thereof rendering it wholly untrustworthy and therefore, the impugned judgment and order of conviction is patently illegal and not sustainable in law as well as on facts. He urged that the prosecution witnesses have put forward two versions-one by the detenues in the lock up and the other by the constables present at the outpost, our version mutilating the other. So far as appellant Jyotirmoy Choudhury is concerned, the learned senior counsel argued that the contemporaneous official records, namely, the relevant G.D. Entry and the Duty Register of the outpost clearly established that at the relevant time, he was on patrol duty and therefore the charge against him was ex facie, baseless. The General Diary Ext. B does not contain the relevant entries supporting the allegations made by the prosecution. Had the Same been true, Mr. Bhattacharjee argued, as required under Section 53 of the Police Manual, Chapter-V, Vol. 1 the facts relating thereto would have been duly entered in the General Diary. Moreover, the payee for the relevant period of the duty register of the outpost for the dates 25.8.1996 and 26.8.1996 are found torn, thus rendering the prosecution case highly doubtful. The learned senior counsel was severely critical about the omission on the part of the prosecution to prove the relevant entries in the General Diary as well as other contemporaneous record to establish beyond doubt that the witnesses claiming to be present at the outpost as detenues were in fact arrested and kept in the lock up at the relevant time, as well as the vital facts pertaining to their interrogation and release, detailment of police personnel at the lock up, period of their shift duties interrogation and physical condition of the victim 'Kere' etc. According to him, the failure on the part of the prosecution to establish the above facts on the basis of official records, cuts at the root at the prosecution case, having regard to the alleged place of occurrence and the allegations levelled against the appellants. He contended that in the instant case, the arrest and detention of 'Kere' though not denied, his death cannot bead to the irresistible inference that he was assaulted to death by the appellants as charged by the prosecution. While admitting that the offence if proved is serious, Mr. Bhattacharjee urged that the prosecution in order to succeed has to establish the charge beyond all reasonable doubt. Apart from the fact that the evidence of the prosecution witnesses was wholly unreliable in view of the vital omissions therein vis-a-vis their statements before the police. In course of the investigation, the statements of the witnesses, PW 2, PW 4, PW 5 and PW 9 recorded Under Section 164 Cr.PC were also not of any assistance to the prosecution, in as much as, the learned Magistrate recording the same was not examined at the trial thus denying the defence an opportunity of cross examining him and proving the contradictions, he argued.
28. With reference to the witnesses, Mr. Bhattacharjee argued that PW 1, the informant was not an eye-witness and his version about the incident which he claims to have learnt from PWs. 8 and 9 being hearsay in nature is not admissible in law.
He pointed out that though PW 1 claimed to have come to know of the incident of assault from PWs 8 and 9 he did not mention anything about the same in the FIR. In his evidence as well, he did not mention that 'Kere' had complained to him about any assault being made in the lock up when the witness met him in the morning of 25.8.1996, Branding PW 2, to be at the most a chance witness, it was argued that he only implicated Subodh Dutta and Jatin Talukdar and not the appellants. The witness also did not state that he informed PW 1 about the said incident. According to the learned senior counsel, therefore, this witness is not reliable. Mr. Bhattacharjee has questioned the presence of PW 3 in the lock up contending that no official record has been produced to the said effect. He further rejected the evidence of the said witness as unworthy of any credit as his evidence suffers from serious omissions and contradictions when compared to the statements made before the Investigating Officer, The learned senior counsel criticised the evidence of PWs 4 and 5, two constables who claimed to be at the outpost at the relevant time contending that their versions with regard to assault on the 'Kere' by the appellants being not borne out by the General Diary Entries, the same cannot provide the basis for convicting the appellants in absence of other contemporaneous official records supporting their versions and in face of the evidence of PWs 6 and 7 to the contrary. Referring to the evidence of PWs 6 and 7, the learned senior counsel argued that these witnesses did not support the case of the prosecution and though PW 6 was declared to be hostile, PW 7 was not. He submitted that the evidence of PW 6 though a hostile witness could not be discarded as the same stood corroborated by the evidence of PW 7 and DW 1 which totally demolished the prosecution case. According to him, the evidence of PWs 8 and 9 who claimed to be detenues at the outpost was also not reliable in view of the omission, on the part of the prosecution to prove the relevant facts with regard to their arrest and detention on the basis of official records. Turning to the medical evidence Mr. Bhattacharjee urged that as per the opinion of the Doctor none of the injuries individually was sufficient to cause death and in absence of any direct evidence as to who had inflicted the injury immediately before the death. It was not permissible to convict the appellants in absence of Section 34 IPC. According to him, having regard to the nature of injuries sustained by 'Kere' even if, the evidence of the prosecution witnesses is accepted, the appellants can at the most be convicted Under Section 323 IPC as from the nature of the injuries it could not be said that the person inflicting the same had the intention to cause death or to cause an injury likely to result in death. He argued that even if the prosecution case is accepted, the assaults on 'Kere' were not made by all the appellants at a time and therefore to convict them, evidence of common intention is indispensible which is lacking, There being no evidence on record linking the appellants with any particular injury, Mr. Bhattacharjee argued that the conviction of the appellants without the aid of Section 34 IPC is unsustainable in law. Extensively referring to the evidence of the investigation officer PW 13, more particularly the statements of the prosecution witnesses recorded Under Section 161 Cr.PC, Mr. Bhattacharjee forcefully contended that the evidence of the prosecution witnesses in support of the charge is wholly unreliable as the same is fraught with gross omissions, inconsistencies and contradictions. On the other hand, the version of the defence witness DW 1 is in tune that the evidence of PWs 6 and 7 corroborating each other. According to him, therefore, the prosecution story does not inspire confidence and in view of state of evidence on record the appellants ought not to have been convicted. He argued that it was not the case of the prosecution that the entries in the General Diary had been manipulated by the defence or the relevant pages of the duty register have been torn at the instance of the accused persons and, therefore, the omissions in the General Diary and tampering of the duty register should be construed in favour of the defence. He further contended in the present case that the appellant Jyotirmoy being a Government Servant, on his conviction he would face double jeopardy, inasmuch as, not only would he lose his service but also will have to suffer incarceration resulting in loss of personal liberty and hence the evidence on record has to be viewed with objectivity and conviction is to be recorded only if the Court is satisfied that the case of the prosecution 'must be true'. The learned senior counsel in support of his submissions placed reliance on the following decisions :
1. AIR 1972 SC1899 : Pabitar Singh, Appellant v. The State of Bihar, Respondent.
2. AIR 1953 SC 415 : Mohinder Singh, S/o. Inder Singh, Appellant v. The State, Respondent.
3. AIR 1957 SC 614 ; Vadlvelu Thevar, Appellant v. The State of Madras, Respondent.
4. AIR 1957 SC 637 : Sarwan Singh, Rattan Singh, Appellant v. State of Punjab, Respondent.
5. (1973) 2 SCC 793 : Shivaji Sahabrao Bobade and Anr., Petitioners v. State of Maharashtra, Respondent.
6. (1973) 2 SCC 808 : Kali Ram, Appellant v. State of Himachal Pradesh, Respondent.
7. AIR 1976 SC 2263 : Lakshmi Singh and Ors. etc., Appellants v. State'of Bihar, Respondent.
8. 2003 2 SCC 401: Lallu Manjhi and Anr., Appellant v. State of Jharkhand, Respondent.
