Mehboob Batcha &
Ors. Vs State Rep. by Supdt. of Police
J U D G M E N T
MARKANDEY KATJU, J.
ahal-e-hawas muddai bhi munsif bhi Kise vakeel karein kisse munsifi chaahen"
-- Faiz Ahmed Faiz
ever there was a case which cried out for death penalty it is this one, but it
is deeply regrettable that not only was no such penalty imposed but not 2even a
charge under Section 302 IPC was framed against the accused by the Courts
learned counsel for the parties.
facts in detail have been stated in the impugned judgment of the High Court as
well as of the trial court and hence we are not repeating the same here, except
appellants are policemen who wrongfully confined one Nandagopal in police custody
in Police Station Annamalai Nagar on suspicion of theft from 30.5.1992 till
2.6.1992 and beat him to death there with lathis, and also gang raped his wife
Padmini in a barbaric manner. The accused also confined several other persons
(who were witnesses) and beat them in the police station with lathis.
the trial Court and the High Court have found the appellants guilty and we see no
reason to disagree with their verdict. To prove the charges the prosecution
examined as many as 37 witnesses, and they have proved the guilt of the accused
beyond reasonable doubt.
Padmini has given her evidence in great detail and we see no reason to
disbelieve the same. We have read her evidence which discloses 3the inhuman and
savage manner in which the accused, who were police personnel, treated
Nandagopal and Padmini. We may quote just parts of her testimony which are as
follows : ......."on Sunday at about 1.00 p.m. two policemen came in an
auto to my house. They are A3, A6 and A8. All of them beat me by lathis on my
buttocks. A3 caught hold of my leg and pulled me saying get into the auto. I
ran outside. Two autos came and in one auto Subramaniam and Nandagopal were sitting
with handcuffs jointly. Unable to bear pain I sat by their side. The auto went
to Annamalai Nagar police station and they asked me to go inside and I went inside.
A6 beat me up. I was surrounded by 4, 5 persons who were beating me. At that time
my jacket (blouse) was torn. Someone tore off my jacket and I do not remember as
to who tore off that jacket.
They said `you will
not bear any more and go and sit' I sat in the corner where the Head constable was
sitting earlier. Some time afterwards two women police came there. Thinking
that I would be let off, I stated to them that I took oleander seeds, for that the
women police gave me water mixed with tamarind and soap and asked me to drink
it. That night myself and the women police were lying down in the room where the
Sub Inspector of Police was sitting and in the early morning the women police went
out. My husband's sister's daughter by name Priya gave coffee. I could talk anything.
I ate idly. My husband told me why you are coming here, I am being tortured by
them. I told him that they would not do anything and they would let you free. At
that time a policeman came and told `what are you talking to her', and saying
so he kicked him and pushed him down. A6, beat my husband and kept him in the lock
up. Subramani, Kolanchi and Subramaniam were also in the lock up. Then I was
given good meals and my husband was given waste food.
Therefore I gave my food
to Nandagopal. For that A1 said you should take that food and be good and why
did you give it him, by 4saying so he beat me by lathi. In the evening all of
them jointly discussed with themselves saying that each one of them should give
Rs.50/- for giving a party. One police man asked for what purpose you are
giving a party and one police man whispered something in his ear. On hearing that,
he asked were you not born with your sisters, and saying so he left that place.
On Monday at about 8.00 pm night, Nandagopal was brought out from the lock up. A6
told that he should see someone has to remove my saree. He called the accused
Kolanchi from the lock up and asked him to remove my saree. He was holding my palla,
but I was holding it tightly without leaving it. The said Kolanchi told that he
should not pull it. Immediately the first accused beat him with a lathi. Then
after beating him, he asked him to get to the side of the open court yard. Immediately
A3 came to remove my saree. A3 removed the entire saree of mine. At that time I
was wearing petty coat and jacket. A1, A3, A6, A8 and A10 removed my jacket and
petty coat and made me nude. They asked me to run through the court yard and
beat me and I fell down. All the five accused person one by one embarrassed me
and kissed me. Then I fell down. At that time one said `your private part is
big in size, cannot you bear this pain'.
I cried and asked him
to stop beating. At that time someone came there in connection with a case. They
said not to say this to anyone outside. I wrapped the saree over the body and
sat. At that time two women police came there. I stated to them what had
happened. They said that no one will beat you hereafter, and I went to lie down
along with them in a room. In the early morning on Tuesday one Senthil came and
brought coffee. Senthil is the son of my husband's sister. On that evening my
husband was taken outside and brought to the police station along with Rani, Dandapani.
