Report No. 152

11.2. Prosecutions for torture etc.-

The special features of a criminal charge, with reference to the law of evidence mentioned in the preceding paragraph, become all the more prominent where a police officer is to be prosecuted for custodial crimes. To state the position in broad terms (sections 101 to 104, Evidence Act), the prosecution must prove the guilt of the accused. This problem is highlighted in the context of custodial crimes by reason of the peculiar situation in which such crimes are usually committed.

The matter received serious attention at the hands of the Supreme Court in a judgment of 1985,1 in the wake of which the Law Commission prepared and forwarded a separate Report dealing with prosecutions of police officers in certain situations.2 The case related to a highly shocking incident of torture of a suspect in police custody who died within almost six hours of his arrest. When two hours after his arrest, the person was produced before the Magistrate, he was found to be badly injured and in a serious condition.

In fact, he could not even walk up to the room of the Magistrate, who had to come out and examine him in the verandah of the court room. Both the Magistrate and the prison doctor were told by the accused about the beating by the police constable. The constable was convicted by the Court of Session of the offence of culpable homicide not amounting to murder (section 304 of the Indian Penal Code).

The case went through the usual hierarchy of appeals with which we are not concerned. It was the Supreme Court which emphasised the extremely peculiar character of the situation where none else than the police officer having custody can give evidence regarding the circumstances in which the person in custody came to receive injuries. Persons on whom atrocities are perpetrated by the police in the police station, are, thus, left without any evidence (except their own statement) to prove who the offenders are.

For this reason, the court called for re-examination of the law of burden of proof in such cases. As mentioned above, after this judgment, the Law Commission of India made a specific recommendation dealing with the injuries in custody, to which we refer in the next paragraph.

1. State of Uttar Pradesh v. Ram Sagar Yadav, AIR 1985 SC 416.

2. Law Commission of India, 113th Report on Injuries in Police Custody.