Supreme Court gives split verdict in 1995 custodial death case

New Delhi: The Supreme Court on Wednesday gave a split verdict in a 1995 case of custodial death of a person with one judge acquitting accused policemen of the harsher charge of culpable homicide while another convicted them for the same offence with stinging remarks.

Justice Sanjay Kumar disagreed with the view of Justice C T Ravikumar acquitting the policemen of the charge of culpable homicide not amounting to murder and said, "It is high time that our legal system squarely faces the menace of police excesses and deals with it by putting in place an effective mechanism to obviate such inhuman practices."

"Irrespective of that step being taken, the fact remains that when sufficient evidence is adduced to prove custodial torture by the police, it is then for the police themselves to prove their innocence, be it in a case of death in police custody or even if such a victim goes missing or vanishes," Justice Kumar wrote in his dissenting judgement.

Merely because the accused policemen were clever enough to "trump up a story of Shama (deceased) escaping from their custody", they cannot be granted the benefit of acquittal, he said.

"Doing so would impel the court to fall into the trap of the ingenious and wily appellants, who have cunningly concocted and falsified records to escape their just deserts," he said.

Quoting an expert, Justice Kumar said, "Torture or killing of a person in police custody is, to put it mildly, illegal. But the real question is when gold rusts, what can iron do? Who can police the police? Because of the system of linkages, the accountability of police to the political process is purely notional. So, the question arises whether courts can police the police? It is unfortunate that the State has done little to reform the system to control such abuse of power ...".

"I would disagree with the conclusion drawn by my learned brother that in the absence of evidence regarding the homicidal death of Shama @ Kalya, the appellants are entitled to be acquitted of the charge under Section 304 Part-II IPC read with Section 34 IPC by granting them the benefit of the doubt.

"On the contrary, I would maintain the convictions and sentences of the appellants, as confirmed by the High Court, and dismiss all the appeals," Justice Kumar said.

On the other hand, Justice C T Ravikumar acquitted the accused policemen of the charge of homicidal death of the detenue.

"In the absence of evidence regarding homicidal death of Shama @ Kalya in Gondia City Police Station coupled with the defence evidence, which could stand the test of preponderance of probabilities and the other circumstances favourable to the accused emerging from the other circumstances and failure of the prosecution to establish the case put forth by it.

"Appellants in .... Accused No. 2 (Ravindra) and Accused No. 4 (Hans Raj) are entitled to be acquitted for commission of offence under Section 304 Part II read with Section 34, IPC, granting the benefit of doubt," he said.

There is absolute absence of medical and oral evidence to find that the prosecution had succeeded in proving that Shama being in custody sustained any "grievous hurt", he said.

According to the prosecution, Shama alias Kalya, an alleged history-sheeter, was taken into police custody for interrogation in connection with an incident of house-breaking at Vijay Agrawal's residence at Gondia in Maharashtra.

He was accused of stealing items worth more than Rs 1 lakh on December 07, 1995 and was subjected to custodial torture, which resulted in his death on December 22.

The police did not record his arrest while keeping him in custody.

Later, an unidentified body, which was burnt and buried, was found in a forest under the jurisdiction of Tirodi police station in Balaghat district of Madhya Pradesh.

It was also alleged that after committing the "heinous crime", the accused policemen concocted a case and contrived false evidence to escape prosecution for custodial death.

They allegedly used Dipak Lokhande as Shama later to claim that the accused fled from their custody and the policemen allegedly fudged records to prove the same, according to the prosecution.

The policemen, the prosecution said, made Lokhande run away from their jeep to make it appear that Shama had escaped from custody.