9. AIR 1977 SC 170 (Paras 6, 7 and 27) : Rabindra Kr Dey. Appl. v. State of Orissa, Respondent.
10. AIR 1977 SC 170 (Paras 10, 11 and 12) : Rabindra Kr. Dey. Appl. v. State of Orissa, Respondent.
11. AIR 1976 SC 202 (Para 8) : Bhagwan Singh, Appellant v. The State of Haryana, Respondent.
12. AIR 1976 SC 294 (Paras 37, 43 and 51) ; Sat Paul, Appellant v. Delhi Administration, Respondent.
13. AIR 1979 SC 1848 (Paras 12 and 13) : Syad Akbar, Appellant v, State of Karnataka, Respondent.
14. (1996) 10 SCC 360 (Para 7) : State of U.P, Appellant v. Ramesh Prasad Misra and Anr., Respondents.
15. (2002) 7 SCC 543 (Para 14) : Balu Sonba Shinde, Appellant v. State of Maharashtra, Respondent.
16. AIR 1975 SC 1400 : Jagir Singh, Appellant v. The State (Delhi Administration), Respondent.
17. 2003 Cri. LJ 21 (Para 8) : Sarwan Singh, Appellant v. State of Punjab, Respondent.
18. AIR 2002 SC 3652 (Para 8) : Sarwan Singh, Appellant v. State of Punjab, Respondent.
19. AIR 1978 SC 1506 : Sadhu Singh, Appellant v. State of Uttar . Pradesh, Respondent.
20. (1976) 3 SCC 629 : Subhash and Anr., Appellant v. State of U.P., Respondent.
21. AIR 1981 SC911 : Dudh Nath Pandey, Appellant v. State of U.P., Respondent.
22. (2002) 2 SCC 426 : State of Haryana, Appellant v. Ram Singh, Respondent.
23. (1971) 2 SCC 611 (Paras 12 and 14) : Gian Mahtani and Anr., Appl. v. State of Maharashtra and Anr., Respondent.
24. AIR 1974 SC 308 (Paras 16, 17, 8, 9, 10, 11) : Laxman and Ors., Appl. v. State of Maharashtra, Respondent.
25. AIR 1974 SC 344 (Paras 9, 10, 11) : Harichand Singh and ano., Appellant v. State of Haryana, Respondent.
29. Mr. Choudhury, learned senior counsel for the appellants, Harekrishna Das argued that the evidence on record if viewed as a whole, did not justify the conviction of the appellant. According to him, the evidence of the prosecution witnesses when placed in juxtaposition with each other made the prosecution case unacceptable. He argued that the evidence of PW 2 did not implicate appellant Harekrishna. Though PW 3 implicated him, his evidence was demolished by the PWs 6 and 7. Mr. Choudhury, pointed out that on the day next to his arrest, PW 1 had met 'Kere', but no complaint was made about any assault on him. On the same day the Deputy Superintendent of Police, H.Q. and the Officer-in-charge, Silchar P.S. had visited the outpost for interrogating 'Kere', but no complaint about any assault on him was made to them as well. It was, further, contended that this witness could, not be believed also in view of vital omissions in his statements made before the police, Mr. Choudhury, argued that PWs 4, 5, did not involve the appellant Harekrishna directly. Neither PWs 8 and 9 did say that they had informed PW 1 about the incident nor the PW 1 disclosed about the same in the FIR. The learned senior counsel endorsed the argument of Mr. Bhattacharjee that in absence of contemporaneous records, the presence of the prosecution witnesses posing themselves as detenues at the outpost was wholly doubtful. According to Mr. Choudhury, having regard to the prosecution case that 'Kere' was assaulted at different points of time, the appellant could not have been convicted Under Section 302 IPC, even by applying Section 34 of the Code. The allegations of assault did not attract the applicability of Section 34 IPC in the facts of the case, Mr. Choudhury argued that no case Under Section 302 IPC was made out separately against the appellant Harekrishna as well. He argued that for applicability of Section 34 of the Code there has to be a prior meeting of mind as well as participation in the commission of the offence. As no particular injury had resulted in the death of 'Kere', in absence of any evidence that all the accused persons had participated in inflicting all the injuries, which admittedly were simple in nature, the appellant Harekrishna could not have been convicted Under Section 302 IPC, he argued. Mr. Choudhury also heavily relied on the omissions in the statements made by the prosecution witnesses before the police and urged that the prosecution having totally failed to bring home the charge beyond reasonable doubt, the appellants were entitled to be acquitted.
30. Mr. Bora, learned Public Prosecutor, Assam in reply has argued that the conviction and sentences have been rightly recorded by the learned court below oh a correct appreciation of the evidence on record and the same does not call for any interference by this court. He submitted, that the arrest, detention and death of 'Kere' are admitted. It is also not disputed that as many as 42 injuries were found on the body of the deceased. Admittedly, 'Kere' was in the lock up of the outpost from 24.8.1996 to 26.8.1996 till he was removed to the hospital where he was declared dead. The evidence of the Doctor clearly indicates that the death of 'Kere' was due to shock resulting from the injuries sustained by him one or two days prior to his death. The learned Public Prosecutor, therefore, argued that in view of the above facts appellant Harekrishna being the Incharge of the outpost has to be fixed with the responsibility of the death of 'Kere'. According to him, there is no reason whatsoever to disbelieve the evidence of the prosecution witnesses in support of the charge, more particularly that of the evidence of PWs 3, 4 and 5. He submitted that the appellant Harekrishna was arrested only on 1.9.1996 as he was absconding and his said conduct indicated his culpable state of mind. Mr. Bora, has, therefore, argued that the setting in which the gruesome offence was committed suggested that the omissions in the General Diary were deliberately made and the relevant pages of the duty register were removed by the accused persons to suit their defence. He argued that the evidence has to be assessed by the standard of a reasonable man of ordinary prudence and the accused appellants must not be favoured with lingering suspicions and fanciful doubts. He submitted that as the case in hand is one of custodial death, the conclusion on the basis of the admitted facts must be against the accused appellants and, therefore, there is no reason whatsoever to interfere with their conviction and sentence. He relied on the following decisions in support of his arguments.
(1992) 3 SCO 249 : Bhagwan Singh and Anr., Appellants v. State of Punjab, respondents,
(1995) 4 SCC 262 : State of M.P., appellant v. Shyamsunder Trivedi and Ors., respondents.
AIR 1995 SC 1941 : Anup Singh and Ors., appellants v. State of Himachal Pradesh, respondent.
AIR 1980 SC 1087 : Raghubir Singh, petitioner v. State of Haryana, respondent.
31. The gist of the arguments advanced on behalf the appellants can be paraphrased as hereunder.
(1) The prosecution case is not worthy of any credit and is liable to be rejected as :
(i) The prosecution witnesses have contradicted each other on material particulars with regard to alleged assaults made on the victim.
(ii) Presence of PWs 3, 8 and 9 claiming themselves to be the detenues in the outpost at the relevant time is not proved in absence of contemporaneous records to that effect.
(iii) The version provided by the constables PWs 4 and 5 in support of the prosecution case runs counter to the testimony of the other constables PWs 6, 7 and DW 1.
(iv) The evidence of PWs 3, 8 and 9 are in conflict with that of PWs 6, 7 and DW 1 mutilating each other.
(v) The evidence of the prosecution witness at the trial baring that of PWs 6 and 7 suffers from serious omissions and contradictions vis-a-vis their statements before the police Under Section 161 Cr.PC.
(vi) The evidence of PW 6, though declared hostile being consistent with the testimony of PW 7 and DW1 is acceptable in face of the inconsistent and untrustworthy evidence of the other prosecution witnesses.
(vii) Absence of entries in the G.D. of the facts having a baring on the alleged incidents of assault has rendered the prosecution case unacceptable.
