Jayakumar vs State Of Kerala on 7 January, 2020

[Cites 33, Cited by 0]

Kerala High Court

Jayakumar vs State Of Kerala on 7 January, 2020

Accused Nos.1 and 2, who had been working as Police Constables in the East Police Station, Kollam, had been convicted by the Additional Sessions Judge-VI, Kollam in S.C.No.808/2008 for custodial murder, under Sections 302 and 348 r/w.34 of the Indian Penal Code (for short as 'the IPC'). They had been sentenced to undergo imprisonment for life each, and also liable to pay a fine of Rs.1,00,000/- (Rupees one lakh only) each under Section 302 r/w. Section 34 of IPC in default of payment of fine, they had been further sentenced to undergo rigorous imprisonment for a period of one year each. The court had further directed to pay the fine amount of Rs.2,00,000/- to the mother of the deceased. In addition to that, appellant Nos.1 and 2 had also been convicted for the offences under Sections 348 r/w.34 of IPC and had been sentenced to undergo rigorous imprisonment for two years each and a fine of Rs.10,000/- each under Section 348 r/w. Section Crl.A.No.1267/2014 3 34 of IPC, in default of payment of fine to undergo rigorous imprisonment of six months each. Substantive sentences awarded under both the offences were ordered to run concurrently. The court below had directed the State Government to pay an amount of Rs.2,00,000/- (Rupees two lakhs only) as compensation to the mother of the deceased, within one month and recover the same equally from accused Nos.1 and 2, with simple interest at the rate of 8.75% per annum.

2. Facts, shorn of unnecessary details, as unfolded during trial, are mentioned herein below:-

On 06.04.2005, at 01.00 pm, PW9 took custody of a person named Rajendran, who was found roaming around Sanker's hospital, Kollam. PW3-Shajahan was admitted at the same hospital as an inpatient and was undergoing treatment.

His mobile phone was found missing from the room. While so, the security personnel attached to Sanker's hospital, Kollam found Rajendran loitering inside the hospital premises. The Crl.A.No.1267/2014 4 security personnel questioned his presence inside the hospital.

He was not able to give satisfactory answers. Hence, the police was informed. On 06.04.2005, at about 12.45 noon, PW7, one of the Police Constables, on telephone duty, attached to the Police Control Room, Kollam received an information that a thief was detained at Sanker's Hospital, Kollam. PW7 was not aware of the details of the caller, as no caller ID was available. As usual, he recorded the information in Ext.P6 General Diary of the police control room as Ext.P6(a) at 12.45 p.m., in which CW9 who was the then duty officer put his initial acknowledging the act of PW7. Pending proceedings, CW9 passed away. As directed by the duty officer, PW8- the Police Constable on wireless duty immediately communicated the information to PW9, the Assistant Sub Inspector in charge of Mobile Jeep No.1 of the Control Room, Kollam City. On receiving the information, PW9 and the police party went to Sanker's Hospital at Kollam to apprehend the suspect. They went directly to the office of PW6- the then Administrative Officer of Sanker's Hospital, Kollam, Crl.A.No.1267/2014 5 who pointed out the suspect sitting in his room. PW6 maintained that he did not intimate or call the police to apprehend the suspect as alleged. However, he handed over the suspect to PW9 as required by them and the police went out from Sanker's Hospital along with the suspect at about 1.00 pm. PW9 entrusted the suspect to PW10, who was the Additional Sub Inspector, Kollam East Police Station, at 1.15 pm, along with MO1 mobile phone, Ext.P2 identity card and Ext.P3 railway season ticket. Thereafter, as CW9 was absent during the relevant time, PW9 had recorded the said entry in the control room General Diary (Ext.P6) as Ext.P6(b). At about 02.20 p.m., Rajendran was entrusted with accused Nos.1 and 2 who were members of the crime squad for interrogation in the presence of PW11-Pavizhasenan and PW12-Andrews, PW13-

Sunny.A.Decrews and PW20-writer. Accused Nos.1 and 2 took Rajendran to Sardar Vallabhai Patel Police Museum at Kollam and tortured him for extracting confession from him. As a result of the torture, Rajendran sustained serious injuries and Crl.A.No.1267/2014 6 succumbed to the injuries later. It is alleged that accused Nos.1 and 2 assaulted the victim with an intention of causing death or with the intention of causing such bodily injury as the accused knew to be likely to cause death of the victim to whom the harm is caused and thereby committed offences punishable under Sections 348 and 302 r/w.section 34 of the IPC.

3. On 06.04.2005, PW18-Sugathan was working as Additional Sub Inspector of the East Police Station, Kollam. On that day, he along with PW23-Shamsudheen went outside to conduct investigation in connection with Crime No.187/2005. They arrested the accused in the said crime at 02.45 pm on the same day itself. The accused in Crime No.187/2005 was brought back to the police station and entrusted to the police constable who was on sentry duty. Thereafter, PW18 went to the police club for lunch. After having lunch, PW18 was engaged in connection with VVIP duties and returned to the police station at 07.40 pm only. He received reliable information that one Rajendran was brought from Sanker's hospital, Kollam in connection with a mobile phone theft case by the Sub Crl.A.No.1267/2014 7 Inspector of Police and party attached to the control room. He also received Ext.P1-intimation that the aforesaid Rajendran was questioned by the police and thereafter he had developed physical illness and was taken to the hospital at 06.30 pm and while so, he succumbed to the illness at 07.30 pm. Accordingly, PW18 registered Ext.P14-FIR under Section 174 of Cr.P.C for unnatural death. He had recorded the death of Rajendran in Ext.P8-General Diary stating the above facts. Over and above, PW18 entered in Ext.P8(e) that, pursuant to Ext.P1 intimation, Crime No.227/2005 under Section 174 Cr.P.C was registered. PW18 further recorded in Ext.P15(a)-official notebook that, Crime No.227/2005 was registered.

4. Pursuant to the registration of Crime No.227/2005 under Section 174 Cr.P.C, the Superintendent of Police made a request to the learned District Magistrate to depute one of the Executive Magistrates working under him to conduct inquest on the dead body of the deceased Rajendran. Accordingly, the learned District Magistrate authorised PW27, the then learned Sub Divisional Magistrate/Revenue Divisional Officer of Kollam to conduct inquest Crl.A.No.1267/2014 8 on the body of the deceased. On 07.04.2005, at 12.45 pm, PW27 conducted inquest on the body of deceased and prepared Ext.P21- inquest report, in the presence of PW24-Thulaseedharan, who is none other than the brother of deceased Rajendran and other police officials. Column No.11 in Ext.P21 is relating to apparent cause of death. Ext.P21 is silent regarding the apparent cause of death. However, it noted the apparent cause of death 'after the postmortem examination'. Column No.16 is pertaining to the opinion of the panchayatdars as to the cause and manner of death. It is stated in column No.16 that Rajendan, aged 37 was arrested in connection with a theft case and detained at East Police Station, Kollam in connection with the same and while so, he had developed physical ailments and two police constables attached to the police station escorted him to the District Hospital, Kollam and on the way, Rajendran passed away. It is specifically stated that no suspicion had arisen on account of the death of the deceased.

5. After conducting the inquest, check memorandum was prepared and handed over to the police officials for taking further steps to conduct postmortem examination on the body of the Crl.A.No.1267/2014 9 deceased, evidenced by Ext.P6 report.

6. PW25, Dr.O.Geetha, Professor and Head, Department of Forensic Medicine, Sree Gokulam Medical College, Venjaramoodu, conducted autopsy with the assistance of Dr.Meena on the body of the deceased and issued Ext.P18 postmortem certificate. PW25 noted 15 antemortem injuries on the body of the deceased. The details of the injuries described in Ext.P18 postmortem certificate are narrated in paragraph No.28 of the judgment pronounced by the trial court. On examination before court, PW25 stated that Rajendran died due to the injuries sustained on his trunk and head, particularly, injury Nos.1, 2, 3 and 7. Considering the nature of injuries sustained to the deceased, we think it is just and proper to narrate injury Nos.1, 2, 3 and 7 as hereunder:-

''1. Contusion 4x2x0.5 cm on the left side of back of head, 3 cm behind the ear.

2. Contusion 0.5x0.5x0.3 cm on the back aspect of left temporalis muscle.

3. Contusion 3x2x0.3 cm on the right side of back of head, just behind the ear.

Thin film of subdural haemorrhage seen over the upper surface of left cerebral hemisphere and a localised subarachnoid haemorrhage over the left Crl.A.No.1267/2014 10 parietal region. Left parietal lobe was seen oedemetous with flattening of gyri and narrowing of sulci.

