# K.H. SHEKARAPPA & OTHERS v. STATE OF KARNATAKA

- **Citation:** [2010] 3 S.C.R. 883
- **Court:** Supreme Court of India
- **Decided:** 2009-12-03
- **Case number:** Criminal Appeal No. 382 of 2003
- **Bench:** Harjit Singh Bedi, J.M. Panchal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-h-shekarappa-others-v-state-of-karnataka-26788
- **Pages:** 28

## Headnote

Penal Code, 1860:
A
B
ss. 304(part 11)134 and 324134 - Custodial death - Burden c
of proof - Five persons beaten up by police officials in police
station - Two of them died and three sustained injuries -
HELD: By ocular version and medical evidence, prosecution
has proved its case against accused beyond reasonable
doubt - When the deceased were brought alive to the police 0
station but were produced dead before medical officer, it is
for the accused-police officials to explain the circumstance in
which the victims died -
The accused pleaded a false
defence which reinforces their guilt -Conviction and sentence
upheld - Evidence Act, 1872 - s. 106 - Evidence - Testimony E
of hostile witness.
Evidence:
Testimony of hostile witness - HELD: Normally should
not be considered in support of prosecution case, however,
F
such evidence, if corroborated by reliable independent
witness, can be taken into consideration for determining
whether prosecution case is proved or not.
The appellants (A-1 to A-7 and A-9) along with
another Police Officer (A-8) were prosecuted for causing, G
in the police station, death of two persons and injuries
to three others, who had been arrested in connection
•Judgment Received on 13.4.2010.
883
H
884
SUPREME COURT REPORTS
[201 OJ 3 S.C.R
A with a fight between them and some engineering
students said to have taken place at a liquor bar. The trial
court convicted the appellants for commission of
offences punishable u/ss 143, 148, 326 r/w s.149, s.201/
149, 218/149 and 302/149 IPC on two counts. A-8 was
B convicted u/ss 201/511 and 218/511 IPC. The accused
filed appeals and the High Court ultimately convicted A1 to A-7 and A-9 u/ss 304 (part 11)/34 and 324/34 IPC.
Aggrieved, A-1 to A-7 and A-9 filed the appeal.
c
Dismissing the appeal, the Court
HELD: 1.1. A fair reading of the testimony of PW-20,
one of the injured witnesses, makes it abundantly clear
that the appellants subjected the two deceased to severe
beating because of which they died in the police station.
D [Para 16] [909-D-E]
1.2. The evidence of PW-5, the other injured witness,
who was declared hostile, is also significant. Normally,
the rule of appreciation of evidence of a hostile witness
E is that the same should not be considered in support of
the prosecution case. However, it is a well settled principle
that evidence of a hostile witness can be taken into
consideration for the purpose of determining whether
prosecution case is proved or not, if the same is
corroborated by reliable independent witness. In the
F
instant case, this Court finds that the admissions made
by the witness in cross-examination by the prosecution
are fully supported by medical evidence on record.
Before the doctor, who had examined him, the witness
had narrated history of assault on him, which was noted
G down by the doctor on his medical papers. The assertion
made by the witness in his cross-examination that he
was assaulted in Police Station gets ample corroboration
from the medical evidence and, therefore, it would be safe
to conclude that this witness received injuries while in
H
K.H. SHEKARAPPA & ORS. v. STATE OF
885
KARNATAKA
police custody. The evidence of this witness indicates that A
though initially he was hesitant in admitting the assault
upon the two deceased and the two other injured in his
presence, he admitted in his cross-examination that he
was taken into lock-up and assaulted and the two
deceased and the other two injured were with him in the 8
same lock-up. From the evidence of this witness, it
becomes evident that he and four other persons, namely,
the two deceased and the other two injured, were
assaulted with sticks resulting into injuries on all over
their person. (Para 13 and 14] [903-E-H; 904-A-D; 905-A- c
C; H; 906-A]
1.3. According to the Medical Officers (PW 1 and PW2), the cause of death of both the deceased was shock
as a result of the multiple injuries sustained by them. The
Medical Officers are completely corroborated by the D
contents of P

## Text

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[2010] 3 S.C.R. 883
K.H. SHEKARAPPA & OTHERS
v.
STATE OF KARNATAKA
(Criminal Appeal No. 382 of 2003)
DECEMBER 3, 2009*
[HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.]
Penal Code, 1860:
A
B
ss. 304(part 11)134 and 324134 - Custodial death - Burden c
of proof - Five persons beaten up by police officials in police
station - Two of them died and three sustained injuries -
HELD: By ocular version and medical evidence, prosecution
has proved its case against accused beyond reasonable
doubt - When the deceased were brought alive to the police 0
station but were produced dead before medical officer, it is
for the accused-police officials to explain the circumstance in
which the victims died -
The accused pleaded a false
defence which reinforces their guilt -Conviction and sentence
upheld - Evidence Act, 1872 - s. 106 - Evidence - Testimony E
of hostile witness.
Evidence:
Testimony of hostile witness - HELD: Normally should
not be considered in support of prosecution case, however,
F
such evidence, if corroborated by reliable independent
witness, can be taken into consideration for determining
whether prosecution case is proved or not.
