K.H. SHEKARAPPA & OTHERSversusSTATE OF KARNATAKA

                       [2010] 3 S.C.R. 883


                K.H. SHEKARAPPA & OTHERS                          A
                                   v.
                   STATE OF KARNATAKA
              (Criminal Appeal No. 382 of 2003)

                      DECEMBER 3, 2009*
                                                                  B
     [HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.]

     Penal Code, 1860:

      ss. 304(part 11)134 and 324134 - Custodial death - Burden   c
of proof - Five persons beaten up by police officials in police
station - Two of them died and three sustained injuries -
HELD: By ocular version and medical evidence, prosecution
has proved its case against accused beyond reasonable
doubt - When the deceased were brought alive to the police        0
station but were produced dead before medical officer, it is
for the accused-police officials to explain the circumstance in
which the victims died - The accused pleaded a false
defence which reinforces their guilt -Conviction and sentence
upheld - Evidence Act, 1872 - s. 106 - Evidence - Testimony       E
of hostile witness.

     Evidence:

     Testimony of hostile witness - HELD: Normally should
not be considered in support of prosecution case, however,        F
such evidence, if corroborated by reliable independent
witness, can be taken into consideration for determining
whether prosecution case is proved or not.

     The appellants (A-1 to A-7 and A-9) along with
another Police Officer (A-8) were prosecuted for causing,         G
in the police station, death of two persons and injuries
to three others, who had been arrested in connection

•Judgment Received on 13.4.2010.
                                   883                            H
    884      SUPREME COURT REPORTS              [201 OJ 3 S.C.R


A   with a fight between them and some engineering
    students said to have taken place at a liquor bar. The trial
    court convicted the appellants for commission of
    offences punishable u/ss 143, 148, 326 r/w s.149, s.201/
    149, 218/149 and 302/149 IPC on two counts. A-8 was
B   convicted u/ss 201/511 and 218/511 IPC. The accused
    filed appeals and the High Court ultimately convicted A-
    1 to A-7 and A-9 u/ss 304 (part 11)/34 and 324/34 IPC.
    Aggrieved, A-1 to A-7 and A-9 filed the appeal.

          Dismissing the appeal, the Court
c
       HELD: 1.1. A fair reading of the testimony of PW-20,
  one of the injured witnesses, makes it abundantly clear
  that the appellants subjected the two deceased to severe
  beating because of which they died in the police station.
D [Para 16] [909-D-E]

       1.2. The evidence of PW-5, the other injured witness,
  who was declared hostile, is also significant. Normally,
  the rule of appreciation of evidence of a hostile witness
E is that the same should not be considered in support of
  the prosecution case. However, it is a well settled principle
  that evidence of a hostile witness can be taken into
  consideration for the purpose of determining whether
  prosecution case is proved or not, if the same is
  corroborated by reliable independent witness. In the
F instant case, this Court finds that the admissions made
  by the witness in cross-examination by the prosecution
  are fully supported by medical evidence on record.
  Before the doctor, who had examined him, the witness
  had narrated history of assault on him, which was noted
G down by the doctor on his medical papers. The assertion
  made by the witness in his cross-examination that he
  was assaulted in Police Station gets ample corroboration
  from the medical evidence and, therefore, it would be safe
  to conclude that this witness received injuries while in
H
      K.H. SHEKARAPPA & ORS. v. STATE OF              885
                  KARNATAKA

police custody. The evidence of this witness indicates that A
though initially he was hesitant in admitting the assault
upon the two deceased and the two other injured in his
presence, he admitted in his cross-examination that he
was taken into lock-up and assaulted and the two
deceased and the other two injured were with him in the 8
same lock-up. From the evidence of this witness, it
becomes evident that he and four other persons, namely,
the two deceased and the other two injured, were
assaulted with sticks resulting into injuries on all over
their person. (Para 13 and 14] [903-E-H; 904-A-D; 905-A- c
C; H; 906-A]

      1.3. According to the Medical Officers (PW 1 and PW-
2), the cause of death of both the deceased was shock
as a result of the multiple injuries sustained by them. The
Medical Officers are completely corroborated by the D
contents of Post Mortem reports produced on the record
of the case. It was explained by the doctor that
individually the injuries were simple, but collectively they
could cause the death of an individual. According to the
doctor, it was a case of rapid death due to injuries E
sustained by the deceased. On reappraisal of the
evidence of the Medical Officers this Court finds that the
trial court and the High Court were justified in concluding
that the deceased had died a homicidal death. Thus, by
ocular version and the medical evidence the prosecution F
has proved its case against the appellants beyond
reasonable doubt. [Para 9 and 16] (896-8-G; 909-E]

      2.1. The fact that the two deceased and the three
 injured were arrested and brought to the Police Station . G
on their two feet is not in dispute. The medical evidence
would indicate that both the deceased were brought dead
to the hospital. When the deceased were brought alive to
the Police Station but were produced dead before the
Medical officer, it is for the accused-police officials to
                                                           H
    886     SUPREME COURT REPORTS                [2010] 3 S.C.R.


A   explain as to in which circumstances the deceased died.
    The deceased were in the custody of the appellants, who
    were police officials. During the time when the victims
    were in police custody they expired. Therefore, it was
    within the special knowledge of the appellants as to how
B   the deceased had expired. In view of the salutary
    provisions of s. 106 of the Evidence Act, 1872, it was for
    the appellants to offer explanation regarding the death of
    the two deceased. [Para 17] [909-F-H; 910-A-B]

C         2.2. The defence pleaded by the appellants that both
    the deceased had sustained injuries when they attempted
    to flee at the time of their arrest, cannot be accepted. It is
    highly improba.ble that deceased 'R' would receive as
    many as 40 injuries and deceased 'G' would receive 24
    injuries while attempting to avoid arrest. Further it could
0   not be explained by the appellants at all as to how
    deceased 'G' had received· burn injuries, when he,
    according to the appellants, had fallen into drainage and
    sustained injuries. Thus, the appellants pleaded a false
    defence which reinforces the circumstances showing the
E   deceased had died due to cruel thrashing given by the
    appellants and they had injured three witnesses. On the
    facts and in the circumstances of the case, the appellants
    have not been even remotely able to probablise their
    defence and, therefore, the well recorded conviction of
F   the appellants as well as sentences imposed upon them
    for commission of those offences are upheld. [Para 17
    and 18] [909-F-H; 910-8-F]

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G   No. 382 of 2003.