Rani is the younger sister of Nandagopal. Dandapani is the husband of Rani. When
Dandapani was asked about the tape recorder, he showed a bill of a shop where
he purchased it. For that the police said `why are you telling a lie'. Yesterday
we have removed the saree of the wife of Nandagopal and saw, 5and it would be proper
if we remove the saree of your wife. At that time there were bleeding injuries on
the back, leg and shoulder of Nandagopal and blood was oozing out in strips. Police
stated like that.
My husband sustained injury
on account of beatings by the police A1, A3, A6, A8 and A10 beat my husband. Then
the police asked Rani and Dandapani to go to their house. On Tuesday night two women
police came to the police station. They were talking with each other as to
whether any clothes have been brought for staying in the night. Along with them
one male police came and asked whether they had seen Tamil picture `Sembaruthi'.
I asked them not to leave me alone and asked them to take me along with them. They
said they would not do anything, by saying so those two women police went out.
I cannot identify those police properly and I do not remember their names. On
Tuesday at about 10.30 pm my husband Nandagopal was brought to the open court
yard from the lock up. Myself and Nandagopal were brought to a room opposite to
the open court yard. My husband was kept in a standing position on the wall and
beaten up by them. A6 Dhass pulled out my saree.
A removed my jacket and
petty coat and made me to become nude and I was beaten and pushed down. My leg
had stuck into a bench and I could not remove it. At that time the 2nd accused Sub-Inspector
of police came to Annamalai Nagar police station. He said that he would go
first. At that time he used rubber loop at the genital organ and committed rape
on me. A2, A3, A6, A8 and A10 also raped me forcibly. All of them have used
rubber loop. All of them raped me in the presence of my husband. At that time
my husband Nandagopal requested them not to do harm to my wife, and leave her. At
that time A6 beat Nandagopal with lathi on his genital part. He fell down. He
asked water by gesture. At that time after wrapping the saree over my body I
took water from the pot. At that time the said five police men surrounded me and
said if you want to give water to Nandagopal, you should give a kiss to
everyone. Then I gave kisses to all the five. When I went to take water to my
husband, 6they threw it away. That fell down. With an intention to spoil me
again, they pulled me and I said I cannot come and leave me, by saying so I sat
down. When A6 came and tried to force me, I fell on his leg and bit. On account
of the sexual intercourse,
I sustained bleeding
injuries on the breast and genital organ and then I fell unconscious. When I woke
up after regaining consciousness, the clothes were wrapped halfly. I said I
wanted to see my husband. I was brought outside saying that my husband was sent
to court. One of the policemen asked me to get into the van. I was kept at
Chidambaram police station. They offered me idli and coffee. I ate it. One lady
police was with me. All the other policemen went out with lathis. The woman
police who was with me stated that there was students' agitation and someone
was done to death at Annamalai Nagar Police Station. I wept and then I was left
out. I asked the auto man at Mariamman temple to take me in the auto. He asked
me whether I am the wife of Nandagopal, I said yes. He said that Nandagopal was
done to death by the police and asked me not to go there. Then I went to court in
the auto. This occurrence was talked in court. Then I went to Tahsildar's office
immediately. I stated what had happened there. The Officers have gone to take action
and they asked me to be here. I was sitting there. I went to Annamalai Nagar
police station in a Jeep. There was a crowd there. I cried saying that not only
I was raped by five persons but they also assaulted my husband and done him to
death. One of the police men who raped me was standing there. I beat him with a
chappal. He is A10. R.D.O. was there. He asked me what had happened and I said
what had happened. I fell down unconscious.
Then I was taken to
the hospital. At about 1.00 pm one male doctor examined me. Then I came to the
police station at Annamalai Nagar and gave my statement. That was recorded by them.
Ex.P.1 is the statement typed by R.D.O. and obtained my signature therein. Then
I went to the house of my mother in law. Nandagopal was lying dead. I was weeping.
At that time Balakrishnan, Jankirani and politicians came there. I stated to them
7 what had happened. Balakrishnan is the District Secretary of Communist Party,
Janki Rani is the President of All Indian Madhar Sangam at Chidambaram. Janki
Rani is the wife of Balakrishnan. I gave a petition to the R.D.O. to send me to
the hospital that is Ex.P.2. I was admitted in the hospital at about 11.00 pm in
the night. On the next day at about 7 or 7.30 am I was examined by a lady doctor.
