Ahmadi, J. - (1.) 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 Rauddin Khan (respondent in Criminal Appeal No. 477 of 1979) was the Sub-Inspector of Police of Police Station Kure Bhar in District Sultanpur 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, I.P.C. was registered at the said police station on 25-5-1971 concerning a dacoity committed at village Khara within the jurisdiction of the said police station. In that connection one Jagdamba was arrested on 20-9-1971. During interrogation 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 pm. on the same day and handed over to A 1. PW 8 and Ram Baran Dubey (PW 10) are stated to have followed him to the police station. It is alleged that soon after Ram Dhiraj was brought to the police station and placed in charge of A 1. he was given a severe beating with lathi and dandas by A 1 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, A 1 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 elder sister. On the arrival of PW 5 at the police station, A 1 is alleged to have repeated his demand of Rs. 2000/-. Since the bribe was not paid A 1 and his two companions 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 Sadar police station at about 12.15 noon for admission to the DistrictRs. Jail as he had sustained injuries. It, however, transpired later that Ram Dhiraj died at about 4.00p.m. on the same day while he was being taken to the residence of one of the Magistrates at Sultanpur 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 iquest 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.
(2.) The prosecution case against A1 was that he was responsible for having beaten the suspect Ram Dhiraj in the company of two others which resulted in as many as 28 injuries to which he ultimately succumbed. It was also alleged that he had demanded a bribe of Rs. 2000/- to desist from meting out third degree punishment to the suspect. He was, therefore, charged under Sections 304, 330, 201, 218/34, I.P.C., while his companion A3 was charged under Sections 201 and 218, I.P.C. All the three accused persons denied the charges levelled against them and claimed to be tried. They however did not deny the fact that Ram Dhiraj died in police custody. The case set up by Al was that he was away from the police station between 5.00 p.m. and 7.30 pm., on 19-10-1971 and, therefore, the allegation that he had tortured Ram Dhiraj is fabricated and wholly false. A2 admitted the fact that Ram Dhiraj was arrested outside his village house at Khajapur on 19-10-1971 and was brought to the police station Kure Bhar on the same day at about 4.00 p.m. He, however, denied having caused any injury to him during arrest. A3 denied the prosecution allegation that he had deliberately and wilfully posted false entries in the General Diary to help Al.
(3.) 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 prosecution 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 suppressed and A3 omitted to perform his duty by not posting an entry in that behalf in the General Diary and instead posting 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 Al under Section 304 (Part 11) and sentenced him to suffer Rigorous Imprisonment for 7 years, under Section 330 and sentenced him to suffer Rigorous Imprisonment [or 3 years, under Sections 20J and 218/ 34 and 161, I.P.C. and under Section 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to Rigorous Imprisonment for 2 years on ech 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 substantive 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 PW10 were not eye-witnesses to the incident and hence their story about beating in the police station and the demand of bribe cannot be accepted. It lastly held that A1 could not be held responsible 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 allowed A 1'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.;