The appellants (A-1 to A-7 and A-9) along with
another Police Officer (A-8) were prosecuted for causing, G
in the police station, death of two persons and injuries
to three others, who had been arrested in connection
•Judgment Received on 13.4.2010.
883
H
884
SUPREME COURT REPORTS
[201 OJ 3 S.C.R
A with a fight between them and some engineering
students said to have taken place at a liquor bar. The trial
court convicted the appellants for commission of
offences punishable u/ss 143, 148, 326 r/w s.149, s.201/
149, 218/149 and 302/149 IPC on two counts. A-8 was
B convicted u/ss 201/511 and 218/511 IPC. The accused
filed appeals and the High Court ultimately convicted A1 to A-7 and A-9 u/ss 304 (part 11)/34 and 324/34 IPC.
Aggrieved, A-1 to A-7 and A-9 filed the appeal.
c
Dismissing the appeal, the Court
HELD: 1.1. A fair reading of the testimony of PW-20,
one of the injured witnesses, makes it abundantly clear
that the appellants subjected the two deceased to severe
beating because of which they died in the police station.
D [Para 16] [909-D-E]
1.2. The evidence of PW-5, the other injured witness,
who was declared hostile, is also significant. Normally,
the rule of appreciation of evidence of a hostile witness
E is that the same should not be considered in support of
the prosecution case. However, it is a well settled principle
that evidence of a hostile witness can be taken into
consideration for the purpose of determining whether
prosecution case is proved or not, if the same is
corroborated by reliable independent witness. In the
F
instant case, this Court finds that the admissions made
by the witness in cross-examination by the prosecution
are fully supported by medical evidence on record.
Before the doctor, who had examined him, the witness
had narrated history of assault on him, which was noted
G down by the doctor on his medical papers. The assertion
made by the witness in his cross-examination that he
was assaulted in Police Station gets ample corroboration
from the medical evidence and, therefore, it would be safe
to conclude that this witness received injuries while in
H
K.H. SHEKARAPPA & ORS. v. STATE OF
885
KARNATAKA
police custody. The evidence of this witness indicates that A
though initially he was hesitant in admitting the assault
upon the two deceased and the two other injured in his
presence, he admitted in his cross-examination that he
was taken into lock-up and assaulted and the two
deceased and the other two injured were with him in the 8
same lock-up. From the evidence of this witness, it
becomes evident that he and four other persons, namely,
the two deceased and the other two injured, were
assaulted with sticks resulting into injuries on all over
their person. (Para 13 and 14] [903-E-H; 904-A-D; 905-A- c
C; H; 906-A]
1.3. According to the Medical Officers (PW 1 and PW2), the cause of death of both the deceased was shock
as a result of the multiple injuries sustained by them. The
Medical Officers are completely corroborated by the D
contents of Post Mortem reports produced on the record
of the case. It was explained by the doctor that
individually the injuries were simple, but collectively they
could cause the death of an individual. According to the
doctor, it was a case of rapid death due to injuries E
sustained by the deceased. On reappraisal of the
evidence of the Medical Officers this Court finds that the
trial court and the High Court were justified in concluding
that the deceased had died a homicidal death. Thus, by
ocular version and the medical evidence the prosecution F
has proved its case against the appellants beyond
reasonable doubt. [Para 9 and 16] (896-8-G; 909-E]
2.1. The fact that the two deceased and the three
injured were arrested and brought to the Police Station . G
on their two feet is not in dispute. The medical evidence
would indicate that both the deceased were brought dead
to the hospital. When the deceased were brought alive to
the Police Station but were produced dead before the
Medical officer, it is for the accused-police officials to
H
886
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
explain as to in which circumstances the deceased died.
The deceased were in the custody of the appellants, who
were police officials. During the time when the victims
were in police custody they expired. Therefore, it was
within the special knowledge of the appellants as to how
B
the deceased had expired. In view of the salutary
provisions of s. 106 of the Evidence Act, 1872, it was for
the appellants to offer explanation regarding the death of
the two deceased. [Para 17] [909-F-H; 910-A-B]
C
2.2. The defence pleaded by the appellants that both
the deceased had sustained injuries when they attempted
to flee at the time of their arrest, cannot be accepted. It is
highly improba.ble that deceased 'R' would receive as
many as 40 injuries and deceased 'G' would receive 24
0
injuries while attempting to avoid arrest. Further it could
not be explained by the appellants at all as to how
deceased 'G' had received· burn injuries, when he,
according to the appellants, had fallen into drainage and
sustained injuries. Thus, the appellants pleaded a false
defence which reinforces the circumstances showing the
E
deceased had died due to cruel thrashing given by the
appellants and they had injured three witnesses. On the
facts and in the circumstances of the case, the appellants
have not been even remotely able to probablise their
defence and, therefore, the well recorded conviction of
F
the appellants as well as sentences imposed upon them
for commission of those offences are upheld. [Para 17
and 18] [909-F-H; 910-8-F]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G
No. 382 of 2003.
From .the Judgment & Order dated 14.11.2002 of the High
Court of Karnataka at Bangalore in Crl. A. No. 455 of 1995.
