KAILASH CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Leave granted in SLP (Crl.) No. 284 of 2014. These four appeals are filed by four persons who are convicted for committing the offence of murder punishable Under Section 302 of the Indian Penal Code (hereinafter referred to as 'IPC'). The Trial Court, on conviction, awarded them sentence of rigorous imprisonment for life. By the impugned judgment of the High Court, the said conviction and sentence has been maintained resulting in dismissal of the appeal which was filed by these four accused persons challenging the verdict of the Sessions Judge. We may state at this stage itself that in all five persons were arrayed as accused persons in the said case. However, one accused person was acquitted by the Trial Court and against that acquittal, no appeal was filed by the State and, therefore, his acquittal became final at the stage of trial itself. As per the prosecution, it is a case of custodial death wherein one Radhey Shyam Darji along with two other persons, who was wanted in a theft case, was beaten in the Police Station and tortured by these accused persons who are all police officials. As a result of the said beating, Radhey Shyam Darji succumbed to the injuries. It is also the case of the prosecution that after the death of Radhey Shyam Darji, his body was burnt/cremated by these accused persons and, thus, they also committed offence Under Section 201 of the Indian Penal Code. The entire case is based upon the allegations of the custodial and tortured death of that person who is named Radhey Shyam Darji. The case surfaced on the complaint filed by one Shri Kalu Ram Rawat, the then Circle Officer, Bhawani Mandi with the Police Station Gangdhar. As per that, he had received a complaint to the effect that the then SHO, Gangdhar along with his five police officials has illegally detained and beaten three persons, namely, Radhey Shyam, Balu and Kalu for interrogation for an offence of theft and Radhey Shyam Darji died during the intervening night of 6th/7th May, 1999 at about 3.00 a.m. at the Police Station itself. His dead body was burnt at an unknown place on the same night. The matter was investigated and the prosecution found during the investigation that the aforesaid three persons, namely, Radhey Shyam Darji s/o. Ram Lal r/o. Shahajahanpur, M.P., Balu and Lalu were arrested by the police in relation to some other case at Shahajahanpur and were granted bail therein on 05.05.1999. Since they were wanted in some other case which was registered at Police Station, Gangdhar, SHO Raju Singh of Gangdhar Police Station had deputed three constables, namely, Dilip Singh, Tola Ram and Rajesh to bring those suspects. These three persons had gone to Shahajahanpur and arrested the said three persons and brought them to Police Station, Gangdhar. We have already pointed out above that Radhey Shyam Darji was beaten and tortured by the accused persons resulting into his death. It may be mentioned at this stage that from the very beginning, the accused persons/Appellants herein had questioned the evidence which was led by the prosecution against them and it was highlighted by these Appellants that the very identity of Radhey Shyam Darji s/o. Ram Lal r/o. Shahajahanpur, M.P. had not been established by the prosecution and, therefore, the prosecution had miserably failed to prove the case of murder of Radhey Shyam Darji s/o. Ram Lal r/o. Shahajahanpur, M.P. against the accused persons. In this behalf, it was pointed out that the documents which were produced by the prosecution in the case in Shahajahanpur, M.P., as per which Radhey Shyam Darji, Balu and Kalu were released on bail, did not pertain to Radhey Shyam Darji and in fact, the person who was released on bail in the said case was altogether a different person whose name was Radhey Shyam Chamar s/o. Hira Lal r/o. Barabali, Rajasthan. This anomaly which was pointed out by the defence has not been accepted by the Trial Court as well as by the High Court on the ground that as per the provisions of Section 106 of the Indian Evidence Act it was for the accused persons to show where Radhey Shyam Darji who was arrested by them, had gone and on this basis, it was held that it was Radhey Shyam Darji who was picked up, beaten up and killed by these officials.

(2.) Since the aforesaid approach of the courts below is clearly erroneous in law and the facts discussed hereinafter go to show that the prosecution has miserably failed to show that Radhey Shyam Darji was picked up by the accused persons and beaten up, it is not necessary to discuss any other evidence and our focus would be on the identity of the person who allegedly picked up by the accused persons.

(3.) In order to prove its case that Radhey Shyam Darji was involved in the case registered at the Police Station, Shahajahanpur, M.P. and was granted bail therein, the prosecution as amongst others produced four documents which are relevant for us. These are Exhibit P-75 to Exhibit P-78. Exhibit P-76 is the First Information Report No. 31 of 1999 in the case that was registered at Shahajahanpur, M.P. The person accused therein is shown as Radhey Shaym Chamar s/o. Hira Lal r/o. Barabali, Rajasthan. Exhibit P-77 again mentions radio message from SHO, Shahajahanpur to SHO, Gangdhar wherein the persons who were implicated in the case at Shahajahanpur are mentioned. It again names one Radhey Shyam s/o. Hira Lal Chamar r/o. Barablai, Rajasthan. Exhibit P-78 is the charge sheet filed in the aforesaid case which also describes accused herein as Radhey Shyam s/o. Hira Lal Chamar r/o. Barablai, Rajasthan. Exhibit P-75 is the letter of SHO, Shahajahanpur to the Investigating Officer, CID-CB who had conducted the investigation in the case which was registered against the Appellants herein. In the said letter again the description of Radhey Shyam is given that of Radhey Shyam s/o. Hira Lal Chamar r/o. Barabali, Gangdhar. Significantly, the Investigation Officer in the present case, put remarks on this letter that 'if we kept that case No. 75/1999' (that is FIR in the instant case). It becomes clear from the aforesaid documents that the person who was involved in the case registered against that person in Shahajahanpur, M.P. was one Radhey Shyam. It is the case of the prosecution that it is that very person who was picked up. However, the allegation is that, the person who was beaten up, tortured and killed in the Police Station was some Radhey Shyam Darji. It is not understood if Radhey Shyam was picked up then how another person Radhey Shyam Darji was tortured and killed. The prosecution has miserably failed to prove as to whether the Radhey Shyam Darji was altogether a different person, inasmuch as in the FIR registered against the Appellants the particulars of Radhey Shyam Darji was given as son of Ram Lal r/o. Shahajahanpur, M.P.