        From .the Judgment & Order dated 14.11.2002 of the High
    Court of Karnataka at Bangalore in Crl. A. No. 455 of 1995.

       Shantha Kumar V. Mahale, Harish S.R. Hebbar, Rajesh
H   Mahale for the Appellant.
        K.H. SHEKARAPPA & ORS. v. STATE OF                    887
                    KARNATAKA

     Sanjay R. Hegde, A. Rohen Singh for the Respondent.              A

     The Judgment of the Court was delivered by

        J.M: PANCHAL, J. 1. The appellants, who were original
  accused Nos. 1 to 7 and 9, were members of police force of
                                                                      8
  the Doddapet Police Station at Shimoga City, Karnataka. The
  challenge in this appeal by special leave is to judgment dated
  November 14, 2002, rendered by the Division Bench of High
  Court of Karnataka, Bangalore, in Criminal Appeal No. 455 of
  1995, by which judgment dated July 28, 1995, passed by the
  learned Additional Sessions Judge, Shimoga, in Sessions             C
  Case No. 14of1998 convicting them under Sections 143, 148,
  326, 201, 218 and 302 read with Section 149 of Indian Penal
  Code (IPC) and imposing different punishments for commission
  of those offences, is set aside and instead they are convicted
  for the offences punishable under Section 304 Part 11 IPC read      D
  with Section 34 IPC for having caused the death of two
. persons, i.e., Rajakumar and Gurumurthy and under Section
  324 read with Section 34 IPC for causing hurt to injured Prakash
  and each one of them is imposed sentence of R.I. for one year
  and fine of Rs.5,000/- and in default to undergo R.I. for 2 years   E
  for commission of offence punishable under Section 304 Part
  II read with Section 34 IPC whereas no separate sentence is
  awarded for conviction under Section 324 read with Section
  34 IPC.
                                                                      F
       2. Though several constitutional and statutory provisions
 have been enacted to safeguard the personal liberty and life
 of citizens, incidents of torture and death in the police custody
 are ever on the rise. In spite of condemnation of such acts by
 this Court and High Courts, certain police officials conduct         G
 themselves in a manner resulting into gruesome torture and
death of suspects in the police custody. There is no manner of
doubt that these are the most heinous crimes committed by
persons, who claim to be the protectors of the citizens. What
is distressing to note is that the incidents of torture and death
                                                                      H
    888      SUPREME COURT REPORTS                   [2010] 3 S.C.R.


A   in the police custody take place under the shield of uniform and
    authority, in the four walls of a police station or in the lock-up,
    where the victims are totally helpless.

         3. This is one such case which brings to light an 'incident
B   in which two persons lost their lives and others were injured
    while in police custody. The facts emerging from the record of
    the case are as under:

          On the night of December 31, 1987, a fight broke out
    between Gurumurthy, Rajakumar, Prakash, Nallakumar and
C   Purushotham on one hand and some engineering students on
    the other, at a liquor bar, called Shilpa Bar, at Shiriloga, where
    all were merrymaking to welcome the new year of 1988. The
    students lodged a complaint of assault on them. Therefore,
    criminal cases were registered against Gurumurthy, Rajakumar,
D   Nallakumar, Prakash and Purushotham at Doddapet Police
    Station, Shimoga City. In wee hours of January 12, 1988 a
    reliable information was received at the said Police Station that
    Gurumurthy, Rajakumar, Nallakumar, Prakash and
    Purushotham were taking shelter in a room at Sujatha Building,
E   Tilak Nagar, Shimoga. The appellants Nos. 1 to 7, who were
    Police Constables, rushed to the place. They apprehended and
    brought Gurumurthy and others to the Police Station. At the
    relevant time, the appellant No. 8 was the Head Constable and
    was present in the Police Station. The appellants gave
F   Gurumurthy, Rajakumar, Nallakumar, Prakash and
    Purushotham severe beating. Unable to withstand the same
    Gurumurthy and Rajakumar lost their consciousness and
    collapsed in the Police Station. The appellants thereafter took
    both of them to the hospital at different times. But doctor on duty
G   declared them "dead on arrival". Prakash and Nallakumar were
    also severely beaten and they received serious injuries.
    Therefore, they were also takento the hospital. When the news
    of death of Gurumurthy and Rajakumar at the hands of the
    police spread, a public disturbance near the hospital took place.
H   On coming to know about this incident, Varadaraj, who was
       K.H. SHEKARAPPA & ORS. v. STATE OF                    .889
           KARNATAKA [J.M. PANCHAL, J.]

 another P.S.I. of the same Police Station, rushed to the hospital   A
 and recorded statement of injured Prakash. After recording the
 same, P.S.I. Varadaraj returned to the Police Station. On the
 basis of the contents of the statement of injured Prakash, Crime
 No. 14/88 was registered against the appellants Nos. 1 to 7
 for commission of offences punishable under Sections 302,           B
 324 read with Section 34 IPC. On the basis of said FIR, P.S.I.
 Varadaraj commenced the investigation. He recorded
 statements of those persons who were found to be conversant
 with the facts of the case. He prepared a spot mahazar and
 submitted the FIR to his superior officer Mr. Mahadev Naik, who     c.
 was then Deputy Superintendent of Police. Mr. Mahadev Naik
 also took part in the investigation of the case and mobilized
 the police force for maintaining public peace, as there was an
 apprehension of disturbance of public order. On the next day,
 i.e., on January 14, 1988, the Deputy Superintendent of Police      D
 visited the hospital and recorded the statement of injured
 Purushotham, Prakash and Nallakumar. He also made
 necessary arrangements for sending the dead bodies of the
deceased for Post Mortem examination. On the same day, the
 Deputy Superintendent of Police directed Mr. Patil, who was         E
 then P.S.I. of Kote Police Station, to register a case against
the appellants. Accordingly Mr. Patil also registered a case as
Crime No. 8/88 at Kote Police Station against the appellants
Nos. 1 to 7 and arrested them. On January 16, 1988 the
Investigating Officer visited the Police Station at Doddapet and
conducted search in the presence of independent witnesses.           F
At that time he noticed two cars parked in the compound of the
Police Station and found three service lottis kept below thecars.
The same were seized under a mahazar. Thereafter the sketch
of the Police Station was got prepared through an engineer.
Other incriminating articles were also seized. After obtaining       G
necessary reports including the Post Mortem reports, the
Forensic Science Laboratory report, etc. charge-sheet was filed
initially against appellants Nos. 1 to 7.