Shantha Kumar V. Mahale, Harish S.R. Hebbar, Rajesh
H
Mahale for the Appellant.
K.H. SHEKARAPPA & ORS. v. STATE OF
887
KARNATAKA
Sanjay R. Hegde, A. Rohen Singh for the Respondent.
The Judgment of the Court was delivered by
A
J.M: PANCHAL, J. 1. The appellants, who were original
accused Nos. 1 to 7 and 9, were members of police force of
8
the Doddapet Police Station at Shimoga City, Karnataka. The
challenge in this appeal by special leave is to judgment dated
November 14, 2002, rendered by the Division Bench of High
Court of Karnataka, Bangalore, in Criminal Appeal No. 455 of
1995, by which judgment dated July 28, 1995, passed by the
learned Additional Sessions Judge, Shimoga, in Sessions
C
Case No. 14of1998 convicting them under Sections 143, 148,
326, 201, 218 and 302 read with Section 149 of Indian Penal
Code (IPC) and imposing different punishments for commission
of those offences, is set aside and instead they are convicted
for the offences punishable under Section 304 Part 11 IPC read
D
with Section 34 IPC for having caused the death of two
. persons, i.e., Rajakumar and Gurumurthy and under Section
324 read with Section 34 IPC for causing hurt to injured Prakash
and each one of them is imposed sentence of R.I. for one year
and fine of Rs.5,000/- and in default to undergo R.I. for 2 years
E
for commission of offence punishable under Section 304 Part
II read with Section 34 IPC whereas no separate sentence is
awarded for conviction under Section 324 read with Section
34 IPC.
2. Though several constitutional and statutory provisions
have been enacted to safeguard the personal liberty and life
of citizens, incidents of torture and death in the police custody
are ever on the rise. In spite of condemnation of such acts by
F
this Court and High Courts, certain police officials conduct
G
themselves in a manner resulting into gruesome torture and
death of suspects in the police custody. There is no manner of
doubt that these are the most heinous crimes committed by
persons, who claim to be the protectors of the citizens. What
is distressing to note is that the incidents of torture and death
H
888
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
in the police custody take place under the shield of uniform and
authority, in the four walls of a police station or in the lock-up,
where the victims are totally helpless.
3. This is one such case which brings to light an 'incident
B in which two persons lost their lives and others were injured
while in police custody. The facts emerging from the record of
the case are as under:
On the night of December 31, 1987, a fight broke out
between Gurumurthy, Rajakumar, Prakash, Nallakumar and
C Purushotham on one hand and some engineering students on
the other, at a liquor bar, called Shilpa Bar, at Shiriloga, where
all were merrymaking to welcome the new year of 1988. The
students lodged a complaint of assault on them. Therefore,
criminal cases were registered against Gurumurthy, Rajakumar,
D Nallakumar, Prakash and Purushotham at Doddapet Police
Station, Shimoga City. In wee hours of January 12, 1988 a
reliable information was received at the said Police Station that
Gurumurthy, Rajakumar, Nallakumar, Prakash and
Purushotham were taking shelter in a room at Sujatha Building,
E Tilak Nagar, Shimoga. The appellants Nos. 1 to 7, who were
Police Constables, rushed to the place. They apprehended and
brought Gurumurthy and others to the Police Station. At the
relevant time, the appellant No. 8 was the Head Constable and
was present in the Police Station. The appellants gave
F Gurumurthy, Rajakumar, Nallakumar, Prakash and
Purushotham severe beating. Unable to withstand the same
Gurumurthy and Rajakumar lost their consciousness and
collapsed in the Police Station. The appellants thereafter took
both of them to the hospital at different times. But doctor on duty
G declared them "dead on arrival". Prakash and Nallakumar were
also severely beaten and they received serious injuries.
Therefore, they were also takento the hospital. When the news
of death of Gurumurthy and Rajakumar at the hands of the
police spread, a public disturbance near the hospital took place.
H On coming to know about this incident, Varadaraj, who was
K.H. SHEKARAPPA & ORS. v. STATE OF
.889
KARNATAKA [J.M. PANCHAL, J.]
another P.S.I. of the same Police Station, rushed to the hospital
A
and recorded statement of injured Prakash. After recording the
same, P.S.I. Varadaraj returned to the Police Station. On the
basis of the contents of the statement of injured Prakash, Crime
No. 14/88 was registered against the appellants Nos. 1 to 7
for commission of offences punishable under Sections 302,
324 read with Section 34 IPC. On the basis of said FIR, P.S.I.
Varadaraj commenced the investigation. He recorded
statements of those persons who were found to be conversant
B
with the facts of the case. He prepared a spot mahazar and
submitted the FIR to his superior officer Mr. Mahadev Naik, who c .
was then Deputy Superintendent of Police. Mr. Mahadev Naik
also took part in the investigation of the case and mobilized
the police force for maintaining public peace, as there was an
apprehension of disturbance of public order. On the next day,
i.e., on January 14, 1988, the Deputy Superintendent of Police
D
visited the hospital and recorded the statement of injured
Purushotham, Prakash and Nallakumar. He also made
necessary arrangements for sending the dead bodies of the
deceased for Post Mortem examination. On the same day, the
Deputy Superintendent of Police directed Mr. Patil, who was
E
then P.S.I. of Kote Police Station, to register a case against
the appellants. Accordingly Mr. Patil also registered a case as
Crime No. 8/88 at Kote Police Station against the appellants
Nos. 1 to 7 and arrested them. On January 16, 1988 the
Investigating Officer visited the Police Station at Doddapet and
conducted search in the presence of independent witnesses.
