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The Judgment of the Court was delivered by AHMADI, J. In Criminal Case No. 3 of 1975, three persons were put up for trial before the learned Special Judge, Sultanpur (U.P.). The case arose out of the death of one Ram Dhiraj Tiwari in police custody. Accused No. 1 Rafiuddin Khan (Respondent in Criminal Appeal No. 477 of 1979) was the Sub-Inspector of Police Station Kure Bhar in District Sul- tanpur at all material times during the commission of the crime. Accused No. 2 Shamsher Ali (since acquitted) was posted at the said police station as Beat Constable No. 3. His companion Accused No. 3 (Appellant in Criminal Appeal No. 111 of 1979) was the Head Moharrir of the said police station. Crime No. 71 of 1971 under Section 395, IPC was registered at the said police station on 25.5. 1971 concern- ing a dacoity committed at Village Khara within the jurisdiction of the said police station. In that connec- tion one Jagdamba was arrested on 20.9.1971. During interro- gation by AI the said suspect is alleged to have made.a confessional statement involving Ram Dhiraj Tiwari. On the basis of this information A 1 directed A2 and Ram Jas (PW 6) and Harakh, both police chowkidars, to apprehend Ram Dhiraj and produce him before him. Pursuant thereto A2 and his companions apprehended Ram Dhiraj from his residence in village Khajapur on 19.10.1971 at about 11.00 a.m. in the presence of his mother Kamaraji (PW 7), sister's husband Ram Niranjan Misra (PW 8) and labourer Jiyalal (PW 9). After his arrest Ram Dhiraj was brought to police station Kure Bhar at about 4.00 p.m. on the same day and handed over to A1. PW 8 and Ram Baran Dubey (PW 10) are stated to have followed him to the police station. It is alleged that soon charge of A1, he was given a severe beating with lathi and dandas by A1 and two constables, whose identity is not established, with a view to extracting a confessional statement from him. When PW 8 and PW 10 tried to intervene., A1 demanded a sum of Rs.2000 from them to refrain from ill-treating Ram Dhiraj. Thereupon PW 8 went to Village Pure Neelkanth three miles away to fetch Bindeshwari Prasad Shukla (PW 5) the husband of Ram Dhiraj's eider sister. On the arrival of PW 5 at the police station, A1 is alleged to have repeated his demand of Rs.2000. Since the bribe was not paid A1 and his two compan- ions renewed the torture with vengeance which lasted till about 9 or 10 p.m. As a result of the merciless beating Ram Dhiraj was badly injured. It is alleged that the fact that he was apprehended from his village and was brought to the police station on 19.10.1971 was not entered in the general diary register but a false entry was posted in the said general diary register regarding his arrest on the next day i.e. 20.10.1971, at about 6.00 a.m. from near a culvert in village Hanna-Harora by A2 and his two chowkidars. The defence version was that as he tried to resist arrest A2 and his two companions beat him up as a result of which he sustained the injuries in question. Another entry was made in the same general diary on the same day purporting to transfer Ram Dhiraj to police station Sadar for admission to the District Jail. General Diary Entry No. 14 was made to show that Ram Dhiraj was sent from Sardar police station at about 12.15 noon for admission to the District Jail as he had sustained injuries. It, however, transpired later that Ram Dhiraj died at about 4.00 p.m. on the same day while he was being taken to the residence of one of the Magistrates at Sultanput for remand. On his demise his dead body was taken to Kotwali Sultanpur where an entry No. 30 regarding his death was made in the general diary at about 4.20 p.m. On 21.10.1971 an inquest was made on the dead body and thereafter the dead body was sent for post mortem examination. PW 1 Dr. Mitra performed the autopsy and found as many as 28 ante-mortem injuries on the body of the deceased.

