Holding

In the absence of proof that the recovered body was that of the victim and that a homicidal death occurred, the convictions under Section 304 Part‑II IPC and related offences cannot be sustained, while convictions for custodial torture under Sections 330, 348 and 387 IPC are upheld.

Summary

The case involved police officers accused of torturing a suspect, Shama @ Kalya, while in custody, leading to his death and alleged tampering with evidence. The prosecution relied on witness testimony, a fingerprint test linking an unidentified burnt body to the victim, and claims of a staged escape, while the defence argued lack of forensic proof and raised doubts about the victim's identity. The majority held that without conclusive proof that the recovered body was the victim and that a homicidal death occurred, convictions under Section 304 Part‑II IPC and related offences could not be sustained, but upheld convictions for custodial torture under Sections 330, 348 and 387 IPC. The dissent argued that the evidence of torture was sufficient to maintain all convictions. Because the judges were divided, the matter was not finally decided and was referred to the Chief Justice of India for allocation to an appropriate bench.

Issues considered

Whether the prosecution proved beyond reasonable doubt that the victim died as a result of the accused's custodial torture (Section 304 Part‑II IPC read with Section 34).
Whether identification of the dead body as that of the victim is a necessary element for a murder or culpable homicide conviction.
Whether the conviction under Section 201 IPC read with Section 34 can stand without proof of the body’s identity.
Whether the death of the sole appellant (A1) abates Criminal Appeal No.1614/2012.
Whether the State’s failure to appeal the High Court’s judgment affects the validity of the convictions.

Legislation cited

Code of Criminal Procedure, 1973s. 164
Evidence Act, 1872s. 145, s. 43, s. 79
Indian Penal Code, 1860s. 193, s. 201, s. 202, s. 218, s. 302, s. 304, s. 330, s. 331, s. 34, s. 342, s. 343, s. 348, s. 354, s. 385, s. 387
Police Act, 1861s. 29
Railways Act, 1989s. 137, s. 174

Subjects

Police CustodyInterrogationCustodial deathCustodial torturefalsus in uno, falsus in omnibusDestruction of evidenceMutilation of bodyDisappearance of bodyCorpus delictiBenefit of doubtFingerprint evidenceIdentification of dead bodyEscape from custody

Judgment

[2024] 9 S.C.R. 724 : 2024 INSC 734

Manik & Ors.
v.
The State of Maharashtra
(Criminal Appeal Nos. 1614-1618 of 2012)
25 September 2024
[C.T. Ravikumar* and Sanjay Kumar,* JJ.]

Issue for Consideration
Appellants-convicts are members of the police force and the
allegation against them is misuse and abuse of their powers, in
resorting to custodial torture of victim-S and tampering with evidence.

Headnotes†
Penal Code, 1860 – ss.302, 330, 331, 342, 343, 348, 354, 385,
387, 201, 202, 193 and 218, all r/w. s.34 – Victim-S was taken
into police custody for interrogation – Allegation that he was
subjected to third degree torture – Thereafter, a burnt and
buried body was found in the forest – Body was unidentified –
Prosecution case that appellants-convicts committed the
heinous crime and concocted a case to escape the prosecution
for custodial death – The Trial Court held that prosecution
succeeded only in establishing charge u/s.304-II r/w. s.34
against accused A1, A2 and A3 – Other accused were found
guilty under certain other charges – High Court confirmed
the conviction and sentences except u/s. 201 r/w. s.34, IPC:
Held: [Per C.T. Ravikumar, J.]: Criminal Appeal No.1614/2012
stood abated as the sole appellant who was the first accused (A1)
died on 06.03.2022 – In the instant case, the very case of the
prosecution is that body recovered from forest area was of
victim-S – When once identification of the dead body as that of
victim based on fingerprint test is reversed by the High Court, in
the absence of appeal by the State or the victim, it could not be
said that the dead body is that of victim, either for holding the
appellant-convicts guilty of the offence u/s. 300, IPC punishable
u/s. 302, IPC, or under Part -I / Part-II of s.304, IPC – However,
in view of the findings confirming custodial torture, A2, A3, A4, A5
convicted are convicted u/ss. 330, 348 and 387 r/w. s.34, IPC –
All the appellant-convicts acquitted of all the other offences for
* Author
[2024] 9 S.C.R. 725

Manik & Ors. v. The State of Maharashtra

which each of them was convicted and sentenced – So, further
action was required only in respect of A2 to A5 viz., appellants
in Crl. Appeal Nos. 1617 of 2012, 1618 of 2012 and, 1616 of
2012, that too in case any sentence remains unserved in view of
confirmation of conviction and sentence u/ss. 330, 348 and 387
r/w. s.34, IPC. [Paras 1, 31 and 53] – [Per Sanjay Kumar, J.
(dissenting)]: Nothing on record to support and substantiate that
Criminal Appeal No. 1614 of 2012 stands abated as accused A1
died on 06.03.2022 – There is a major point of divergence in
views regarding the tracing of dead body and proving to be of that
person – Permitting the premise that once the dead body is said
to have been traced and not proved to be of that person, same
would be fatal to the case of the prosecution, such an acceptance
would mean that those in the police organization, who resort to
such nefarious methods, can take this easy way out to ward
off a finding of guilt – When sufficient evidence is available to
conclude that victim was in no position to escape from the custody
of the appellants, the inevitable corollary that follows is that he
died due to their torture while in their custody – Disagreed with
the conclusion drawn that in the absence of evidence regarding
the homicidal death of victim-S, the appellants are entitled to
be acquitted of the charge u/s. 304 Part-II IPC r/w. s.34 IPC, by
granting them the benefit of doubt – On the contrary, the convictions
and sentences of the appellants are maintained, as confirmed by
the High Court. [Paras 2, 15, 21]

Case Law Cited

In the judgment of C.T. Ravikumar, J:
Central Bureau of Investigation v. Kishore Singh [2010] 14 SCR
95 : (2011) 6 SCC 369; Noor Aga v. State of Punjab and Anr.
[2008] 10 SCR 379 : (2008) 16 SCC 417; V. Venkata Subbarao
v. State [2006] Supp. 10 SCR 729 : (2006) 13 SCC 305; Vishnu
Dutt Sharma v. Daya Sapra [2009] 7 SCR 977 : (2009) 13 SCC
729; Iqbal Moosa Patel v. State of Gujarat [2011] 2 SCR 121 :
(2011) 2 SCC 198; Lord Denning in Miller v. Minister of Pensions
(1947) 2 All ER 372; Harendra Nath Mandal v. State of Bihar
[1993] 2 SCR 137 : (1993) 2 SCC 435; Sevaka Perumal & Anr.
v. State of Tamil Nadu [1991] 2 SCR 711 : (1991) 3 SCC 471;
Ram Chandra and Ram Bharosey v. State of Uttar Pradesh AIR
(1957) SC 381; Mani Kumar Thapa v. State of Sikkim (2002) 7
726 [2024] 9 S.C.R.

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SCC 157; State v. Sushil Sharma (2007) SCC OnLine Del 255;
State of Karnataka v. M.V. Mahesh [2003] 2 SCR 553 : (2003)
3 SCC 353; Utpal Das & Anr. v. State of West Bengal [2010] 6
SCR 495 : (2010) 6 SCC 493; Shri Gopal & Anr. v. Subhash &
Ors. [2004] 1 SCR 1085 : (2004) 13 SCC 174; Paramjeet Singh v.
State of Uttarakhand [2010] 11 SCR 1064 : (2010) 10 SCC 439;
Sharad Birdhichand Sarda v. State of Maharashtra AIR (1984) SC
1622; Dr. N.G. Dastane v. Mrs. S. Dastane [1975] 3 SCR 967 :
(1975) 2 SCC 326 – referred to.

In the judgment of Sanjay Kumar, J:
State of U.P. v. Ram Sagar Yadav and Others [1985] 2 SCR
621 : (1985) 1 SCC 552; Bhagwan Singh and Another v. State of
Punjab [1992] 3 SCR 180 : (1992) 3 SCC 249; Sevaka Perumal
and Another v. State of Tamil Nadu [1991] 2 SCR 711 : (1991) 3
SCC 471 – referred to.

Books and Periodicals Cited
Erewhon (1872), a satire by Samuel Butler; Crisis of Indian Legal
System (1982); Custodial Deaths by P. Srikrishna Deva Rao (National
Law School Journal. Vol. 6, 1994); Mohammed Ghouse, “State
lawlessness and Constitution of India: A study of custodial deaths”,
Comparative Constitutional Law 270 (Mahendra P. Singh ed., 1989).

List of Acts
Penal Code, 1860; Evidence Act, 1872.

List of Keywords
Police Custody; Interrogation; Custodial death; Custodial torture;
falsus in uno, falsus in omnibus; Destruction of evidence; Mutilation
of body; Disappearance of body; Corpus delicti; Benefit of doubt;
Fingerprint evidence; Identification of dead body; Escape from custody.

Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1614-1618 of 2012
From the Judgment and Order dated 12.07.2011 of the High Court
of Bombay at Nagpur in CRLA Nos.64, 65, 71,76 and 77 of 1997
[2024] 9 S.C.R. 727

Manik & Ors. v. The State of Maharashtra

Appearances for Parties
S. Nagamuthu, Sr. Adv., Shivaji M. Jadhav, Ms. Apurva, Brij
Kishor Sah, Adarsh Kumar Pandey, Vighesh Singh, Advs. for the
Appellants.
Shrirang B. Varma, Siddharth Dharmadhikari, Aaditya Aniruddha
Pande, Bharat Bagla, Sourav Singh, Aditya Krishna, Advs. for the
Respondent.

Judgment / Order of the Supreme Court

Judgment

C.T. Ravikumar, J.

