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Report No. 273

(iv) 185th Report of the Law Commission (2003): Review of the Indian Evidence Act, 1872

3.10 In the 185th Report, the Commission pointed out that a reference was in fact made by the Supreme Court to the 113 th Report of the Law Commission in State of MP v. Shyam Sunder Trivedi66. It was pointed out that in cases of custodial death or police torture, it is difficult to expect direct ocular evidence of the complicity of the police. Bound as they are by the ties of brotherhood, often police personnel would not come forward to give evidence and more often than not, police officers could - as happened in that case - feign total ignorance about the matter. Courts should not, in such cases, show an exaggerated adherence to the principle of proof beyond reasonable doubt.

There will hardly be any evidence available to the prosecution to implicate the police. The Court called deaths in police custody as the "worst kind of crimes in civilized society, governed by rule of law. Men in 'khaki' are not above the law." Section 330, 331 of the Penal Code make it punishable for persons who cause hurt for the purpose of extorting the confession by making the offence punishable with sentence up to 10 years of imprisonment but convictions, in such cases, are fewer because of the difficulties in proving evidence. The Court observed:

"Disturbed by this situation, the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the Court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned."

3.11 The Court further observed:

"Keeping in view the dehumanising aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don't, we hope that the Government and legislature would give serious thought to the recommendation of the Law Commission and bring about appropriate changes in the law."



Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation Back




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