7. Contusion 34x30x2 cm, on the back and sides of trunk, its upper extent 14 cm below the root of neck. There was fracture separation of spinal processes of 10th and 11th thoracic vertebrae.

Contusion was seen on the outer back aspect of spleen (1.2x0.5x0.3 cm). Infiltration of blood seen along the intercostal muscles and around the upper portion of aorta (17 x 3 x0.5 cm).''

7. During postmortem examination, PW25 collected viscera and samples of blood for chemical analysis. Ext.P19-certificate of chemical analysis would show that the stomach and part of intestine, part of liver and one kidney and blood collected during postmortem examination did not contain any poisonous substance. PW25 also collected three bits from the site of injuries and sent for physical examination to the Department of Pathology. Ext.P20 report was submitted by the Department of Pathology. On a consideration of the materials available before PW25, including Exts.P19 and P20, PW25 stated that the injuries sustained by the deceased were 24 hours old from time of death of the deceased. In cross examination, Crl.A.No.1267/2014 11 PW25 clarified that at the time of conducting postmortem, there was no gross evidence of any chronic disease except fatty liver. To put it differently, PW25 stated that Ext.P18 postmortem certificate is a conclusive report regarding negative evidence of chronic disease. PW25 further ruled out the possibility of sustaining injury Nos.1 to 3 in the event of falling a heavy object on the head of the victim prior to his death. She further stated that injury No.7 cannot be caused by a fall. On going through Ext.P18 postmortem certificate coupled with Exts.P19 and P20, we are satisfied that the injuries sustained to the deceased were sufficient to cause death in the ordinary course of nature. No doubt, the death was homicidal in nature.

8. The prosecution case is that, accused Nos.1 and 2 were Police Constables attached to the East Police Station, Kollam. Admittedly, Rajendran was taken into custody by the Control room police and entrusted to the East Police Station, Kollam for further action. PW24, who is the brother of Rajendran stated that Rajendran was conducting a petty business in selling floor cleaning materials such as lotion and brush at Market Junction, Kottarakkara. Earlier, he was working in a furniture mart under the name and style 'panchami' Crl.A.No.1267/2014 12 at Nilambur. He further stated that on the date of death, he was 37 years of old. Rajendran had divorced his wife two years prior to his death. He stated that Rajendran had no health problems. However, he admitted that Rajendran underwent treatment for mental illness at the Government hospital, Punalur. PW24 identified Ext.P2 Identity card issued by the Panchami Furniture Mart at Nilambur and MO1 mobile phone of the deceased. He further stated that his mother has sustained a fracture and is bedridden. Rajendran's mother was cited as a witness for the prosecution. However, she was not examined on account of her illness.

9. On going through the evidence of PW24, it is clear that Rajendran was a free man before his death. There is nothing on record to show that he had committed any offence. No criminal case was registered against him before his death. MO1-mobile phone is not the one alleged to have been missed from Sanker's hospital at Kollam. However, he was wrongfully restrained, detained in lockup, condemned and questioned by the police. Most significantly, the very act of taking Rajendran into custody as a suspect and detaining him in the lock-up attached to the East police station, Kollam Crl.A.No.1267/2014 13 represented the assumed unlimited powers of the police to act with impunity against a common man in violation of the rule of law.

10. Indisputably, Rajendran was taken into custody by the police from Sanker's hospital, Kollam in connection with a theft case. He died in police custody. The death was homicidal in nature. The question arising for consideration before us is as to whether Rajendran was arrested informally and kept in police custody, without recording arrest, as per police records and during the informal detention, was he subjected to torture which at times resulted in death? In the event of his death, was there any attempt on the part of the police to make cause of his death due to natural causes or to manipulate records to shield the police personnel? No doubt, the police was obliged to offer an explanation for the death of Rajendran. It is a fact that the relatives of the victim are unable to seek protection of law on account of their poverty and ignorance.

11. We are aware of the fact that the police is duty bound to maintain law and order, investigate crimes and apprehend offenders. This is absolutely essential to maintain an orderly society. In the case at hand, Rajendran was taken into custody from Crl.A.No.1267/2014 14 Sanker's hospital, Kollam, and his dead body was later handed over to his relatives after conducting postmortem examination. The postmortem report inter alia would show that the death was homicidal. In the above backdrop, it is necessary to examine the evidence adduced during trial in detail, particularly with reference to arrest and detention of the victim and his death in police custody.

12. The occurrence in this case was on 06.04.2005. After investigation, the police filed final report before the Jurisdictional Magistrate Court on 17.05.2007. The learned Magistrate committed the case to the Court of Sessions, Kollam on 07.06.2008, after complying with the usual formalities. The case had been pending before the trial court for more than six years. The trial had commenced only on 01.08.2014 and the judgment was pronounced on 28.11.2014. There was an inordinate delay of nearly nine years to commence the trial in this case. In fact, witnesses were examined before the trial court after nine years from the date of occurrence.

13. During trial, the prosecution examined PW1 to PW38, Exts.P1 to P49 and Mos 1 to 6 on the prosecution side. Dw1 to DW4 were examined and Exts.D1 and D2 contradictions and Ext.D3 Crl.A.No.1267/2014 15 circular were marked for the defence. On closing the evidence for the prosecution, accused Nos.1 and 2 were questioned under section 313 (1)(b) of Cr.P.C. They contended that they were not present in the East Police Station, Kollam or Sardar Vallabhai Patel Museum at Kollam on the date of occurrence. However, they admitted that they were on duty in connection with some petition matters far away from the place of occurrence. They had alleged that in connection with the death of Rajendran, PW10- additional Sub Inspector-C.Babu, PW11 -Pavizhasenan, the officer in charge of General Diary, PW12- Andrews- the constable on sentry duty, and PW13-Sunny.A.Decrews, another police constable on sentry duty, conspired together and falsely incorporated them in the General Diary. According to them, they were instrumental in taking away the General Diary from the police station to manipulate records. More so, they further alleged that PW10, PW11 and PW12 were in charge of petition matters pending before the police station, for which they had unauthorisedly received money from the parties. When the new Principal Sub Inspector had assumed office, he had shifted the work from PW10 to Pw12 and entrusted the work with accused Nos.1 and 2. On Crl.A.No.1267/2014 16 account of the above enmity, according to the accused, PW10 to PW12 conspired together and made accused Nos.1 and 2 as accused in this case. According to them, they received reliable information that Rajendran came to Sanker's hospital at Kollam on 06.04.2005 for neuro treatment. While so, he was apprehended by the security guards and attenders of the hospital and manhandled him brutally. Accused Nos.1 and 2 maintained that although the investigating officer received reliable information touching the above occurrence, he did not conduct any investigation regarding the same. In support of the submissions, DW1 to DW4 were examined on the defence side.

14. PW1, Assistant Surgeon, District Hospital, Kollam deposed before the court that, on 06.04.2005, an unknown body was brought to the hospital in the evening by the police constables, namely, Soman and PW17-Madhusoodanan Pillai, attached to the East Police Station, Kollam. Consequently, he issued Ext.P1 intimation letter to the Sub Inspector of Police, Kollam East Police Station, stating that the body was kept in the mortuary for further action. PW1 was on duty from 02.00 p.m to 8 p.m on that day.

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15. PW2-the Assistant Surgeon, District Hospital, Kollam who was the successor of PW1, recorded in Ext.P1 that an unknown body was brought to casualty on 06.04.2005 at 07.30 pm as per nurses' report book. He stated that he verified with PW1 and also the nurses' report book and recorded the time in the intimation issued.

16. PW3-Shajahan was an in-patient at the Sanker's hospital, Kollam. He filed a complaint on 06.04.2005, before PW6 stating that his mobile phone under the name and style 'Nokia-6610' model was found missing. At 11.00 am, PW3 received information that a suspect was caught by the security personnel. Accordingly, he went and saw a person sitting inside the Sanker's Institute of Medical Sciences. The suspect was taken to the room of PW6 where he was questioned by them. However, he did not give any satisfactory explanation to the questions asked. PW3 identified Ext.P2-Identity card and MO1-mobile phone of the suspect. He stated that in the meanwhile, police came and removed the suspect from the place. Consequently, he went to the East police Station at Kollam and lodged Ext.P4 complaint in original. Thereafter, he was discharged from the hospital. After 08.00 pm, he received a telephone call from Crl.A.No.1267/2014 18 the East Police Station, Kollam, requesting him to be present in the police station in connection with the investigation of a theft case. Accordingly, he went to the police station where he came to know that the person apprehended by the police from the hospital was no more. His statement was recorded by the police. He identified Ext.P5 statement given by him.