1. In these quintuplet appeals, the appellants-convicts who stood the
trial in Sessions Trial No.21 of 1996 before the Court of Additional
Sessions Judge, Gondia for the charge of commission of offences
punishable under Section 302 and/or various other offences under
the Indian Penal Code, 1860 (for short ‘IPC’) are challenging the
common judgment dated 12.07.2011 in Criminal Appeal Nos. 64,
65, 71, 76, 77 and 88 of 1997 whereby and whereunder their
conviction and consequential sentences, handed down by the trial
Court except under Section 201 read with Section 34, IPC, were
confirmed by the High Court of Bombay, Nagpur Bench. For the sake
of convenience appellants are referred to hereafter in this judgment
in accordance with the order of their rank as accused before the
trial Court. Criminal Appeal No.1614/2018 stood abated as the sole
appellant who was the first accused and the sole appellant before
the Additional Sessions Judge in Criminal Appeal No.64/1997, died
on 06.03.2022 and hence, the rest of the appellants in the appeals
are, at times, commonly referred to as ‘appellant-convicts’. The
appellant-convicts stood the trial for offences punishable under
Sections 302, 330, 331, 342, 343, 348, 354, 385, 387, 193, 201,
202, 203, and 218 read with Section 34, IPC, in connection with
the death of one Shama @ Kaliya s/o Nanu Uke. Though accused
No.8 (Sudhir s/o Rambhau Kayarkar) and accused No.9 (Ganesh s/o
Raghuji Turkar) were acquitted of the twin offences charged against
them under Sections 201 and 202, IPC, read with Section 34, IPC,
728 [2024] 9 S.C.R.

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the respondent State did not file an appeal against their acquittal
before the High Court.
2. For the sake of convenience, the offence(s) for which each one of
the appellant-convicts (accused Nos. 2 to 7) was convicted and the
sentence(s) imposed therefor, by the trial Court, can be enumerated
as under: -

Accused Number IPC offence(s) for which conviction was
entered and the consequential sentence(s)
imposed
A2 (Ravindra) & Section 304 part II read with Section 34, IPC –
A4 (Hans Raj) sentenced to undergo 7 years of rigorous
imprisonment and a fine of Rs. 4,000/- each.
A2 (Ravindra), Section 331 read with Section 34, IPC –
A3 (Manohar), sentenced to undergo 3 years of rigorous
A4 (Hans Raj) & imprisonment and a fine of Rs. 1,000/- each.
A5 (Vishnu)
A2 (Ravindra), Sections 330, 348, & 387 read with Section 34,
A3 (Manohar), IPC and sentenced to undergo one year of
A4 (Hans Raj) & rigorous imprisonment and a fine of Rs. 1,000/-
A5 (Vishnu) each.
A3 (Manohar), Section 202 read with Section 34, IPC –
A5 (Vishnu), sentenced to undergo 3 months of rigorous
A6 (Vishwanath) & imprisonment and Rs. 500/- each.
A7 (Dilip)
A2 (Ravindra), Section 203, IPC. – No separate sentence
A3 (Manohar), was imposed.
A4 (Hans Raj),
A5 (Vishnu),
A6 (Vishwanath) &
A7 (Dilip)
A2 (Ravindra), Section 201 and 218 read with Section 34, IPC –
A3 (Manohar), sentenced to undergo rigorous imprisonment for
A4 (Hans Raj), one year and to pay a fine of Rs. 1,000/- each.
A5 (Vishnu),
A6 (Vishwanath) &
A7 (Dilip)
[2024] 9 S.C.R. 729

Manik & Ors. v. The State of Maharashtra

3. All the corporeal punishments of rigorous imprisonment imposed on
the appellant-convicts were directed to be run concurrently. Default
sentences were also ordered in respect of sentences for payment
of fine.
4. Against the judgment of conviction, accused Nos.6 and 7 jointly
filed Criminal Appeal No.65/1997, accused Nos. 2 and 4 jointly filed
Criminal Appeal No.76/1997, accused Nos. 3 and 5 separately filed
Criminal Appeal No.77/1997 and 71/1997 respectively and the State
filed Criminal Appeal No.88/1997 against all the convicts. Obviously,
the State challenged acquittal of all the accused for the offences
punishable under Sections 302 and 354 read with Section 34, IPC,
while the aforesaid accused persons challenged their conviction
under all the aforesaid sections for which they were convicted and
sentenced.
5. As per the impugned common judgment, the High Court dismissed the
appeal filed by the State and partly allowed the appeals filed by the
appellant-convicts. According to the appellant-convicts, the High Court
acquitted all of them of the offences punishable under Section 201
read with Section 34, IPC. In other words, in respect of all the other
offences for which each of them was found guilty and consequently
convicted and sentenced, their appeals were dismissed. It is to be
noted that despite the dismissal of Criminal Appeal No.88/1997 filed
by the State and acquittal of all the appellant-convicts of the offence
under Section 201 read with Section 34, IPC assigning specific
reasons the State of Maharashtra did not move this Court against
the said common judgment dated 12.07.2011.
6. Heard learned senior counsel Sh. Nagamuthu appearing for the
appellant-convicts and Sh. Shrirang B. Varma, learned counsel for
the State.
7. The case of the prosecution, in succinct, is as follows: -
Deceased Shama @ Kalya, S/o Nanu Uke, a history sheeter, was
taken into police custody for interrogation in connection with an
incident of house-breaking at one Vijay Agrawal’s residence in
Gondia and stealing properties worth more than rupees one lakh
on 07.12.1995 and without duly recording the arrest he was kept in
custody. The suspect Shama @ Kalya was subjected to third degree
methods during interrogation, resulting in his death on 22.12.1995.
On 31.12.1995, an un-identified body, which was burnt and buried,
730 [2024] 9 S.C.R.

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was found in the forest within the jurisdiction of Tirodi police station
in Balaghat district of the State of Madhya Pradesh. It is the further
case of the prosecution that after committing heinous crime the
appellant-convicts concocted a case and contrived false evidence
to escape prosecution for custodial death by making one Dipak
Lokhande disguised as Shama @ Kalya and taking him under cover to
Bhanpur and Survai to Mulchand Radhelal and Tasanbai respectively
on the night of 24.12.1995. It is also the case of the prosecution
that the appellant-convicts made Dipak Lokhande to run away from
the jeep to make it appear that Shama @ Kalya had escaped from
custody. Thereupon, PW-38 Harne was informed about it and entry
to that effect was made in the station-diary and consequently, false
inquiry was made and documents were also prepared.
8. The facts narrated above would reveal that going by the case of the
prosecution, it is a case of custodial torture leading to custodial death.
9. The Trial Court, after appreciating the evidence found that the
prosecution had failed to establish the charge punishable under
Section 302, IPC, and concluded that the prosecution had
succeeded only in establishing charge under Section 304 -II read
with Section 34 against accused numbers 1 to 3. True that they and
the others, barring accused Nos. 8 and 9, were found guilty under
certain other charged offences as well, and accordingly sentenced
therefor, as mentioned hereinbefore. However, in the appeals by the
appellant-convicts the High Court confirmed the conviction and
sentences except under Section 201 read with Section 34 IPC.
The acquittal of accused numbers 8 & 9 by the trial Court was not
challenged by the State before the High Court. So also, the acquittal
of the appellants under Section 201 read with Section 34, IPC by
the High Court is not now under challenge. In short, the captioned
appeals carry only the challenge of the convicts against their conviction
under the different sections of the IPC and consequently imposed
sentences therefor, as mentioned hereinbefore.
10. The learned senior counsel appearing for the appellants would
submit that there is no serious challenge against the conviction of
the appellants for custodial torture. Nonetheless, a feeble attempt
was, indeed, made by the learned senior counsel to convince me
that the appellants are entitled to a plain acquittal in respect of all
the charges for which they were found guilty and were confirmed
[2024] 9 S.C.R. 731

Manik & Ors. v. The State of Maharashtra

by the High Court under the impugned judgment. Then, serious
contentions were advanced with respect to the conviction for the
custodial death under Section 304-II read with Section 34 IPC and
the consequential sentence imposed on the appellants. Having
heard the rival contentions and bestowing anxious consideration
I am of the considered view that even otherwise, contentions in
respect of the finding on the charge of custodial torture warrant no
serious consideration and the conviction and consequently imposed
sentences, therefore, under different sections hereinafter to be
mentioned specifically invite no interference.
11. The facts that deceased Shama @ Kalya was taken into police
custody on the complaint of PW-6 Vijay Kumar Rameshwarlal Agrawal
in crime No. 315 of 95 registered at Gondia City Police Station and
that the appellants took him to Detective Branch Room of Gondia
Police Station for interrogation and in that regard detained him for
days together without adhering to the legal mandate for production of
the arrestee within 24 hours, since his detention, before a Magistrate
having jurisdiction in the case, remain irrefragable, rather, proved
and unrebutted. While the appellant-convicts contend that he is
an escapado, the prosecution contends that he was subjected to
custodial torture which ultimately culminated in his custodial death
(The defence also put forth a case that he was arrested later by the
Railway Police in connection with traveling in a train ticketless and
consequently prosecuted and sentenced to pay fine, to counter the
case of the prosecution that escape of Shama from police custody
was nothing but a staged drama). In the contextual situation it is
apposite to refer to the decision of this Court in Central Bureau of
Investigation v. Kishore Singh1 wherein it was held that when a
person was brought to a police station and locked up, obviously, he
would be under arrest.
12. The evidence of PW-1 (Amrutabai Ukey), PW-3 and PW-16 and
others as also PWs 20 and 22 who are police officials, was relied
on by the trial Court and also by the High Court to hold that the
deceased was in the custody of the appellants and was in the
Detective Branch Room of Gondia Police Station and was subjected
to torture during such custody. PW-1 is the wife of deceased Shama.

1 [2010] 14 SCR 95 : (2011) 6 SCC 369
732 [2024] 9 S.C.R.

