New Delhi: Nearly 12 years after the Supreme Court admitted their appeals in 2012, seven police personnel — convicted of custodial torture and culpable homicide, among other offences, in a 29-year-old case — were handed down a split verdict.
A bench of justices C.T. Ravikumar and Sanjay Kumar delivered two separate judgments Wednesday. Justice Ravikumar allowed the challenge to the convictions handed down by the Bombay High Court in 2011. Justice Sanjay Kumar differed with him on crucial aspects and dismissed the appeals.
A split verdict is usually delivered by a two-judge or division bench when it cannot agree on a decision. It is rare and happens only when the bench has an even number of judges. That is why, more often than not, courts have benches with an odd number of judges to ensure that such a split does not happen.
In the present case, the challenge to the split verdict will go before a larger bench, having three or more judges, according to the commonly followed convention.
What the case was
The case involves charges of destruction of evidence, acts done by several persons in furtherance of a common intention, culpable homicide not amounting to murder, wrongful confinement, voluntarily causing hurt to extort a confession, etc., against seven police personnel.
It all started with the custodial death of one Shama, also known as Kalya, in 1995. Shama was allegedly involved in several theft cases and used to end up in jail frequently.
Shama, according to the prosecution in the case against the police, was taken into police custody in December 1995 for interrogation in a house-breaking and stealing case in Gondia, Madhya Pradesh. The police allegedly kept Shama in their custody for weeks and inflicted third-degree torture on him during questioning. Shama, the prosecution said, died later due to the custodial torture.
On 1995 New Year’s Eve, an unidentified body turned up in a forest within the jurisdiction of the Tirodi police station in the Balaghat district of Madhya Pradesh. The body, which had been burnt and buried, was alleged to be Shama’s but could not be identified.
The prosecution alleged that the seven policemen were behind the body in the forest — Shama died due to custodial torture, following which they burnt and buried his body. Subsequently, the police personnel allegedly concocted a case and contrived false evidence to escape prosecution for Shama’s custodial death.
A trial court first convicted several of the police personnel accused in the case of culpable homicide not amounting to murder. It, however, absolved them of the murder charges.
Subsequently, in 2011, the Bombay HC partially upheld the trial court order but deemed it fit to acquit the police personnel on the charges of destroying evidence (Section 201 of the Indian Penal Code) due to inconclusive evidence.
When the case came before the Supreme Court, both judges agreed that it was a custodial death case. However, they differed on crucial aspects such as whether the conviction of the policemen should stand or not.
‘A staged drama’
Contrary to the prosecution’s claims that Shama died due to custodial torture, the appellant-convicts contended that Shama was an “escapado”, who had fled from police custody.
The prosecution, however, said that after getting rid of Shama’s body, the police personnel fabricated a case. They allegedly disguised a man named Dipak Lokhande as Shama and took him undercover to Bhanpur, Survai, Mulchand Radhelal, and Tasanbai on 24 December night. Then, the police personnel created a scene, allowing Lokhande to run away from their police jeep to make it appear as if Shama had fled from their custody, the prosecution alleged. Afterwards, the police allegedly made an entry in their diary about Shama’s alleged escape, conducted a false investigation, and prepared other documents.
To counter the prosecution’s argument that Shama’s escape was a staged drama, the accused police personnel additionally made the case that the railway police arrested Shama in connection with travelling in a train ticketless later, and a fine was subsequently imposed on Shama.
Where the burden of proof lies
Discussing the case, Justice Ravikumar noted that Lokhande, one of the witnesses presented by the prosecution to support their allegations, turned hostile before the trial court. “Dipak Lokhande, who was examined by the prosecution as PW-8, evidently did not support the case of the prosecution,” he said, adding that the trial court observed that it is not likely for a regular informant who is on parole of local police to go against the police.
Relying on the SC’s 2010 two-judge bench ruling in the matter of Paramjeet Singh vs the state of Uttarakhand, Justice Ravikumar pointed out that “the burden of proof squarely rests upon the prosecution and further that the more serious is the crime, the stricter is the proof required”.
Contradicting this, Justice Sanjay Kumar pointed to the law laid down by a three-judge bench of the top court in the Ram Sagar Yadav case (1985), where the court suggested amending the law relating to the burden of proof in the case of custodial deaths.
Consequently, Justice Sanjay Kumar said that the Law Commission of India, in its 113th report (1985) on ‘Injuries in Police Custody’, recommended inserting Section 114-B in the Indian Evidence Act to reverse the burden of proof in custodial death cases on the police themselves. Despite decades having passed since then, this recommendation has not come to fruition, Justice Sanjay Kumar pointed out.
Whether the body was Shama’s
A major point of divergence between the judges was on the question of whether the body was Shama’s.
Justice C.T. Ravikumar delivered his judgment on the premise that the body had not been proved to be Shama’s. He said it was “fatal to the case of the prosecution” that once the body was traced, it was not proved to be of the person.
Justice Sanjay Kumar, on the other hand, accepted that the unidentified body was Shama’s. He said permitting the premise — put forward by Ravikumar — to gain acceptance would mean that police personnel resorting to nefarious methods can take the same “easy way out to ward off a finding of guilt”. He said that since there was sufficient evidence to conclude Shama was in no position to escape from police custody, the “inevitable corollary” was that Shama died due to custodial torture.
This difference of opinion led to two different rulings by the judges on the aspect of the convictions. Justice Ravikumar concluded that in the absence of evidence of the homicidal death of Shama, the police personnel would be entitled to acquittal under Section 304 Part-II IPC (culpable homicide not amounting to murder), read with Section 34 IPC (act done with common intention by several persons), granting them the benefit of doubt. Justice Sanjay Kumar said the conviction and sentences would be maintained, as confirmed by the HC, and dismissed all appeals.
Whether appeal of now-deceased accused stands abated
The judges also differed on whether the appeal of the now-deceased police personnel, who was the main appellant in 2012, would stand abated.
Justice Ravikumar said the appeal filed by the main appellant, who passed away in 2022, would stand abated or be done away with.
Justice Sanjay Kumar, however, said, “I do not find anything on record to support and substantiate this statement. I, therefore, proceed on the assumption that this appeal also remains alive for active consideration, along with the other four appeals.”
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Witness accounts
The judges also remained divided over the witness accounts.
According to Shama’s wife, when she saw Shama at the police station on 18 December 1995, he was bleeding from both legs. The injured Shama, she said, told her that the police personnel had cut the veins in his legs.
While Justice Ravikumar dismissed her witness testimony, Justice Sanjay Kumar said that several witnesses from within the police department, along with the staff from Hotel Anand at Balaghat, where the police allegedly kept Shama overnight before his death, swore to have seen an injured and bleeding Shama.
Justice Ravikumar countered, saying that none of the prosecution witnesses deposed to the effect that they had seen the veins of Shama’s legs cut or his body anywhere in the Gondia City police station, including in any part of the detective branch room.
“Some of the other witnesses referred to hereinbefore mentioned only about the bleeding injuries seen on Shama, and at any rate, none of them spoke about seeing injury of cutting off veins on his legs much less about seeing the accused persons cutting off the veins,” Justice Ravikumar said, adding that there was no medical evidence of the cut-off veins.
(Edited by Madhurita Goswami)
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