17. In support of the evidence let in by PW3, PW4, one of the attenders, PW5- the security officer and PW6-the then Administrative Officer of Sanker's hospital, Kollam adduced evidence to show that the police came to the hospital and removed Rajendran from the hospital. PW6 stated that the hospital authorities were reluctant to give a written complaint to the police as required by them. They also adduced evidence to show that they did not torture or manhandle Rajendran before being handed over to the police. They reiterated that Rajendran was healthy when he was taken into custody by the police.

18. On going through the evidence of PW4 to PW6, it is clear that the hospital authorities did not furnish any complaint to the police authorities to apprehend Rajendran. Though the police Crl.A.No.1267/2014 19 requested PW6 to lodge a complaint, he refused to do so and requested them to wait for the arrival of the local Panchayat President. His complaint is that police removed Rajendran without waiting for the arrival of the Panchayat President. The circumstances warranting the police to reach at Sanker's hospital, Kollam are explained by PW7. He was on police control duty on 06.04.2005. According to him, he received a telephone message at 12.45 pm that one person was detained at Sanker's Hospital, kollam in connection with a mobile theft case. He had passed on the information to the Duty Officer, Control room, namely, Ahmed Kabeer. Consequently, necessary entry was made by the Duty officer in Ext.P6-General Diary by way of Ext.P6(a) entry. Ahmed Kabeer passed away during the pendency of the proceedings and hence Exts.P6 and P6(a) are marked through PW7.

19. In support of the evidence let in by PW7, PW8-who was a Police Constable on wireless duty on 06.04.2005 adduced evidence to show that on the same day at 12.45 pm, a telephone call came requesting to take necessary steps to depute police personnel to Sanker's hospital, Kollam. As instructed by the Duty Officer-Ahmed Crl.A.No.1267/2014 20 Kabeer, necessary information was passed on to mobile-I unit on duty. According to him, the police complied with the intimation and removed the suspect from the hospital and PW9-Sadanandan entrusted the suspect to PW10-C.Babu, who was in charge of the East Police Station, Kollam. He also stated that necessary entries in this regard was made in Ext.P6.

20. On 06.04.2005, PW9-Sandanandan was working as Asst. Sub Inspector, Control Room, Kollam. Along with CW13-Ashokan, Radhakrishnan and Jayachandran, PW9 proceeded to Sanker's Hospital, Kollam as required, and removed Rajendran from the office of PW6. He stated that he did not notice any injury on the body of Rajendran when he took him into custody from Sanker's Hospital, Kollam. He also identified Ext.P2-Identity card and MO1-mobile phone of the deceased. He stated that he had recorded the above facts in the General Diary.

21. PW3 to PW9 adduced evidence to show that Rajendran was taken into custody by the police from Sanker's Hospital, Kollam on 06.04.2005. PW10- C.Babu, who was working as Additional Sub Inspector of Police, East Police Station, Kollam was in-charge of the Crl.A.No.1267/2014 21 police station. He stated that PW12 and PW13 and one Joe Karlose were in charge of sentry duty on 06.04.2005. He testified that he registered Ext.P7-FIR for the offence under Section 380 of the IPC on the basis of Ext.P4-complaint submitted by PW3-Shajahan.

22. PW10 testified that accused Nos.1 and 2 were working as police constables in the very same police station. They were discharging the duties assigned to them in connection with the crime squad. They came to the police station around 02.20 pm. As requested by them, PW10 had permitted them to question Rajendran in connection with the alleged theft as the members of the crime squad were specifically authorised to question the suspects involved in the crimes within the station limits. Accordingly, they took Rajendran from the police station and went outside towards the Sardar Vallabhai Police Museum at Kollam. He recorded the said fact in Ext.P8. Ext.P8 would show that PW9-Sadanandan and police party handed over Rajendran to PW10. According to him, he specifically stated in Ext.P8(a) that the crime was registered at 13.40 hours, based on the complaint received from PW3-Shajahan. Thereafter, he went outside in connection with V.V.I.P duty. Around 06.30 pm, he Crl.A.No.1267/2014 22 received a call from the Police Station through wireless and accordingly, he reached the police station. He saw Rajendran inside the Cell in a totally collapsed state. Accordingly, Rajendran was entrusted with PW17-Madhusoodanan Pillai and Soman, who were working in the police station, to take him to hospital. Later, he received an information that Rajendran passed away which resulted in registering Ext.P14 FIR in Crime No.227/2005 under section 174 of Cr.P.C. PW10 also produced Ext.P9 Official note book to prove the duties done by him on 06.04.2005.

23. PW11, Pavizhasenan was working as Head constable attached to the East Police Station, Kollam on 06.04.2005. He testified that PW9-Sadanandan and police team entrusted Rajendran to PW10-C.Babu in connection with a theft case at 01.15 pm. He further stated that the said fact was recorded by PW10 in the General Diary. At 02.45 pm, PW18-Additional Sub Inspector, Sugathan and Head Constable-Shamsudheen brought an accused involved in Crime No.187/2005 before the police station. At that time, accused Nos.1 and 2 brought back Rajendran after questioning him. While so, Rajendran was found tired and accused Nos.1 and 2 Crl.A.No.1267/2014 23 were holding him. His pants and shirt were wet. He was not in a position to move an inch without the help of a person. When PW11 looked at accused No.2, he was told that Rajendran was involved in three narcotic cases and requested him to retain him inside the lockup. Based on their request, PW11 directed PW13- Sunny.A.Decrews to open the cell. Thereafter, the second accused removed the pants and shirt of Rajendran and pulled him inside the lockup. At 06.15 pm, PW13 informed PW11 that Rajendran was seriously ill and something should be done in the matter. Immediately, PW11 intimated PW10 to reach the police station. Accordingly, PW10 arrived at the police station and took necessary steps to provide medical treatment to Rajendran. Accordingly, Rajendran was taken to District Hospital, Kollam at about 06.45 pm and around 07.30 pm, intimation was received from the hospital that Rajendran was no more. This fact was communicated to Pw10. PW11 further stated that when Rajendran was taken from the police station for questioning, he was healthy. In support of the evidence let in, PW11 also produced Ext.P10 official note book disclosing the entire transaction.

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24. PW12-Andrews was on sentry duty from 12 noon to 4 pm and turn duty from 8 pm to 12 pm at the East Police Station, Kollam on 06.04.2005. PW12 adduced evidence in support of the evidence let in by PW11. He further testified that when he went outside to urinate, he heard a sound of beating from the Sardar Vallabhai Police Museum at Kollam. On hearing the sound, he went towards the museum where he found Rajendran in a totally collapsed and shattered condition. While so, he saw the first and second accused near to Rajendran. The rest of the evidence adduced by PW12 is in terms of the evidence adduced by PW11. PW12 produced Ext.P11 official note book to prove the entire transaction which took place inside the police station while he was on duty.

25. PW13-Sunny.A.Decrews yet another police constable, who was on turn duty, was from 12 noon to 04.00 p.m and from 04.00 pm to 08.00 pm on 06.04.2005. He also supported the version of PW11 and PW12 in full. PW12 and PW18 categorically stated before the trial court that accused Nos.1 and 2 took Rajendran for questioning and while so, Rajendran was healthy. Later, accused Nos.1 and 2 brought back Rajendran to the Police Station in a Crl.A.No.1267/2014 25 shattered condition from Sardar Vallabhai Patel Police Museum. PW13 produced Ext.P13 official note book to show that the entire transaction took place in connection with the detention of Rajendran.

26. Sardar Vallabhai Patel Police Museum at Kollam was under

the exclusive control of the Circle Inspector. PW14, an armed reserve police constable was on duty on 06.04.2005 between 09.00 am and 06.00 pm to manage the affairs of the Museum. He stated that, on 06.04.2005, around 10.00 am, he had obtained permission from the Circle Inspector to attend the funeral of a near relative and came back at 04.30 pm to the museum where he found accused Nos.1 and 2 standing in front of the museum. When he went to lock the museum at 06.00 pm, he found the steps attached to the museum in a wet condition. He stated that the steps were not wet when he left the premises earlier.

27. How the steps became wet was explained by PW15, another armed reserve police constable who was in charge of the police club at Kollam. He was on duty between 10 am and 6 pm on 06.04.2005. On that day, he came to see the Sub Inspector of Kollam East Police Station through the gate on the backside of the Crl.A.No.1267/2014 26 police museum. While so, he had an occasion to see accused Nos.1 and 2 pouring water on the body of a person wearing a brief only. After meeting with the Sub Inspector, according to PW15, he came back through the very same way where he saw the person to whom water was poured by accused Nos.1 and 2 in a shattered condition, sitting on the floor. He reiterated that accused Nos.1 and 2 were still present there.

28. PW16 was the Circle Inspector of Police, Kollam East police station on 06.04.2005. He was engaged in connection with various official duties on 06.04.2005. He stated that on getting reliable information that one person apprehended by the police passed away in custody, as directed by the Superintendent of Police, PW18-Sugathan registered a case under Section 174 of Cr.P.C.

29. PW20 was working as writer attached to East Police Station, Kollam on 06.04.2005. He testified that on 06.04.2005, at 06.30 pm, when he came back after attending duties at Dy.S.P's office at Kollam, he saw a person inside the lockup in a shattered condition. He also found PW17 and one Soman helping him to wear his dhothi. As requested by PW10, PW20-Sudhakaran Pillai also Crl.A.No.1267/2014 27 extended help to PW17 and Soman to take the victim to the hospital. According to him, the crime squad members were not keeping the official note book until the incident in this case took place. PW20 was an attestor to the scene mahazar prepared by the investigating officer. He identified Ext.P16-seizure mahazar and MO1, MO2, Exts.P2 and P3 recovered from the spot.

30. As informed by PW13-Sunny.A.Decrews that Rajendran is in a shattered condition, on the date of occurrence, PW17, who was working as one of the team members in the crime squad attached to the Kollam East police station, came to the police station and enquired with PW11-Pavizhasenan regarding the bona fides of the same. As indicated by PW11, PW17 went near to the lockup and found a person in a shattered condition inside the lockup. PW17 with the assistance of other police constables on sentry duty removed the person from the lockup to the District Hospital, Kollam. PW17 stated that the doctor who had examined the person declared that he was brought dead. He had furnished the factum of death of the person to PW18-Sugathan. The version of PW17 was supported by PW18, when he was examined before court.

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31. PW21 was on surveillance duty at the District Hospital, Kollam immediately after the death of Rajendran as directed by PW18-Additional Sub Inspector of Police.

32. PW19 was working as Principal Sub Inspector of the East Police Station, Kollam since 2005. He stated that, he was on training duty for 15 days from 05.04.2005. Hence, Station duty charge was handed over to PW10 after which he left for training. He reiterated that accused Nos.1 and 2 were working as crime squad members attached to the Kollam East Police Station on the date of occurrence. As accused Nos.1 and 2 were discharging the functions of the crime squad, they were exempted from wearing police uniform.

33. PW26-Mohanan was one of the neighbours of deceased Rajendran. He stated that he had lastly seen Rajenderan on 06.04.2005, at 08.30 am. He was conducting a tea shop at Kottarakkara. In the morning, Rajendran came to have a cup of tea from his tea shop. He had his tea and left the place. He had not seen him thereafter.

34. Investigation of complaint regarding custodial torture is generally investigated by the State police. This case is not an Crl.A.No.1267/2014 29 exception to the general rule. Such an enquiry cannot be effected free from bias. There is no independent agency to conduct investigation in the case of custody murder. Though in certain cases, CBI is investigating custodial death, it cannot be done as a matter of course unless it is recommended by the Government or ordered by Court. In this case, investigation was conducted by several officers. PW32 was the Deputy Superintendent of Police, Kollam Crime Detachment. As ordered by the Assistant Superintendent of Police, Kollam, he took over investigation in crime Nos.225/2005 and 227/2005 of Kollam East Police Station. He had questioned PW11, PW12, PW13, CW18, PW17, PW18, CW31 and PW27 and recorded their statements. On 08.04.2005, PW32 seized Ext.P12-sentry relief register, Ext.P6-General Diary of the Police Control Room, Ext.P8- Guard Diary of Kollam East Police Station by Ext.P25 mahazar. On 09.04.2005, PW32 filed Ext.P26 report before the Sub Divisional Magistrate, Kollam to delete Section 174 of Cr.P.C. and to incorporate Section 302 of IPC. On that day, he had questioned PW1, CW5, PW5, CW7, PW20 and recorded their statements. On 10.04.2005, PW32 questioned PW3 and recorded the statement. On 11.04.2005, Crl.A.No.1267/2014 30 PW32 questioned CW39, CW43 and PW24. On 11.04.2005, Deputy Inspector General of Police issued an order directing to hand over the file to CBCID, Kollam. Thereupon, the file was handed over to the CBCID, Kollam.

35. PW33 took over the investigation in Crime Nos.227/2005 and 226/2005 and questioned PW11, PW12, PW13, CW18 and PW18 and recovered their official note books by virtue of Exts.P29 to P33 mahazars. PW33 also recovered the official note books of PW20, CW29, and PW10 by virtue of Ext.P35. He stated that on 16.04.2005, as ordered by the DIG of Police, the investigation was handed over to PW35. PW33 specifically stated that accused 1 and 2 were discharging duties as crime squad attached to the Kollam East Police Station. As per the instruction of PW33, the rest of the investigation was conducted by PW34 and he had questioned PW24, PW26 CW39 and CW41 respectively.

36. PW35 was working as Superintendent of Police, Crime Branch during the year 2005. He took over the investigation in this case on 16.04.2005. He forwarded General Diary, sentry relief book, police control room GD, mobile phone, ID cards,pants, belt and Crl.A.No.1267/2014 31 railway season ticket to the jurisdictional Magistrate by Ext.P38. On 07.06.2005, he seized the petty case register of the Kollam East Police Station by Ext.P39. He also filed a report incorporating Section 348 read with 34 of IPC. He arrested accused Nos.1 and 2 in accordance with law and prepared Ext.P22 mahazar.

37. PW36 was working as Superintendent of Police, Crime Branch, Kollam from 24.08.2005 to 31.05.2006. He took over the investigation on 26.08.2005. He questioned the witnesses and recorded their statements. He filed application to record the statement of 12 witnesses before the learned Magistrate under Section 164 Cr.P.C. Torture, injury causing death in custody is not within the official duty of the police officers. Still, PW36 applied for permission under Section 197 Cr.P.C. from the Government to prosecute accused Nos.1 and 2. PW36 further stated that A1 and A2 were not maintaining an official duty book as they had been working in the crime squad attached to the Kollam Police Station. PW37 collected Ext.P48 sanction by the Government and produced the same before court.

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38. On analysing the evidence, particularly with reference to Exts.P6 and P8, the court below, entered a finding that Rajendran was taken into custody by the police from Sanker's Hospital, Kollam by PW9 and others. PW9 in turn entrusted Rajendran to PW10 at 1.15 p.m at Kollam East Police Station. Relying on the testimony of PW25 and Ext.P18 postmortem certificate, the court below held that, Rajendran sustained a homicidal death on account of the injuries sustained by him in police custody. Answering to the cause of death of Rajendran, the court below opined that Rajendran was in the exclusive custody of accused Nos.1 and 2, which was a wrongful confinement, or detained him inside Sardar Vallabai Police Station from 2.20 pm to 3.30 pm for extracting confession from him in connection with a theft of mobile phone in Crime No.226/2005 of Kollam Police Station. Accordingly, A1 and A2 were convicted and sentenced as stated in paragraph No.1 of this judgment.

39. The learned Senior counsel for the appellants contended that Rajendran was not entrusted to PW10 at 1.15 pm on 06.04.2005, as alleged by the prosecution. The main contentions are as follows:-

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1. All corresponding entries in Ext.P8 and official note books of PW10, PW11, PW12 and PW13 were fabricated for the purpose of this case.

2. Ext.P8 was missing from East Police Station on 06.04.2005 from 9.00 pm onwards and took custody of the same by PW32 only at 10 am on 08.04.2005 by Ext.P25 mahazar.

3. East Police Station, Kollam was not under the exclusive control of accused Nos.1 and 2

4. PW11, PW12 and PW13 along with Senior Police Officers PW10 and PW16 had manipulated entries in Ext.P8.

5. In Ext.P8, at 19.45 hours, PW18 had made an entry as Ext.P8(e) and registered crime No.227/2005 under Section 174 Cr.P.C., relating to the death of Rajendran. Exts.P8(a) to (d) are manipulated.

6. After 9 pm, PW11, PW12, PW13 and PW16 fabricated entries in Ext.P8 against the accused.

7. No investigation was conducted by the police regarding the persons present inside the lockup when the accused was allegedly brought to the police station. They were not cited as witnesses for the prosecution. They Crl.A.No.1267/2014 34 would have been the best witnesses to say the exact occurrence which took place inside the police station on the date of occurrence.

8. Rajendran was apprehended from Sanker's Hospital, Kollam on 06.04.2005. However, no investigation was conducted to find out what actually transpired at Sanker's Hospital, Kollam.

9. The CCTV footage of Sanker's Hospital, Kollam was not seized by the investigating officers for the reasons better known to them. It would have been best evidence to prove the actual occurrence took place inside the hospital.

10. There is no reliable evidence in this case, except the solitary testimony of witness that he heard the sound of beating from the museum on the date of occurrence.

11. If proper treatment had been given to Rajendran in time, he would have survived.

12. Except the interested testimonies of police officials, no reliable evidence was adduced to support the prosecution case.

13. The police officials are naturally bound to explain themselves by offering lame excuses to save their skin.

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14. There are evidences to show that witnesses were present when Rajendran was brought to the police station. They were not examined.

15. Accused Nos.1 and 2 had no duty in the police station on the date of occurrence and they went outside to conduct enquiries in respect of petition matters entrusted to them.

16. Exts.P10 to P13 note books are unreliable.

17. PW6- the then Administrative Officer of Sanker's Hospital, Kollam was reluctant to make a complaint to the police, presumably for the reason that Rajendran was manhandled brutally on the date of occurrence by the security staff attached to the hospital and the general public.

18. The weapons alleged to have been used to inflict injuries on the deceased had not been recovered.

19. Ext.D3 circular issued by the Superintendent of Police itself is an indication that custodial death in the instant case had occurred because of the lack of attention shown by the Station House Officer.

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40. The learned Senior Public Prosecutor Sri.S.U.Nazar vehemently contended that Rajendran was taken into custody by PW9 at 1.00 pm from Sanker's Hospital, Kollam. PW4 and PW5 of the Sanker's Hospital, Kollam testified that there was no occasion for the Hospital Authorities to manhandle Rajendran and he was healthy when the police took him into custody from the hospital. The learned Senior Public Prosecutor further submitted that Rajendran was entrusted to PW10 at 1.15 pm at the East Police Station, Kollam.

Pointing out the oral evidence of PW3, PW5, PW6, PW7, PW8 and PW9, the learned Public Prosecutor submitted that Rajendran was taken into custody of police at 1.00 pm on 06.04.2005. The learned Public Prosecutor further submitted that Rajendran was inside the police station at 1.15 pm which could be evident from the deposition of PWs.10, 11 and 12 coupled with Exts.P8(a), P10(a) and P11(a) respectively. It is a fact that Rajendran died while in custody.

41. The main contention advanced by the accused is that the officers in charge of the Kollam East Police Station on the date of occurrence are primarily answerable for the charge and accused Nos.1 and 2, who were working as police constables had no role to Crl.A.No.1267/2014 37 explain the circumstances which led to the death of the deceased. According to them, they were made scapegoats and they had no role to deal with the accused in any manner as alleged by the prosecution.

42. Rebutting the above contentions of the accused, the learned Senior Public Prosecutor submitted that criminal law was set in motion subsequent to the death of Rajendran while in police custody. No attempt was made by the police officials to screen the offenders in any manner. The learned Senior Public Prosecutor submitted that inquest was conducted by the Sub Divisional Magistrate and postmortem examination was done with the assistance of videography. The learned senior Public Prosecutor highlighted the aspect that it is very difficult to secure evidence against the policemen responsible for resorting to third degree methods, since they were working in the very same police station. However, in this case, investigation was conducted systematically and majority of the witnesses supported the prosecution case. The learned Senior Public Prosecutor further submitted that in the case at hand, the alleged torture was done at the Sardar Vallabhai Police Crl.A.No.1267/2014 38 Museum at Kollam. It is submitted that generally, third degree methods are applied behind closed doors and no member of the public is permitted to be there to witness the same. However, the police has investigated this case without any bias and the evidence let in is sufficient to prove that Rajendran succumbed to the injuries due to the torture exerted on him during police custody by accused Nos.1 and 2. The learned Senior Public Prosecutor contended that the oral evidence let in is sufficient to prove the offences alleged against the accused beyond reasonable doubt and no interference is warranted.

43. One of the contentions taken by the appellant is that Ext.P8 is manipulated and the same was found missing from East Police Station on 06.04.2005 from 9.00 pm onwards and custody of the same could be taken by PW32 only at 10 am on 08.04.2005 by Ext.P25 mahazar. It is true that PW32 visited the East Police Station and could not recover Ext.P8 since the General Diary was taken by the Special Branch Dy.S.P. Hence PW32 had issued notice to PW16 to produce the same before him and got it at 10 am on 08.04.2005. We have gone through Ext.P8 General Diary and the entries thereof. Crl.A.No.1267/2014 39 We have also gone through the reasons stated in paragraph No.15 of the judgment by the trial court to rely on Ext.P8 General Diary. All the entries relating to the case were over by 7.45 pm. PW16 stated that he had verified the General Diary on 06.04.2005 itself. On a perusal of the General Diary, we are of the view that the General Diary is not manipulated as alleged by the accused. It is also quite natural that the General Diary was missing from the station for sometime on account of the unnatural death of Rajendran, who was taken into custody by police. Custodial death is a shame to the entire police machinery. Naturally, the police might have set the entire administrative machinery in motion to find out the truth. Merely because General Diary was taken by the Special Branch Officials to ascertain the veracity of the occurrence, it could not be taken as a proof to show that the Special Branch deliberately seized the General Diary for the purpose of manipulating things and implicating two innocent police constables as accused in the crime. The general trend of custodial death is to manipulate records to exonerate police from the array of the accused. In the case on hand, the Police, after investigation, filed a charge sheet against the accused based on Crl.A.No.1267/2014 40 reliable evidence.

44. The contention next raised is touching the veracity of Ext.P6 entries. PW7 and PW9 deposed before court that, at 12.45 pm on 06.04.2005, the control room Police officials took into custody of Rajendran at 1.00 pm from Sanker's Hospital and entrusted with PW10 at 1.15 pm. It is very difficult to believe that Ext.P6 General Diary of control room is manipulated for the purpose of this case.

45. Going by the above evidence, particularly with reference to Exts.P6 and P8, it is clear that Rajendran was brought into the custody of police from the office room of PW6-the then Administrative Officer of Sanker's Hospital, Kollam by PW9 and party. PWs.3, 5, 6, 7, 8, and 9 stated before court that Rajendran was taken into custody at 1.00 pm on 06.04.2005. PWs.10, 11 and 12 stated that Rajendran was seen inside the police station at 1.15 pm. This is supported by Ext.P8(a) entry of General Diary proved by PW10, Ext.P10(a), page No.65 of official note book of PW11 and Ext.P11(a) entry in the official note book of PW12. From the evidence of PWs.3, 4, 5, 6, 9, 10, 11, 12 and 13, it is proved that Rajendran was physically healthy at the time of taking him into Crl.A.No.1267/2014 41 custody by the police at 1.00 pm on 06.04.2005.

46. One of the contentions taken by the accused is that subsequent to the complaint made by PW3, the Security personnel attached to Sanker's Hospital, Kollam manhandled Rajendran with a six cell handy torch, lathi and sticks and inflicted grievous injuries to him. The contention advanced by the accused was not substantiated by the oral evidence of PWs.3 to 5. Had it been a case of serious injury on account of torture by the security personnel and general public, the control room police would have taken Rajendran to the nearest hospital for treatment. Instead, they had entrusted the suspect to East Police Station, Kollam for further action. PW9 did not support the version of accused Nos.1 and 2. The accused had no case that PW9 and others manhandled Rajendran when he was taken into custody from the hospital. Even in the complaint, PW3 had no such case. The contention of the accused that Rajendran was coming from the old building of Sanker's Hospital with a broken strap gold plated watch raised on his hand is not a circumstance to hold that Rajendran was manhandled by the security personnel. This is only a circumstance to hold that Rajendran was mentally not stable. Crl.A.No.1267/2014 42 The non-production of the broken strap itself is not a serious lacuna to disbelieve the prosecution case. C.C.T.V footage is also material to decide the case in view of the oral evidence adduced.

