Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1511 OF 2003
Mehboob Batcha & Ors. .. Appellant(s)
-versus-
State Rep. by Supdt. of Police .. Respondent
J U D G M E N T
MARKANDEY KATJU, J.
"Bane hain ahal-e-hawas muddai bhi
munsif bhi
Kise vakeel karein kisse munsifi
chaahen"
-- Faiz Ahmed Faiz
1. If ever there was a case which cried out for death penalty it is this one,
but it is deeply regrettable that not only was no such penalty imposed but not
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even a charge under Section 302 IPC was framed against the accused by the
Courts below.
2. Heard learned counsel for the parties.
3. The facts in detail have been stated in the impugned judgment of the
High Court as well as of the trial court and hence we are not repeating the
same here, except where necessary.
4. The appellants are policemen who wrongfully confined one
Nandagopal in police custody in Police Station Annamalai Nagar on
suspicion of theft from 30.5.1992 till 2.6.1992 and beat him to death there
with lathis, and also gang raped his wife Padmini in a barbaric manner. The
accused also confined several other persons (who were witnesses) and beat
them in the police station with lathis.
5. Both the trial Court and the High Court have found the appellants
guilty and we see no reason to disagree with their verdict. To prove the
charges the prosecution examined as many as 37 witnesses, and they have
proved the guilt of the accused beyond reasonable doubt.
6. PW1 Padmini has given her evidence in great detail and we see no
reason to disbelieve the same. We have read her evidence which discloses
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the inhuman and savage manner in which the accused, who were police
personnel, treated Nandagopal and Padmini. We may quote just parts of her
testimony which are as follows :
......."on Sunday at about 1.00 p.m. two policemen came
in an auto to my house. They are A3, A6 and A8. All of
them beat me by lathis on my buttocks. A3 caught hold
of my leg and pulled me saying get into the auto. I ran
outside. Two autos came and in one auto Subramaniam
and Nandagopal were sitting with handcuffs jointly.
Unable to bear pain I sat by their side. The auto went to
Annamalai Nagar police station and they asked me to go
inside and I went inside. A6 beat me up. I was
surrounded by 4, 5 persons who were beating me. At that
time my jacket (blouse) was torn. Some one tore off my
jacket and I do not remember as to who tore off that
jacket. They said `you will not bear any more and go and
sit' I sat in the corner where the Head constable was
sitting earlier. Some time afterwards two women police
came there. Thinking that I would be let off, I stated to
them that I took oleander seeds, for that the women
police gave me water mixed with tamarind and soap and
asked me to drink it. That night myself and the women
police were lying down in the room where the Sub
Inspector of Police was sitting and in the early morning
the women police went out. My husband's sister's
daughter by name Priya gave coffee. I could talk
anything. I ate idly. My husband told me why you are
coming here, I am being tortured by them. I told him that
they would not do anything and they would let you free.
At that time a policeman came and told `what are you
talking to her', and saying so he kicked him and pushed
him down. A6, beat my husband and kept him in the
lock up. Subramani, Kolanchi and Subramaniam were
also in the lock up. Then I was given good meals and my
husband was given waste food. Therefore I gave my
food to Nandagopal. For that A1 said you should take
that food and be good and why did you give it him, by
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saying so he beat me by lathi. In the evening all of them
jointly discussed with themselves saying that each one of
them should give Rs.50/- for giving a party. One police
man asked for what purpose you are giving a party and
one police man whispered some thing in his ear. On
hearing that, he asked were you not born with your
sisters, and saying so he left that place. On Monday at
about 8.00 pm night, Nandagopal was brought out from
the lock up. A6 told that he should see some one has to
remove my saree. He called the accused Kolanchi from
the lock up and asked him to remove my saree. He was
holding my palla, but I was holding it tightly without
leaving it. The said Kolanchi told that he should not pull
it. Immediately the first accused beat him with a lathi.
