# Manik & Ors v. The State of Maharashtra

- **Citation:** 2024 INSC 734
- **Court:** Supreme Court of India
- **Decided:** 2024-09-25
- **Case number:** Criminal Appeal Nos. 1614-1618 of 2012
- **Bench:** C.T. Ravikumar, Sanjay Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manik-ors-v-the-state-of-maharashtra-38078
- **Pages:** 39

## Headnote

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]

## Text

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[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.
Digital Supreme Court Reports
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.
Digital Supreme Court Reports
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) &
A4 (Hans Raj)
Section 304 part II read with Section 34, IPC -
sentenced to undergo 7 years of rigorous
imprisonment and a fine of Rs. 4,000/- each.
A2 (Ravindra),
A3 (Manohar),
A4 (Hans Raj) &
A5 (Vishnu)
Section 331 read with Section 34, IPC -
sentenced to undergo 3 years of rigorous
imprisonment and a fine of Rs. 1,000/- each.
A2 (Ravindra),
A3 (Manohar),
A4 (Hans Raj) &
A5 (Vishnu)
Sections 330, 348, & 387 read with Section 34,
IPC and sentenced to undergo one year of
rigorous imprisonment and a fine of Rs. 1,000/-
each.
A3 (Manohar),
A5 (Vishnu),
A6 (Vishwanath) &
A7 (Dilip)
Section 202 read with Section 34, IPC -
sentenced to undergo 3 months of rigorous
imprisonment and Rs. 500/- each.
A2 (Ravindra),
A3 (Manohar),
A4 (Hans Raj),
A5 (Vishnu),
A6 (Vishwanath) &
A7 (Dilip)
Section 203, IPC. - No separate sentence
was imposed.
A2 (Ravindra),
A3 (Manohar),
A4 (Hans Raj),
A5 (Vishnu),
A6 (Vishwanath) &
A7 (Dilip)
Section 201 and 218 read with Section 34, IPC -
sentenced to undergo rigorous imprisonment for
one year and to pay a fine of Rs. 1,000/- each.
[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.
Digital Supreme Court Reports
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.
Digital Supreme Court Reports
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
738
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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.
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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
740
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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.