(viii) Nature of the injuries found on the body of the victim suggests that no injury individually was sufficient to cause death and in absence of any evidence as to who had inflicted the injury resulting in death conviction Under Section 302/304 is not possible.
(ix) Nature of the injuries on the victim clearly indicate that there was no common intention to cause death.
32. The FIR contains a direct allegation that appellant Harekrishna with his accompanying police men had arrested 'Kere' in the dead of the night of 24.8.1996 and was taken to the Malugram outpost where he was kept detained for two days and two nights. The categorical assertion therein is that he was assaulted thereto death. In his evidence PW 1, the informant confirmed that in the morning of 26.8.1996 he was informed by the PWs 2, 8 and 9 about the assaults made by the appellants on 'Kere' after his arrest and during his detention, PW 2 was categorical in stating that he had seen Subodh Dutta and Jatin Talukdar assaulting 'Kere' in a room near the lock up in the outpost at about 10 pm of 25.8.1996. The evidence of PW 3 who claims to have been detained in the same outpost from the 24.8.1996 till 10 p.m, of 25.8.1996 is to the effect that after 'Kere' was brought to the outpost in the early hours of 25.8.1996, he was assaulted by the appellants, 'Kere' was again assaulted at about 9/10.30 p.m. on 25.8.1996 by the appellants and this was just before the witness was sent off from the outpost. This witness has deposed in details the manner in which the assaults were made. According to this witness, 'Kere' was assaulted by kicks, knocking his head against the wall, pressing his feet, face and the havel portion by heels. He also stated that when 'Kere' wanted water a constable at the instance of the accused Joytirmoy urinated in his mouth and the appellant Harekrishna and Jyotirmoy after stripping 'Kere' pushed a lathi inside his rectum. PW 4 has stated about the incident of assault at 2 a.m. of 26.8.1996 by appellants Jyotirmoy, Sukhamoy and Alok. This witness stated that 'Kere' was assaulted with lathi and thereafter the said appellants pressed his hands and the navel portion with their heels. This witness asserted that at the time of the incident he and PW 5 Sanjib Roy were the only police personnel at the outpost. This witness however did not state anything about the assault at 9.30/10.30 p.m. on 25.8.1996. PW 5, another constable at the outpost stated that at 9.30 p.m. on 25.8.1996 appellant Harekrishna went inside the lock up and assaulted 'Kere' with a lathi. He further deposed that at about 2 am on 26.8.1996 appellant Jyotirmoy, Alok and Sukhamoy assaulted 'Kere' after taking him out from the lock up. Appellant Jyotirmoy. pressed the stomach the victim with one foot and Alok and Sukhamoy passed the two hands of 'Kere' with their feet. This witness however stated that though he had heard the sound of assaults by lathi, he did not see the appellant Harekrishna assaulting 'Kere' at 9.30 p.m. on 25.8.1996. PW 6 did not support the prosecution story. He was declared hostile and was confronted with his police statements. It appears from the said statements that he had stated before the police that at 1.30 a.m. on 26.8.1996 appellant Jyotirmoy, Sukhamoy and Alok had assaulted 'Kere' in the room of the incharge. PW 7 also did not support the prosecution case. Both PWs 6 and 7 stated that the room of the incharge was not visible from the lock up. PW 7, however, was not declared hostile. PW 8 who claims himself to be a detenue at the outpost had deposed about the assaults by the appellants on 'Kere' after he was brought to the police outpost on 24.8.1996/25.8.1996. According to him, the assaults were made by kick and lathis. He also stated that when 'Kere' asked for water, one constable at the instance of Harekrishna urinated in his mouth which was kept open by Harekrishna with a lathi. The evidence of PW 9 is also to be same effect PWs 8 and 9 according to them were released from the lock up at about 2 p.m. on 25.8.1996. DW 1 another constable at the outpost who claims to be posted there from 8 am on 25.8.1996 has denied the incident of assaults on 'Kere' by the appellants or any other police official during the period of his starry at the outpost. He stated that when he so are heel the body of 'Kere' before putting him in the lock up after his arrest, he did not notice any injury thereon. He denied the suggestion made on behalf of the appellants Alok and Jyotirmoy that when 'Kere' was brought to the outpost he had lots of injuries in his person and was incapable of moving.
The evidence of the prosecution witnesses except that of PWs 6 and 7 substantially, support the case of the prosecution. The prosecution had examined official as well as non-official witnesses in support of the charge, PWs 6 and 7 are officers subordinate in rank to the appellant Harekrishna and Jyotirmoy and the colleagues of the appellants Alok and Sukhamoy. Though there is an indication in the police statements made by PW 6 that he had stated in course of the investigation about the assaults made on 'Kere' by the appellants Jyotirmoy, Alok and Sukhamoy he resiled there from in course of deposition on oath. No such contradiction has been brought out so far as PW 7 is concerned, leaving aside the evidence of non-official witnesses it is clear that the evidence of PW 4 and PW 5 are in conflict with that of PW 6 and PW 7. The evidence of DW 1 is limited between 8 a.m. of 25.8.1996 to 8 a.m. of 26.8.1996. His evidence, therefore, does not wholly demolish the evidence of the other witnesses supporting the prosecution case regarding assaults in the night of 25.8.1996. If the evidence of PWs 6, 7 and DW 1 gives a true account of the happenings at the outpost at all relevance times, why PWs 4 and 5 have then falsely implicated the appellants, they being their superior officers and collegues in service. In the evidence of record there is no trace of any allegation of ill motive or mala fide against these two official witnesses or of any extraneous consideration for deposing against the appellants. Normally, a subordinate would not venture to testify against his superior officer unless he is revealing the truth. The evidence of PWs 4 and 5 is more or less consistent on material particulars. On balancing the relevant considerations and on an assessment of the evidence of PWs 4, 5, 6 and 7 and DW 1 we are inclined to lean in favour of the testimony of PWs 4 and 5 in the attending facts and circumstances.