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She would depose that she found him in the Detective Branch Room
of Gondia Police Station on 18.12.1995 and he was then bleeding
from his legs. According to her, Shama told that police have cut off
veins of his legs and hence, he might not survive. She had also
deposed that on 22.12.1995, she again found him there and on
24.12.1995, police told her that Shama had escaped from their
custody. I will deal with her evidence, a little later, appropriately. PW-3
turned hostile. He was examined to prove that Shama was brought
to police station for interrogation and he had suffered injuries on
account of torture during the interrogation. Indisputably, while being
examined-in-chief, he supported the prosecution and then,
prevaricated during his cross-examination. Thereupon, he was
cross-examined by the prosecution after getting him declared
as hostile. The impugned judgment would reveal that to a Court
question, he would admit that what he had stated before the Court
in the morning session, during cross-examination on behalf of the
accused, was false. The demeanor of the witness as recorded by
the courts below and his oscillation during his examination before
the Court thus revealed the danger in accepting his version, on any
count, without corroboration. Since the maxim ‘falsus in uno, falsus
in omnibus’ (false in one thing, false in everything) has no application
in India, his evidence was evidently taken into consideration to the
extent of establishing the custody of Shama in the Station and also
his sustaining injuries during such custody as they got corroboration
from the oral testimonies of other witnesses. PW-4 Mulchand deposed
that when he visited the police station concerned, he found swelling
on the arms and legs of Shama besides bleeding from his legs.
PW-16 was the mother-in-law of deceased Shama. She would depose
that she was taken to the police station and was kept there for two
days and simultaneously herself and deceased Shama were beaten
by the police. PW-20 is a Police Officer who was on duty in the said
police station between 05.11.1995 and 19.12.1995. He deposed that
on 16.12.1995 at about 3 p.m. he visited the Detective Branch room
of the Police Station and found Shama @ Kalya in the presence of
accused numbers 1 to 6. It is to be noted that he would also depose
that he found there an old woman and a girl aged about 16 years.
He also deposed that a compounder by name Soni (PW-3) was
called to the police station and he dressed the injuries of Shama.
PW-20 would further depose that on 19.12.1995 he was shifted to
[2024] 9 S.C.R. 733

Manik & Ors. v. The State of Maharashtra

other duties. PW-21 was a lady police constable. She would depose
that she was called to the Detective Branch Room and was asked
to remain present when search was being conducted. According to
her, she found Shama @ Kalya limping when they went to Balaghat
to search his house. PW-22 is another Police Officer by name
Sumanbai Bharatram Madavi. She deposed that on 20.12.1995 she
was deputed to duty there and she found two female suspects sitting
in the front room of the police station. She also deposed that inside
the room, she found a male suspect, said to be the husband of one
of the ladies, sitting there. In view of the nature of the oral testimonies
of the aforesaid witnesses and the concurrency in the appreciation
of their evidence on the custody and torture of Shama from the
detective branch room of Gondia Police Station, I do not find any
reason whatsoever requiring a further consideration in regard to the
confirmation of conviction for custodial torture. But at the same time, I
may hasten to add that the sustainability of conviction and sentencing
for some of the offences would depend on the sustainability of the
conviction under Section 304 – Part II read with Section 34, IPC. I
may also hasten to add that though I decline to interfere with the
finding that Shama was subjected to torture while being in custody
I shall not be understood of having given imprimatur to the finding
that veins of legs of Shama were cut and that ultimately caused his
death as according to me, this question is intrinsically intertwined
with the challenge against the conviction under Section 304 – Part II,
read with Section 34, IPC. One aspect with respect to the acquittal
(or conviction) for the offence under Section 201 read with Section 34,
IPC also requires consideration, which I will deal with a little later.
13. While considering the question of sustainability of the conviction
under Section 304-II read with Section 34, IPC, in view of the
position obtained in this case, I am of the considered view that the
observation of this Court in Noor Aga v. State of Punjab and Anr.,2
as also the principles enunciated by this Court in the decisions in
V. Venkata Subbarao v. State3 and in Vishnu Dutt Sharma v.
Daya Sapra4 cannot go in oblivion. In Noor Aga’s case, this Court

2 [2008] 10 SCR 379 : (2008) 16 SCC 417
3 [2006] Supp. 10 SCR 729 : (2006) 13 SCC 305
4 [2009] 7 SCR 977 : (2009) 13 SCC 729
734 [2024] 9 S.C.R.

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observed and held that superficially a case might have an ugly look
and thereby, prima facie, shaking the conscious of any court. But it
is well settled that suspicion, however high it might be, could under
no circumstances be held to be substitute for legal evidence.
14. There can be little doubt with respect to the position that a Court
is bound to appreciate the defence evidence in the same manner
as it is to appreciate the prosecution evidence, in a criminal case.
In V. Venkata Subbarao’s case, this Court held that the burden as
an accused did not have to meet the same standards of proof as
is required to be met by the prosecution. In Vishnu Dutt Sharma’s
case, this Court held that the prosecution is bound to prove the
commission of the offence on the part of the accused beyond any
reasonable doubt. Certainly, the requirement to establish its case
beyond reasonable doubt does not mean that the degree of proof
on the part of the prosecution must be one beyond a shadow of
doubt (see the decision in Iqbal Moosa Patel v. State of Gujarat 5).
15. The principle as to what degree of proof is required, is stated by
Lord Denning in Miller v. Minister of Pensions,6 thus: -
“…that degree is well settled. It need not reach certainty,
but it must carry a high degree of probability. Proof beyond
reasonable doubt does not mean proof beyond the shadow
of a doubt. The law would fail to protect the community
if it admitted fanciful possibilities to deflect the course of
justice. If the evidence is so strong against a man as to
leave only a remote possibility in his favour which can be
dismissed with sentence, “of course it is possible, but not in
the least probable” the case is proved beyond reasonable
doubt, but nothing short of that will suffice.”
16. The reasons for my remarks, as above, would be unravelled by the
following critical examination of the impugned common judgment
and also appreciation of evidence, in that regard.
17. The judgment of the trial Court would reveal that the finger print
test conducted for identification of the dead body was accepted and
acted upon. The trial Court held in paragraph 59 of its judgment

5 [2011] 2 SCR 121 : (2011) 2 SCC 198
6 (1947) 2 All ER 372
[2024] 9 S.C.R. 735

Manik & Ors. v. The State of Maharashtra

that the finger prints of Shama @ Kalya are identical with the
finger prints of unknown dead body, is acceptable. “Had Shama @
Kalya not been criminal, whose record slips would not have been
available, there was no chance of identification of dead body”,
the trial Court further held thus in paragraph 101 of its judgment.
However, a bare perusal of the impugned common judgment would
disclose that even while confirming the conviction under Section 304
part-II read with Section 34, IPC and also the consequently imposed
sentence therefor, the High Court had reversed the twin foundational
findings of the trial Court for the conviction under Section 304 part-II
read with Section 34, IPC. Furthermore, the High Court assigned
its own reason for finding the appellants not guilty for the offence
committed under Section 300, IPC, punishable under Section 302,
IPC. It is to be noted that the Trial Court despite the absence of
medical evidence as to the injury of cutting off veins on the legs
took that the prosecution has succeeded in establishing that the
deceased Shama @ Kalya had sustained such injuries and at the
same time, held that the said injuries would not attract clause (3)
of Section 300, IPC that speaks of causing bodily injury which is
sufficient in the ordinary course of nature to cause death. Based
on such opinion and holding that in the circumstances obtained
accused Nos.1, 2 and 4 should be clothed with the knowledge that
the injuries which Shama @ Kalya had so sustained were likely to
cause death, found them guilty for having committed the offence
falling squarely under Section 304 part-II with the aid of Section 34,
IPC. As already noted, the trial Court did so after accepting the
opinion on finger print test and the consequent identification of the
dead body as that of Shama @ Kalya.
18. The evidence on record would reveal that what was traced from Garra
Chowky, within the jurisdiction of Tirodi Police Station, on 31.12.1995
was an unidentified, burnt body. Taking note of the said position, in
paragraph 102 of the impugned common judgment the High Court
held thus: -
“102. In view of the fact that the dead body was beyond
identification and recognition, by patent identification marks,
only sources of identification left to the prosecution were:
[a] DNA test
[b] Comparison of finger print marks.”
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19. Upon finding that no DNA test was done and then holding that even
if it was done it would not have the value of a conclusive proof as
to the contents thereof, the High Court went on to consider the
sustainability of the finding on the finger print test by the Trial Court.
Contextually, it is worthy to refer to paragraphs 105 to 108 of the
impugned common judgment. They read thus: -
“105. In so far as the aspect of finger prints is concerned,
prosecution has made efforts to demonstrate that finger
prints, subject-matter, match with those of the dissected
fingers of corpse, and do prove that those are of one and
the same person.
106. Prosecution has proved that the finger prints of the
dissected fingers, which were used, were of the dead
body, subject-matter.
107. The evidence of PW 41 - Sharad Dayaram Girhepunje
at pages 1471 onwards of the paper-book, however, fails to
positively prove that the finger prints, which were used as
a basic document to be the finger prints of Shyama, were
not so proved to be that of Shyama taken by a particular
person with maintenance of due record thereof, and the
purpose for which those were taken by proving those to
have been recorded in relation to a particular crime.
108. In the result, reliance of the prosecution to prove
that the dead body, subject-matter, was that of Shyama
is based on guess work than on positive evidence. Result
is that unless it is proved that the dead body was that of
Shyma, the evidence in relation to efforts made by the
accused persons to mutilate the said body and thereby
destroy the evidence are rendered like a hazy picture,
and do not constitute proof of charge under Section 302
of Indian Penal Code, and, therefore, charge to destroy
evidence of murder is not proved to that extent.”
20. A scanning of the afore-extracted paragraphs would show that the
High Court had clearly arrived at the conclusion that even if it could
take that the prosecution had succeeded in proving that the finger
prints kept in the police station would match with the dissected
[2024] 9 S.C.R. 737

Manik & Ors. v. The State of Maharashtra

fingers of the corpse, it had failed to establish that the finger prints,
which were used as basic document to be the finger print of Shama
and thereby, that the recovered dead body was that of deceased
Shama. Evidently, the High Court held that the evidence of PW-41,
Sharad Dayaram Girhepunje failed to prove positively that the finger
prints that were used as a basic document to be the finger prints
of Shama, taken by a particular person entrusted with the duty of
maintenance of due record thereof. It is such cumulative consideration
that constrained the High Court to reverse the conclusion of the Trial
Court and ultimately to hold that the finding that the dead body was
that of Shama was based on guess work than on positive evidence.
The aforesaid paragraphs would show that after appreciating the
evidence, the High Court held that unless it is proved that the dead
body is that of Shama, the evidence in relation to efforts made by
the accused persons to mutilate the said body and to destroy the
evidence would not constitute the proof of charge under Section 302,
IPC. In short, assigning specific reasons the High Court reversed
the finding of the trial Court that the opinion on the fingerprint test is
acceptable and the prosecution had thus succeeded in proving the
identity of the recovered body as that of Shama. After holding thus, it
was further held that unless it is proved that the dead body was that
of Shama, the evidence in relation to efforts made by the accused
persons to mutilate the said body could not be taken as proof for
destruction of evidence of murder of Shama. At this juncture, I will
refer to the other aspect of acquittal (or conviction) for the offence
under Section 201 read with Section 34, IPC, referred to earlier by
me as one that also requires consideration.
21. In paragraph 77 of the judgement of the trial Court it was observed
thus: -
“Whatever be reason, but there is no direct evidence
in this case, that all the accused No.1 to 9 had caused
disappearance of the dead body of deceased Shama @
Kalya by nothing it to fire”.
22. After making such observation, the trial Court held that there was
no other alternative except to hold the accused Nos.1, 2 and 4
guilty for causing the disappearance of the body by mutilating it
and accordingly guilty of the offence under Section 201 read with
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Section 34, IPC. In the above circumstances, the observations and
findings at paragraph 108 of the impugned judgment of the High
Court can only be qua accused Nos.1, 2 and 4.
23. Now, it is to be noted that on another count, the Trial Court held
accused Nos.3, 5, 6 and 7 guilty of the offence under Section 201,
IPC. In paragraph 85 of the judgment of trial Court it was observed
and held: -
“……A false record came to be prepared about escape of
Shama @ Kalya. Apart from that even the arrest of Shama
@ Kalya and taking him for the purpose of investigation
itself was a false preparation of the record and thus false
information. All the accused No. 1 to 7 seem to have been
involved in this drama played in the night on 24.12.1995
right from showing of arrest of Shama @ Kalya. Therefore,
so far as offence U/s. 201 of IPC is concerned I hold the
accused No. 3,5 to 7 guilty for giving false information
which they knew it to be false.”
24. The judgement of the trial Court would further reveal that on
17.02.1997 when it was brought to notice that while typing the final
order, conviction in respect of the offences under Sections 201, 218
read with Section 34, IPC were not typed due to oversight and bona
fide mistake, a corrigendum of the order of conviction was issued
on 17.02.1997 on the following lines: -
“Accused No. 1 to 7 are convicted of the offence under
Section 201, 218 R/w Section 34 of IPC and are sentenced
to suffer R.I. for one year and to pay a fine of Rs. 1,000/-
each in default to suffer further S.I. for four months on
each count”.
25. Thus, it can be seen that though on different counts the trial Court
held accused Nos.1 to 7 guilty under Section 201, IPC the High
Court acquitted accused 1, 2 and 4 of the charge under Section 201
read with Section 34, IPC only in respect of causing disappearance
of body by mutilating it. Therefore, the question is whether the
acquittal of the accused Nos. 1, 2 and 4 under Section 201 read
with Section 34, IPC by the High Court got any impact on accused
Nos. 2 and 4 as also accused Nos.3 and 5 to 7 in relation to the
other count, referred hereinbefore.
[2024] 9 S.C.R. 739

Manik & Ors. v. The State of Maharashtra

26. Now, in the impugned common judgment, the High Court after
reversing the finding of the trial Court on the evidence based on
fingerprint test held that the charge in relation to the screening of
evidence by mutilating the dead body of Shama @ Kalya was not
proved but failure of prosecution in identification of dead body of
Shama would not exonerate the accused from the charge of the
screening evidence and other charges. Thereafter, upon considering
the evidence on the charge of offence under Section 201, IPC read
with Section 34, IPC, the High Court held in paragraphs 111 – 113
of the impugned common judgment thus: -
“111. In the result, this Court concludes that based on facts
proved by the prosecution, it has succeeded in proving
all charges, except the proof of destruction of evidence
as regards dead body.
112. Prosecution has failed to prove offence punishable
under Section 201 read with Section 34 of Indian Penal
Code for causing disappearance of evidence by destroying
the dead body of Shyama, incorporated in sixth part of
charge framed against accused persons.
113. Based on findings and conclusions recorded in para
112, the accused are acquitted of those charges.”
27. In view of the afore-extracted paragraphs from the impugned
common judgment of the High Court as also what is referred from
the judgment of the trial Court, it is evident that the contention of the
appellant-convicts that there is wholesome acquittal of their conviction
under Section 201, read with Section 34 IPC cannot be the correct
position. As specifically made clear in paragraph 112 as extracted
above, the acquittal under Section 201, IPC was with respect to
causing disappearance of evidence by destroying the dead body of
Shyama. Therefore, the question as to whether the appellant-convicts
concerned still stand convicted on the other count.
28. In the light of the observations and findings in paragraphs 105 to
108 and 112 of the impugned common judgment, and the reversal
thereunder of the aforesaid twin foundational findings of the trial Court,
the main question to be considered is whether any evidence was
available to hold the appellants guilty under Section 304 part-II read
with Section 34, IPC. Certainly, the answer to the aforementioned
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question qua Section 201, IPC also would depend upon the outcome
of its consideration. Before continuing with such consideration, it
is relevant to note that despite such reversal of the findings and
observations by the High Court which are fatal to the case of the
prosecution regarding custodial death, neither the State nor any
relative, who falls within the expression ‘victim’, did not prefer any
appeal against the impugned common judgment.
29. There can be no doubt that it is imperative, firstly, to prove homicidal
death of the very person whose death was allegedly caused by the
accused concerned to hold the accused concerned guilty, either
under Section 300, IPC punishable under Section 302, IPC or
under Section 304, IPC. In the decision of Harendra Nath Mandal
v. State of Bihar,7 this Court held that before an accused is held
guilty and punished under first part or second part of Section 304,
IPC, a death must have been caused by the assailant under any of
the circumstances mentioned in the five exceptions to Section 300,
IPC. I shall not be understood to have held that recovery of the dead
body of the particular person whose death was allegedly caused by
the accused is always required to sustain a charge of murder or that
of commission of offence under Section 304, IPC.
30. Contextually, it is only apposite to note that the expression ‘corpus
delicti’ got no reference to corpses. Virtually, it means that before
seeking to prove that accused is the author of the crime concerned,
it must be established that the crime charged has been committed.
In fact, the said Latin expression is used with reference to the
establishment of the fact that an offence has been committed, as
opposed to the proof that a given person has committed it. I may
hasten to add that, at times, the said expression is found to be
used in the sense “dead body of the victim of alleged homicide”. In
the decision of Sevaka Perumal & Anr. v. State of Tamil Nadu,8
it was laid down that it would not be essential to establish corpus
delicti, but the factum of death of the deceased concerned must be
established like any other fact. In the decision of Ram Chandra
and Ram Bharosey v. State of Uttar Pradesh,9 it was held that in

7 [1993] 2 SCR 137 : (1993) 2 SCC 435
8 [1991] 2 SCR 711 : (1991) 3 SCC 471
9 AIR 1957 SC 381
[2024] 9 S.C.R. 741

Manik & Ors. v. The State of Maharashtra

law, a conviction for an offence did not necessarily depend upon the
corpus delicti, i.e., the dead body, is being found. However, there
must be reliable evidence, direct or circumstantial, of commission
of murder, though corpus delicti is not traceable. In the decision
of Mani Kumar Thapa v. State of Sikkim,10 it was held that in a
trial for murder it is neither an absolute necessity nor an essential
ingredient to establish corpus delicti, but the factum of death of
the deceased concerned must be established like any other fact.
Furthermore, it was held that in some cases it would not be possible
to trace or recover corpus delicti owing to a number of possibilities
such as dead body might have been disposed of without trace.
Taking into account such possibilities it was furthermore held that if
the recovery of dead body is to be held to be mandatory to convict
an accused, in many cases, the accused would manage to see
that the dead body is destroyed, which would have afforded the
accused a complete immunity from being held guilty or from being
punished. It was therefore held that what is required in law to base
a conviction for an offence of murder is that there should be reliable
and plausible evidence, like any other fact, that death was committed
and it could be proved by direct or circumstantial evidence albeit
the dead body could not be traced. Thus, the law laid down in the
aforesaid decisions, which was consistently being followed, would
reveal that conviction of an offence referred above did not depend
upon whether the dead body is found, if reliable evidence, direct or
circumstantial, of the commission of homicide is established despite
the non-tracing of the dead body. Having held thus, I may hasten to
add that the same cannot be the position, rather, the position would
be different, when prosecution itself got a case that the dead body
was recovered. Indisputably, it is one thing to say that the dead body
is not traceable and another thing to say and claim that the dead
body is traced and it is of that person allegedly murdered by the
accused. Once the dead body is traced and subjected to autopsy
and necrotomic and other evidences are adduced to bring out the
cause of death, failure to prove that the dead body is of that very
person allegedly done to death by the very accused, must have
fatal and adverse consequence on the prosecution case. As noted

10 (2002) 7 SCC 157
742 [2024] 9 S.C.R.

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earlier, a case that dead body is untraceable and a case where it is
traced and evidence is adduced in a bid to prove the identity of the
deceased are different and distinct. In the latter case, upon failure
to prove, the prosecution cannot be permitted to advance a case
that the dead body is untraceable. In the decision of State v. Sushil
Sharma,11 a Division Bench of the Delhi High Court held that there
would be absolutely no room, in a criminal case, for conjectures and
surmises and the prosecution is supposed to establish its case as
is put forth by it and if the case is disbelieved on any aspect by the
Court, then the Court could not make out a new case on its own for
the prosecution. I am in full agreement with the law thus laid.
31. In the case on hand, evidently the very case of the prosecution is
that the body recovered from forest area within jurisdiction of Tirodi
Police Station is that of the deceased Shama @ Kalya, and it is to
prove the same that the fingerprint test was conducted and relied
on. I have already found that though trial Court accepted and acted
upon the opinion of the fingerprint test and that the said finding was
reversed by the High Court. In categoric terms, the High Court held
that the reliance of prosecution to prove that the dead body, subject
matter, was that of Shama is based on guess work than on positive
evidence. I have already taken note of the fact that the trial Court
after accepting the opinion of the fingerprint test held that but for the
availability of record slips, Shama @ Kalya being a criminal, there
would not have been any chance of identification of the dead body.
In such circumstances when once identification of the dead body
as that of Shama @ Kalya based on fingerprint test is reversed by
the High Court, in the absence of appeal by the State or the victim,
it could not be said that the dead body is that of Shama @ Kalya,
either for holding the appellant-convicts guilty of the offence under
Section 300, IPC punishable under Section 302, IPC, or under
Part-I / Part-II of Section 304, IPC.
32. Though, I have already held that upon failure to prove the case put
forth that the recovered dead body is that of the person allegedly
murdered by the accused, the prosecution cannot be permitted to
raise a contention that the dead body is not traceable or that in
such eventuality the Court also cannot make out a new case on its

11 2007 SCC OnLine Del 255
[2024] 9 S.C.R. 743

Manik & Ors. v. The State of Maharashtra

own for the prosecution, I think it only proper to proceed with further
consideration of the present case.
33. In the contextual situation, it is also relevant to refer to the decision
of this Court in State of Karnataka v. M.V. Mahesh.12 Even in the
absence of corpus delicti, it is possible to establish in an appropriate
case commission of murder on appropriate material being made
available to the court, it was held therein. Therefore, the question is
when the opinion on the fingerprint test is eschewed from the evidence,
what survives to sustain the finding of guilt of appellant-convicts
concerned under Section 304, Part-II, IPC, in the case on hand.
34. The case on hand allegedly, being a case of custodial death, as
an abundant caution, I have taken pain to see whether any other
material and acceptable evidence was adduced by the prosecution
to establish homicide of Shama @ Kalya by the appellant-convicts
during his illegal custody. It is a fact that none of the prosecution
witnesses had deposed to the effect that he/she had seen the veins
of legs of Shama @ Kalya in a cut off state or that he/she had seen
his dead body anywhere in Gondia City Police Station including
in any part of the Detective Branch Room. True that PW-1 and
PW-16 have spoken to have seen Shama being beaten while in
police custody. Hence, in the absence of any such specific statement
from any of the prosecution witnesses while being examined and in
the absence of any medical evidence in that regard, the question
is how the Trial Court and the High Court arrived at the conclusion
that veins of legs of Shama @ Kalya were cut off and such injuries,
though not sufficient in the ordinary course of nature to cause death,
ultimately caused his death while being in custody.
35. In the contextual situation, it is relevant to deal further with the oral
testimonies of the witnesses. PW-1, Amrutabai, the wife of Shama
@ Kalya would depose that Shama was involved in several theft
cases and used to be in jail frequently. She would also depose that
he had plans to dispose of property at Kalamana. PW-16, who is the
mother-in-law of Shama @ Kalya had also deposed in regard to his
proposal to dispose of property at Kalamana. The relevance of their
evidence in regard to disposal of Kalmana property will be looked into
later, in another context. Evidence of PW-1, Amrutabai would reveal

12 [2003] 2 SCR 553 : (2003) 3 SCC 353
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that while being examined-in-chief, she deposed that on 18.12.1995
she was tortured in a room by some of the accused and Shama was
also brought to the said room later and then she saw him bleeding
from his legs. She would further depose that on being enquired Shama
would say that police had cut the veins of his leg and he might not
survive and therefore, she would have to look after their children.
She would further depose that on 22.12.1995, she found swelling
on his feet and also bleeding from it. One Compounder, Soni was
brought to treat them. According to her, Shama was treated for 5
days and though she had been there for 5 days since 17.12.1995,
she was given treatment only for a day. She also deposed that when
she went to speak to Shama she found his eyes and mouth were
shut and he did not speak to her. According to her, she told the
accused that the police had killed him to which they replied that he
was only pretending. She would further depose that at about 5 or 6
pm she was released and, thereafter, on 25.12.1995 she, along with
PW-16, her children, one Anil and her brother-in-law, went to Detective
Branch Office of the police station and when enquired about Shama
she was told that he had escaped from police custody.
36. It is to be noted that in the context of the oral testimony of PW-1,
as above, she was confronted with her Ext. 130 statement as also
Ext.131, which was her statement recorded under Section 164 of the
Code of Criminal Procedure, 1973 (for short “Cr.PC.”) for the purpose
of contradicting her. In the light of the decision of this Court in Utpal
Das & Anr. v. State of West Bengal13 there can be no doubt that a
statement recorded under Section 164, Cr.PC., can also be used like
a statement under Section 161, Cr.PC, to cross-examine the maker
of it and to contradict him. Evidently, serious omissions were brought
out by confronting PW-1 with such statements, with respect to the
alleged disclosure of Shama that the accused had cut off veins of
his leg and statement that he would not survive and, therefore, she
should look after the children. Though in the chief examination she
deposed to have been told as above by Shama while confronting
with Ext. 131 they were brought as omissions which PW-1 could not
explain. So also, it is evident on being confronted with Ext.130, her
statement in Court that after being beaten Shama shut off his eyes
and mouth and did not speak to her, was brought as omissions. A

13 [2010] 6 SCR 495 : (2010) 6 SCC 493
[2024] 9 S.C.R. 745

Manik & Ors. v. The State of Maharashtra

perusal of Section 145 of the Evidence Act, 1872 would reveal that
a witness could be cross-examined as to previous statement in
writing only in respect of a fact relevant to the matter(s) in question,
for the purpose of contradicting him in the manner provided therein.
Omissions amounting to contradiction that militate against the core
of the prosecution case alone is material as in such circumstances it
would have a bearing on the credibility of the witness concerned. In
the decision in Shri Gopal & Anr. v. Subhash & Ors.,14 this Court
held that omission to state a fact amounts to contradiction. In the
light of the matters in question the position that the aforementioned
omissions are serious and amounting to contradictions cannot be
disputed in view of the fact that they militate against the core of the
prosecution case. In this context it is to be noted that they are crucial
points of facts brought out by the prosecution through the testimony
of PW-1 Amrutabai in Court. Injury due to cutting off the veins of the
legs of Shama @ Kalya was taken as an injury that ultimately caused
his death, though, it was held not sufficient in the ordinary course of
nature to cause death. The judgment of the trial Court would further
show that the statement said to have been made by Shama to PW-1,
during the cross-examination, that owing to such cutting of vein he
might not survive and she would have to take care of the children,
was taken as dying declaration by the trial Court. Statement of PW-1
in the Court that on 22.12.1995 after they were beaten up, she went
to speak to Shama and then, his eyes and mouth were shut and he
did not speak, were also given due weight as a fact ignoring that
they were brought as serious omissions. Thus, the circumstances
reveal that in respect of matters in question involved in the case
those omissions brought out during cross-examination of PW-1
are material and serious enough to tantamount to contradictions
militating against the core of the prosecution case and, therefore,
got a bearing on the credibility of the witness. 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. I have already taken note
of the fact that there is no medical evidence revealing that the veins
of legs of Shama were cut off. That apart, it is to be noted that the
postmortem report conducted on the un-identified body also would

14 [2004] 1 SCR 1085 : (2004) 13 SCC 174
746 [2024] 9 S.C.R.

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not reveal noting of any antemortem injuries much less cutting of
veins on the legs.
37. In the said circumstances taking note of the facts that dead body
traced out and subjected to postmortem was not identified to be that
of Shama, that no antemortem injuries were found on the dead body
coupled with the omissions amounting to contradiction that militates
against the core of the prosecution case, there was no justification
for the trial Court to arrive at a conclusion that the veins of legs of
Shama were cut off and the said bleeding injury ultimately caused
his death. These aspects were not at all considered by the High
Court under the impugned common judgment.
38. Paragraph 18 of the judgment, would reveal that it was the further
case of the prosecution that accused persons hatched a plan and
conspiracy and made PW-8 Dipak Lokhande disguised as Shama @
Kalya and made him to sit in a vehicle along with them. According to
the prosecution after the vehicle had taken and turned near Agrasen
Bhavan, Dipak Lokhande was asked to jump from vehicle and no
sooner the vehicle was slowed down near the speed-breaker, Dipak
Lokhande obliged to the request and then the accused persons
started shouting that Shama @ Kalya escaped from the custody.
It is also the case of the prosecution that to suit a case of escape
of Shama @ Kalya from custody certain documents were created
rather some entries were made in the station diary records. Thus,
prosecution put forth such a case to establish that the accused
persons had staged such a drama in a bid to create a belief that
Shama @ Kalya escaped from their custody. Dipak Lokhande who
was examined by the prosecution as PW-8, evidently did not support
the case of the prosecution. It is to be noted that his evidence was
appreciated by the Trial Court in paragraph 48 of its judgment and
observed that it is not expected from such a stock panch and a
regular informant who is on the parole of police to go against local
police. It is also a fact that though a charge under Section 202, IPC
was framed against accused Nos. 1, 2 and 4 as well they were not
found guilty on the said charge. The High Court instead of taking
into account the fact that it was a case put forth by the prosecution
and to prove the same PW-8 was examined and he turned hostile,
observed that a specific case of Shama’s escape from custody was
raised by the defence. The High Court went on to observe that having
taken such a specific defence the appellants failed to establish the
[2024] 9 S.C.R. 747

Manik & Ors. v. The State of Maharashtra

same and therefore, it must have its consequences. In other words,
it was held that proving the same was the burden of the appellants.
In the contextual situation, another incongruency occurred in the
consideration of the evidence by the Trial Court and the High Court
is also noteworthy. As noticed hereinbefore, it is the case of the
prosecution that such a drama was staged by the accused to show
that Shama had escaped from their custody. As noticed earlier, Dipak
Lokhande who was examined by the prosecution to prove the same
did not support the case of prosecution. It is in this context that an
Order dated 07.01.1996 passed by Railway Court, JMFC, Railway,
Raipur in C.No.12/96 of S.E. Railway under Section 137/174 of
Railways Act, 1989, the certified copy of which was produced by
the accused No. 1 assumes relevance. The appreciation of the
same by the Trial Court in paragraph 54 of its judgment, is required
be extracted, to know the nature of appreciation made by the Trial
Court. It reads thus: -
“……It is defence of accused No. 1 that a person by name
Shama was convicted by Railway Court. Raipur on 7.1.96
for traveling without ticket. He has produced the certified
copy of the order of Railway Court. Raipur. This was an
attempt to show that Shama was alive. Considering the
circumstances and conduct of the policemen. It appears
that the certified copy which is produced to show that
Shama was convicted on 7.1.96 cannot be pertaining
to Shama @ Kalya. It was an attempt to circumvent the
case of prosecution. It was known to accused persons
that offence was to be registered against them. The
certified copy discloses that Shama was found while
traveling between Gondia to Raipur without ticket. As per
practices of Railway he was asked to pay Rs. 50/- but it
is said that he denied and therefore, he was prosecuted.
We have to see firstly Shama was dreadful criminal who
will not be so easily caught by Railway police accordingly
if he would have been by chance caught, he will choose
to pay Rs. 50/- From the certified copy it appears that he
was convicted on admission and sentenced to pay a fine
of Rs. 200/- Defence has not arranged to examine the
railway employee who has charged sheeted the alleged
Shama @ Kalya. This record produced by defence cannot
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be taken to be pertaining to Shama @ Kalya the record
seems to have been prepared so that there should be
some record about Shama @ Kalya. The record seems
to have been prepared so that there should be some
record about Shama @ Kalya being alive. It is difficult to
believe that Shama would never meet his children wife
and mother. There was no reasons for Shama to avoid his
arrest, because he was convicted in 11 Criminal cases.
For this reason, I have no hesitation to reject the theory
of defence about Shama @ Kalya having fled away from
the custody of Police.”
39. Despite such consideration by the Trial Court on the aforesaid
evidence based on suppositions and conjectures, the High Court in
the impugned judgment observed that the defence, for reasons best
known and best advice they must have been rendered chosen to
be happy and satisfied with the defence of cross-examination and
they did not deem it appropriate to take recourse to any defence
whatsoever.
40. The legally and factually incorrect approach of the High Court is
evident from paragraphs 61 and 62 of the impugned common
judgment. They read thus: -
“61. For the accused persons at least to create a doubt
in the evidence brought by the prosecution in the mind
of the Court, and some belief in favour of accused, that
the accused have some defence and the prosecution
story is debatable, defence could have chosen to lead
any evidence including their own testimonies of denial,
stating that on particular days and dates, on which the
prosecution witnesses claim to have been brought to the
Detective Branch Room of the Police Station, were not
at all also called or detained or kept under the domain of
police or were ill-treated.
62. The defence has, for the reasons best known and
best advice they must have been rendered, chosen to be
happy and satisfied with the device of cross-examination.
They did not deem it appropriate to take recourse to any
defence evidence, whatsoever.”
[2024] 9 S.C.R. 749

Manik & Ors. v. The State of Maharashtra

41. Thus, it is evident that the High Court failed even to take note of the
fact that such a document was available before the trial Court, but
the trial Court appreciated the same only in the manner mentioned
above. This assumes relevance in the context that the prosecution
itself had put forth the case of escape from custody by Shama @
Kalya, but described it as a drama staged by the defence to create a
belief that Shama @ Kalya was escaped from the custody. When the
witness examined to prove the same turned hostile and the defence
evidence suggesting probabilising such an escape was produced, it
was incumbent on the part of the court(s) to consider the same, in
accordance with law. In this context, it is to be noted that the very
judgment of the trial Court itself would reveal that what was produced
by the first accused was certified copy of an order in a summary trial
whereunder a person by name Shama @ Kaloo s/o Nanu, shown to
be a resident of Kalamana was convicted for travelling ticketless in
a train between Gondia to Raipur. I have already noted earlier that
PW-1 and PW-16 deposed that Shama @ Kalya wanted to dispose
of property at Kalamana. The way in which it was appreciated by
the trial Court, as extracted hereinbefore, would reveal that the said
piece of evidence was brushed aside by the trial Court making its
own suppositions and presumptions. There can be little doubt with
respect to the position that a Court is not justified in deciding a
case upon its own suspicions or suppositions after discarding the
evidence adduced by the parties and that defence evidence is also
to be appreciated in the same manner as it is to appreciate the
prosecution evidence, but with the understanding that in the case
of accused the standard of proof required is only preponderance of
probabilities.
42. In the context of the reasoning of the High Court that the defence
had failed to prove its specific plea of escape, it is only appropriate
to consider the aforesaid factual and legal position. I have already
noted that the prosecution has put forth a case that the accused
had staged a drama to create evidence that Shama @ Kalya had
escaped from police custody and to prove the same, prosecution
got examined PWs, but he turned hostile and did not support the
prosecution. Ignoring the evidence from the defence, which was
discussed in detail though rejected by the Trial Court, the High Court
held that the defence did not adduce any evidence, but had chosen
750 [2024] 9 S.C.R.

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to be happy and satisfied with the device of cross-examination and
further held that for the failure to prove the specific plea the accused
have to suffer the consequence. Before considering evidence
adduced by defence, elaborately discussed by the Trial Court, I will
consider certain established principles of criminal law. Indisputably,
it is an established principle of criminal law that it is the burden of
the prosecution to establish the guilt of the accused. This Court in
the decision in Paramjeet Singh v. State of Uttarakhand15 held in
unambiguous terms 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.
43. In view of the afore-mentioned reasoning given by the High Court it is
also relevant to refer the decision of this Court in Sharad Birdhichand
Sarda v. State of Maharashtra.16 This Court held that the prosecution
must stand or fall on its own legs and it could not derive any strength
from the weakness of the defence. Furthermore, it was held that
the weakness of the defence could only be called as additional link
to aid the prosecution and that it is not the law that where there is
any infirmity or lacuna in the prosecution case, the same could be
cured or supplied by a false defence or plea which is not accepted
by a court. It is also worthy to refer to the decision of this Court in V.
Venkata Subharao’s case (supra). The burden on accused did not
have to meet the same standard of proof as is required to be made
by the prosecution, it was held therein. There can be no doubt with
the position that unlike the duty cast on the prosecution where proof
has got to be beyond reasonable doubt, in the case of accused, he
got to establish through a preponderance of probabilities that the
evidence produced is acceptable to the court. I have already referred
to and extracted the relevant paragraph in the judgment of the trial
Court dealing with the certified copy of the order dated 07.01.1996 of
the Railway Court, Raipur convicting one Shama, S/o Nanu residing
at Kalamna Nagar for travelling in a train between Gondia to Raipur,
ticketless. Evidently, the afore-extracted paragraph from the judgment
of the trial Court would reveal that the said piece of evidence of
defence was never put to test whether it satisfies the standard of

15 [2010] 11 SCR 1064 : (2010) 10 SCC 439
16 [1985] 1 SCR 88 : [AIR 1984 SC 1622]
[2024] 9 S.C.R. 751

Manik & Ors. v. The State of Maharashtra

preponderance of probabilities, but was declined on consideration
based on suppositions, surmises and conjectures. Evidently, being a
certified copy of an order passed by a Court viz., the Railway Court,
Raipur the trial Court could not have declined to accept its existence
in view of Section 43 of the Evidence Act.
44. In terms of the combined reading of Sections 43 and 79 of the
Evidence Act, the trial Court could not have declined to accept the
existence of the order dated 07.01.1996 of Railway Court, Raipur.
Since the existence of the said order dated 07.01.1996 cannot be said
to be not a relevant fact or fact in issue, in view of the circumstances
obtained in the case, upon its production, its evidentiary value
should have been considered by applying degree of preponderance
of probability. In this context, it is only relevant to refer to following
relevant extract from paragraph 24 of the decision of this Court in
Dr. N.G. Dastane v. Mrs. S. Dastane17:-
“24… The belief regarding the existence of a fact may
thus be founded on a balance of probabilities. A prudent
man faced with conflicting probabilities concerning a fact-
situation will act on the supposition that the fact exists,
if on weighing the various probabilities he finds that the
preponderance is in favour of the existence of the particular
fact. As a prudent man, so the Court applies this test for
finding whether a fact in issue can be said to be proved.
The first step in this process is to fix the probabilities,
the second to weigh them, though the two may often
intermingle. The impossible is weeded out at the first stage,
the improbable at the second. Within the wide range of
probabilities the Court has often a difficult choice to make
but it is this choice which ultimately determines where the
preponderance of probabilities lies…”
45. While considering the identity of the accused who stood convicted
under the said order dated 07.01.1996 it is relevant to note the initial
observation of the trial Court at paragraph 54 of its judgment. At the
risk of repetition, it is referred to hereunder thus: -
“The certified copy disclose that Shama was found while
travelling between Gondia to Raipur without ticket.”