    4. On committal of the case, the learned Sessions Judge          H
    890     SUPREME COURT REPORTS                  r20101 3 s.c:R.


A   framed charges against the appellants Nos. 1 to 7 for
    commission of offences punishable under Sections 143, 148,
    341 read with Section 149 IPC, Section 326 read with Section
    149 IPC and Section 302 read with Section 149 IPC. Later on
    it was revealed that original accused Nos. 8 and 9 had also
B   played role in the incident and, therefore, they were arrayed as
    accused in the case and were charged along with the
    appellants Nos. 1 to 7. As all the accused denied the charges
    and claimed to be tried, they were tried in Sessions Case No.
    14 of 1988.
c        5. In order to establish the guilt of the accused, the
    prosecution examined in all 45 witnesses and got marked 106
    documents as well as produced MOs 1 to 6. The incriminating
    circumstances appearing against the appellants were explained
    to them by the learned Judge and their further statements were
D   recorded as required by Section 313 of Code of Criminal
    Procedure, 1973.

        6. In the further statements the appellants denied in
   general the prosecution case. However in answer to the last
E question, the appellants Nos. 1 to 7 stated that on January 13,
   1988 at about 7.00 A.M. all of them had gone to apprehend
  the accused in Crime Nos. 2/88 and 3/88 and when an attempt
  to apprehend the deceased near a park was made, they had
  tried to escape and in the process Gurumurthy had fallen in a
F mori (a small open drainage) while Rajakumar had fallen on a
  barbed wire and as such both of them had sustained injuries.
  It was further ment.ioned by them. that as the condition of
  Gurumurthy was not good, he was taken to the hospital, but had
  died on the way to the hospital. The original accused No. 9 in
G his further statement mentioned that while he was S.H.O. the
  appellants Nos. 1 to 7 produced Gurumurthy and Rajakumar,
  who were accused in Crime Nos. 2/88 and 3/88 and on inquiry
  by him he was informed that they had received injuries due to
  fall and they wanted medical treatment. According to the original
  accused No. 9, he tried to get medical help in the Police Station
H
      · K.H. SHEKARAPPA & ORS. v. STATE OF                  891
            KARNATAKA [J.M. PANCHAL, J.]

but no private doctor was available and, therefore, he could not   A
secure medical help for those injured accused. What was
mentioned by him was that thereafter he was not knowing as
to what happened in the incident.

       On appreciation of evidence as also the defence theory, B
the trial court found that the appellants were guilty of the offences
under Sections 143, 148, 326 read with Section 149 IPC,
Section 201 read with Section 149 IPC, Section 218 read with
Section 149 IPC and Section 302 read with Section 149 IPC
on two counts. Insofar as original accused No. 8 was
concerned, he was found guilty of the offences under Section C
201 read with Section 511 IPC and Section 218 read with
Section 511 IPC, but not guilty of other offences. After hearing
the appellants on the question of sentence, the learned Judge
imposed sentence of life imprisonment on the appellants for
commission of offences under Section 302 read with Section D
149 IPC and also other punishments for commission of other
offences.

      7. Feeling aggrieved, the appellants filed Criminal Appeal
 No. 455 of 1995 whereas the original accused No. 8 filed E
 Criminal Appeal No. 456 of 1995 before the High Court of
 Karnataka, Bangalore. The matters were placed for hearing
 before the Division Bench comprising M.F. Saldanha and S.R.
 Bannurmath, JJ. Mr. Justice M.F. Saldanha was of the opinion
 that the prosecution had failed to prove its case against the F
 appellants beyond reasonable doubt and, therefore, they were
entitled to acquittal. Mr. Justice Bannurmath expressed the view
that conviction of the appellants recorded by the learned
Additional Sessions Judge was well founded and, therefore, the
appeals deserved to be dismissed. In view of the fact that the G
learned Judges of Court of Appeal were equally divided in their
opinion, the appeals with their opinions were laid before another
learned Judge of that Court. The third learned Judge of the High
Court of Karnataka, after hearing the parties and considering
the record of the case, delivered his opinion mentioning that H
     892     SUPREME COURT REPORTS                  [2010] 3 S.C.R.


 A   the guilt of the appellants was proved, but tlley had not
     committed offences punishable under Sections 143, 148, 326,
     218 and 302 read with Section 149 IPC but had committed
     offences punishable under Sections 304 Part II and 324 both
     read with Section 34 IPC for having caused death of two
   B persons Rajakumar and Gurumurthy and causing hurt to injured
     Prakash respectively. The learned Judge further opined that the
     appellants should be sentenced to R.I. for one year each and
     fine of Rs.5,000/- in default R.I. for two years for commission
     of the offence punishable under Section 304 Part II read with
  c Section 34 IPC. The learned Judge was of further opinion that
     no separate sentence was needed to be awarded for
     conviction of the appellants under Section 324 read with
     Section 34 IPC. The learned Judge was also of the opinion that
     on realization of the entire amount of fine from the appellants,
  D the same should be paid to the heirs of the two deceased in
··'  equal proportion by way of compensation. The opinion rendered
     by the third learned Judge of the High Court was. laid before
     the Division Bench of the High Court. The judgment delivered
     by the Division Bench of the High Court has followed the opinion
  E expressed by the learned third Judge, giving rise to the instant
     appeal.

          8. This Court has heard the learned counsel" for the parties
     at length and in great detail. This Court has also considered
     the record summoned from the Trial Court.
 F
         9. The fact that the deceased Rajakumar died a homicidal
   death is not disputed before this Court. Dr. O.A. Mahipal (PW-
   1) has stated that on January 13, 1988 at about 4.40 P.M., he
   had received a requisition from the concerned Police Station
 G to conduct the Post Mortem examination on the dead body of
   the deceased Rajakumar. According to him he had performed
   autopsy on the dead body of the deceased on January 14,
   1988 between 8.20 and 10.00 A.M. and found following
   injuries: -
 H
 K.H. SHEKARAPPA & ORS. v. STATE OF                     893
     KARNATAKA [J.M. PANCHAL, J.]