33. Exhibit-B, the General Diary of the outpost has been proved by the I.O. PW 13. Some entries therein of 24.8.1996 and 25.8.1996 have also been proved by the said witness. It would be helpful to have a survey on the entries of the said two days in order to have an idea about the presence of the appellants and the prosecution witnesses at the outpost and the detailment of their duties. The opening entry of 24.8.1996 at 8 a.m. shows that the appellants, PWs 4, 5, 6, 7 and DW 1 along with others were attached to the outpost. DW 1 and the appellant Sukhamoy were allotted sentry duties. At the time of Roll call at 8 p.m. on the same date, all the above named persons were found present. At 7.30 p.m. an instruction was received from the Superintendent of Police (C) to conduct a night raid in order to apprehend the accused in Silchar P.S. Case No. 398/96. At 10.30 p.m., Entry No. 678 indicates registration of the information about the commission of offence by PW 3. As per Entry No. 629 of the same date recorded at 11.30 p.m., PW 3 was brought to the outpost after being arrested. Appellants Harekrishna, Jyotirmoy, PWs 4, 5, 6, 7 and others went out to arrest 'Kere' accused in Silchar P.S Case No. 398/96 under Sections 333/307 IPC at 1 a.m. as indicated by Entry No. 631. The diary for 24.8.1996/25.8.1996 was closed by DW 1 at 8 a.m. of.25.8.1996. The opening entry of 25.8.1996 discloses that the appellants PWs 4, 5, 6, 7 and DW 1 and others were attached to the O.P. and DW 1 and appellant Sukhamoy were on sentry duty. Entry No. 638 made at 9 am of 25.8.1996 reveals that 'Kere' was brought to the outpost being arrested in connection with the aforementioned case and was put in the lock up. It was mentioned in the said G.D. entry that while 'Kere' was been brought after arrest, he fell down from a tilla. When asked as to whether he had suffered any injury and if he required medical treatment 'Kere' had answered in the negative. This entry has been proved as Ext. B (11). The news about the arrest of 'Kere' was conveyed to the Superintendent of Police (C) and officer-incharge Silchar P.S. as is disclosed by Entry No. 639, proved as Ext. B(10). Thereafter the Deputy Superintendent of Police, H.Q. and Officer-incharge Silchar P.S. visited the outpost at 12 noon and after interrogating 'Kere' in connection with the case with which he had been arrested, left the outpost as is evident from Entry Nos. 645 and 646 Ext. B(4) and Ext. B(5). All the police personnel shown to be attached to the outpost were found present at the roll call at 8 p.m. on that date. Ext B(2) is the Entry No. 649. It further mentioned that PW 5 was allotted sentry duty and the 'Kere' was placed in charge of PW 4 for the night. Entry No. 650 made at 9.30 p.m. of 25.8.1996 shows that appellant Harekrishna was at the outpost. PW 7 was detailed for raid duty at 9.30 p.m. as is evident from Entry No. 651 and he left the outpost at this point of time. Entry No. 652 shows that at 10.30 p.m. PW 3 was forwarded to the Silchar P.S. being accompanied by appellant Sukhamoy and another constable. PW 6 and DW 1 were detailed for night patrol at 12 O'clock as is evident from the Entry No. 654. As per the Entry No. 656 Ext B(1) recorded at 4 a.m. of 26.8.1996, PW 6 and DW 1 returned to the outpost after the night petrol. Appellant Harekrishna, Alok and others left for the police parade ground to attend the inspection parade at 5 a.m. of 26.8.1996 as is disclosed by Entry No. 657 Ext B(8). Appellant Harekrishna returned to the outpost at 8.30 a.m.. As per Entry No. 662 Ext B (6) and forwarded 'Kere' to the S. M. Deb Civil Hospital for his treatment as he complaint of serious pain in the abdomen. The said G. D. entry mentioned that 'Kere' was taken in a Autorikshwa being accompanied by Jyotirmoy, Alok and another constable. As per Entry No. 664 recorded at 10.30 a.m. of 26.8.1996 'Kere' was declared dead at 9.45 p.m. at the Silchar Medical College Hospital. The G. D. Entry indicates that the Superintendent of Police, Additional Superintendent of Police and the Officer-incharge, silchar P. S. were informed about the death of 'Kere'. As per Entry No. 669 Ext B(7) at 6 p.m. appellant Harekrishna returned to the outpost after arranging for post mortem examination of 'Kere'. At 7.50 p.m. the superintendent of Police (C), Additional Superintendent of Police (C) Deputy Superintendent of Police, HQ and Officer-in-charge, Silchar P. S. came to the outpost for supervision in connection with the death of 'Kere' as is disclosed by Entry No. 670. Entry No. 674 at 9.30 p.m. shows that the outpost was attacked by an irate mob shouting for revenge of death of 'Kere' in the outpost. Burning missiles were lobbed all over the outpost. As the mob became uncontrollable, the Deputy Sudt. of Police, HQ and the Officer-in-charge/inspector R. Dutta Roy, who were present at the outpost ordered the crowd to disperse. But as the melee continued, the Deputy Superintendent of Police, ordered Constables present to open fire. It was thereafter that the crowd left the place. After the said incident high police officials including these of the rank of D.I.G.(s), Additional S.P. Deputy Superintendent of Police, HQ inspected the outpost.
34. It would thus be apparent from the entries in the General Diary referred to above that PWs 4 and 5 were throughout present in the outpost during the relevant time on 24.8.1996/25.8.1996 and 26.8.1996, PW 6 and DW 1 were absent from the outpost from 12 in the night of 25.8.1996 till 4 a.m. of 26.8.1996 as they had been detailed for night patrol. Similarly, PW 7 had gone on raid duty at 9.30 p.m. on 25.8.1996 and had returned to the outpost only at 10 a.m. on 26.8.1996. The evidence of PWs 6 and 7 and DW 1 to the effect that no incident of assault had taken place at the outpost during the relevant time has to be judged in the above factual background. According to the prosecution case, the incident of assault had taken place in the early morning of 25.8.1996 at 9.30/10.30 p.m. of 25.8.1996 and at 2/2.30 a.m. of 26.8.1996. PWs 3, 8 and 9 are the witnesses of the assaults in the early hours of 25.8.1996. The defence has disputed the presence of PWs 8 and 9. It is true that the general diary of the outpost does not contain any entry indicating that PWs 8 and 9 had been brought thereafter being arrested as claimed by the said witnesses and were present in the outpost till 2 p.m. on 25.8.1996. In the setting of facts in which the assaults were alleged to have been made and considering the persons allegedly involved, in our view, absence of such entries is not decisive to conclude that the said witnesses were not present in the outpost as detenues. PWs 3, 4, 5 and 6 have consistently stated that along with 'Kere', two other persons were arrested and brought to the outpost in the morning of 25.8.1996. PW 8 and 9 claim themselves to have been arrested with 'Kere'. We are therefore, not inclined to subscribed to the view that PWs 8 and 9 were not present in the outpost as contended by the defence. But even assuming that the defence version is correct, evidence of PW 3 with regard to assaults in the wee hours of 25.8.1996 still remains or record after excluding the evidence of PWs 8 and 9.
35. PWs 2, 3 and 5 have testified about the assaults on 'Kere' at 9.30/ 10 p.m. on 25.8.1996. The evidence of PW 7 to the contrary is not of much relevance as he was out on raid duty at that point of time. The testimony of PW 6 and PW 1 to the effect that 'Kere' had not been assaulted in the outpost at all, has to be taken with a grain of salt, inasmuch, as their omnibus statement is unacceptable as the contemporaneous official record, the general diary discloses that they were not present in the outpost from 12 in the night of 25.8.1996 till 4 a.m. next morning. PWs 6, 7 and DW 1 thus have clearly tried to shield their superior officers and colleagues.
36. The incident of assault at 2/2.30 a.m. on 25.8.1996/26.8.1996 has been referred to by PW 4 and PW 5. PW 6 who was declared hostile by the prosecution was confronted with his police statements where he too stated about such assaults by Jyotirmoy, Alok and Sukhamoy. He however, resiled from the said statement at the trial. As this witness was out of night patrol duty at the relevant time as mentioned hereinabove his evidence is not of much assistance to either of the parties. On the other hand, PWs 4 and 5 were detailed for sentry duty at 8 p.m. of 25.8.1996. PW 4 in particular was entrusted with the Jock up duty where 'Kere' was lodged. These two witnesses have been very categorical in their deposition involving appellants Jyotirmoy, Alok and Sukhamoy assaulting 'Kere' at 2/2.30 a.m. on 26.8.1996.
37. A reference to the relevant entries of the G.D. would establish the presence of the appellants at the outpost at all relevant times. Entry No. 631 indicates that the appellants Harekrishna, Jyotirmoy and Alok, PWs 4, 5, 6, 7 and others had gone on a night raid to arrest 'Kere'. The opening entry of 25.8.1996 shows that the appellants, PWs 4, 5, 6, 7 and DW 1 and others attached to the outpost for duty. At 9 a.m. on 25.8.1996 vide G. D. Entry No. 638 Ext. B(11) the party returned with 'Kere'. The roll call at the outpost was held at 8 p.m. of 25.8.1996 vide Entry No. 649 in which all persons referred to above were found present. The entry discloses that PW 5 was asked to continue in duty as the constable Parimal Roy was absent and PW 4 was put incharge of Kere' in the lock up. Entry No. 650 recorded at 9.30 p.m., on 25.8.1996 shows that appellant Harekrishna was present in the outpost. PW 7 had gone on raid duty at 9.30 vide G. D. Entry No. 651. Appellant Sukhmoy accompanied PW 3 to the Silchar P. S. at 10.30 p.m. as per G. D. Entry No. 652 but returned to the outpost at 11.30 p.m. as indicated by G. D. Entry No. 653. PW 6 and DW 1 had gone on night patrol duty at 12 p.m. on 25.8.1996 only to return at 4 a.m. on 26,8.1996. At 5 a.m. on 26.8.1996 appellants Harekrishna and Alok along with others had left for police parade ground to take part in the inspection parade. The opening entry of 26.8.1996 shows the appellants PWs 4, 5, 6, 7 and DW 1 and others to be attached to the outpost for duty. 'Kere' was sent to the hospital vide Entry No. 662 of 26.8.1996 recorded at 8.30 a.m. by appellant Harekrishna. 'Kere' was accompanied by appellants Jyotirmoy and Alpk. Entry No. 664 made at 10.30 a.m. on 26.8.1996 records the death of Kere'.
38. From the G. D. entries as above, it is significant to note that during the night of 25.8.1996/26.8.1996, appellants Jyotirmoy and Alok were not detailed for any duty. Appellant Sukhamoy was absent from the outpost for one hour, i.e., 10.30 to 11.30 p.m. and thereafter was not allotted any duty. Thus, it can be concluded that the appellants and PWs 4 and 5 were present at the outpost after the roll call at 8 p.m. of 25.8.1996 with the exception that appellant Sukhamoy was absent therefrom between 10.30 and 11.30 p.m.. It is, therefore, not possible to entertain any contention that the appellants were not present in the outpost at the time of alleged assaults on 'Kere'. The question is how far the evidence of PWs 3, 4 and 5 can be relied upon in support, of the prosecution case. As discussed hereinabove, the evidence of the said witnesses implicates the appellants in inflicting assaults on 'Kere'. In our view, on marshalling their evidence, the said witnesses have supported each other in substance. The inconsistences and contradictions pointed out by the defence, according to us, are not of such nature as would render their evidence unworthy of any credence. We have noticed the contradictions in the evidence of the prosecution witnesses as proved through the investigation officer PW 3. It appears therefrom that PW 1 the informant
39... had not stated before the Investigating Officer that be came to know about, the names of the appellants from PWs 8 and 9 and that they had assaulted 'Kere'. PW 2 also omitted to state before the Investigating Officer that 'Kere' was assaulted in the room adjacent to the lock up. PW 2 further stated that there were curtains on the windows of the said room. PW 3 contradicted himself by not stating before the Investigating Officer about the involvement of Jyotirmoy and Alok. The I. O. with reference to his case clearly found that the PW 3 did not state before him that the appellant Jyotirmoy had asked the police constable to urinate in the mouth of 'Kere' and that some paddy was placed on the navel portion of 'Kere' and that the appellant pressed that portion of the body with their heels. PW 3 also omitted to state that Jyotirmoy and Harekrishna made 'Kere' nocked and pushed lathi in his rectum. PW 3 also did not state before the I.O. that 'Kere' was brought out from the lock up in between 9 to 10.30 p.m. Similarly, PW 5 did not state before the I.O. that the witness entered the room of incharge after hearing the cries of 'Kere'. The Investigating Officer also stated that PW 9 did not state before him the name of appellant Jyotirmoy.
40. No contradiction, however, has been pointed out in respect of PW 4 and PW 8. Their evidence, therefore, remain in the form as recorded at the trial. Considering the entire conspectus of facts and the evidence of the other witnesses, we are not persuaded to hold that the contradictions brought out by the defence have the potential of totally destroying the prosecution case.
The significant feature of the case in hand is that the victim had been in the custody of the appellants confined in the lock up of the outpost. He was thoroughly at their disposals. The charge is of assaults on him eventually resulting in his death. This circumstantial background cannot be lost sight of while assessing the evidence of the prosecution witnesses. The analysis of the evidence on record has to be from the view point of a man of ordinary prudence and not with hypersensitive mind obsessed with fanciful doubts. In criminal trials, exaggerated devotion to the principle of proof beyond reasonable doubt has to be discouraged test the cause of justice is defeated. No doubt the prosecution in order to succeed has to prove the charge beyond reasonable doubt. Nevertheless in judging a prosecution case a balanced and a responsible approach is called for. The evidence on record for the purpose, should not be approached with a wavering mind and lingering suspicion. It is natural that due to human fallibilities some discrepancies in the narration of an incident may creep in the evidence of a witness.
If the omissions and inconsistencies amounting to contradiction do not destroy the basic fabric of the prosecution case, same would be inconsequential. Parrot like statements of witnesses with mathematical precision on the other hand is likely to generate suspicion in the mind of every reasonable and practical person. It is the essence of the evidence of a witness that is to be called out from the unnecessary details to decide whether the point involved has been proved to the hilt. According to us, the evidence of the prosecution witnesses taken as a whole after giving due premium to the defence version inspires confidence and we have no hesitation in the facts and circumstances of the case that the charge against the appellants has been proved beyond reasonable doubt. It is significant to notice that except a stout denial, the defence has not put forward any positive case though admittedly 'Kere' had been in their custody in the outpost from the early hours of 25.8.1996 till he was removed to the hospital where he was declared dead on 26.8.1996. As mentioned herein above, no attempt whatsoever was also made by the defence to cite any reason for PWs 4 and 5 to wrongly implicate the appellants who were their superior officers and colleagues at the relevant time,
41. Much emphasis has been laid on the absence of related entries in the G. D. of the outpost which according to the defence suggests that the prosecution story is not true. The argument is that in case the allegations of assaults were true, in view of the requirement of Section 53 of Part V of the Assam. Police Manual, entries relating thereto would have appeared in it. At the first blush, the argument though appears to be attractive cannot withstand a closer scrutiny. At the first place, the mandate of Section 53 is not an absolute assurance that the same would be complied with in letter and spirit, more particularly if in fact a police personnel is involved in an offence as alleged. Two views are possible. Either the incidents of assault did not take place or the police personnel incharge of making the entries did not record the facts pertaining thereto. If the first proposition is correct then why are the constables PWs 4 and 5 lying against their superior officers as well as their colleagues in service? As mentioned herein above there is no suggestion to that effect from the side of the defence. The only plausible explanation, therefore, has to be that though the incidents did take place but no entry was made in the G.D. for obvious reasons.
The appellants having contravened the mandate of Section 53 as above, cannot be allowed to take advantage of their own wrong. In the face of the evidence on record, the involvement of the appellants is the only acceptable conclusion. While on this aspect of the matter, it would be proper to dealwith the duty register as well. The said register indicates the duty particulars of the police personnel attached to the outpost. Entries on some dates indicate the duty hours of the personnel on Sentry duty only. The pages for 25.8.1996 and 26.8.1996 are not available being torn out of the register. The duty hours do not appear on all dates. In view of the G.D. entries as referred to above, we do not see any reason as to why the prosecution should be held responsible for this. According to us, the prosecution does not gain any thing by doing so as it has to prove its case on the basis of positive evidence. This register was called for by the trial court on the prayer made by the defence. It was not seized by the I.O. In view of the entries in the G.D. for the two dates, i.e., 25.8.1996 and 26.8.1996 which sufficiently indicate the duty particulars of the appellants and other personnel attached to the outpost no adverse inference can be drawn against the prosecution for not seizing the said register during the investigation or for not proving the same at the trial. The benefit of the absence of the two pages of the register thus does not ensure to the appellants.
42. The defence plea is that considering the nature of, injuries sustained by the victim appellants cannot be held guilty of the offence of murder or culpable homicide not a.m. ounting to murder. At best the injuries can attract offence under Sections 319 and 323 of IPC. To start with, the injuries in the post mortem report, and the inquest report are consistent with the manner and time of assaults as narrated in the evidence of the prosecution witnesses in support of the charge. It is not a case, where if the prosecution witnesses are believed, the injuries were caused by assault made at one point of time. The victim was in the custody and control of the appellants for about 24 hours during which he was not produced before the Magistrate. In between, as per the prosecution version he was taken out of the lock up at the convenience and desire of the appellants and assaulted in the manner they liked. The admitted fact that 'Kere' was in the lock up of the outpost from early morning of 25.8.1996 till he was shifted to the hospital on 26.8.1996 would thus have a vital bearing on the assessment of the evidence of the prosecution witnesses regarding the culpability of the appellants in making the assaults. According to the medical evidence, death occurred due to the shock resulting from the ante mortem injuries sustained. There is not dispute that the body of the victim bore as many as 41 injuries in the form of contusions lacerations and abrasions all over the body. The post mortem examination was conducted on 4.30 p.m. on 26.8.1996 and the Doctor opined that the injuries were one to two days old. The injuries individually were simple and none of those by itself was sufficient to cause death. According to the medical witness, shock developed as a result of the effect of all the injuries which were of varying colours suggesting that those were inflicted at different points of time.
43. The medical evidence, therefore, is categorical to the extent that death had occurred due to the cumulative effect of the injuries though in isolation none of the injuries was sufficient to cause death. Here again the peculiar facts and circumstances of the case would prove decisive. If the evidence of the witnesses in support of the charge is accepted, it has to be concluded that the appellants sharing a common intention of assaulting the 'Kere' to death while in their custody made assaults on him from time to time on all vital parts of the body though no sharp cutting weapons were used. The continued assaults on 'Kere' in the manner as narrated by the prosecution witnesses resulted in the inevitable. The number of injuries found, on the body of the victim cannot be underestimated. Though mostly contusions and abrasions, considering that 'Kere' was a human being, he succumbed to the injuries caused by the inhuman torture meted out to him by the appellants. The age of the injuries as referred to in the medical evidence is also in tune with the evidence of assaults. 'Kere' appeared to be the sole target of assaults by the appellants and merely because of all of them together did not assault 'Kere' at the same point of time on every occasion does not mitigate the offence. The G. D. indicates that 'Kere' was arrested in connection with G.R. Case No. 398/96 registered against him Under Section 307 IPC for allegedly assaulting some police personnel. The reason for such brutal treatment to him by the fellow police men is understandable. This also adds credence to the evidence of the prosecution witnesses supporting the charge. In the facts and circumstances of the case, we are of the view that the appellants shared the common intention of assaulting 'Kere' and in furtherance of such intention assaulted him in the outpost as and when they desired as a consequence of which he died. It is thus not possible to uphold the contention of the learned counsel for the defence that having regard to the nature of the injuries sustained the appellants cannot be convicted by holding that they had shared a sommon intention in inflicting the same.
44. A brief reference to the judicial precedents cited at the bar would now be made.
In Mohinder Singh S/o Inder Singh v. The State (supra), the Apex Court laid down that where the prosecution puts forward a positive case, it must prove whole of that case. The case of the prosecution in that case was that the appellant had caused the injury by a gun, the evidence produced by it adduced fells short to establish the same. The case in hand is distinguishable, inasmuch as, the injuries sustained by 'Kere' are compatible with the manner in which the assaults were made on him. In Vadivelu Thevar v. The State of Madras (supra), the Apex Court dealt with the aspect of plurality of witnesses. While referring to the well recognized maxim that evidence has to be weighed and not counted, the Apex Court was of the view that if the legislature was to insist upon plurality of witnesses, cases where the testimony of a single witness only can be available in proving of the crime the same would go unpunished. It held that it depends upon the circumstances of each case and if the testimony of a single witness is found reliable, there is no legal impediment to the conviction of the accused person on the basis thereof. The Apex Court classified oral testimony into 3 categories, (1) wholly reliable, (2) wholly unreliable, (3) neither wholly reliable nor wholly unreliable and laid down that in the 3rd category of proof as well, if the court after weighing such a testimony is satisfied that the evidence is reliable and free from all taints, it would be its duty to act thereupon. In applying the above test to the evidence of PWs 2, 3, 4 and 5, we are satisfied that their testimony can be acted upon in support of the charge against the appellants. The defence has placed reliance on the decisions rendered in Sarwan Singh Rattan Singh v. State of Punjab (supra), Shivaji Sahabrao Bobade and another v. State of Maharashtra (supra), Kali Ram. v. State of Himachal Pradesh (supra) in support of the elementary principle that the prosecution in order to succeed in a criminal trial has to establish that its case "must be true" and not merely "may be true". The Apex Court while underlining the above principle, however, observed in Kali Ram. (supra) that a court may presume as mentioned under Section 114 of the Indian Evidence Act, existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the Particular Case. It held that whether or not such a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances thereof and no hard and fast rule can be laid down. It further laid down that while applying the principle of benefit of reasonable doubt it has to be ensured that the doubt is not of a vacillating mind or which is incapable or reaching a firm conclusion or so timed that it is hesitant and afraid to take things to their natural consequences. The Apex Court was emphatic in recording that benefit of doubt did not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses and the final analysis would depend in a case upon its own facts.
Lakshmi Singh and ors. v. State of Bihar (supra) has been cited by the defence in support of the contention that fouler the crime higher is the standard of proof required. The prosecution in that case had failed to explain the injuries on the person of the accused and the case suffered from inherent improbabilities and serious infirmities. The genesis of the occurrence in the case was suppressed by the prosecution. The conviction of the appellants were thus set aside on the said considerations. We are of the view that in the light of the above . discussion on the evidence of this case the above decision is of no assistance to the appellants.
45. The decisions rendered by the Apex Court in Robin Kr. Dey v. State of Orissa (supra), Bhagwan Singh v. The State Of Haryana (supra), Sat Paul v. Delhi Administration (supra), Syad Akbar v. State of Karnataka (supra), State of U.P. v. Ramesh Prasad Misra and another (supra), Balu Sonba Shinde v. State of Maharashtra (supra) and Jagir Singh v. The State (Delhi Administration) (supra) are on the point, of the status and admissibility of the evidence of a hostile witness. In Jagir Singh, the Apex Court entertained the view that when a witness is called by the prosecution, is permitted to be cross examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness all together. This view changed and in Sat Paul v. Delhi Administration (supra) it was held that a court may grant permission to a party to cross examine its witness if from the demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise it thinks that the grant of such permission is expedient to extract the truth and to do justice. But the grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. It was laid down that thereby neither the party calling the witness nor the adverse party is precluded from relying on any part of the statement of such witness. In other words, in a criminal prosecution when a witness is cross examined and contradicted with the leave of the court by the party calling him, his evidence cannot be treated as washed off the record altogether and it is for the court to consider whether as a result of such cross examination and contradictions, the witness stands thoroughly discredited or can be believed in regard to any part of his testimony. If in the process, the credit of the witness is not completely shaken, the court may after assessing and considering his evidence with due caution and care accept, in the light, of the other evidence on record, that part of his testimony which is found credit worthy and act upon it. If, however, the witness stands discredited his evidence has to be discarded. The same view was echoed in the later decisions. The evidence of a hostile witness spoken In favour of the prosecution or the accused has to be subjected to close scrutiny and it found consistent with the case of the prosecution or the defence may be accepted, was ruled by the Apex Court in State of U.P. v. Ramesh Prasad Misra and another. The Apex Court laying the emphasis on the requirement of cautious and circumspect approach in acting on the testimony of hostile witness in Balu Sonba Shinde (supra) observed that declaration of a witness to be hostile does not ipso facto efface his evidence and the portion of the evidence which is advantageous to the parties may be taken advantage of.
The necessary pre-condition, however, for allowing a party to cross examine its own witnesses by declaring him hostile is the satisfaction of the court that statements of the witness exhibit an element of hostility or that he has resiled from earlier statements made before some authority or when the court is satisfied that the witness is not speaking the truth and that it would be necessary to cross examine him to elicit the truth. This satisfaction, to start with would have some bearing on the acceptability of the evidence of that witness and it is only after assessing the intrinsic worth of his testimony with utmost care and caution that either the prosecution or the defence may rely on any part thereof which is consistent with its case. The probative value of the evidence of a hostile witness therefore would depend on its quality and the confidence it generates in the mind of the court after being subjected to a close scrutiny. If the testimony of such a witness placed in juxtaposition to the other evidence on record does not appear to be consistent and acceptable the same cannot be relied upon. In the case in hand, as discussed above, the evidence of PW 6 by applying the aforementioned tests, cannot be accepted in support of the defence version. While we respectfully subscribe to the legal principle laid down in the above decisions, we are unable to hold that those further the case of the defence in the present facts and circumstances.
46, In Sadhu Singh v. State of Uttar Pradesh (supra), the Apex Court held that the entries in the G. D. are made of the events that take place in the police station in chronological order and that it is ordinarily difficult to fabricate false entries therein. The police investigation in Subhash and another v. State of U.P. (supra) was severely criticized by the Apex Court for the omission on the part of the I.O. to make necessary entries in relation thereto in the G.D. The contents of the G.D. which is a contemporaneous record of the happenings in the concerned police station usually provides an account of the state of affairs therein, apart from, the steps taken by the incharge of the police station in matters pertaining to his official duties. It would however be difficult to certify that the contents of a G.D. would under all circumstances furnish and intractable assurance that there had been no omission to record any incident taking place in the police station. This is more so when there is a charge of assaults on an inmate of the lock up by the police personnel attached thereto. Section 63 of the Assam. Police Manual Part V though lays down the requirement of making entries in the G.D. and also out lines the matters for the said purpose, it is ultimately the officer concerned incharge of making the entries, who is to record the same. The proposition of law as laid down in Sadhu Singh (supra) cannot be construed to be an absolute guarantee against possible and deliberate omissions on the part of the officer concerned in recording events in the police station having the potential of implicating the person there in a criminal charge. The issue has to be judged in the facts of each case.
47. On the point of the effect of a particular omission in a previous statement on the testimony of the witness at the trial, the Apex Court in Laxman and ors. v. State of Maharashtra (Supra) held that the effect will depend upon the totality of proved facts and circumstances in which the omission might have taken place and it is often to be determined by the importance of what was omitted. As discussed hereinabove, the omission in the police statements of PWs 1, 2, 3, 5 and 9 are not of such nature so as to totally destroy the prosecution case. Their evidence in conjunction with the other materials on record in support of the charge makes the omissions in consequential.
48. The decisions in Dudh Nath Pandey v. State of U.P. (supra) and State of Haryana v. Ram. Singh (supra) have been relied upon by the defence to drive home the point that the evidence of defence witnesses has to be treated at par with that of the prosecution witnesses and a court should not proceed in the premises that it is a tainted one. True it is, that the standard of proof prescribed for the prosecution in a criminal trial is not applicable in assessing the defence evidence. However, if on a consideration of the evidence on record, the testimony of the defence witness does not appear to fit in with the facts and circumstances of the case, the same has to be rejected. As referred to above, the evidence of DW 1 has been found to be unacceptable as the said witness could not have had a first hand knowledge about the happenings in the outpost at all relevant times, he being on patrol duty during the time when the incident of assault at 2/2.30 a.m. of 26.8.1996 had taken place.
49. In Harichand Singh & another v. State of Haryana (supra) the two sets of eye-witnesses condemned each others evidence and in that context the Apex Court held that where prosecution adduces two sets of evidence contradicting each other, it would be difficult to record conviction of the accused in absence of any other reliable and trustworthy evidence. The evidence of PWs 4, 5, 6 and 7 has been marshalled already and it has been found that the evidence of PWs 4 and 5 in support the charge is consistent compared to that of PWs 6 and 7 against it, PW 6 besides being declared hostile was also out of the outpost in the night of 25.8.1996. Similarly PW 7 was also on raid duty from 9.30 p.m. on 25.8.1996 and returned to the outpost only on 10 a.m. the next morning. Their evidence to the effect that no incident of assault had taken place in the outpost during the 2 days of detention of 'Kere' cannot be acted upon in face of the evidence of PWs 4 and 5 who were throughout present in the outpost during the aforesaid period.
50. In Gian Mahtani and another v. State of Maharashtra & ano. (supra) it was underlined that in criminal jurisprudence conviction cannot be based on suspicion or moral satisfaction of the conscience of the court. Conviction is possible only if the prosecution proves its case beyond all reasonable doubt. The evidence adduced by the prosecution in the present case satisfies the test laid down in the above decision.
51. The decision in Sarwan Singh (supra) to the effect that if a party declines to put his case in cross examination evidence tendered on the issue by the other side is to be accepted, is not of much avail to the defence in view of the overwhelming evidence in support of the charge omissions to make some suggestions to the DW 1 in support of the prosecution case, according to us make no difference.
51A. The decision rendered in Pabitar Singh v. The State of Bihar (supra) has been cited to emphasise that great care and attention should be devoted by the courts in cases where not only the liberty of a person is involved but also his career is likely to be jeopardized if convicted on a criminal charge.
52. The decisions relied upon by the prosecution may now be briefly referred to. These authorities deal with cases of death in police custody. In Bhagwan Singh and another v. State of Punjab (supra) the appellants who were police personnel had arrested the deceased Jaginder Singh and brought him to the Rambagh P.S. where in course of the investigation they caused injuries to the deceased as a result of which he beca.m.e unconscious. PWs 4, 5 and 6 therein who were also brought to the P.S. along with the deceased ware also assaulted. The deceased in the unconscious state was thereafter removed by the accused persons and he died on the way. The dead body was disposed of and could not be recovered. Medical evidence disclosed number of injuries on PWs 4, 5 and 6. While upholding the conviction of the accused appellants, the Apex Court observed that if a person is in police custody, then it is within the knowledge of the police officials who had taken him in custody as to what had happened to him. It was concluded that where other evidence was convincing to establish that the deceased had died because of injuries inflicted by the accused, the circumstances would only lead to an inference that the police personnel who caused his death must have also caused disappearance of the body. It held that in the facts and circumstances of the case, the only inference could be that the deceased expired because of the injuries caused by the accused and that they must have caused the disappearance of the dead body.
53. One Chhabila, suspect in a case of theft who was arrested and brought to the police outpost, where the appellant in Raghbur Singh v. State of Haryana (supra) was the Assistant Sub-inspector, succumbed to the injuries inflicted in course of the investigation. The Apex Court while dismissing the appeal preferred against the conviction, recorded its great concern over the increasing police brutality in prison.