47. The fact that Rajendran was taken into custody from Sanker's Hospital, Kollam on 06.04.2005 at 1.00 pm is not disputed. Under the circumstances, the police is bound to give an explanation regarding the death of Rajendran while in custody. PW18, the Doctor who conducted the postmortem examination categorically opined that the deceased died out of blunt injuries sustained by him. It is true that there were no external injuries on his body. Hence, the contention raised by the accused that the injuries might have been inflicted by the security staff of the hospital and thereafter handed over to the police is incorrect. However, the evidence let in would show that Rajendran was brought to the East Police Station, Kollam and handed over to PW10. Accused Nos.1 and 2 were attached to the Kollam East Police Station itself. Evidence tendered by PW10 and PW11 would show that the Kerala police had been permitted to form a separate group as crime squad within the police station and they were given absolute freedom to question the Crl.A.No.1267/2014 43 suspects and detect offences. They testified that the crime squad itself was acting as a separate wing within the police station and the Station House Officer was not in a position to question the wisdom exercised by them to detect offences. It is true that the Station House Officer is bound to give an answer, touching all commissions and omissions within the police station and he is bound to give an answer to all the situations within the police station. He cannot shirk responsibility by saying that crime squad is a separate wing and he has no control over them. It is within the domain of PW10 to answer all the questions arising on account of the death of Rajendran. In case, he has failed in discharging the duties as Station House Officer, it is within the domain of the superior officers to initiate appropriate disciplinary action against him for dereliction of duty. At any rate, the Station House Officer, cannot be held liable, if an offence is committed by policemen working under him without his knowledge. An attempt was made by the accused to show that PW9 to PW11 colluded together and made accused 1 and 2 as scapegoats to escape from the clutches of law. To sum up, the contention of accused 1 and 2 is that, the officials holding at the helm of affairs on Crl.A.No.1267/2014 44 06.04.2005, at East Police Station, Kollam are primarily liable for the offence committed within the Station on that day. It is the contention of the accused that apprehending criminal action against the officials holding charge of Kollam East Police Station on 06.04.2005, they had succeeded in creating false evidence against them and foisted this case.

48. In support of the contentions of the accused, DWs.1 to 4 were examined. DW1 was working as writer of the East Police Station, Kollam on 06.04.2005. According to him, he went to the Sardar Vallabahi Police Museum in the afternoon on that day and prepared draft charge in Crime No.808/2004 of the Kollam Police Station. He reiterated that he was present in the Museum till 5.00 pm on that day. He further stated that he did not see accused Nos.1 and 2 on that day at the Museum.

49. In cross-examination, DW1 admitted that accused Nos.1 and 2 were the police constables attached to the East Police Station, Kollam and they were coming under the category of sanctioned strength as on 06.04.2005.

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50. DW2 was one of the Ward Members of Kottarakkara Grama Panchayat. Deceased Rajendran was residing within the limits of Kottarakkara Grama panchayat. He stated that when he went for a walk on 06.04.2005, his neighbours told him that Rajendran sustained injuries when a jack fruit fell on his head and he was taken to the hospital for treatment. According to him, he came to the Collectorate, Kollam on 06.04.2005 and he received an information that Rajendran was detained at Sanker's Hospital, Kollam. Hence, he went to the hospital along with Harikumar, the ward member of the place where Rajendran was residing. He stated that he heard from the hospital that Rajendran was manhandled by the security staff attached to the hospital.

51. One of the defences taken by the accused is that, Rajendran had sustained injuries on account of a jack fruit which fell on his head. On a perusal of the oral evidence adduced by DW2, we are of the view that the evidence tendered by DW2 is artificial. ''Jack fruit fell, Rabbit died'' is so incredibly erudite and complicated that it requires a discussion of substantial strength to believe. It is difficult to believe such a proposition. The case is that on the date of the Crl.A.No.1267/2014 46 occurrence, a jack fruit fell on the head of the deceased. There is nothing on record to show that Rajendran went to Sanker's Hospital, Kollam for treatment in connection with the alleged injuries sustained to his head on account of the story developed by the accused. We are of the view that ''once a jack fruit fell and the rabbit died'' is a cock-and-bull story.

52. Accused Nos.1 and 2 had set up yet another contention that they were elsewhere on the date of occurrence. To support the plea of alibi advanced by the accused, DW3 was examined. DW3 was working as Last Grade Servant at TKM Arts College, Kollam. According to him, he had an occasion to see A1 and A2 on 06.04.2005 at 1.45 pm in front of the college office at Kollam. On being enquired, accused 1 and 2 told him that they came to the college to conduct enquiry touching a complaint of harassment against girl students. Accordingly, according to DW3, he had shown the place to them and they waited sometime in front of the college office to see the Principal. It is clear from the evidence adduced by the DW3 that TKM Arts College, Kollam is very near to the East Police Station, Kollam. The plea of alibi is a weak piece of evidence. It is Crl.A.No.1267/2014 47 for the accused to substantiate the plea. There is no reliable evidence adduced to substantiate the plea that the accused was elsewhere from the place of occurrence.

53. One of the defences taken by the accused is that Rajendran was manhandled by the security personnel attached to Sanker's Hospital, Kollam. It is their case that though Rajendran did not sustain external injuries, he had sustained internal injuries, which resulted in his death at the police station. This itself is an indication that Rajendran was taken to the police station and he died at the police station itself while in custody. DW4 was examined to prove that Rajendran was manhandled by the security staff attached to the hospital on 06.04.2005 in connection with a theft case. He stated that he saw one person with a torn shirt in front of the hospital on that day and he was forcefully taken to the office of the hospital by the security personnel. On going through the evidence of DW4, there is nothing on record to show that he had any previous acquaintance with Rajendran. In fact, the identity of Rajendran was not disclosed before court when he was examined as DW4. His evidence would indicate that one person was caught by security staff Crl.A.No.1267/2014 48 at 11 pm from the Sanker's Hospital, Kollam in connection with a theft case. On the other hand, PW10 adduced evidence to show that A1 and A2 received Rajendran from the police cell and went outside the police station towards the Museum. PW11, who was in charge of the General Diary on that day, had witnessed the handing over of Rajendran to A1 and A2. PW12, who was on sentry duty in between 12 pm and 4 pm stated that he had seen the alleged handing over of Rajendran by PW10 to A1 and A2. PW13, the turn duty Police Constable testified that A1 and A2 took Rajendran away from the police station for questioning at 2.20 pm. There is nothing to disbelieve the versions of PWs.10, 11, 12, 13, 15 and 17 in this regard. In addition to the above, the evidence tendered by PWs.10, 11, 12 and 13 corroborates with Exts.P8(c), P10(a), P11 and P13

(a). PW12 further adduced evidence to show that while he was on duty on 06.04.2005 at 2.30 pm, he obtained permission from PW11 for taking a short break after substituting PW11 and went behind the back portion where the police personnel used to take rest. According to him, after taking food, he went for attending a call of nature near the partition wall of the control room and the museum. While so, he Crl.A.No.1267/2014 49 heard a sound on the other side of the wall inside the museum. Thereafter, he went inside the museum and saw Rajendran who was sitting on the cement floor by placing his two legs in a forwarded position facing the Eastern side of the Museum. He had also an occasion to see A1 and A2 standing near Rajendran on that day. Thereafter, he returned to East Police Station and joined duty at 2.45 pm. It is a fact that the police constable on sentry duty was not expected to move from the police station to the Museum, without making necessary entries in this regard in the General Diary. However, PW11, who was on General Diary duty charge, on that day testified that he had granted oral permission to take food for PW12. As rightly held by the court below, this was only a minor irregularity which could not be taken as a ground to discard the reliable evidence adduced by PW12.

54. PW11 testified that at 3.30 pm, A1 and A2 brought back Rajendran into the police station after questioning him. PW11 further testified that when Rajendran was handed over to A1 and A2, he was healthy. However, when he was brought to the police station after questioning, A2 was holding him through the left ambit and Crl.A.No.1267/2014 50 placed at the lock up area in a shattered condition. According to him, the pants and shirts of Rajendran were wet and he was not able to walk without help. PW12 had recorded arrival of Rajendran at the police station at 3 pm with A1 and A2 as per Ext.P8(d). He had also recorded the very same in his official note book as per Ext.P10(b). PW12 further noted the arrival of Rajendran along with A2 in his official note book as per Ext.P11(c) at 3.30 pm. PW13 supported the version of PW11 in this regard. The evidence of PW10, 13 and 15 would irresistibly lead to the inference that deceased Rajendran was within the exclusive custody of A1 and A2 from 2.20 pm to 3.30 pm on 06.04.2005, but was brought back in an unhealthy condition. PW11 admitted that he received Rajendran from PW10 on the date of occurrence at 1.15 pm. There is no evidence adduced in this case to show that Rajendran was assaulted by anyone in between 1.15 pm and 2.20 pm on that day. It goes without saying that no bodily injuries were sustained by Rajendran upto 2.20 pm on 06.04.2005 and his health deteriorated after that.

55. PW12 stated before court that it was the practice of the crime squad to assault suspects involved in crime with a cast iron Crl.A.No.1267/2014 51 weight covered in a thick cloth. It is the contention of the accused that the alleged weapon used for assaulting Rajendran was recovered by the police. We are of the view that it is generally difficult to get evidence against the police men responsible for torture since they are working in the very same police station and they are in a position to destroy the evidence.

56. In State of U.P. V. S. Trivedi [1995 KHC 484], the Supreme Court held in Para. 18 of the judgment as follows:

''The courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial trials and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crimes so that as far as possible, within their powers, the guilty should not escape so that the victim of the crime has the satisfaction that ultimately the Majesty of Law has prevailed.''

57. In Gauri Shanker Sharma etc. V. State of U.P.and Others [AIR 1990 SC 709], the Supreme Court held as follows:-

"....it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police station records which they Crl.A.No.1267/2014 52 do not find difficult to manipulate as in this case. .....The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authority to brutally assault them while in his custody. Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency."

58. In Munshi Singh Gautam & others V. State of M.P. [AIR 2005 SC 402], the Supreme Court held that peculiar type of cases must be looked at from a prism different from that used for ordinary criminal cases for the reason that in a case where the person is alleged to have died in police custody, it is difficult to get any kind of evidence. The Supreme Court observed as under:

"6. Rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone 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 police Crl.A.No.1267/2014 53 personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues.......

7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, .............often results in miscarriage of justice and makes the justice-delivery system suspect and vulnerable. In the ultimate analysis society suffers and a criminal gets encouraged.......The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilised society governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in "khaki" to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of Crl.A.No.1267/2014 54 the very fence eating the crop, the foundations of the criminal justice-delivery system would be shaken and civilisation itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day, for anyone to reckon with."

(See also: State of Madhya Pradesh v. Shyamsunder Trivedi & Ors., (1995) 4 SCC 262).

59. In its 113th report, the Law Commission of India recommended amendment to the Indian Evidence Act, 1872 to provide that in case of custodial injuries, the court may presume that the injury was caused by the police having the custody of that person during that period. Thus, the courts are obliged to deal with such cases in a realistic manner with the sensitivity which they deserve.

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60. Judged by the above standards, we are of the view that accused Nos.1 and 2 were definitely present at the police station and were directly involved with the torture of Rajendran and his subsequent death while in the police custody. In view of the principles stated above, it is not necessary to insist exaggerated adherence to the establishment of proof beyond every reasonable doubt ignoring the ground realities, the factual situations and the peculiar circumstances involved in this case. In State of M.P's V. S. Trivedi (supra), the Supreme Court held as follows:-

''Tortures in police custody, which of late are on the increase, receive 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 odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The Courts, must not loose sight of the fact that death in police custody is perhaps one of the worst kind of crime in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society.'' Crl.A.No.1267/2014 56

61. Accused Nos.1 and 2 had taken the plea of alibi to show that they were not present at the place of occurrence. However, they were not able to prove the same and the plea of alibi taken by them was found to be false in view of the proximity of place, i.e., between the place of occurrence and Karikode which is approximately 7-8 kms away from the East Police Station for conducting enquiry on petition matters. We have also taken note of the evidence on record as well as the judgment of the court below. A large number of discrepancies have been pointed out by the learned senior counsel appearing on behalf of the appellants. Non- examination of two persons, who were detained in the lockup on 06.04.2005, is taken as one of the contentions for the appellants. We are of the view that the non-examination of two persons allegedly detained in the lockup, as stated by PW10 and PW11, cannot be said to be fatal for the reason that other reliable evidence was adduced by the prosecution to prove the occurrence. We are not inclined to accept the contention of the learned Senior counsel for the appellants that non-examination of the two persons detained in the lockup requires the court below to draw an adverse inference Crl.A.No.1267/2014 57 against the prosecution.

62. The prosecution has succeeded in proving that PW11 handed over Rajendran to accused Nos.1 and 2 for interrogation. Once it is proved that Rajendran was handed over to accused Nos.1 and 2 for interrogation and Rajendran suffered a homicidal death immediately after questioning him, the burden was heavy on the part of the appellants to show how Rajendran, who was handed over to them, suffered a homicidal death. The prosecution case is that Rajendran died due to blunt injury sustained by him. Section 106 of the Evidence Act requires a person having special knowledge of the fact to explain the same as laid down by the Apex Court in C.S.D.Swami v. State [AIR 1960 SC 7], P.N.Krishna Lal and others v. Govt. of Kerala and another [1995 Suppl.(2) SCC 187], Sidhartha Vashisht@Manu Sharma v. State (NCT of Delhi) [AIR 2010 SC 2352] and State of Rajasthan v. Parthu [(2007)12 SCC 754], this legal position is clarified. In this case, the accused were very much present at the spot. They had not furnished any explanation when they were questioned under section 313 Cr.P.C. There is no eye witness to the occurrence but only circumstances Crl.A.No.1267/2014 58 coupled with the fact that the deceased had been handed over to accused Nos.1 and 2. When the deceased was with the company of the accused for some time and when he was brought back from the Sardar Vallabhai Patel museum after interrogation, he was unwell and died immediately thereafter, the accused owed an explanation under section 106 of the Evidence Act with regard to the circumstances under which the accused became unwell which resulted in his death. If the accused offer no explanation or furnishes a wrong explanation incompatible with any possible hypothesis of innocence, we are of the view that conviction can be based on the same.

63. Learned Senior counsel for the appellants contended that Ext.P8-General Diary, Exts.P9, P10, P11 , P13 and P15 official note books are fabricated for the purpose of this case. As per Sec.12 of the Kerala Police Act 2011 (Sec.67 of the Old Act), every police station shall keep a General Diary in such form as may be fixed by the Govt. from time to time and recorded therein the substance of all complaints made, First Information Reports, charges, the names and details of complainants, opposite parties and all arrested persons, Crl.A.No.1267/2014 59 the details in respect of the offences charged against them and the properties including weapons that might have been seized from their possession or otherwise. In Lalita Kumari V. Govt of U.P and others [AIR 2014 SC 187], the Supreme Court issued direction that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the General Diary and the decision to conduct a preliminary inquiry must also be reflected. In view of the above, we are of the view that every police station is obliged to maintain a General Diary in such form as may be fixed by the Government. Merely because General Diary was taken by the special branch consequent to custodial death, the same itself is not a circumstance to hold that General Diary have been manipulated with an intent to book accused Nos.1 and 2 as an accused in this case. One of the contentions taken by the accused is that Rajendran was assaulted by the security staff attached to the hospital. Had it been so, the police would have proceeded against the security staff attached to the hospital rather than proceeding against accused Nos.1 and 2, who had been working as police constables in the very Crl.A.No.1267/2014 60 same police station so as to tarnish the reputation of the entire police machinery among the right thinking members of the society. Official note books of the police officials are not in the prescribed format prescribed by the Government. However, the official note books produced in this case tally with the prosecution case. From the evidence available on record, both oral and documentary, we are of the view that even without the assistance of General Diary and the official note books, the evidence tendered by the prosecution witnesses who are mainly police officers and police constables are reliable. The evidence of police officials cannot be discarded merely on the ground that they belonged to the police force and are either interested to give deposition in terms of the statement given before the learned Magistrate. In Pradeep Narayan Madgonkar V. State of Maharashtra (AIR 1995 SC 1930), the Apex Court observed as follows:-

'' ........Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as Crl.A.No.1267/2014 61 possible corroboration of their evidence in material particulars should be sought''.

64. In the instant case, we find that the trial court meticulously considered the evidence of the prosecution witnesses applying the rule of caution and we find no reason to disagree with the findings. Under these circumstances, the inability to produce the Material Objects stated in Ext.P18 are immaterial. Accused Nos.1 and 2 have failed to substantiate the fact that PW10, PW14, PW15 and PW16 and the investigating officers, PW32, PW33, PW34, PW35 and PW36 are on inimical terms with accused Nos.1 and 2 and deliberately implicated them as accused in this case.

65. It has come out in evidence that accused Nos.1 and 2 were attached to the police station and they were members of the crime squad on 06.04.2005 and their main duty was to interrogate the suspects. The detention of Rajendran, no doubt, inside police museum by accused Nos.1 and 2 from 02.20 pm to 03.30 pm on 06.04.2005 was illegal. The suspects were not supposed to be taken out from the police station without making necessary entries thereof in the General Diary. It is also not correct to entrust the suspects Crl.A.No.1267/2014 62 with the sole custody of police constables for interrogation in the absence of responsible police officers assigned for the purpose. The postmortem certificate indicated that there were 15 antemortem injuries on the body of Rajendran while he was in the custody of accused Nos.1 and 2 from 02.20 pm to 03.30 pm. Out of the aforesaid injuries, injury Nos.1 to 3 and injury No.7 on the body of the deceased were fatal. It is incorrect on the part of the officer on duty to entrust Rajendran in the custody of accused Nos.1 and 2 for interrogation. We are not impressed by the oral evidence adduced by PW10 and PW11 that it was the practice prevailing at East Police Station, Kollam. We are constrained to observe that the practice being followed by the police at East Police Station, Kollam is not in accordance with law. It is incorrect to give absolute freedom to the crime squad for questioning the suspects arrested by the crime squad.