At that time he noticed two cars parked in the compound of the
Police Station and found three service lottis kept below the cars.
The same were seized under a mahazar. Thereafter the sketch
F
of the Police Station was got prepared through an engineer.
Other incriminating articles were also seized. After obtaining
G
necessary reports including the Post Mortem reports, the
Forensic Science Laboratory report, etc. charge-sheet was filed
initially against appellants Nos. 1 to 7.
4. On committal of the case, the learned Sessions Judge H
890
SUPREME COURT REPORTS
r20101 3 s.c:R.
A
framed charges against the appellants Nos. 1 to 7 for
commission of offences punishable under Sections 143, 148,
341 read with Section 149 IPC, Section 326 read with Section
149 IPC and Section 302 read with Section 149 IPC. Later on
it was revealed that original accused Nos. 8 and 9 had also
B
played role in the incident and, therefore, they were arrayed as
accused in the case and were charged along with the
appellants Nos. 1 to 7. As all the accused denied the charges
and claimed to be tried, they were tried in Sessions Case No.
14 of 1988.
c
5. In order to establish the guilt of the accused, the
prosecution examined in all 45 witnesses and got marked 106
documents as well as produced MOs 1 to 6. The incriminating
circumstances appearing against the appellants were explained
to them by the learned Judge and their further statements were
D
recorded as required by Section 313 of Code of Criminal
Procedure, 1973.
6. In the further statements the appellants denied in
general the prosecution case. However in answer to the last
E
question, the appellants Nos. 1 to 7 stated that on January 13,
1988 at about 7.00 A.M. all of them had gone to apprehend
the accused in Crime Nos. 2/88 and 3/88 and when an attempt
to apprehend the deceased near a park was made, they had
tried to escape and in the process Gurumurthy had fallen in a
F
mori (a small open drainage) while Rajakumar had fallen on a
barbed wire and as such both of them had sustained injuries.
It was further ment.ioned by them. that as the condition of
Gurumurthy was not good, he was taken to the hospital, but had
died on the way to the hospital. The original accused No. 9 in
G his further statement mentioned that while he was S.H.O. the
appellants Nos. 1 to 7 produced Gurumurthy and Rajakumar,
who were accused in Crime Nos. 2/88 and 3/88 and on inquiry
by him he was informed that they had received injuries due to
fall and they wanted medical treatment. According to the original
accused No. 9, he tried to get medical help in the Police Station
H
· K.H. SHEKARAPPA & ORS. v. STATE OF
891
KARNATAKA [J.M. PANCHAL, J.]
but no private doctor was available and, therefore, he could not A
secure medical help for those injured accused. What was
mentioned by him was that thereafter he was not knowing as
to what happened in the incident.
On appreciation of evidence as also the defence theory,
B
the trial court found that the appellants were guilty of the offences
under Sections 143, 148, 326 read with Section 149 IPC,
Section 201 read with Section 149 IPC, Section 218 read with
Section 149 IPC and Section 302 read with Section 149 IPC
on two counts. Insofar as original accused No. 8 was
concerned, he was found guilty of the offences under Section C
201 read with Section 511 IPC and Section 218 read with
Section 511 IPC, but not guilty of other offences. After hearing
the appellants on the question of sentence, the learned Judge
imposed sentence of life imprisonment on the appellants for
commission of offences under Section 302 read with Section D
149 IPC and also other punishments for commission of other
offences.
7. Feeling aggrieved, the appellants filed Criminal Appeal
No. 455 of 1995 whereas the original accused No. 8 filed
E
Criminal Appeal No. 456 of 1995 before the High Court of
Karnataka, Bangalore. The matters were placed for hearing
before the Division Bench comprising M.F. Saldanha and S.R.
Bannurmath, JJ. Mr. Justice M.F. Saldanha was of the opinion
that the prosecution had failed to prove its case against the
F
appellants beyond reasonable doubt and, therefore, they were
entitled to acquittal. Mr. Justice Bannurmath expressed the view
that conviction of the appellants recorded by the learned
Additional Sessions Judge was well founded and, therefore, the
appeals deserved to be dismissed. In view of the fact that the G
learned Judges of Court of Appeal were equally divided in their
opinion, the appeals with their opinions were laid before another
learned Judge of that Court. The third learned Judge of the High
Court of Karnataka, after hearing the parties and considering
the record of the case, delivered his opinion mentioning that
H
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SUPREME COURT REPORTS
[2010] 3 S.C.R.