Then after beating him, he asked him to get to the side of
the open court yard. Immediately A3 came to remove
my saree. A3 removed the entire saree of mine. At that
time I was wearing petty coat and jacket. A1, A3, A6,
A8 and A10 removed my jacket and petty coat and made
me nude. They asked me to run through the court yard
and beat me and I fell down. All the five accused person
one by one embarrassed me and kissed me. Then I fell
down. At that time one said `your private part is big in
size, cannot you bear this pain'. I cried and asked him to
stop beating. At that time some one came there in
connection with a case. They said not to say this to
anyone outside. I wrapped the saree over the body and
sat. At that time two women police came there. I stated
to them what had happened. They said that no one will
beat you hereafter, and I went to lie down along with
them in a room. In the early morning on Tuesday one
Senthil came and brought coffee. Senthil is the son of
my husband's sister. On that evening my husband was
taken outside and brought to the police station along with
Rani, Dandapani. Rani is the younger sister of
Nandagopal. Dandapani is the husband of Rani. When
Dandapani was asked about the tape recorder, he showed
a bill of a shop where he purchased it. For that the police
said `why are you telling a lie'. Yesterday we have
removed the saree of the wife of Nandagopal and saw,
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and it would be proper if we remove the saree of your
wife. At that time there were bleeding injuries on the
back, leg and shoulder of Nandagopal and blood was
oozing out in strips. Police stated like that. My husband
sustained injury on account of beatings by the police A1,
A3, A6, A8 and A10 beat my husband. Then the police
asked Rani and Dandapani to go to their house. On
Tuesday night two women police came to the police
station. They were talking with each other as to whether
any clothes have been brought for staying in the night.
Along with them one male police came and asked
whether they had seen Tamil picture `Sembaruthi'. I
asked them not to leave me alone and asked them to take
me along with them. They said they would not do
anything, by saying so those two women police went out.
I cannot identify those police properly and I do not
remember their names. On Tuesday at about 10.30 pm
my husband Nandagopal was brought to the open court
yard from the lock up. Myself and Nandagopal were
brought to a room opposite to the open court yard. My
husband was kept in a standing position on the wall and
beaten up by them. A6 Dhass pulled out my saree. A10
removed my jacket and petty coat and made me to
become nude and I was beaten and pushed down. My leg
had stuck into a bench and I could not remove it. At that
time the 2nd accused Sub-Inspector of police came to
Annamalai Nagar police station. He said that he would
go first. At that time he used rubber loop at the genital
organ and committed rape on me. A2, A3, A6, A8 and
A10 also raped me forcibly. All of them have used
rubber loop. All of them raped me in the presence of my
husband. At that time my husband Nandagopal requested
them not to do harm to my wife, and leave her. At that
time A6 beat Nandagopal with lathi on his genital part.
He fell down. He asked water by gesture. At that time
after wrapping the saree over my body I took water from
the pot. At that time the said five police men surrounded
me and said if you want to give water to Nandagopal,
you should give a kiss to everyone. Then I gave kisses to
all the five. When I went to take water to my husband,
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they threw it away. That fell down. With an intention to
spoil me again, they pulled me and I said I cannot come
and leave me, by saying so I sat down. When A6 came
and tried to force me, I fell on his leg and bit. On
account of the sexual intercourse, I sustained bleeding
injuries on the breast and genital organ and then I fell
unconscious. When I woke up after regaining
consciousness, the clothes were wrapped halfly. I said I
wanted to see my husband. I was brought outside saying
that my husband was sent to court. One of the policemen
asked me to get into the van. I was kept at Chidambaram
police station. They offered me idli and coffee. I ate it.
One lady police was with me. All the other policemen
went out with lathis. The woman police who was with
me stated that there was students' agitation and some one
was done to death at Annamalai Nagar Police Station. I
wept and then I was left out. I asked the auto man at
Mariamman temple to take me in the auto. He asked me
whether I am the wife of Nandagopal, I said yes. He said
that Nandagopal was done to death by the police and
asked me not to go there. Then I went to court in the
auto. This occurrence was talked in court. Then I went
to Tahsildar's office immediately. I stated what had
happened there. The Officers have gone to take action
and they asked me to be here. I was sitting there. I went
to Annamalai Nagar police station in a Jeep. There was a
crowd there. I cried saying that not only I was raped by
five persons but they also assaulted my husband and done
him to death. One of the police men who raped me was
standing there. I beat him with a chappal. He is A10.
R.D.O. was there. He asked me what had happened and I
said what had happened. I fell down unconscious. Then
I was taken to the hospital. At about 1.00 pm one male
doctor examined me. Then I came to the police station at
Annamalai Nagar and gave my statement. That was
recorded by them. Ex.P.1 is the statement typed by
R.D.O. and obtained my signature therein. Then I went
to the house of my mother in law. Nandagopal was lying
dead. I was weeping. At that time Balakrishnan,
Jankirani and politicians came there. I stated to them
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what had happened. Balakrishnan is the District
Secretary of Communist Party, Janki Rani is the
President of All Indian Madhar Sangam at Chidambaram.
Janki Rani is the wife of Balakrishnan. I gave a petition
to the R.D.O. to send me to the hospital that is Ex.P.2. I
was admitted in the hospital at about 11.00 pm in the
night. On the next day at about 7 or 7.30 am I was
examined by a lady doctor. After coming from the
hospital, on Thursday evening my husband was buried.