"1.    A circular brownish contusion of 1 cm. diameter          A
       present over the right side of forehead.

2.     2 minute brownish contusions over the middle of the
       forehead.
                                                                B
3.     Forehead is diffusely swollen.

4.     A contusion of reddish brown colour 1" in diameter
       present over the right maxillary region, %" below the
       right eye.
                                                                c
5.     Multiple brownish black abrasions of various sizes
       and shapes present in different directions over the
       right mandible, right side of the chin, right angle of
       the jaw and right side of the anterior portion of neck
       and behind the right ear.
                                                                D
6.     Fullness over both clavicular are!3 present.

7.     Fourth brownish black abrasion circular and linear
       present over the clavicular areas.
                                                                E
8.     Multiple transverse blackish contusions with their
       margins half C.M. wide, centre being clear present
       over the front of chest and abdomen.

9.     Multiple brownish contusions, some circular some
       other are transversely linear of various sizes and       F
       shapes eight in number present over left scapular
       area and middle of the left lumbar area.

10.    An area of 5" x 2" blackish burnt area over the left
       buttock present. Surrounding this injury a smokey        G
       area of 3" diameter present.

11.     An oblique-brownish black contusion of 3%" x 3/4th
      __of-arrfrich over the left iliac crust present.

12.    Multiple transverse brownish abrasions of 2%'' x 1"      H
    894     SUPREME COURT REPORTS                     [2010] 3 S.C.R.


A               size present over the right buttock.

          13.   Four transverse blackish linear burnt out marks 3"
                x 1/8th of an inch each present over the right
                buttock.
B         14.   Multiple brownish contusions, 10 in numbers
                present over the right lumbar area.

          15.   The whole of the right upper limb is diffusely swollen.

          16.   A reddish.brown contusion of 9" x 3" size over the --
c               medical aspect of lower half of right arm extending
                upto upper third of the right fore arm.

          17.   A blackish brown burnt area of 21/:z" diameter, 1"
                below the right elbow joint present over the right
D               fore arm.

          18.   3 blackish oblique burnt out areas 21/:z" x 11h", 3" x
                1" and 1" diameter respectively present over the
                posterior aspect of right arm, elbow and forearm.
E         19.   Three distinct punched out blackish burnt marks of
                1h", Y.. of an inch and %" diameter present over
                dorsum of right hand.

          20.   Tips of all the fingers are smokey.
F
          21.   A contusion (brownish) contusion of 3" x 11/:z" size
                present over the lateral aspect of upper third of left
                arm.

          22.   Left elbow and shoulder joints are swollen.
G
          23.   Multiple deep abrasion and burnt out areas
                obliquely placed six in number measuring 11/:z", 11/:z",
                21/:z", 2", 3", 31/:z" along and each being 1h" wide
                present over the posterior aspect of left arm and left
H               elbow.
       K.H. SHEKARAPPA & ORS. v. STATE OF                      895
           KARNATAKA [J.M. PANCHAL, J.]
      24.   A transversely placed 'U' shape burnt out mark over A
            the back of left forearm present.

      25.   A brownish contusion of 3" x 1" size over the lateral
            aspect of left elbow joint present.

      26.   Multiple distinct brownish black contusion over the        B
            dorsum of left hand and wrist.

      27.   Multiple brownish black obliquely placed contusion
            5" x 2" present over the posterior aspect of left thigh.

      28.   A transversely placed II Degree burnt out area of
                                                                       c
            3" x 2" present over the left knee joint.

      29.   Two burnt out are!'ls. one transversely placed 2" x
            %" and another longitivenely placed 2" x Y2" both
            present over the middle of the anterior aspect of left D
            thigh.

      30.   A punctured wound of Y2 cm. diameter and % cm
            deep over the middle of front of left leg seen.
                                                                       E
      31.   Multiple blackish burnt out marks of varying sizes
            from 1 cm to 7 ems long and each 1 cm. wide,
            distributed in various directions of various shapes,
            present over the whole of the anterior aspect of left
            leg."
                                                                       F
The doctor further mentioned in his testimony that on dissection
of the dead body, he had found the following internal injuries: -

      "a.   Left knee joint contains clotted blood about 300 cc
            blood, no fracture or dislocation found.
                                        '                              G
      b.    Right knee joint contains clotted about 100 cc of
            blood no fracture of dislocation found out.
                                                I
     c.     Left ankle joint shows presence of sub cutaneous
            blood clots about 100 cc.                        H
    896        SUPREME COURT REPORTS                [2010] 3 S.C.R.


A         d.     Left elbow joint shows no fracture of dislocation.

          e.     Right elbow joint contains blood clots about 100 cc.
                 of blood, no fracture of dislocation observed."

  According to the Medical Officer, the cause of death of the
8 deceased was shock as a result of the multiple injuries
  sustained by him. The Medical Officer is completely
  corroborated by the contents of Post Mortem report produced
  on the record of the case as Exh. P-9. The doctor further opined
  that clotting of blood found in the joints as per (a) to (e) would
C be due to tha assault by the sticks like MOs 1 to 3 whereas
  the burn injuries that were found on the dead body could be
  caused by any heated substance like metal or rubber tyre. The
  Medical Officer further explained that a single fall would not
  cause such injuries that were sustained by the deceased. It was
D explained by him that individually the injuries were simple, but
  collectively they could cause the death of an individual. In cross-
  examination also the Medical Officer maintained that the cause
  of death was shock as a result of multiple injuries. What is
  important to be noticed is that it was further stated by him in
E cross-examination that the said injuries could not have been
  caused simultaneously. After mentioning that the age of the
  injuries sustained by the deceased Rajakumar were ranging
  from 24 hours to four days, the Medical Officer stated that the
  age of injuries were mentioned by him on the basis of colour
F of the injuries. The doctor further stated that the death of the
  deceased might have been caused about 24 hours prior to the
  commencement of the Post Mortem examination. According to
  the doctor, it was a case of rapid death due to injuries sustained
  by the deceased Rajakumar. On reappraisal of the evidence
G of the Medical Officer this Court finds that the Sessions Court
  and the High Court were justified in concluding that the
  deceased Rajakumar had died a homicidal death.

        10. Similarly, the testimony of Dr. Dodda Gowda (PW-2)
    shows that on January 13, 1988 he had received a requisition
H   from the Sub-Divisional Magistrate, Shimoga to conduct the
      K.H. SHEKARAPPA & ORS. v. STATE OF                      897
          KARNATAKA [J.M. PANCHAL, J.]

Post Mortem on the dead body of deceased Gurumurthy and              A
that on the same day he himself with Dr. Srinivasa had
conducted Post Mortem on the said dead body between 4.15
P.M. and 5.45 P.M. According to the doctor the Post Mortem
examination had revealed following injuries: -
                                                                     B
     "1.   Dark brown contusion 1" below the right angle of
           the mouth measuring %" x Yi".

     2.    Dark brown contusion on right to the traches 1"
           above the supra tranol notch irregular in shape.
                     '
                                                                     c
     3.    Dark brown contusion in front of right shoulder %"
           x 1".

     4.    Multiple irregular contusions four in number outer
           aspect of right arm.                                      D
     5.    Irregular contusion front of right elbow (Cubital
           Fossa).

     6.    Diffuse dark brown contusion outer part of right
           lower half of forearm.                                    E   •
     7.    Dark brown contusion back of right forearm 1%" x
           1%".

     8.    Diffuse dark brown contusion front of right thigh and
           right knee outer aspect.                                  F

     9.    Contusion front and middle of right leg%" x %".

     10.   Dark brown contusion outer and middle part of left
           arm.
                                                                     G
     11.   Diffuse contusion front of left elbow and left forearm.

     12.   Diffuse contusion back of left elbow.

     13.   Contusion at the outer part of left thigh upper half      H
    898     SUPREME COURT REPORTS                    [2010] 3 S.C.R.

A
                3" x 1" and another measuring 4" x 1" two inches
                apart from each other.

          14.   Dark brown contusion front of left knee and lower
                third of left thigh.
B
          15.   Lacerated wound appear third of left leg in front
                measuring Y:z" x Yi" with dark blood clots.

          16.   Dark brown contusion over the medial part of right
                thigh and knee.
c
          17.   Dark brown contusion back of left shoulder, and
                trepious region.

          18.   Dark brown irregular contusion at the left scapular
                region, outer part of left chest and outer part of left
D
                lumber region.

          19.   Multiple irregular dark brown contusion at the right
                shoulder and scapular region.

E         20.   Diffuse dark brown contusion lower part of right
                chest right lumber region, at the outer and lower
                aspect.

          21.   Diffuse multiple dark brown contusion irregular right
                glutial region, upper part of the thigh.
F
          22.   piffuse irregular dark brown contusion on back of
                right knee.

          23.   Diffuse dark brown contusion with an abrasion
G               measuring Y:z" x Yi" at the left glutial region.

          24.   Irregular dark brown contusion back of left writst."

    His evidence further shows that on dissection following internal
    injuries were noticed by him: -
H



                                                                          •
       K.H. SHEKARAPPA & ORS. v. STATE OF                     899
           KARNATAKA [J.M. PANCHAL, J.]

     "Skull and Vertebra and Membranes were intact.                  A

     Brain: Pale, Spinal Cord: n.ot opened.

     Chest Wall : Intact Pluscae: intact;

     Larynx; Healthy, Right and left lungs: Pale,                    B

     Pericordium : Intact.

     Heart: Pale and empty, large vessels: intact,

     Abdomen walls: intact; Peritoneum: intact,                      c
     Mouth and Pharynx and Exophagus: Healthy,

     Stomach and its contents: Pale and empty,

     Small intestine and its contents: Pale and contains semi        D
     digested food;

     Large Intestine: Pale distended with gas and fecol matter;
     Liver: Pale;

     Spleen: Pale. Kidney: Pale, Bladder: contains 4 ounce of        E
     clear urine,

     Organs of Generation: Healthy."

According to the Medical officer the death was due to shock          F
as a result of multiple injuries and all the injuries were ante
mortem. The Medical Officer further gave opinion that the
injuries might have been caused by sticks like MOs 1 to 3 and
death might have occurred 24 hours prior to the
commencement of the Post Mortem examination. According to
the doctor, the age of the injuries varied from 1 to 3 days.         G
During cross-examination the witness explained that except
injury No. 15, all other injuries were contusions and the injuries
might have been caused about 48 hours prior to the
commencement of Post Mortem examination. The defence
                                                                     H
    900        SUPREME COURT REPORTS              [2010] 3 S.C.R.


A wanted to know from this witness as to whether the_ injuries
  found on the dead body of the deceased could have been
  caused simultaneously or at different intervals but the Medical
  officer replied that he was not in a position to say whether all
  the injuries were caused simultaneously. During his cross, the
B witness further stated that some of the external injuries were
  on the vital parts but had not damaged the vital parts. According
  to the doctor, the deceased had died because of irreversible
  shock. A fair reading of the testimony of this witness makes it
  evident that the deceased Gurumurthy had also died a
c homicidal death.
       The testimony of the Medical Officer Dr. O.A. Mahipal,
  examined as PW-1, further shows that at 4.45 P.M. on January
  13, 1988 he had examined one Nallakumar, who was referred
  to him for treatment. According to the Medical Officer the injured
D had mentioned history of assault by the police with rubber, rod
  and lottis on December 31, 1987 at 1.00 P.M. at Gopi Circle,
  Shimoga and that he had recorded the same on the medical
  papers. The doctor has further mentioned that on examination
  he had found following injuries on the body of Nallakumar: -
E
        "1.    A linier crusted laceration over the middle of the
                forehead 2" x Yo." size.

          2.     Multiple oblique brownish abrasions over the right
                 forearm and right elbow present.
F
          3.     Vague tanderness all over the body present.

          4.     A transverse crusted laceration of 1" x %" present
                 over the front of the right leg."

G The Medical Officer has further stated that the injured was
  advised X-ray but the X-ray revealed no fracture. The witness
  mentioned that i~jured Nallakumar was treated as an indoor
  patient till January"2:!, 1988. It was further mentioned by the
  doctor that injuries Nos. 1 to 4 were simple in nature caused
H due to external violence with hard and blunt objects and that
        K.H. SHEKARAPPA & ORS. v. STATE OF                     901
            KARNATAKA [J.M. PANCHAL, J.)

 the injuries might have been caused by the sticks like MOs 1 A
 to 3. The doctor explained that the age of injuries Nos. 1 and 4
 was about one week whereas injury No. 2 was two days old
 and injury No. 3 might have been caused within 24 hours.