A the guilt of the appellants was proved, but tlley had not
committed offences punishable under Sections 143, 148, 326,
218 and 302 read with Section 149 IPC but had committed
offences punishable under Sections 304 Part II and 324 both
read with Section 34 IPC for having caused death of two
B persons Rajakumar and Gurumurthy and causing hurt to injured
Prakash respectively. The learned Judge further opined that the
appellants should be sentenced to R.I. for one year each and
fine of Rs.5,000/- in default R.I. for two years for commission
of the offence punishable under Section 304 Part II read with
c Section 34 IPC. The learned Judge was of further opinion that
no separate sentence was needed to be awarded for
conviction of the appellants under Section 324 read with
Section 34 IPC. The learned Judge was also of the opinion that
on realization of the entire amount of fine from the appellants,
D the same should be paid to the heirs of the two deceased in
··'
equal proportion by way of compensation. The opinion rendered
by the third learned Judge of the High Court was. laid before
the Division Bench of the High Court. The judgment delivered
by the Division Bench of the High Court has followed the opinion
E expressed by the learned third Judge, giving rise to the instant
appeal.
F
8. This Court has heard the learned counsel" for the parties
at length and in great detail. This Court has also considered
the record summoned from the Trial Court.
9. The fact that the deceased Rajakumar died a homicidal
death is not disputed before this Court. Dr. O.A. Mahipal (PW1) has stated that on January 13, 1988 at about 4.40 P.M., he
had received a requisition from the concerned Police Station
G to conduct the Post Mortem examination on the dead body of
the deceased Rajakumar. According to him he had performed
autopsy on the dead body of the deceased on January 14,
1988 between 8.20 and 10.00 A.M. and found following
injuries: -
H
K.H. SHEKARAPPA & ORS. v. STATE OF
893
KARNATAKA [J.M. PANCHAL, J.]
"1.
A circular brownish contusion of 1 cm. diameter
A
present over the right side of forehead.
2.
2 minute brownish contusions over the middle of the
forehead.
3.
Forehead is diffusely swollen.
B
4.
A contusion of reddish brown colour 1" in diameter
present over the right maxillary region, %" below the
right eye.
c
5.
Multiple brownish black abrasions of various sizes
and shapes present in different directions over the
right mandible, right side of the chin, right angle of
the jaw and right side of the anterior portion of neck
and behind the right ear.
D
6.
Fullness over both clavicular are!3 present.
7.
Fourth brownish black abrasion circular and linear
present over the clavicular areas.
8.
Multiple transverse blackish contusions with their
E
margins half C.M. wide, centre being clear present
over the front of chest and abdomen.
9.
Multiple brownish contusions, some circular some
other are transversely linear of various sizes and
F
shapes eight in number present over left scapular
area and middle of the left lumbar area.
10.
An area of 5" x 2" blackish burnt area over the left
buttock present. Surrounding this injury a smokey
area of 3" diameter present.
G
11.
An oblique-brownish black contusion of 3%" x 3/4th
__ of-arrfrich over the left iliac crust present.
12.
Multiple transverse brownish abrasions of 2%'' x 1" H
894
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
size present over the right buttock.
13.
Four transverse blackish linear burnt out marks 3"
x 1/8th of an inch each present over the right
buttock.
B
14.
Multiple brownish contusions, 10 in numbers
present over the right lumbar area.
15.
The whole of the right upper limb is diffusely swollen.
c
16.
A reddish.brown contusion of 9" x 3" size over the --
medical aspect of lower half of right arm extending
upto upper third of the right fore arm.
17.
A blackish brown burnt area of 21/:z" diameter, 1"
below the right elbow joint present over the right
D
fore arm.
18.
3 blackish oblique burnt out areas 21/:z" x 11h", 3" x
1" and 1" diameter respectively present over the
posterior aspect of right arm, elbow and forearm.
E
19.
Three distinct punched out blackish burnt marks of
1h", Y.. of an inch and %" diameter present over
dorsum of right hand.
20.
Tips of all the fingers are smokey.
F
21.
A contusion (brownish) contusion of 3" x 11/:z" size
present over the lateral aspect of upper third of left
arm.
22.
Left elbow and shoulder joints are swollen.
G
23.
Multiple deep abrasion and burnt out areas
obliquely placed six in number measuring 11/:z", 11/:z",
21/:z", 2", 3", 31/:z" along and each being 1h" wide
present over the posterior aspect of left arm and left
H
elbow.
.-
K.H. SHEKARAPPA & ORS. v. STATE OF
895
KARNATAKA [J.M. PANCHAL, J.]
24.
A transversely placed 'U' shape burnt out mark over A
the back of left forearm present.
25.
A brownish contusion of 3" x 1" size over the lateral
aspect of left elbow joint present.
26.
Multiple distinct brownish black contusion over the
B
dorsum of left hand and wrist.
27.
Multiple brownish black obliquely placed contusion
5" x 2" present over the posterior aspect of left thigh.
A transversely placed II Degree burnt out area of c
28.
3" x 2" present over the left knee joint.
29.
Two burnt out are!'ls. one transversely placed 2" x
%" and another longitivenely placed 2" x Y2" both
present over the middle of the anterior aspect of left D
thigh.
30.
A punctured wound of Y2 cm. diameter and % cm
deep over the middle of front of left leg seen.