66. In the case at hand, we are constrained to observe that Rajendran was removed from Sanker's hospital, Kollam and detained in custody without complying with the directions issued by the Supreme Court in Joginder Kumar v. State of Crl.A.No.1267/2014 63 U.P. and others [(1994) 4 SCC 260]. In paragraph No.19 of the judgment, the Supreme Court issued the following requirements:-

"1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.

2. The Police Officer shall inform the arrested person when he is brought to the police station of this right.

3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) of the Constitution of India and enforced strictly."

67. In D.K.Basu V. State of West Bengal [(1997) 1 SCC 416], the Supreme Court followed the dictum in Joginder Kumar's case(Supra) and issued directions to the police to be followed in all cases of arrest. We are of the view that the directions issued by the Supreme Court had not been complied Crl.A.No.1267/2014 64 with when Rajendran was taken into custody by the police from Sanker's hospital, Kollam.

68. The learned senior counsel for the accused produced Ext.D3 circular issued by the Superintendent of police, Kollam. In accordance with the directions of the Supreme Court, the Superintendent of police issued instructions to comply with the directions and the police was directed to take the arrested person immediately for medical checkup. It was also directed to issue intimation to some relatives of the person in custody. It is true that Ext.D3 indicates that an instance has occurred at Kollam East police station where the police failed to comply with the procedures before taking into custody of the arrested person from Sanker's Hospital, which has attracted strong criticism and blame against the police. We have gone through the contents in Ext.D3-circular. We are of the view that the circular was issued by the Superintendent of police, Kollam in accordance with the directions issued by the Supreme Court. Crl.A.No.1267/2014 65

69. Dereliction of duty contained in Ext.D3 on the part of the police officials shall not be confused with the merits of this case. In this case, police torture is proved through direct ocular evidence adduced by the prosecution. It is very difficult to get direct evidence, especially, when the alleged atrocity was committed within the premises of the police station. Under the circumstances, we are in complete agreement with the trial court so far as the findings regarding torture are concerned. We further agree with the trial court that Rajendran died in police custody as a result of torture given to him and accused Nos.1 and 2 had set up false defence to conceal the truth that Rajendran died in police custody. There is no material before us to hold that Rajendran died out of natural causes. Further, there is no evidence to hold that Rajendran was assaulted by the security staff attached to the hospital. Dereliction of duty on the part of the police officials in charge of the police station is not a defence to exonerate the accused from criminal liability. Crl.A.No.1267/2014 66

70. It is not in dispute that the basis of conviction is solely on the circumstances relied on by the prosecution. In Sharad Birdhi Chand Sarda v. State of Maharashtra [1984 (4) SCC 116] a bench of three-Judge of the Supreme Court on the basis of circumstantial evidence laid down the following conditions which must be fulfilled before a case against an accused can be said to be fully established:-

"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]

2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; [163G]

3. The circumstances should be of a conclusive nature and tendency;[163G]

4. They should exclude every possible hypothesis except the one to be proved; and [163H]

5. There must be a chain of evidence so complete as not to leave any reasonable ground Crl.A.No.1267/2014 67 for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. [164B]''

71. These five golden principles followed in various decisions of the Supreme Court constitute the panchasheel of the proof of a case based on circumstantial evidence. Needless to say even in the absence of eye witnesses, if various circumstances relied on by the prosecution relating to the guilt of the accused is fully established beyond doubt, the court is at liberty to award conviction based on circumstantial evidence.

72. Going by the entire evidence, the prosecution has proved that the appellants were present at the place of occurrence, the injuries found on the deceased are sufficient to cause death, the nature of injuries found on the deceased was antemortem, the nature of injuries found on the deceased would not have been caused by accident or negligence and testimonies of prosecution witnesses, who are mainly police Crl.A.No.1267/2014 68 officers and police constables working in the very same police station, are clear in specific terms regarding the time, place, nature of fatal injuries sustained by the deceased, the manner in which the accused Nos.1 and 2 assaulted the deceased as well as the presence of the accused Nos.1 and 2 in the police station at the time of occurrence.

73. Learned Senior counsel Sri.Vijaya Bhanu canvassed for a clean acquittal of the accused presumably for the reason that before the occurrence, they had been working as police constables attached to the Police Department. It is a fact that consequent to the case and conviction rendered by the court below, they had lost their job.

74. Now, let us consider the principal question before us, though it was not urged before this Court at the time of hearing. The principal question arising for consideration in this appeal is whether the facts and circumstances established by the prosecution against the appellants 1 and 2 is 'murder' or 'culpable homicide not amounting to murder'. In the present Crl.A.No.1267/2014 69 case, the injuries sustained by the deceased were blunt injuries. External injuries were not visible. Whether there was an intention to cause death has to be gathered from the several circumstances and one of the circumstances mentioned is custodial torture for extracting confession from the deceased. In the case on hand, it was brought out that accused Nos.1 and 2 questioned the deceased at the police museum in connection with a theft case to extract confession from him. In fact, they did not intend to murder him. In Sadasivan Mohanachandran and another V. State of Kerala (1994 KHC 1305), the Supreme Court upheld conviction of police constables involved in custodial torture for the offence punishable u/s.304 part-II of IPC. In S.Trivedi's case (supra), the Supreme Court convicted and sentenced the police constables involved in custodial torture for the offence punishable u/s.304 Part-II of IPC. In the decision reported in Muthu v. State of Tamil Nadu [2007 (4) KLT 982(SC)], the Apex Court held that the observation made in the decision in Pulicherla Nagaraju @ Nagaraja Reddy V. Crl.A.No.1267/2014 70 State of A.P. [2006 (11) SCC 444] that, it is for the courts to ensure that the cases of murder punishable under Section 302 IPC are not converted into offences punishable under Section 304 Part I/II. It cannot be understood to mean that the courts should some how try to find out some way to treat the offence under Section 302 of IPC. In our view, the facts are clear in this case. There is no evidence to show that A1 and A2 tortured the deceased with an intention to cause death. It was not a clear case of premeditated torture. A1 and A2 had no previous enmity towards the deceased. We are satisfied with the evidence that the deceased was tortured by A1 and A2 with an intention to extract confession in connection with a theft case. The police records would show that theft case was registered at the proper time that is immediately after the production of the deceased before the police station. The absence of external injuries on the body of the deceased is an indication to infer that accused Nos.1 and 2 did not intend to cause bodily injury to the deceased with an intention to cause death.

Crl.A.No.1267/2014

75. The term 'victim' is defined in Section 2(wa) of Cr.P.C. ''Victim'' means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ''victim'' includes his or her guardian or legal heir. Mother of the deceased is certainly a victim as defined under Section 2(wa) of the Cr.P.C. The court below has awarded an amount of Rs.2,00,000/-(Rupees two lakh only) as compensation to the victim. Going by the provision contemplated under Section 357 of the Cr.P.C and the Kerala Victim Compensation Scheme, 2014, we are of the view that the trial court has passed an order of compensation erroneously. However, the State has not challenged the compensation awarded in accordance with law. Hence, it is not proper for us to interfere with the finding in appeal to the detriment of the victim. We leave the matter as it stands without any change whatsoever.

76. For all the foregoing reasons, we are of the opinion that there are valid grounds to alter the conviction of the appellants from Sections 302 and 348 read with 34 of IPC to that under Section 304 Part II and 348 read with 34 of IPC. In our opinion, the judgment Crl.A.No.1267/2014 72 and order of conviction passed by the trial court is liable to be modified as indicated herein below.

77. In the result, this appeal is allowed in part as stated herein below:-

1. The conviction and sentence of the appellants under Sections 302 and 348 read with 34 of IPC are altered to Section 304 Part II and 348 read with Section 34 of IPC.

2. The appellants 1 and 2 are sentenced to undergo five years rigorous imprisonment for the offence punishable under Section 304 Part II read with Section 34 of IPC. The conviction and sentence imposed on the appellants by the trial court for the offence punishable under Section 348 read with Section 34 of IPC as held in paragraph 106 of the judgment are confirmed.

3. In all other respects, no interference in appeal is warranted. We make it clear that the substantive sentence imposed under Sections 348 and 304 Part II read with Section 34 of IPC shall run concurrently.

Crl.A.No.1267/2014 73

4. The appellants are entitled to get set off for the period under which they were in judicial custody in connection with the case and the period under which they had undergone imprisonment in jail consequent to the conviction and sentence imposed by the trial court.

5. The appellants 1 and 2 shall be released from prison on expiry of the period mentioned in this judgment forthwith, if they are not required in connection with any other case.

Sd/-

A.HARIPRASAD, JUDGE Sd/-

N.ANIL KUMAR, JUDGE skj/ajt

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