The learned Special Judge before whom the accused were tried came to the conclusion that the deceased was arrested from his residence on 19.10.1971 as alleged by the prosecu- tion and not from near the culvert of village Hanna-Harora on 20.10.1971; that no beating was given to him at the time of his arrest and that he was beaten in police station Kure Bhar where he was taken on 19.10.1971 itself after his arrest by A1 and two other constables who could not be identified. He also found that the fact that he was brought to the police station on 19.10.1971 was deliberately sup- pressed and A3 omitted to perform his duty by not posting an entry in that behalf in the General Diary and instead post- ing a false entry No. 10 (Exh. Ka 13) on the next day, 20.10.1971. He also found that a false entry was posted in the diary to show that he was sent to Sadar police station where he died before admission to jail. Lastly he found that A2 had counter-signed the general diary entry No. 10 without knowing the contents thereof. On facts found proved, the trial court convicted A1 under Section 304 (Part II) and sentenced him to suffer Rigorous Imprisonment for 7 years, under Section 330 and sentenced him to suffer Rigorous Imprisonment for 3 years, under Section 201 and 218/34 and 161 I.P.C. and under Section 5(1)(d) read with Section 5(2) of the Preven- tion of Corruption Act, 1947 and sentenced him to Rigorous Imprisonment for 2 years on each count--all substantive sentences to run concurrently. A2 was acquitted of all the charges levelled against him. A3 was, however, convicted under Sections 201 and 218 I.P.C. and was ordered to suffer Rigorous Imprisonment for 2 years on each count. The sub- stantive sentences were ordered to run concurrently. Both the convicted accused preferred Criminal Appeal No. 661 of 1975 in the High Court. The State did not question the acquittal of A2. The High Court accepted the defence version that A1 was not at the police station on 19.10.1971 till 7.30 p.m. as proved through DWI and DW2 and, therefore, the prosecution version was unacceptable. It also found that the three prosecution witnesses PW5, PW8 and PW 10 were not eye witnesses to the incident and hence their story about beat- ing in the police station and the demand of bribe cannot be accepted. It lastly held that A 1 could not be held respon- sible for the omission to post an entry in the general diary about the arrival of the deceased to the police station at 4.00 p.m. as he himself had returned to the police station at 7.30 p.m. On this line of reasoning the High Court al- lowed A1's appeal and set aside the conviction on all counts. The High Court, however, maintained the conviction of A3 but reduced the sentence to Rigorous Imprisonment for 6 months.

Having regard to the rival versions, the crucial ques- tion which must be answered is regarding the date, time and place of arrest. It is not in dispute that an offence of dacoity at village Khera was registered at Police Station Kure Bhar on 25.5.1971. One Jagdamba was arrested in that connection on 20.9.1971. A1 was investigating that crime. In the course of interrogation by A1, Jagdamba is stated to have revealed the name of Ram Dhiraj as his accomplice. The evidence of PW 6 Chowkidar Ram Jas is that A1 had directed A2 to arrest Ram Dhiraj and produce him before him. A2, PW 6 and Chowkidar Harakh then went to fetch Ram Dhiraj. In the absence of any specific information, the first place to visit to locate the wanted man would be his residence. PW 6 also deposed that the police party went in search of the deceased to his village and apprehended him from near his residence. However, the evidence of PW 6 was challenged on the ground that he had in his statement before M.M. Swarup, Executive Magistrate, affirmed the defence of AI that the deceased was apprehended from near a culvert in village Harma-Harora on 20.10.1971. The learned trial Judge nega- tived this contention as the certified copy of the statement said to have been made to M.M. Swarup in an enquiry under Section 176 of the Code of Criminal Procedure was inadmissi- ble in evidence since the said enquiry could not be equated to a judicial proceedings and was, therefore, inadmissible in evidence. He was of the view that the same could not be admitted in evidence under Section 90 of the Evidence Act. In this view the proper course was to call for the original statement, confront the witness with the contradictory part and on proof use it as evidence to discredit the witness. We agree with the learned trial judge that the contents of a certified copy of the statement recorded under Section 176 of the Code would