On 5.6.1992 I sent a petition to the District
Superintendent of Police. After I came to my house, a
police officer came to my house. I have stated to him
what had happened.".........
7. Padmini also stated :
..........."The two police asked me to come to the rest
room. Then at the same time three police without any
uniform came inside. Then I cried in front of the lock up
where my husband was kept inside saying that are calling
me, but no one to help me. My husband was brought
from the lock to the open court yard with handcuff. I
cried to the police by kneeling down. At that time
Subramaniam asked them not to do anything to my sister
and not to beat my friend. Then they removed the jacket
and saree and made me to become nude in the open yard
and squeezed my breast and bit and the old aged police
hit against my private part with a stick saying that it is
very big and I have to see how long it would go.........
........Five police men came smelling of Brandy in their
mouth. My husband was beaten while he was taken from
the lock up and myself and my husband were kept in a
room where the rice bags were kept. I was made to
become nude. My husband cried to the police with
handcuff to release him. The police kicked my husband
on his chest. You would be alive only tonight and if you
want you can enjoy. By saying so they hit him with gun.
At that time Sub-Inspector stated that others can do only
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if I say because I am the officer here and so I will do first
and other can afterwards, and by saying so he raped me.
I raised a noise saying I am having much pain and asked
him to leave me and the other police men were beating
my husband. My husband asked them to remove the
handcuff put on him. They did not do so. After finishing
the work, Sub Inspector went away and asked others to
do the same and he would see whether anybody is
coming and asked them to finish the work. I was asked
to lie facing up, one of them was holding my leg and
another one was holding the hand and another one was
lying on me and had intercourse with me. Like that all
the five persons spoiled me."..........
8. We see no reason to disbelieve Padmini's evidence. Ordinarily no
self respecting woman would come forward in Court to falsely make such a
humiliating statement against her honour.
9. The learned counsel for the accused referred to some discrepancies in
her evidence, but it is well settled that minor discrepancies cannot demolish
the veracity of the prosecution case. In our opinion there is no major
discrepancy in the prosecution case, which is supported by the evidence of a
large number of witnesses, including injured witnesses, apart from the
testimony of Padmini, who identified the accused in the identification parade
held on 13.8.1992 in Central Jail, Cuddalore. Although A10 was not
identified by her, the High Court has given good reasons for holding him
guilty too, and we agree with the same.
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10. The Medical Officer who examined Padmini found multiple nail
scratches on her breasts. She complained of severe pain in her private parts.
There were multiple abrasions on her vagina and cervix with discharge of
foul smelling fluids. The chemical analysis of her vaginal smear showed
plenty of pus cells and epithetical cells. The doctors also examined
Subramaniam and Chidambaranathan who were beaten by the accused
policemen with lathis.
11. We have held in Satya Narain Tiwari @ Jolly & Anr. vs. State of
U.P., JT 2010(12) SC 154 and in Sukhdev Singh vs. State of Punjab, SLP
(Criminal) No.8917 of 2010 decided on 12.11.2010 that crimes against
women are not ordinary crimes committed in a fit of anger or for property.
They are social crimes. They disrupt the entire social fabric, and hence they
call for harsh punishment.
12. The horrendous manner in which Padmini was treated by policemen
was shocking and atrocious, and calls for no mercy.
13. The post-mortem report of Nandagopal shows the following injuries :
"I. A rope like ligature mark centre of neck encircling
obliquely upwards. M Right to left neck with knot like
mark on right neck. (Size about "1/2 in width O Rope
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mark). Middle lateral aspect. Underlying skin dry
parchment in colour.
II. An abrasion 1 x 1 cm left cheek.
III. An abrasion 3 x 1 cm right hip anterior.
IV. An abrasion 2 x 1 cm left leg middle anterior.
V. An abrasion 3 x 1 cm right leg middle anterior.
VI. An abrasion 2 x 1 cm left arm shoulder posterior
lower.
VII. An abrasion 2 x 1 cm right arm shoulder posterior
lower.
VIII. An abrasion 2 x 1 cm left elbow antero-medical.
IX. An abrasion 2 x 1 cm right elbow posterior lower.
X. An abrasion 2 x 1 cm right scrotum lower antero-
lateral. No underneath haemotoma injuries are
ante-mortem in nature.
XI. Tongue bitten in between the teeth partially
protruded outside.
The post-mortem certificate contains the final opinion of
the doctor that Nandagopal died on asphyxial death due
to atypical hanging about 10 to 24 hours prior to post-
mortem."