After coming from the hospital, on Thursday evening my husband was buried. On 5.6.1992
I sent a petition to the District Superintendent of Police. After I came to my house,
a police officer came to my house. I have stated to him what had
also stated : ..........."The two police asked me to come to the rest room.
Then at the same time three police without any uniform came inside. Then I
cried in front of the lock up where my husband was kept inside saying that are
calling me, but no one to help me. My husband was brought from the lock to the open
court yard with handcuff. I cried to the police by kneeling down. At that time Subramaniam
asked them not to do anything to my sister and not to beat my friend. Then they
removed the jacket and saree and made me to become nude in the open yard and
squeezed my breast and bit and the old aged police hit against my private part with
a stick saying that it is very big and I have to see how long it would
go......... ........Five police men came smelling of Brandy in their mouth. My
husband was beaten while he was taken from the lock up and myself and my
husband were kept in a room where the rice bags were kept. I was made to become
nude. My husband cried to the police with handcuff to release him. The police
kicked my husband on his chest.
You would be alive
only tonight and if you want you can enjoy. By saying so they hit him with gun.
At that time Sub-Inspector stated that others can do only 8 if I say because I
am the officer here and so I will do first and other can afterwards, and by
saying so he raped me. I raised a noise saying I am having much pain and asked him
to leave me and the other police men were beating my husband. My husband asked them
to remove the handcuff put on him. They did not do so. After finishing the
work, Sub Inspector went away and asked others to do the same and he would see whether
anybody is coming and asked them to finish the work. I was asked to lie facing up,
one of them was holding my leg and another one was holding the hand and another
one was lying on me and had intercourse with me. Like that all the five persons
see no reason to disbelieve Padmini's evidence. Ordinarily no self respecting
woman would come forward in Court to falsely make such a humiliating statement
against her honour.
learned counsel for the accused referred to some discrepancies in her evidence,
but it is well settled that minor discrepancies cannot demolish the veracity of
the prosecution case. In our opinion there is no major discrepancy in the
prosecution case, which is supported by the evidence of a large number of witnesses,
including injured witnesses, apart from the testimony of Padmini, who
identified the accused in the identification parade held on 13.8.1992 in Central
Jail, Cuddalore. Although A10 was not identified by her, the High Court has given
good reasons for holding him guilty too, and we agree with the same.
Medical Officer who examined Padmini found multiple nail scratches on her
breasts. She complained of severe pain in her private parts. There were
multiple abrasions on her vagina and cervix with discharge of foul smelling fluids.
The chemical analysis of her vaginal smear showed plenty of pus cells and epithetical
cells. The doctors also examined Subramaniam and Chidambaranathan who were beaten
by the accused policemen with lathis.
have held in Satya Narain Tiwari @ Jolly & Anr. vs. State of U.P., JT
2010(12) SC 154 and in Sukhdev Singh vs. State of Punjab, SLP (Criminal) No.8917
of 2010 decided on 12.11.2010 that crimes against women are not ordinary crimes
committed in a fit of anger or for property. They are social crimes. They
disrupt the entire social fabric, and hence they call for harsh punishment.
horrendous manner in which Padmini was treated by policemen was shocking and
atrocious, and calls for no mercy.
post-mortem report of Nandagopal shows the following injuries : "I. A rope
like ligature mark centre of neck encircling obliquely upwards. M Right to left
neck with knot like mark on right neck. (Size about "1/2 in width O Rope 1
mark). Middle lateral aspect. Underlying skin dry parchment in colour. II. An
abrasion 1 x 1 cm left cheek. III. An abrasion 3 x 1 cm right hip anterior. IV.
An abrasion 2 x 1 cm left leg middle anterior. V. An abrasion 3 x 1 cm right
leg middle anterior. VI. An abrasion 2 x 1 cm left arm shoulder posterior lower.