      The testimony of this witness further shows that on the
                                                                 8
 same day at 5.00 P.M., he had examined injured Prakash.
 According to the Medical Officer injured Prakash had narrated
 history of assault by eight police officials at Doddapet Police
 Station at 7.00 A.M. on January 13, 1988 and that he had
 recorded the same in the medical papers of the injured. The
 Medical Officer has further stated that on examination of the C
 injured Prakash he had found following injuries on his person:


       "1.   Multiple crusted abrasions of varying sizes and
             shapes present over the extremities.                      D

       2.    Diffuse tender swelling of both upper extremities
             and both knee joints .present."

  The doctor has further mentioned that the injured was advised
  to go for X-ray examination and the report of the said               E
  examination did not reveal any fracture, but another X-ray was
  taken on January 16, 1988, report of which showed incomplete
  fracture of the head of left fibula. The Medical Officer explained
  that injury No. 1 was simple in nature whereas injury No. 2 was
· grievous. According to the doctor, the fracture found in injury      F
  No. 2 was separately marked as injury No. 3 in wound
  certificate and it was grievous.

     The doctor further mentioned in his testimony that at 5.15
P.M. on the same day, he had examined injured Purushotham.             G
According to the doctor the injured had narrated history as
assault by ten police officials at Doddapet Police Station,
Shimoga at 12.00 midnight on January 12, 1988 extending upto
early hours of January 13, 1988 and that he had recorded the
same in the medical papers of the injured.
                                                                       H
    902      SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A        What is to be noted is that this Medical Officer was not ·
    cross-examined by the defence on the question of injuries
    sustained by Nallakumar, Prakash and Purushotham or history
    of assault recorded by him on the medical papers of the injured.
    Thus there is no manner of doubt that the High Court was
B   justified in concluding that Nallakumar, Prakash and
    Purushotham were injured at Doddapet Police Station during
    the midnight of January 12, 1988 extending upto early hours of
    January 13, 1988.

         11. This brings the Court to consider the question whether
C   the prosecution has been successful in proving that the death
    of the two deceased and injuries on the injured were caused
    by the appellants.

          12. It is to be noted that the appellants were charged for
D causing custodial death of the two deceased and injuring the
    three injured. The evidence in this case can be divided into two
    parts - (1) direct evidence relating to the incident and (2)
    circumstantial evidence. To begin with, this Court proposes to
    consider the evidence relating to topography of the premises
E   where Doddapet Police Station is located. In this regard the
    prosecution had examined D. Dharmappa Shetty (PW-3). His
    evidence discloses that on January 16, 1988 Assistant
    Executive Engineer had issued instructions to him to prepare
    a sketch of the place of occurrence, i.e., the verandah in front
F   of the lock-up room of Doddapet Police Station. According. to
    him on January 2, 1988 he had visited the spot shown to'him
    by P.S.I. Varadaraj and prepared the sketch, which was
    produced by him at Exh. P-17. The witness explained that the
    sketch was prepared as a rough sketch showing the existing
G   pillars, the verandah, etc. The witness mentioned that there was
    a verandah in the Police Station and it had a door which
    opened into a space situated in front of the two toilets. The
    witness mentioned that the stone pillars were supporting the
    room and the pillars on the south of the verandah were high and
    separated from each other by 3.20 meters. According to him
H
       K.H. SHEKARAPPA & ORS. v. STATE OF                     903
           KARNATAKA [J.M. PANCHAL, J.]

he had seen the pillars from within the lock-up room of the           A
Police Station and it was possible for one to see only one
central pillar from the lock-up room, but from the eastern door
of the Sub Inspector's room all the four pillars were visible. In
the cross-examination he admitted that on one extreme side
of the verandah there was a room of the Sub Inspector and to          B
the north of the entire premises there was a Taluk office.
According to him the width of the verandah was 1.20 meters
and from the door, the central pillar was almost at a distance
of about 2 meters or 6 feet. In cross-examination the witness
clearly mentioned that from the lock-up room one pillar was           c
visible. From the testimony of this witness it becomes at once
evident that the door was fixed on the dividing wall of the
verandah and the lock-up room and therefore, there could have
been difficulty for a person to see the stone pillar between the
central pillar and the pillar next to it supporting the room on the
                                                                      0
eastern side.

      13. The injured witness Purushotham (PW-5) did not
 support the prosecution and was contradicted by the
 prosecution with reference to his earlier statement recorded
 under Section 161 of the Code of Criminal Procedure. In the          E
 cross-examination by the prosecution, the witness admitted, that
 on January 13, 1988 at about 4.30 or 5.00 P.M. he was
 examined by the doctor in Mc. Gann Hospital, Shimoga as he
 had received injuries due to police assault in Doddapet Police
 Station. He also admitted that in Doddapet Police Station            F
 policemen assaulted him in the early morning of January 13,
 1988 and he sustained injuries. It was further stated by him that
 he was taken to Mc. Gann Hospital but hastened to add by
 making a voluntary statement that he was taken from Mahatma
Gandhi Park to the Police Station and thereafter he was               G
assaulted. The suggestion by the prosecution that on January
 13, 1988 at about 1.00 P.M. he was picked up with another
pickpocketer and taken from Doddapet Police Station to Kote
Police Station and that he was beaten in Kate Police Station
from 3.30 or 4.00 P.M. in that Police Station and then taken to       H
    904      SUPREME COURT REPORTS                  (2010] 3 S.C.R.


A D.A.R. Unit, was denied by him. Normally, the rule of
  appreciation of evidence of a hostile witness is that the same
  should not be considered in support of the prosecution case.
  However, it is a well settled principle that evidence of a hostile
  witness can be taken into consideration for the purpose of
B determining whether prosecution case is proved or not, if the
  same is corroborated by reliable independent witness. Here in
  this case the Court finds that the admissions made by this
  witness in cross-examination by the prosecution are fully
  supported by medical evidence on record. Before the doctor,
c who had examined him, this witness had narrated history of
  assault on him, which was noted down by the doctor on his
  medical papers. The assertion made by the witness in his
  cross-examination that he was assaulted in Doddapet Police
  Station gets ample corroboration from the medical evidence
  and, therefore, it would be safe to conclude that this witness
0
  received injuries while in police custody.