17 [1975] 3 SCR 967 : [(1975) 2 SCC 326]
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46. In this context, it is to be noted that neither the trial Court nor the High
Court arrived at a specific finding that the order dated 07.01.1996
of the Railway Court, Raipur, was not in existence or that it pertains
to the conviction of a different person. How can such an order be
ignored by stating that being a dreadful criminal he would not have
been caught easily or even if caught he would have avoided arrest
and conviction by depositing a fine of Rs. 50/-. It is in this context
that the further case of the prosecution, that to create an impression
that Shama @ Kalya had escaped from police custody and the
accused had staged a drama, has to be looked into. According to
the prosecution, in that regard one Dipak Lokhande was made to
disguise as Shama @ Kalya and made to jump from a police vehicle
by the accused. The evidence would reveal that though prosecution
itself had examined the said Dipak Lokhande, a police official to
prove the said case, but he turned hostile and did not support the
prosecution case. It is in this context that the decision of this Court
in Sharad Birdhichand Sarda’s case (supra) holding that it is not
the law that where there is any infirmity or lacuna in the prosecution
case, the same could be cured or supplied by a false defence or
plea which is not accepted by a court, assumes relevance. In such
circumstances, the order dated 07.01.1996 mentioned above only
probabilise the case of defence. It is in the aforesaid context that
the failure of the prosecution to prove that Shama’s homicidal death
had occurred in Detective Branch room of Gondia police station
has to be viewed. It is relevant to note that the prosecution had
examined one Gopal Dinaji Bansod as PW 11 to prove disposal of
dead body by police. The impugned judgment itself would reveal
that he was declared hostile and despite being cross-examined on
behalf of the prosecution nothing relevant could be elicited. It is
also to be noted that both the trial Court and the High Court failed
to appreciate the evidence of PW-38, who was a superior officer of
the accused and spoke about not only certain entries made in the
case diary with respect to the escape of Kalya and a report on the
said incident but also of the fact he came to know that one person
by Shama was arrested at Raipur for travelling without ticket. These
aspects also were not taken into account by the trial Court as also
the High Court.
47. To sum up, it is not inappropriate to extract paragraph 110 of the
impugned common judgment which reveal the principle adopted by
[2024] 9 S.C.R. 753

Manik & Ors. v. The State of Maharashtra

the High Court in appreciating the evidence in the case on hand
and it reads thus: -
“110. In so far as the aspect of burden of the prosecution
and duty of defence in regard to these points is concerned,
the prosecution evidence rises to the level as expected for
proof of facts, and as discussed earlier in this Judgment,
the accused persons have failed in discharge of their duty
of rebuttal which rests on them in an unqualified manner
and the degree.
48. Thus, paragraphs 61, 62 and 110 of the impugned common judgment
would reveal that it is the wrong application of the principle of
appreciating the evidence in criminal cases that ultimately resulted
in the conclusions and findings compelling the High Court to confirm
the judgment of the trial Court except to the limit referred above.
Therefore, the appeals except Crl. Appeal No. 1614/2012 which
stood abated owing to the death of the sole appellant, must succeed
to the following extent.
49. In the absence of evidence regarding homicidal death of Shama @
Kalya in Gondia City Police Station coupled with the defence evidence,
which could stand the test of preponderance of probabilities and the
other circumstances favourable to the accused emerging from the other
circumstances and failure of the prosecution to establish the case put
forth by it. Appellants in Crl. Appeal No.1617 of 2012 viz., Accused
No. 2 (Ravindra) and Accused No. 4 (Hans Raj) are entitled to be
acquitted for commission of offence under Section 304 Part II read
with Section 34, IPC, granting the benefit of doubt. There is absolute
absence of medical and oral evidence to find that the prosecution
had succeeded in proving that Shama @ Kalya being in custody
sustained any ‘grievous hurt’ or sustained a kind of hurt, falling in one
or the other of the eight kinds of hurt (firstly to eighthly given under
Section 320, IPC). This is because I have already declined the finding
that Shama @ Kalya had sustained the injury of cutting of veins of
his legs. In such circumstances, the conviction of accused Nos. 2
(Ravindra), No. 3 (Manohar), No. 4 (Hans Raj) and No. 5 (Vishnu)
under Section 331 read with Section 34, IPC cannot be sustained.
50. In view of confirmation of the finding on custodial torture their
conviction and consequential sentence under Section 330, 348
and 387 read with Section 34, IPC is to be confirmed. Since the
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conviction under Section 330 covers Section 323, IPC no separate
sentence for voluntary causing hurt is to be imposed.
51. In view of the conclusions and finding in respect of the offence under
Section 304-Part II read with Section 34, IPC, and the consequential
acquittal of the convicts concerned granting benefit of doubt the
convicts under the other offences are also entitled to get benefit
of doubt, as those offences have relation with the main crime.
Consequently, conviction based on finding guilt under Section 201,
202, 203 and 218 read with Section 34, on appellants-convicts
concerned are also liable to be set aside.
52. The above discussion and conclusion would inevitably invite
interference with the conviction of the appellant-convicts under
Section 201, IPC read with Section 34, IPC, on all other grounds than
for causing disappearance of evidence by destroying the dead body
of Shama @ Kalya mentioned in paragraph 112 of the impugned
common judgment of the High Court.
53. In the result, I dispose of all the appeals as under: -
I. Crl. Appeal No.1614 of 2012 stands abated.
II. Crl. Appeal Nos.1615, 1616, 1617 & 1618 of 2012 are partly
allowed and the common judgment dated 12.07.2011 of the
Nagpur Bench of the Bombay High Court stands set aside except
to the extent whereunder appellants in Crl. Appeal No.1617 of
2012 viz., Ravindra (A2) and, Hans Raj (A4), appellant in Crl.
Appeal No.1618 of 2012 viz., Manohar (A3) and, appellant in Crl.
Appeal No. 1616 of 2012 viz., Vishnu (A5) are convicted under
Sections 330, 348 and 387, IPC, and sentenced to undergo one
year of rigorous imprisonment and a fine of Rs.1,000/- each and
in default to suffer simple imprisonment for four months on each
count. Accordingly, all the appellant-convicts are acquitted of all
the other offences for which each of them was convicted and
sentenced. In view of this judgment further action is required
only in respect of A2 to A5 viz., appellants in Crl. Appeal Nos.
1617 of 2012, 1618 of 2012 and, 1616 of 2012, that too in
case any sentence remains unserved in view of confirmation
of conviction and sentence under Sections 330, 348 and 387
read with Section 34, IPC.
[2024] 9 S.C.R. 755

Manik & Ors. v. The State of Maharashtra

Judgment

Sanjay Kumar, J

1. Having perused the erudite judgment authored by my learned brother,
Justice C.T. Ravikumar, I find myself unable to subscribe to some of
the views and conclusions noted therein. Hence, this differing opinion.
2. At the outset, though my learned brother has prefaced his verdict
by stating that Criminal Appeal No. 1614 of 2012 filed by Manik,
s/o Sitaram Jibhkate, stands abated as he died on 06.03.2022, 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.
3. A crucial aspect to be kept in mind while considering these cases is that
all the appellants are members of the police force and the allegation
against them is of misuse and abuse of their powers, in resorting to
custodial torture of Shama @ Kalya, s/o Nanu Ukey, and tampering
with evidence. This ultimately resulted in registration of Crime No.
315 of 1995 for offences punishable under Sections 302, 330, 331,
342, 343, 348, 354, 385, 387, 201, 202, 193 and 218, all read with
Section 34, of the Indian Penal Code, 1860 (IPC). The appellants
in these appeals are Accused Nos. 1 to 7. Sudhir, s/o Rambhan
Kayarkar, and Ganesh, s/o Raghuji Turkar, Accused Nos. 8 and 9,
were acquitted by the Trial Court of charges under Sections 201 and
202 IPC, read with Section 34 IPC, and the same attained finality.
4. Details of the conviction and sentencing of Accused Nos. 2 to 7
having been set out at length by my learned brother, there is no need
to replicate the same except to the extent of adding that Accused
No. 1, Manik, the appellant in Criminal Appeal No. 1614 of 2012,
was also convicted by the Trial Court for offences punishable under
Section 304 Part II, 330, 331, 348, 387, 201 and 218 IPC, all read
with Section 34 IPC, and he stood acquitted, along with the other
accused, of offences punishable under Sections 302 and 354 IPC,
both read with Section 34 IPC. Thereafter, in appeal, the High Court
held that the prosecution had failed to prove the offence punishable
under Section 201 IPC, read with Section 34 IPC, in so far as it
related to causing disappearance of the body of Shama and all the
appellants stood absolved of the same.
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5. It may be noted that Vishwanath and Dilip, Accused Nos. 6 and 7,
who jointly filed Criminal Appeal No. 1615 of 2012, already served
out their sentence and were released from prison. This aspect was
noted by this Court on 05.10.2012, while granting leave in these
five cases. Further, it was noted that Manohar, Accused No. 3, had
undergone imprisonment for about 1 year and 10 months out of the
sentence of 3 years, while Vishnu, Accused No. 5, had completed
about 1 year imprisonment out of a similar sentence of 3 years. As
regards Manik, Ravindra and Hansraj, Accused Nos. 1, 2 and 4, it
was noted that they had undergone only 2 years out of the sentence
of 7 years imprisonment. In such circumstances, bail was granted
only to Manohar and Vishnu, Accused Nos. 3 and 5, and not to the
other three accused/appellants. It was only on 16.02.2015, that these
three accused/appellants were also granted bail, taking note of the
fact that they had completed approximately 5 years in jail.
6. Ergo, at this stage, we are concerned mainly with Manik, Accused
No. 1; Ravindra, Accused No. 2; Manohar, Accused No. 3; Hansraj,
Accused No. 4 and Vishnu, Accused No. 5. As the State has not
chosen to approach this Court against the dismissal of its appeal
by the High Court, which was filed in the context of the acquittal of
the accused under Section 302 IPC, read with Section 34 IPC, that
aspect stands settled. This failure on the part of the State is, in itself,
a cause for concern as this was a case of police brutality and use
of third-degree methods, which ought to have prompted the State
to take a more rigorous stand so as to set an example and instill
discipline in its police machinery. However, the State of Maharashtra
did not deem it appropriate to do so. Be that as it may.
7. Sufficient evidence having been adduced before the Trial Court,
which found favour with the High Court also, my learned brother has
confirmed that custodial torture of Shama stands duly proved. As
pointed out by this Court in State of U.P. vs. Ram Sagar Yadav and
others:1 “Police officers alone, and none else, can give evidence as
regards the circumstances in which a person in their custody comes
to receive injuries while in their custody. Bound by ties of a kind of
brotherhood, they often prefer to remain silent in such situations and
when they choose to speak, they put their own gloss upon facts and