31.
Multiple blackish burnt out marks of varying sizes E
from 1 cm to 7 ems long and each 1 cm. wide,
distributed in various directions of various shapes,
present over the whole of the anterior aspect of left
leg."
F
The doctor further mentioned in his testimony that on dissection
of the dead body, he had found the following internal injuries: -
"a.
Left knee joint contains clotted blood about 300 cc
blood, no fracture or dislocation found.
'
G
b.
Right knee joint contains clotted about 100 cc of
blood no fracture of dislocation found out.
I
c.
Left ankle joint shows presence of sub cutaneous
blood clots about 100 cc.
H
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[2010] 3 S.C.R.
A
d.
Left elbow joint shows no fracture of dislocation.
e.
Right elbow joint contains blood clots about 100 cc.
of blood, no fracture of dislocation observed."
According to the Medical Officer, the cause of death of the
8
deceased was shock as a result of the multiple injuries
sustained by him. The Medical Officer is completely
corroborated by the contents of Post Mortem report produced
on the record of the case as Exh. P-9. The doctor further opined
that clotting of blood found in the joints as per (a) to (e) would
C
be due to tha assault by the sticks like MOs 1 to 3 whereas
the burn injuries that were found on the dead body could be
caused by any heated substance like metal or rubber tyre. The
Medical Officer further explained that a single fall would not
cause such injuries that were sustained by the deceased. It was
D explained by him that individually the injuries were simple, but
collectively they could cause the death of an individual. In crossexamination also the Medical Officer maintained that the cause
of death was shock as a result of multiple injuries. What is
important to be noticed is that it was further stated by him in
E
cross-examination that the said injuries could not have been
caused simultaneously. After mentioning that the age of the
injuries sustained by the deceased Rajakumar were ranging
from 24 hours to four days, the Medical Officer stated that the
age of injuries were mentioned by him on the basis of colour
F
of the injuries. The doctor further stated that the death of the
deceased might have been caused about 24 hours prior to the
commencement of the Post Mortem examination. According to
the doctor, it was a case of rapid death due to injuries sustained
by the deceased Rajakumar. On reappraisal of the evidence
G of the Medical Officer this Court finds that the Sessions Court
and the High Court were justified in concluding that the
deceased Rajakumar had died a homicidal death.
10. Similarly, the testimony of Dr. Dodda Gowda (PW-2)
shows that on January 13, 1988 he had received a requisition
H
from the Sub-Divisional Magistrate, Shimoga to conduct the
K.H. SHEKARAPPA & ORS. v. STATE OF
897
KARNATAKA [J.M. PANCHAL, J.]
Post Mortem on the dead body of deceased Gurumurthy and
A
that on the same day he himself with Dr. Srinivasa had
conducted Post Mortem on the said dead body between 4.15
P.M. and 5.45 P.M. According to the doctor the Post Mortem
examination had revealed following injuries: -
B
"1.
Dark brown contusion 1" below the right angle of
the mouth measuring %" x Yi".
2.
Dark brown contusion on right to the traches 1"
above the supra tranol notch irregular in shape.
c
'
3.
Dark brown contusion in front of right shoulder %"
x 1".
4.
Multiple irregular contusions four in number outer
aspect of right arm.
D
5.
Irregular contusion front of right elbow (Cubital
Fossa).
6.
Diffuse dark brown contusion outer part of right
lower half of forearm.
E •
7.
Dark brown contusion back of right forearm 1%" x
1%".
8.
Diffuse dark brown contusion front of right thigh and
right knee outer aspect.
F
9.
Contusion front and middle of right leg%" x %".
10.
Dark brown contusion outer and middle part of left
arm.
G
11.
Diffuse contusion front of left elbow and left forearm.
12.
Diffuse contusion back of left elbow.
13.
Contusion at the outer part of left thigh upper half
H
898
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
3" x 1" and another measuring 4" x 1" two inches
apart from each other.
14.
Dark brown contusion front of left knee and lower
third of left thigh.
B
15.
Lacerated wound appear third of left leg in front
measuring Y:z" x Yi" with dark blood clots.
16.
Dark brown contusion over the medial part of right
c
thigh and knee.
17.
Dark brown contusion back of left shoulder, and
trepious region.
18.
Dark brown irregular contusion at the left scapular
D
region, outer part of left chest and outer part of left
lumber region.
19.
Multiple irregular dark brown contusion at the right
shoulder and scapular region.
E
20.
Diffuse dark brown contusion lower part of right
chest right lumber region, at the outer and lower
aspect.
21.
Diffuse multiple dark brown contusion irregular right
F
glutial region, upper part of the thigh.
22.
piffuse irregular dark brown contusion on back of
right knee.
23.
Diffuse dark brown contusion with an abrasion
G
measuring Y:z" x Yi" at the left glutial region.
24.
Irregular dark brown contusion back of left writst."
His evidence further shows that on dissection following internal
injuries were noticed by him: -
H
•
K.H. SHEKARAPPA & ORS. v. STATE OF
KARNATAKA [J.M. PANCHAL, J.]
"Skull and Vertebra and Membranes were intact.
Brain: Pale, Spinal Cord: n.ot opened.