        14. At this stage it would be advantageous to reproduce
    what was stated by the witness in his cross-examination: -

E         "There were about 30 Policemen when I was assaulted
          and some out of them assaulted me. I was not tied down.
           I was taken to the Lock-up and assaulted. Nallakumar,
           Prakash and Gurumurthy, Raja Kumar and myself were put
          in lock up and were assaulted. None of us was tied. It is
F         false to say that I was taken by the Police on the night of
          31.12.1987 itself from my house. The C.O.D. Inspector has
          recorded my statement. I have not stated before him as
          per Ex. P-19 now read over to me. It is false to say that
          since the night of 31.12.1987 I was in the Police lock-up
          Doddapet upto 13.01.1988. It is not true to say that 3-4
G
          days after my arrest Nallakumar was brought and put in
          Doddapet Police Station lock-up. When Gurumurthy was
          in the lock-up, he was asking for water. Many Police
          people were there at that time. I cannot say whether the
          accused were also there. He was given water."
H                                                             /
       K.H. SHEKARAPPA & ORS. v. STATE OF                    905
           KARNATAKA [J.M. PANCHAL, J.]

The evidence of this witness indicates that though initially he     A
was hesitant in admitting the assault upon the deceased
Gurumurthy and Rajakumar and injured Nallakumar and
Prakash in his presence, he, in terms, admitted in his cross-
examination that he was taken into lock-up and assaulted and
Gurumurthy, Rajakumar, Nallakumar and Prakash were with him         B
in the same lock-up. His evidence further shows that the police
had not arrested and brought Prakash, Rajakumar and
Gurumurthy on January 13, 1988 at about 4.20 A.M. along with
thre'e students to the Doddapet Police Station, Shimoga.
Though this witness denied the suggestion of the prosecution        c
that Prakash, Gurumurthy and Rajakumar were tied to the three
pillars of the verandah whereas the three students were made
to sit in the room of S.I. to watch, the witness made following
stat~ment: -

      ''.The Police assaulted myself and four others, i.e., Prakash, D
      Rajakumar, Gurumurthy and Nallakumar. They assaulted
    · us with the sticks. They caused injuries on all over our
      body. The Banian on the person of Prakasha, Gurumurthy
      and Rajakumara were torn. They sustained bleeding injury.
      Nallakumar wiped out the blood on the rerson of Prakash, E
      Rajakumar and Gurumurthy. Gurumurthy was completely
      exhausted and tired and fell down. He wa$ not given water
      after he fell down. It is not true to say that his feet were
      burnt. He was taken alone to the hospital. It is not true to
      say that Prakash, Nallakumar and Rajakumar were also F
     taken out of the lock-up in Police-van, and that I was in
      Kote Police Lock-up and that the Police brought the dead
     body of Rajakumara, and Nallakumara and Prakash to the
      Kote P.S. As I was in the Hospital, I do not know whether
     there was galaca in the City on the day when Gurumurthy G
     and Rajakumar died."                    - ·.. ·

From the above quoted extract, it becomes evident that this
witness and four other persons, namely, Prakash, Rajakumar,
Gurumurthy and Nallakumar were assaulted with sticks resulting
                                                                    H
    906      SUPREME COURT REPORTS                 [2010] 3 ·s.C.R.


A   into injuries on all over their person. The statement also makes
    clear that the banians of Prakash, Gurumurthy and Rajakumar
    were torn. His evidence further proves that Nallakumar wiped
    out the blood on the body of Prakash, Rajakumar and
    Gurumurthy and that Gurumurthy was not given even water after
B   he had fallen down.

         15. Similarly, the prosecution had examined injured
    Purushotham to prove its case against the appellants. However,
    this witness did not support the prosecution case.

C        16. After discussing the evidence of witnesses (1)
    Renukeshwara (PW-6), (2) Shivaraja (PW-7), (3) Krishna
    Murthy (PW-9), (4) Shantha Veeranaika (PW-16), (5)
    Panchaksharai (PW-27), (6) Harish (PW-28) and (7)
    Chinnamma (PW-11) the High Court has come to the
D   conclusion that deceased Rajakumar was not in the police
    custody prior to January 12, 1988 and he was apprehended
    only in the night of January 12, 1988 or early morning of
    January 13, 1988.                                   ·

E    - Nallakumar (PW-20) is one of the persons, who, according
  to the prosecution, was apprehended by police officials of
   Jayanagar Police Station on the night of December 31, 1987
  from near Gopi Circle in relation to the incident, which had taken
  place at Shilpa Bar on the same night in the wee hours of the
F new year of 1988. A close scrutiny of his evidence establishes
  that he was first apprehended by the policemen, i.e., by
  Lokesh, Ameer Jain, Basavaraja and Mahadevappa of
  Jayanagar Police Station and was kept in illegal custody. His
  evidence proves that he was subjected to merciless beating
  by the above mentioned policemen at the instigation of
G Basavaraju and Deffedar Muddappa. It is further proved by his
  testimony that from that place he was shifted to Doddapet
  Police Station. His evidence would further show that though he
  was illegally detained in Jayanagar Police Station, Sub-
  Inspector of Police Gangadharappa, i.e., original accused No.
H 8, who was discharging duties at the Doddapet Police Station,
       K.H. SHEKARAPPA & ORS. v. STATE OF                   907
           KARNATAKA [J.M. PANCHAL, J.]

 was visiting Jayanagar Police Station and beating him              A
 enquiring about Gurumurthy and Rajakumar, who were
 absconding. His evidence further shows that he was detained
 till January 13, 1988 and that at Doddapet Police Station also
 the appellants had subjected him to merciless beating. The
 scrutiny of the evidence,of this witness would show that he had    B
 Closed down his business and gone to Gopi Circle to bring milk
 at Prithvi Sagar Milk Booth and while he was bringing milk,
 policemen from Jayanagar Police Station had approached him
 and after questioning about whereabouts of Gurumurthy,
 Rajakumar and Prakash he was taken to Jayanagar Police             c
 Station where Sub-Inspector of Police, i.e., accused No. 8 was
 standing. This witness has mentioned in his testimony that he
was kept in the lock-up of Doddapet Police Station roughly for
six days and that one day when he had waken up early in the
morning around 4.00 A.M. or 4.30 A.M., he had seen from the
                                                                    0
lock-up that Gurumurthy, Prakash and Rajakumarwere brought
to the Police Station and Rajakumar and Prakash were
separately tied to the stone pillars supporting verandah in front
of the lock-up room. He further stated that he had seen Prakash
being tied to one pillar with his hands tied backward and           E
Gurumurthy was also tied to another pillar with his hands
stretched behind around the pillar. According to him Gurumurthy
was handcuffed whereas Rajakumar was tied to third pillar in
the similar way. What is stated by the witness is that the
appellants were beating Prakash, Rajakumar and Gurumurthy
with lotties and tyre pieces and that the injured were bleeding.    F
The witness further stated that the injured were wearing only
banian and knickers and he had continued to watch what was
happening. In order to appreciate as to what was seen by this
witness, it would be relevant to reproduce his testimony, which
reads as under: -                                                   G