VII. An abrasion 2 x 1 cm right arm shoulder posterior lower. VIII. An abrasion
2 x 1 cm left elbow antero-medical. IX. An abrasion 2 x 1 cm right elbow
posterior lower. X. An abrasion 2 x 1 cm right scrotum lower antero- lateral. No
underneath haemotoma injuries are ante-mortem in nature. XI. Tongue bitten in between
the teeth partially protruded outside. The post-mortem certificate contains the
final opinion of the doctor that Nandagopal died on asphyxial death due to atypical
hanging about 10 to 24 hours prior to post- mortem."
above injuries show the horrible manner in which Nandagopal was beaten and
killed in police custody. In her evidence Padmini stated that on the evening of
Sunday, "Four policemen beat my husband with sticks. They kicked my
husband with boots on his chest." She also stated "At that time there
were bleeding injuries on back leg and shoulder (of Nandagopal) and blood was oozing
out and found in strip form". Even when she was being raped by the
policemen Nandagopal was beaten.
are surprised that the accused were not charged under Section 302 IPC and instead
the Courts below treated the death of Nandagopal as suicide. In fact they should
have been charged under that provision and awarded death sentence, as murder by
policemen in police custody is in our opinion in the category of rarest of rare
cases deserving death sentence, but surprisingly no charge under Section 302
IPC was framed against any of the accused. We are constrained to say that both
the trial Court and High Court have failed in their duty in this connection.
entire incident took place within the premises of Annamalai Nagar police
station and the accused deserve no mercy.
this appeal the appellant no.1 has been given the sentence of 3 years rigorous
imprisonment and a fine, while the other appellants have been given sentence of
10 years rigorous imprisonment with a fine.
the normal course, we could have issued notice of enhancement of sentence, but
as no charge under Section 302 IPC was framed, we cannot straightaway record conviction
under that provision and enhance the punishment.
the reasons given above this appeal is dismissed.
parting with this case, we once again reiterate that custodial violence in
police custody is in violation of this Court's directive in D.K. Basu vs. State
of West Bengal 1997(1) SCC 416 and we give a warning to all policemen in the country
that this will not be tolerated. The graphic description of the barbaric conduct
of the accused in this case shocks our conscience. Policemen must learn how to behave
as public servants in a democratic country, and not as oppressors of the
D.K. Basu's case this Court observed : .........."Custodial violence, including
torture and death in the lock-ups, strikes a blow at the rule of law, which demands
that the powers of the executive should not only be derived from law but also that
the same should be limited by law. Custodial violence is a matter of concern. It
is aggravated by the fact that it is committed by persons who are supposed to be
the protectors of the citizens. It is committed under the shield of uniform and
authority in the four walls of a police station or lock-up, the victim being totally
helpless. The protection of an individual from torture and abuse by the police
and other law-enforcing officers is a matter of deep concern in a free society.
In spite of the constitutional and statutory provisions aimed at safeguarding
the personal liberty and life of a citizen, growing incidence of torture and
deaths in police custody has been a disturbing factor.
Experience shows that
worst violations of human rights take place during the course of investigation,
when the police with a 1 view to secure evidence or confession often resorts to
third-degree methods including torture and adopts techniques of screening
arrest by either not recording the arrest or describing the deprivation of
liberty merely as a prolonged interrogation. A reading of the morning newspapers
almost every day carrying reports of dehumanising torture, assault, rape and
death in custody of police or other governmental agencies is indeed depressing.
The increasing incidence of torture and death in custody has assumed such
alarming proportions that it is affecting the credibility of the rule of law and
the administration of criminal justice system. The community rightly feels perturbed.
Society's cry for justice
becomes louder. Custodial death is perhaps one of the worst crimes in a civilized
society governed by the rule of law. The rights inherent in Articles 21 and 22(1)
of the Constitution require to be jealously and scrupulously protected. We
cannot wish away the problem. Any form of torture or cruel, inhuman or degrading
treatment would fall within the inhibition of Article 21 of the Constitution, whether
it occurs during investigation, interrogation or otherwise. If the functionaries
of the Government become law-breakers, it is bound to breed contempt for law
and would encourage lawlessness and every man would have the tendency to become
law unto himself thereby leading to anarchism. No civilized nation can permit that
to happen. Does a citizen shed off his fundamental right to life, the moment a
policeman arrests him? Can the right to life of a citizen be put in abeyance on
his arrest? These questions touch the spinal cord of human rights'
jurisprudence. The answer, indeed, has to be an emphatic
`No'.".............. (emphasis supplied)
a copy of this order be sent to Home Secretary and Director General of Police
of all States and Union Territories, who shall circulate the 1same to all
police officers up to the level of S.H.O. with a directive that they must
follow the directions given by this Court in D.K. Basu's case (supra), and that
custodial violence shall entail harsh punishment.
(Gyan Sudha Misra)