54. In Anup Singh and ors. v. State of Himachal Pradesh (supra), Appellant, Anup Singh was the Asstt. Sub-inspector incharge of the police post, Kasumpti. Sucha Singh and Raghubir Singh the other appellants, were the constables attached to the said outpost. They were indicated for offences punishable under sections 217/330 and 348/34 IPC on the allegation that one Bhuban Singh was confined by them in their police outpost from 30.8.1975 to 12.9.1975 during which he was caused various hurts whereafter his dead body was found within the territorial jurisdiction of another police station. An argument was advanced on behalf of Anup Singh, Appellant that as he did not figure in any way physically in the prosecution case, his conviction was based on inference alone. Negativing the said contention, the Apex Court held, that as Anup Singh was the incharge of the police outpost and thus the incharge of the lock up, he cannot escape to say that the criminal deeds committed by his constables should be confined to them alone, when those deeds were committed and were deemed to have been committed with his tacit approval and connivance, he being accountable for what had happened in the police outpost. His conviction with the aid of Section34 IPC was, therefore, upheld.
55. In State of M. P. v. Shyam sunder Trivedi and ors. (supra) the respondents, who were the Sub-Inspector of police and constables were acquitted of the charge of murder by torturing one Nathu Banjara to death at the police station. Allowing the appeal of the state, being satisfied that Nathu Banjara had died in the police custody as a result of beating given to him, the Apex Court criticized the lack of sensitivity on the part of the trail court and the High Court in appreciating the evidence on record of the case. Board guidelines were laid down prescribing the approach of the court in cases involving allegations of police excess and use of third degree methods in police custody. In imphatic terms it was laid down that the courts are required to adopt a change in their out look particularly in cases of custodial crimes and should exhibit more sensitivity and adopt a realistic approach so that the guilty does not escape and the victim of the crime has the satisfaction that the majesty of law had prevailed. We feel impelled to extract the following excerpt from the judgment.
"Exaggerated adherence to and insistence upon 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, 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 a police custody, much of late are on the increase, received encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them, if an old prisoner dies in the lock up, because they would hardly be any evidence available to the prosecution to directly implicate them that the torture the court must not lose sight of the fact that death in police custody in perhaps one of the worst kind of the crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tornishes the image of any civilized nation and encourages the men in 'khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequences of heading towards perishing. The court must, therefore, deal with such cases in a realistic manner and that the sensitivity which they deserve, otherwise the common men lose faith in the judiciary itself, which will be a sad day."
56. The essence of the above judicial pronouncements is that in cases involving charge of police excess in the police station or lock up or death in police custody, a court is required to take cautious cognizance of the attending facts and circumstances as well as the materials on record in holding whether the persons charged are guilty or not. Inflexible and obdurate adherence to the rule of benefit of doubt with a mind obsessed with lurking suspicion should be eschewed. A practical and balanced approach is called for so that the guilty cannot escape and justice does not become a casualty. Our view, in favour of the prosecution on the basis of the evidence on record does not run counter to the judicial opinion recorded in the decisions cited at the bar. We hold, therefore, that the appellants shared a common intention of assaulting and torturing 'Kere' while in custody at the Malugram outpost and in furtherance thereof assaulted him in the said outpost in the early hours of 25.8.1996 as well as in the night of 25.8.1996/26.8.1996. Though the prosecution witnesses have not implicated the appellant Harekrishna in the assaults launched on 'Kere' at 2/2.30 a.m. of 26.8.1996 considering the chain of events as well as the fact that the appellant Harekrishna was the incharge of the outpost he cannot be delinked from the said incident of assaults as well. Moreover, it is in evidence that he had instructed the other appellants to finish 'Kere'. We, therefore, cannot persuade ourselves to hold that the said appellant deserves a different treatment.
57. As referred to above, 'Kere' was not produced before the Magistrate within 24 hours of this arrest. He was brought to the outpost at 9 a.m. on 25.8.1996 after being arrested. He was sent out therefrom for medical treatment at 8.30 a.m. of 6.8.1996 when he complained of severe pain in the abdomen. Twenty four hours, by that time had not elapsed. Prima facie, therefore, it cannot be held that the appellant Harekrishna and Jyotirmoy had contravened the mandate of Section 57 Cr.PC. We are, therefore, inclined to give the benefit thereof to them so far as this charge is concerned.
58. All the appellants had been charged Under Section 302/34 IPC. The evidence in support of the charge, accepted by us establishes participation of the appellants in rendering the assaults on 'Kere' in coordination with each other. The common intention of the appellants was to torture 'Kere' he being helplessly available in the confines of the police lock up. He was taken out from the lock up as and when the appellants desired and was assaulted at their sweet will. Though no sharp cutting or other dangerous weapons were used in the assaults, the manner in which they dealt with him and the resultant injuries found on his body, to say the minimum, disclose how inhumanly he was tortured. Death was the cumulative effect of the 41 injuries found all over his body. It is not possible for a reasonable man of ordinary prudence to hold that in the above background, the appellants can be extended the benefit of doubt that they did not share a common intention of torturing and assaulting the victim.
Did they have the criminal intention of causing death to 'Kere' is the next question. We are, however, inclined to answer the same in the negative. Though the appellants shared the common intention of jointly assaulting 'Kere' and they did so brutally the evidence on record is not enough to establish that their intention was to cause his death. Had it been so the appellants would have resorted to other methods. But the knowledge that the injuries caused to 'Kere' were likely to cause his death ultimately has to be imputed.
59. Records reveal that the 'Kere' was arrested in connection with a case, where it was alleged that he had assaulted by some police personnel. Did this infuriate the appellants? May be. It is also on record that higher police officials had visited the outpost to interrogate 'Kere' in connection with the charge against him. No other conceivable reason exists to explain the treatment meted out to him at the outpost. Was it necessary as a part of the investigation of that case? Apparently not. Assuming that use of some force was called for, there apparently has been a gross excess on the part of the appellants rendering such acts to be a criminal offence. Be that as it may, intention to cause death cannot be reasonably imputed to them. We, therefore, hold that the appellants assaulted 'Kere' with a common intention having the knowledge that their acts were likely to cause his death ultimately. However, as 'Kere' was brought into the outpost being arrested in a criminal case in relation to which investigation was proceeding during his detention there, we are not inclined to hold that the appellants are guilty of murder. As we have ruled out the criminal intention of the appellants in causing death to 'Kere', but have imputed knowledge to them about the likely consequence of death from their acts, we record their conviction Under Section 304 Part-II/34 IPC. We have considered the plea made by the appellants before the learned court below in course of the hearing on the question of sentence. Nothing further has been submitted before us in the appeal. However, the sentence for all the appellants cannot be the sa.m.e as admittedly appellants Harekrishna and Jyotirmoy were superiors in rank to the other appellants and the evidence goes that 'Kere' was taken out from the lock up on the orders of appellants Harekrishna and Jyotirmoy as the case may be before being subjected to joint assaults. According to us, the ends of justice would be met if Harekrishna and Jyotirmoy are sentenced to undergo 6 (six) years R.I. with a fine of Rs. 25,000 each in default to suffer S. I. For another 6 (six) months. We, however, maintain the sentence imposed on the appellants, Sukhamoy and Alok by the learned Court below. We acquit the appellant Harekrishna and Jyotirmoy of the charge under Section 342 IPC. The bail bonds of the appellants on bail are cancelled. The period already undergone shall be set off against the sentence imposed. The learned court below would ensure that the appellants carry out the sentence.
60. The appeal is dismissed with the above modifications in the impugned judgment and order of the learned court below.