    "One day early morning, at about 4 a.m. or 4.30 a.m. I saw
    near stone pillar in front of the lock up door, they brought
    Gurumurthy and he was tied to the said stone pillar with
    his hands stretched at the back and tied. He was H
    908      SUPREME COURT REPORTS                   [2010] 3 S.C.R.


A         handcuffed. To the next stone pillar, I saw they had tied
          Rajakumara also in the same way. On the next pillar I saw
          they had tied Prakash in the same way. I also saw that all
          the accused persons except Sub Inspector
          Gangadharappa, were beating Prakash, Rajakumara,
B         Gurumurthy. They were beating those three persons with
          latties and tyre pieces. I also saw that from the injuries
          sustained by those three persons, blood was coming out.
          Those three persons were wearing only Banian, (west and
          kacha panties). I saw that after some time when the
c         accused were beating, Gurumurthy slumped with his hand,
          handcuff behind to the floor. At that time I saw Sub
          Inspector of Police Gangadharappa came to that spot. He
          told the accused as follows: -

          TRANSLATED IN ENGLISH
D
          'He could catch hold of these bastards, bring those latties'.

          So saying he took latti from Mohan Singh (A-4) and then
          once again bet Gurumurthy, Prakash and Rajakumar."

E Though this witness claimed that he had seen actual act the
  deceased and the injured being beaten by the accused
   involved in the case, it was stated by him that Sub Inspector of
   Police, i.e., the appellant No. 8 was not at that place and had
  come to the spot later on. The evidence of this witness further
F shows that the appellants had asked him to wipe blood oozing .
  out from the injuries of Prakash, Rajakumar and Gurumurthy and
  he had accordingly wiped blood trickling out from the wounds
  of Prakash, Rajakumar and Gurumurthy. According to him when
  he had gone to wipe blood seeping out from the wounds of
G Gurumurthy, he had felt that Gurumurthy was not breathing.
  According to him he had tried to hold the head of Gurumurthy
  but the head was slumping on either side. The witness has
  further stated that thereupon he had asked the accused No. 8
  to see as to what had happened to Gurumurthy and accused
H No. 8 had told him that Gurumurthy was pretending and then
       K.H. SHEKARAPPA & ORS. v. STATE OF                    909
           KARNATAKA [J.M. PANCHAL, J.].
took lotti from other accused persons and started beating on A
the leg of Gurumurthy, but Gurumurthy did not show any sign of
pain or movement. According to this witness thereafter
accused No. 8 had checked as to whether Gurumurthy was
dead and asked the appellants to remove his handcuff and untie
from the stone pillar. The witness has mentioned that the B
appellants had put the dead body of Gurumurthy along side that
place and untied Prakash and Rajakumar also. According to .
him, after untying Rajakumar and Prakash from the stone pillars,
they were pushed into the lock-up room. According to him, the
appellant No. 1 had pushed Rajakumar in the lock-up room but         c
Rajakumar had fallen with face down and was bleeding from
the injuries on his body. The witness further stated that the
appellants had brought fire and tried to burn the armpit, legs
and other parts of the body of Gurumurthy but Gurumurthy had
not responded at all. The witness asserted that thereafter the 0
appellants had collected themselves and lifted the body of
Gurumurthy and taken him to Charandi. A fair reading of the
testimony of this witness makes it abundantly clear that the
appellants had subjected the two deceased to severe beating
because of which they had died in the police station. Thus by E
ocular version the prosecution has proved its case against the
appellants beyond reasonable doubt.

      17. The fact that the deceased and injured were arrested
and brought to the Police Station is not in dispute. It is not in
dispute that the' deceased and the injured were brought to the       F
 Police Station on their two feet. The testimony of the Medical
Officers, who had performed autopsy on the dead bodies of
the two deceased, would indicate that both the deceased were
brought dead to the hospital. When the deceased, who were
brought to the Police Station, were alive and were produced          G
dead before the Medical officer, it is for the appellants to
explain as to in which circumstances they had died. The
deceased were in the custody of the appellants, who were
police officials. During the time when they were in police custody
they had expired. Therefore, it was within the special knowledge     H
    910     SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A of the appellants as to how they had expired. In view of the
  salutary provisions of Section 106 of the Evidence Act, 1872,
  it was for the appellants to offer explanation regarding the death
  of the two deceased. As noticed earlier, the appellants in their
  further statements stated that both the deceased had sustained
B injuries when they had made attempt to flee when their arrest
  was attempted to be effected. On preponderance of
  probabilities, it is difficult to agree with the defence pleaded ·
  by the appellants. It is highly improbable that the deceased
  Rajakumar would receive as many as 40 injuries while
c attempting to avoid arrest. So also it is not probable at all that
  the deceased Gurumurthy would receive as many as 24 injuries
  while trying to avoid his arrest. Further it could not be explained
  by the appellants at all as to how deceased Gurumurthy had
  received burn injuries, when the deceased, according to the
  appellants, had fallen into drainage and· sustained injuries. Thus
0
  the appellants pleaded a false defence which reinforces the
  circumstances showing the deceased had died due to cruel
  thrashing given by the appellants and they had injured three
  witnesses.                                                   '

E        18. On the facts and in the circumstances of the case this
    Court is of the opinion that the appellants have not been even
    remotely able to probablise their defence and, therefore, the
    well recorded conviction of the appellants as well as sentences
    imposed upon them for commission of those offences will have
F   to be upheld.

        19. For the foregoing reasons the appeal fails and is
    dismissed.

    R.P.                                       Appeal dismissed.