Chest Wall : Intact Pluscae: intact;
Larynx; Healthy, Right and left lungs: Pale,
Pericordium : Intact.
Heart: Pale and empty, large vessels: intact,
Abdomen walls: intact; Peritoneum: intact,
Mouth and Pharynx and Exophagus: Healthy,
Stomach and its contents: Pale and empty,
899
A
B
c
Small intestine and its contents: Pale and contains semi
D
digested food;
Large Intestine: Pale distended with gas and fecol matter;
Liver: Pale;
Spleen: Pale. Kidney: Pale, Bladder: contains 4 ounce of
E
clear urine,
Organs of Generation: Healthy."
F
According to the Medical officer the death was due to shock
as a result of multiple injuries and all the injuries were ante
mortem. The Medical Officer further gave opinion that the
injuries might have been caused by sticks like MOs 1 to 3 and
death might have occurred 24 hours prior to the
commencement of the Post Mortem examination. According to
the doctor, the age of the injuries varied from 1 to 3 days.
G
During cross-examination the witness explained that except
injury No. 15, all other injuries were contusions and the injuries
might have been caused about 48 hours prior to the
commencement of Post Mortem examination. The defence
H
900
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A wanted to know from this witness as to whether the_ injuries
found on the dead body of the deceased could have been
caused simultaneously or at different intervals but the Medical
officer replied that he was not in a position to say whether all
the injuries were caused simultaneously. During his cross, the
B witness further stated that some of the external injuries were
on the vital parts but had not damaged the vital parts. According
to the doctor, the deceased had died because of irreversible
shock. A fair reading of the testimony of this witness makes it
evident that the deceased Gurumurthy had also died a
c homicidal death.
The testimony of the Medical Officer Dr. O.A. Mahipal,
examined as PW-1, further shows that at 4.45 P.M. on January
13, 1988 he had examined one Nallakumar, who was referred
to him for treatment. According to the Medical Officer the injured
D had mentioned history of assault by the police with rubber, rod
and lottis on December 31, 1987 at 1.00 P.M. at Gopi Circle,
Shimoga and that he had recorded the same on the medical
papers. The doctor has further mentioned that on examination
E
F
he had found following injuries on the body of Nallakumar: -
"1.
A linier crusted laceration over the middle of the
forehead 2" x Yo." size.
2.
Multiple oblique brownish abrasions over the right
forearm and right elbow present.
3.
Vague tanderness all over the body present.
4.
A transverse crusted laceration of 1" x %" present
over the front of the right leg."
G The Medical Officer has further stated that the injured was
advised X-ray but the X-ray revealed no fracture. The witness
mentioned that i~jured Nallakumar was treated as an indoor
patient till January"2:!, 1988. It was further mentioned by the
doctor that injuries Nos. 1 to 4 were simple in nature caused
H due to external violence with hard and blunt objects and that
K.H. SHEKARAPPA & ORS. v. STATE OF
901
KARNATAKA [J.M. PANCHAL, J.)
the injuries might have been caused by the sticks like MOs 1 A
to 3. The doctor explained that the age of injuries Nos. 1 and 4
was about one week whereas injury No. 2 was two days old
and injury No. 3 might have been caused within 24 hours.
The testimony of this witness further shows that on the 8
same day at 5.00 P.M., he had examined injured Prakash.
According to the Medical Officer injured Prakash had narrated
history of assault by eight police officials at Doddapet Police
Station at 7.00 A.M. on January 13, 1988 and that he had
recorded the same in the medical papers of the injured. The
Medical Officer has further stated that on examination of the C
injured Prakash he had found following injuries on his person:
"1.
Multiple crusted abrasions of varying sizes and
shapes present over the extremities.
D
2.
Diffuse tender swelling of both upper extremities
and both knee joints .present."
The doctor has further mentioned that the injured was advised
to go for X-ray examination and the report of the said E
examination did not reveal any fracture, but another X-ray was
taken on January 16, 1988, report of which showed incomplete
fracture of the head of left fibula. The Medical Officer explained
that injury No. 1 was simple in nature whereas injury No. 2 was
· grievous. According to the doctor, the fracture found in injury
F
No. 2 was separately marked as injury No. 3 in wound
certificate and it was grievous.
The doctor further mentioned in his testimony that at 5.15
P.M. on the same day, he had examined injured Purushotham. G
According to the doctor the injured had narrated history as
assault by ten police officials at Doddapet Police Station,
Shimoga at 12.00 midnight on January 12, 1988 extending upto
early hours of January 13, 1988 and that he had recorded the
same in the medical papers of the injured.
H
902
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
What is to be noted is that this Medical Officer was not ·
cross-examined by the defence on the question of injuries
sustained by Nallakumar, Prakash and Purushotham or history
of assault recorded by him on the medical papers of the injured.
Thus there is no manner of doubt that the High Court was
B
justified in concluding that Nallakumar, Prakash and
Purushotham were injured at Doddapet Police Station during
the midnight of January 12, 1988 extending upto early hours of
January 13, 1988.
11. This brings the Court to consider the question whether
C
the prosecution has been successful in proving that the death
of the two deceased and injuries on the injured were caused
by the appellants.