14. The above injuries show the horrible manner in which Nandagopal
was beaten and killed in police custody. In her evidence Padmini stated that
on the evening of Sunday, "Four policemen beat my husband with sticks.
They kicked my husband with boots on his chest." She also stated "At that
time there were bleeding injuries on back leg and shoulder (of Nandagopal)
and blood was oozing out and found in strip form". Even when she was
being raped by the policemen Nandagopal was beaten.
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15. We are surprised that the accused were not charged under Section 302
IPC and instead the Courts below treated the death of Nandagopal as
suicide. In fact they should have been charged under that provision and
awarded death sentence, as murder by policemen in police custody is in our
opinion in the category of rarest of rare cases deserving death sentence, but
surprisingly no charge under Section 302 IPC was framed against any of the
accused. We are constrained to say that both the trial Court and High Court
have failed in their duty in this connection.
16. The entire incident took place within the premises of Annamalai
Nagar police station and the accused deserve no mercy.
17. In this appeal the appellant no.1 has been given the sentence of 3
years rigorous imprisonment and a fine, while the other appellants have been
given sentence of 10 years rigorous imprisonment with a fine.
18. In the normal course, we could have issued notice of enhancement of
sentence, but as no charge under Section 302 IPC was framed, we cannot
straightaway record conviction under that provision and enhance the
punishment.
19. For the reasons given above this appeal is dismissed.
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20. Before parting with this case, we once again reiterate that custodial
violence in police custody is in violation of this Court's directive in D.K.
Basu vs. State of West Bengal 1997(1) SCC 416 and we give a warning to
all policemen in the country that this will not be tolerated. The graphic
description of the barbaric conduct of the accused in this case shocks our
conscience. Policemen must learn how to behave as public servants in a
democratic country, and not as oppressors of the people.
21. In D.K. Basu's case this Court observed :
.........."Custodial violence, including torture and death in
the lock-ups, strikes a blow at the rule of law, which
demands that the powers of the executive should not only
be derived from law but also that the same should be
limited by law. Custodial violence is a matter of concern.
It is aggravated by the fact that it is committed by
persons who are supposed to be the protectors of the
citizens. It is committed under the shield of uniform and
authority in the four walls of a police station or lock-up,
the victim being totally helpless. The protection of an
individual from torture and abuse by the police and other
law-enforcing officers is a matter of deep concern in a
free society.
In spite of the constitutional and statutory
provisions aimed at safeguarding the personal liberty and
life of a citizen, growing incidence of torture and deaths
in police custody has been a disturbing factor. Experience
shows that worst violations of human rights take place
during the course of investigation, when the police with a
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view to secure evidence or confession often resorts to
third-degree methods including torture and adopts
techniques of screening arrest by either not recording the
arrest or describing the deprivation of liberty merely as a
prolonged interrogation. A reading of the morning
newspapers almost everyday carrying reports of
dehumanising torture, assault, rape and death in custody
of police or other governmental agencies is indeed
depressing. The increasing incidence of torture and death
in custody has assumed such alarming proportions that it
is affecting the credibility of the rule of law and the
administration of criminal justice system. The
community rightly feels perturbed. Society's cry for
justice becomes louder.
Custodial death is perhaps one of the worst crimes
in a civilized society governed by the rule of law. The
rights inherent in Articles 21 and 22(1) of the
Constitution require to be jealously and scrupulously
protected. We cannot wish away the problem. Any form
of torture or cruel, inhuman or degrading treatment
would fall within the inhibition of Article 21 of the
Constitution, whether it occurs during investigation,
interrogation or otherwise. If the functionaries of the
Government become law-breakers, it is bound to breed
contempt for law and would encourage lawlessness and
every man would have the tendency to become law unto
himself thereby leading to anarchism. No civilized nation
can permit that to happen. Does a citizen shed off his
fundamental right to life, the moment a policeman arrests
him? Can the right to life of a citizen be put in abeyance
on his arrest? These questions touch the spinal cord of
human rights' jurisprudence. The answer, indeed, has to
be an emphatic `No'."..............
(emphasis supplied)
22. Let a copy of this order be sent to Home Secretary and Director
General of Police of all States and Union Territories, who shall circulate the
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same to all police officers up to the level of S.H.O. with a directive that they
must follow the directions given by this Court in D.K. Basu's case (supra),
and that custodial violence shall entail harsh punishment.
...................................J.
(Markandey Katju)
..................................J.
(Gyan Sudha Misra)
New Delhi:
March 29, 2011
