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TMI Blog2004 (11) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication. 3. If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of peoples' rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviors of citizens' rights. 4. Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short the 'Constitution') and is a part of the scheme for fundamental rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own in Raghubir Singh's case (supra) more than two decades back seems to have fallen to leaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in Gauri Shanker Sharma v. State of U.P. [1990]1SCR29 , Bhagwan Singh and Anr. v. State of Punjab 1992CriLJ3144 , Smt. Nilabati Behera @ Lalita Behera v. State of Orissa and Ors. 1993CriLJ2899 , Pratul Kumar Sinha v. State of Bihar and Anr. , Kewal Pati (Smt. ) v. State of U.P. and Ors.: 1995CriLJ2920 , Inder Singh v. State of Punjab and Ors. 1995CriLJ3235 , State of M.P. v. Shyamsunder Trivedi and Ors. (1995)4SCC262 and by now celebrated decision in Shri D.K. Basu v. State of West Bengal 1997CriLJ743 seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody. 6. Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those persons who cause hurt for the purpose of extorting the confession by making the offence punishable with sentence up to 10 years of imprisonment, but the convictions, as experience shows from track record have been very few compared to the considerable increase of such onslaught because the atrocities within the precincts of the police station are often left without much traces or any ocular or other direct evidence to prove as to who the offenders are. Disturbed by this situation the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act, 1872 (in short the 'Evidence Act') so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned. Keeping in view the dehumanizing aspect of the crime, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, five in number, who were police officers of Police Station, Shahjahanabad, Bhopal thus committed offences punishable under Sections 330, 302 and 201 IPC. In relation to a scooter theft, Mahesh Sharma and Rajkumar Sharma (PW-12) were brought to Police Station, Shahjahanabad. As name of deceased was disclosed by these persons, around 1.30 A.M. (after mid-night) the accused persons went to the house of deceased from where he was brought to the Police Station. When the deceased was brought Jawahar (PW-14) had seen the accused persons. Thereafter to extort confession the deceased was badly beaten as a result of which he died. These accused-police officers forged the Rojnamacha report to conceal the crime by recording that they received an information that some person was lying in the Nala bed and the said person was intoxicated badly. As the witnesses and public at large raised hues and cries, the then Supdt. of Police, Bhopal wrote a letter to the District Magistrate and also sent a letter to the Inspector General of Police for getting the matter investigated through some independent agency. On basis of said letters, the District Magistrate got the matter enquired through the C.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar (PW-12) is a liar as is evident from his testimony. He has given different version as to when he was arrested. Though he claimed that he was also beaten along with one Mahesh who was not examined, he did not make any grievance before the Magistrate when he was produced after his arrest. He gave varying dates so far his date of arrest is concerned. At one place it was stated to be 20.6.1984 whereas on another place it was stated to be 23.6.1984. Though he claimed that he was aware of the names of the accused persons, he did not mention it in his statement given during investigation. No explanation has been offered for it. He was not acquainted with the accused persons. Similarly, Jawahar (PW-14) claimed to have seen the accused persons. He identified them for the first time in Court. In his cross-examination he had accepted that he did not give the physical description of the accused persons. He clearly admitted that he could not have given the description because he had not seen them on the date of alleged date of occurrence. Therefore, the Courts below in the absence of any test identification parade should not have placed reliance on their evidence. In any event, when Jawaha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) and Jawahar (PW-14) relate to separate facets of the incident. The latter speaks about the accused-appellants having taken the deceased along with them after mid-night of 19th June, 1984. Rajkumar (PW-12) spoke of the assaults made inside the police station. Admittedly there was no test identification parade. 17. As was observed by this Court in Matru v. State of U.P. 1971CriLJ913 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain: 1973CriLJ1176 ). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Administration 1958CriLJ698 , Vaikuntam Chandrappa and Ors. v. State of Andhra Pradesh AIR1960SC1340 , Budhsen and Anr. v. State of U.P. 1970CriLJ1149 and Rameghwar Singh v. State of Jammu and Kashmir 1972CriLJ15 ). 19. In Jadunath Singh and Anr. v. The State of Uttar Pradesh 1971CriLJ305 , the submission that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive considerations of the authorities on the subject. That was a case where the witnesses had seen the accused over a period of time. The High Court had found that the witnesses were independent witnesses having no affinity with deceased and entertained no animosity towards the appellant. They had claimed to have known the appellants for the last 6-7 years as they had been frequently visiting the town of Bewar. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Noticing these circumstances this Court held:- "In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the Investigating Officer ought to have held an identification parade and that the failure of Munshi Ram to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in Jadunath Singh v. State of U.P. 1971CriLJ305 absence of test identification is not necessarily fatal. The fact that Munshi Ram did not disclose the names of the two accused to the villages only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of Munshi Ram alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant." 21. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes. 25. In Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat 1999CriLJ5013 after considering the earlier decisions this Court observed:- "It becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the Court when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi Admn.) v. V.C. Shukla 1980CriLJ965 wherein also Fazal Ali, J. speaking for a three-Judge Bench made similar observations in this regard. In that case the evidence of the witness in the Court and his identifying the accused only in the Court without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plained contradictions. At one place he says he was arrested on 20th June, 1984, at another place he says he was arrested on 23rd June, 1984. He claimed that from 20th June till 22nd June, 1984 he was in police custody. In cross-examination it was accepted that it was not so because he was taken to U.P. on 21st and 22nd June, 1984. In another vital improvement in his statement, he claimed that he knew the names of all the accused persons by 20th June, 1984 itself. Significantly, the names of accused persons are not stated by him when he was "examined by the police. No explanation has been offered as to why he did not tell the names. This witness claimed that he had suffered severed injuries. He admitted that he had not made any grievance to the Magistrate before whom he was produced after his arrest. He also accepted that the alleged injuries were not bleeding. But his statement was that the blood on the floor was cleaned by the accused persons. It is further stated that the police took his signatures when his statement was recorded for the first time. Ext. D-3 was recorded on 26.6.1984 by which time he claimed to have known the names of all the accused persons. Ext. D-3 did n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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