D
E
F
12. It is to be noted that the appellants were charged for
causing custodial death of the two deceased and injuring the
three injured. The evidence in this case can be divided into two
parts - (1) direct evidence relating to the incident and (2)
circumstantial evidence. To begin with, this Court proposes to
consider the evidence relating to topography of the premises
where Doddapet Police Station is located. In this regard the
prosecution had examined D. Dharmappa Shetty (PW-3). His
evidence discloses that on January 16, 1988 Assistant
Executive Engineer had issued instructions to him to prepare
a sketch of the place of occurrence, i.e., the verandah in front
of the lock-up room of Doddapet Police Station. According. to
him on January 2, 1988 he had visited the spot shown to'him
by P.S.I. Varadaraj and prepared the sketch, which was
produced by him at Exh. P-17. The witness explained that the
sketch was prepared as a rough sketch showing the existing
G
pillars, the verandah, etc. The witness mentioned that there was
a verandah in the Police Station and it had a door which
opened into a space situated in front of the two toilets. The
witness mentioned that the stone pillars were supporting the
room and the pillars on the south of the verandah were high and
H
separated from each other by 3.20 meters. According to him
K.H. SHEKARAPPA & ORS. v. STATE OF
903
KARNATAKA [J.M. PANCHAL, J.]
he had seen the pillars from within the lock-up room of the
A
Police Station and it was possible for one to see only one
central pillar from the lock-up room, but from the eastern door
of the Sub Inspector's room all the four pillars were visible. In
the cross-examination he admitted that on one extreme side
of the verandah there was a room of the Sub Inspector and to
B
the north of the entire premises there was a Taluk office.
According to him the width of the verandah was 1.20 meters
and from the door, the central pillar was almost at a distance
of about 2 meters or 6 feet. In cross-examination the witness
clearly mentioned that from the lock-up room one pillar was c
visible. From the testimony of this witness it becomes at once
evident that the door was fixed on the dividing wall of the
verandah and the lock-up room and therefore, there could have
been difficulty for a person to see the stone pillar between the
central pillar and the pillar next to it supporting the room on the
0
eastern side.
13. The injured witness Purushotham (PW-5) did not
support the prosecution and was contradicted by the
prosecution with reference to his earlier statement recorded
under Section 161 of the Code of Criminal Procedure. In the
E
cross-examination by the prosecution, the witness admitted, that
on January 13, 1988 at about 4.30 or 5.00 P.M. he was
examined by the doctor in Mc. Gann Hospital, Shimoga as he
had received injuries due to police assault in Doddapet Police
Station. He also admitted that in Doddapet Police Station
F
policemen assaulted him in the early morning of January 13,
1988 and he sustained injuries. It was further stated by him that
he was taken to Mc. Gann Hospital but hastened to add by
making a voluntary statement that he was taken from Mahatma
Gandhi Park to the Police Station and thereafter he was
G
assaulted. The suggestion by the prosecution that on January
13, 1988 at about 1.00 P.M. he was picked up with another
pickpocketer and taken from Doddapet Police Station to Kote
Police Station and that he was beaten in Kate Police Station
from 3.30 or 4.00 P.M. in that Police Station and then taken to
H
904
SUPREME COURT REPORTS
(2010] 3 S.C.R.
A
D.A.R. Unit, was denied by him. Normally, the rule of
appreciation of evidence of a hostile witness is that the same
should not be considered in support of the prosecution case.
However, it is a well settled principle that evidence of a hostile
witness can be taken into consideration for the purpose of
B determining whether prosecution case is proved or not, if the
same is corroborated by reliable independent witness. Here in
this case the Court finds that the admissions made by this
witness in cross-examination by the prosecution are fully
supported by medical evidence on record. Before the doctor,
c who had examined him, this witness had narrated history of
assault on him, which was noted down by the doctor on his
medical papers. The assertion made by the witness in his
cross-examination that he was assaulted in Doddapet Police
Station gets ample corroboration from the medical evidence
0
and, therefore, it would be safe to conclude that this witness
received injuries while in police custody.
E
F
G
H
14. At this stage it would be advantageous to reproduce
what was stated by the witness in his cross-examination: -
"There were about 30 Policemen when I was assaulted
and some out of them assaulted me. I was not tied down.
I was taken to the Lock-up and assaulted. Nallakumar,
Prakash and Gurumurthy, Raja Kumar and myself were put
in lock up and were assaulted. None of us was tied. It is
false to say that I was taken by the Police on the night of
31.12.1987 itself from my house. The C.O.D. Inspector has
recorded my statement. I have not stated before him as
per Ex. P-19 now read over to me. It is false to say that
since the night of 31.12.1987 I was in the Police lock-up
Doddapet upto 13.01.1988. It is not true to say that 3-4
days after my arrest Nallakumar was brought and put in
Doddapet Police Station lock-up. When Gurumurthy was
in the lock-up, he was asking for water. Many Police
people were there at that time. I cannot say whether the
accused were also there. He was given water."
/
K.H. SHEKARAPPA & ORS. v. STATE OF
905
KARNATAKA [J.M.