1 [1985] 2 SCR 621 : (1985) 1 SCC 552
[2024] 9 S.C.R. 757

Manik & Ors. v. The State of Maharashtra

pervert the truth. The result is that, persons on whom atrocities are
perpetuated by the police in the sanctum sanctorum of the police
station, are left without any evidence to prove who the offenders are”.
8. In Bhagwan Singh and another vs. State of Punjab,2 this Court
observed: “If a person is in police custody, then what has happened
to him is peculiarly within the knowledge of the police officials who
have taken him into custody. When the other evidence is convincing
enough to establish that the deceased died because of the injuries
inflicted by the accused, the circumstances would only lead to an
irresistible inference that the police personnel who caused his death
must also have caused disappearance of the body”.
9. Given this settled legal position, it would suffice at this stage to
note that several witnesses from within the police department,
such as, Dilip Madhuprasad Sawwalakhe (PW-20), Shalikram
Sarasram Nimkar (PW-23), Sumanbai (PW-22), and Dayaram
Bakaram Sonkusare (PW-19), and independent witnesses, such as,
Tejlal Karulal Pachbhaye (PW-10) and Kuwarlal Buddusao Dohare
(PW-9), the staff from Hotel Anand at Balaghat, where the appellants
kept Shama overnight, confirmed that Shama was injured and
bleeding. His wife, Amrutabai (PW-1), stated that when she saw
Shama in the police station on 18.12.1995, he was bleeding from
both legs and he told her that the police had cut the veins in his
legs. Sureshkumar Kharagchand Soni (PW-3), the compounder
who treated Shama while he was in police custody, turned hostile
but the fact remains that his testimony, for what it is worth, also
confirms the injured state of Shama, consequent to the third-degree
methods used on him by the appellants. In such circumstances, it
can be safely surmised that Shama was in the illegal custody of the
appellants since 16.12.1995, at the very least, and suffered prolonged
third-degree treatment till 24.12.1995. That being so, it is very difficult
to believe the story projected by the appellants that Shama escaped
from their custody at about 11:00 PM on 24.12.1995. It is highly
improbable that he would have been in a physical state of fitness to
flee, by jumping from a moving jeep in a crowded residential area,
and evade the police.

2 [1992] 3 SCR 180 : (1992) 3 SCC 249
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10. Significantly, Shalikram Nimkar (PW-23), being a member of the police
force, confirmed in his deposition before the Trial Court that the entry
in the police record about the escape of Shama was false. The facts
narrated by him were recorded by the Trial Court in para 48 of its
judgment. He stated that he was attending to the Station Diary on
24.12.1995 when Manik, Accused No. 1, approached and requested
him to make an entry that Shama was reported to have been seen
in the railway yard. PW-23 stated that he inquired with Manik as to
why such an entry should be recorded when Shama was in police
custody. PW-23 admitted that this entry was wrong but, as Manik
was his superior, he had to oblige him.
11. ‘Life is the art of drawing sufficient conclusions from insufficient
premises’ .3 This art would be all the more essential in the repertoire
of a Judge, who may be presented with incomplete and, sometimes,
incorrect information, while adjudicating a case. Appearances can
be manipulated and may be completely deceptive, by deliberate
design. It would be gullible for a Court to accept appearances at face
value, however unconvincing they may be, and play into the hands
of those who seek to dishonestly deceive it. In the present case, the
appellants cleverly concocted the story of Shama escaping from their
custody and created a record to buttress it. Not content therewith,
the appellants also cooked up what is clearly a fabricated saga of
Shama surfacing in Raipur and being convicted by the Railway
Court there, on 07.01.1996, for travelling without a ticket. Even if it
is assumed for a second that the police version of Shama’s escape
is true, it would require another huge leap of faith to believe that
Shama, a fugitive from the law, would have willfully refused to pay
₹50/-, while caught travelling ticketless between Gondia and Raipur,
and would have preferred to go before the Railway Court to suffer
and document a conviction, whereby he had to pay ₹200/- as fine.
This convenient story was apparently devised for the purpose of
creating a record of Shama being alive on that date.
12. Significantly, the prosecution did not gather any further evidence
in relation to this conviction at Raipur. No witness from Raipur was
examined to identify and prove that it was the very same Shama who

3 Erewhon (1872), a satire by Samuel Butler.
[2024] 9 S.C.R. 759

Manik & Ors. v. The State of Maharashtra

had suffered the conviction there. In the absence of clinching proof of
Shama being actually alive, the only possible inference that can be
drawn from his established and prolonged torture by the appellants
is that he would have died while in their custody. No doubt, the High
Court, in its wisdom, chose to disbelieve the fingerprint evidence
and did not sustain the Trial Court’s finding that the body that was
exhumed at the behest of the appellants was that of Shama. At
best, the exclusion of this evidence would only mean that the dead
body of Shama was not traceable. However, as rightly pointed out
by my learned brother, production of a dead body to prove a murder
is not necessary in the eye of law. ‘Corpus Delicti’ is a Latin phrase
that broadly means – ‘body of the crime’. Generally, this principle
has reference to the requirement of the prosecution proving that
the crime has been committed, so as to charge the delinquent and
secure a conviction.
13. In Sevaka Perumal and another vs. State of Tamil Nadu,4 this
Court observed that it is not an absolute necessity or an essential
ingredient to establish the corpus delicti in a trial for murder, as the
factum of death must be established like any other fact. To base a
conviction for murder, this Court held that there must be reliable and
acceptable evidence that the offence of murder was committed and
it must be proved, either by direct or circumstantial evidence, even
if the dead body is not traceable.
14. Merely because the appellants were clever enough to trump up a
story of Shama escaping from their custody and the happenstance
of the exhumed body, recovered at their instance, no longer figuring
in the picture due to rejection of the fingerprint evidence, it would
be improper to proceed on the assumption that the law laid down
in Sevaka Perumal (supra) would not be applicable. Doing so
would impel the Court to fall into the trap of the ingenious and wily
appellants, who have cunningly concocted and falsified records to
escape their just deserts.
15. This is the major point of divergence between our views. My learned
brother has acted upon the premise that once the dead body is said

4 [1991] 2 SCR 711 : (1991) 3 SCC 471
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to have been traced and it is, then, not proved to be of that person, it
would be fatal to the case of the prosecution. Permitting this premise
to gain acceptance would mean that those in the police organization,
who resort to such nefarious methods, can take this easy way out
to ward off a finding of guilt. When sufficient evidence is available to
conclude that Shama was in no position to escape from the custody
of the appellants, the inevitable corollary that follows is that he died
due to their torture while in their custody.
16. It is high time that our legal system squarely faces the menace of
police excesses and deals with it by putting in place an effective
mechanism to obviate such inhuman practices. Long ago, Prof.
Upendra Baxi had observed: “What is truly striking about India is the
lack of respect for rule of law, not just by the people but those who
make and enforce them”.5 A few years later, Prof. Srikrishna Deva
Rao pointed out that excessive use of force is a product of the police
culture that rationalizes physical abuse as appropriate punishment
for persons who are viewed as trouble-makers or deviants. He
asserted that lack of proper legal restraint on police powers is one
of the main reasons for continuous police abuse and that torture by
the police is violative of the right to life and personal liberty under
Article 21 of the Constitution.6
17. In the words of Mohammed Ghouse: ‘Torture or killing of a person
in police custody is, to put it mildly, illegal. But the real question
is when gold rusts, what can iron do? Who can police the police?
Because of the system of linkages, the accountability of police
to the political process is purely notional. So, the question arises
whether courts can police the police? It is unfortunate that the
State has done little to reform the system to control such abuse
of power by the police by institutionalizing a regime to detect,
prosecute and punish wrongdoers within the police organization.
The recommendation of the National Police Commission for a
mandatory judicial inquiry by a District and Sessions Judge still
remains on paper. Organizational accountability is perhaps the
only means of ensuring that the rank and file within the police

5 Crisis of Indian Legal System (1982)
6 Custodial Deaths by P. Srikrishna Deva Rao (National Law School Journal. Vol. 6, 1994)
[2024] 9 S.C.R. 761

Manik & Ors. v. The State of Maharashtra

department respect and honour Constitutional values while
discharging their functions and do not abuse the power that comes
with it by resorting to third degree methods within the secrecy and
safety of police lock-up’.7
18. In fact, in Ram Sagar Yadav (supra), this Court had suggested
amendment of the law relating to burden of proof in case of custodial
deaths. In response thereto, the Law Commission of India, in its
113th Report (1985) on ‘Injuries in Police Custody’, recommended
insertion of Section 114-B in the Indian Evidence Act, 1872, so as
to reverse the burden of proof in cases of custodial death onto the
police themselves. Despite decades having passed since then, this
recommendation has not come to fruition.
19. Irrespective of that step being taken, the fact remains that when
sufficient evidence is adduced to prove custodial torture by the
police, it is then for the police themselves to prove their innocence,
be it in a case of death in police custody or even if such a victim
goes missing or vanishes. Notably, Section 29 of the Indian Police
Act, 1861, makes willful breach of regulations by a policeman and
causing of unwarrantable personal violence to any person in his
custody, punishable with fine or imprisonment. Further, Police Manuals
invariably hold those in charge of police stations responsible for the
safe custody of all the prisoners housed therein.
20. Deepak Lokhande (PW-8) allegedly impersonated Shama on
24.12.1995 and staged a performance to support the police version
that Shama had escaped from their custody on that night. Neither
this parody nor the record of Shama suffering conviction before
the Railway Court at Raipur can be allowed to dupe this Court, as
intended by the guileful appellants. The appellants have been let
off rather lightly by convicting them only under Section 304 Part-II
IPC. Their careless disregard for the value of human life warranted
a much more stringent punishment being visited upon them. In such
circumstances, giving in to their duplicitous stories and permitting
them to escape punishment would only add insult to injury.

7 Mohammed Ghouse, “State lawlessness and Constitution of India: A study of custodial deaths”,
Comparative Constitutional Law 270 (Mahendra P. Singh ed., 1989).
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21. I would, therefore, respectfully disagree with the conclusion drawn
by my learned brother that, in the absence of evidence regarding the
homicidal death of Shama @ Kalya, the appellants are entitled to
be acquitted of the charge under Section 304 Part-II IPC read with
Section 34 IPC, by granting them the benefit of doubt. On the contrary,
I would maintain the convictions and sentences of the appellants, as
confirmed by the High Court, and dismiss all the appeals.

Result of the Case: In view of the divergent of opinion, the appeal
papers directed to be placed before the Hon’ble
Chief Justice of India for assigning the same to
the appropriate Bench.

†
Headnotes prepared by: Ankit Gyan