not be admissible in evidence unless the contradiction is proved by putting it to the witness in cross-examination and the maker has had an opportunity to admit or deny it. In our view it has to be proved like any other previous state.meat. The trial judge also opined that even if the statement was admis sible under Section 90, Evidence Act that statement per se cannot efface his substantive evidence in court for the simple reason that at the time of recording of that state- ment he was under the direct influence of A1 his superior, and was, therefore, not a free agent. The learned trial judge was, therefore, of the opinion that the contradiction even if proved cannot militate against the truth of his statement. The High Court has endorsed the finding of the trial court that as PW 6 was a chowkidar under the adminis- trative control of A1 he could be prevailed upon to support the defence theory in t, he inquiry under Section 176. The High Court also held that the short signature of PW 7 as 'Jassi' in the General Diary--Entry No. 10 must have been obtained by A3 to add sanctity to the defence version. The High Court finally stated that even if absolute reliance is not placed on the evidence of PW 6 in this behalf, his evidence is duly corroborated by the evidence of other witnesses, viz., PW 7 Karamraji, PW 8 Ram Niranjan Misra and PW 9 Jai Lal, the mother, brother-in-law and labourer of the deceased. These three witnesses have also deposed that the deceased was arrested from his village Khajapur at about 11.00 a.m. on 19.10.1971. The High Court has rightly ob- served that barring minor discripancies in their evidence as to dress of members of the police party, presence of others, etc., there is nothing brought out in their cross-examina- tion to discredit their evidence in this behalf. The prose- cution also examined PW 3 Baij Nath and PW 4 Mewa Lal, who have their shops near the culvert of village Hanna-Harora to negative the defence version regarding the arrest of the deceased from there. Therefore, both the courts have record- ed a concurrent finding of fact that the deceased was ar- rested on 19.10.1971 at about 11.00 a.m. from his village Khajapur. That means that the entry in the general diary that the deceased was arrested on 20.10.1971 and was brought to the police station later can be brushed aside as false. The need to make a false entry speaks for itself. The next question is where, when and by whom were the injuries inflicted on the deceased. The High Court observes that the medical evidence on record shows that the injuries found on the person of the deceased were caused on the evening of 19.10.1971. In fact according to the High Court the medical evidence lends credence to the prosecution case that the deceased was arrested on 19.10.1971. The High Court holds as under:

That brings us to the question whether the alibi set up by A1 can come to his rescue. In this connection reliance is placed on the evidence of DW 1, Jaswant Singh, Station Officer, Machlishahr Police Station. He claims to have come to Kure Bhar on 19.10.1971 for investigation of an offence under Section 363/366 I.P.C. of his police station. He wants us to believe that he was at the Kure Bhar police station from 5.00 p.m. to 9.30 p.m. According to him A1 was not at the police station till about 7.30 p.m. Reliance is placed on the general diary entry dated 19.10.1971 to show that A 1 had left the police station at about 10.30 a.m. for Tikar and had returned to the police station at 7.30 a.m. This entry is proved through DW 2. Now according to DW 1 even though he had come to Kure Bhar for investigation, he him- self remained at the police station throughout and sent his men with A.S.I. (II) of Kure Bhar to Dilawar-Ka-Purwa for investigation. He wants us to believe that he came from his police station to investigate a crime but kept sitting at Kure Bhar police station throughout from 5.00 p.m. to 9.30 p.m. Is this natural conduct? The obvious reason for so stating is to discredit PW 5, PW 8 and PW 10 who have in unmistaka- ble terms stated that A1 was at the police station and had beaten the deceased. DW 1 stand belied by the general diary entry made at his police station on 20.10.1971 to the effect that on reaching Kure Bhar he took A.S.I. (II) of that police station and went to village Dilawar-ka-Purwa for investigation and returned to his police station at 4.00 p.m. According to the said entry from Dilawar-ka-Purwa he went to Sultanpur where he passed the night, left for Ram- nager next morning and returned to his police station via Durgaganj. The learned trial judge dealt with this part of the defence evidence thus: