Paragraph numbers below are the court’s original numbering, recovered from the source text.
17. As noted above, causation is an important ingredient to determine as to whether a person commits culpable homicide in the first place. Causation simply means “causal relationship between conduct and result”. In this respect we need to assess whether the contentions of the parties could stand the scrutiny of the law of the land. Section 299 of IPC indicates two types of causations, one the factual causation and the second the legal causation. Coming to the factual causation, it is a matter of fact as to whether the action of the accused caused death of the person. But the second aspect concerns itself, whether the death can be sufficiently imputed to the accused’s action as being responsible legally. In our considered opinion this case turns on the second leg of causal relationship wherein, could the injuries caused by the police officers be sufficiently imputed to be the cause of death of Joinus herein?
18. It is settled under common law wherein the principle of ‘take their victim as they find them’ is followed,1 meaning ‘A person who does any act/omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.’ This principle has been expressly ingrained under the Explanation 1 to the Section 299 of IPC. Without going into details on this aspect as this is not a case of multiple causation requiring us to consider the same, rather it is a case wherein the deceased died of 1 R v Blaue, [1975] 3 All ER 446 (CA) asphyxiation due to contents of his vomit, hours later from the time when the injury was inflicted, which is an independent reason for cause of death herein.
19. As elucidated above, various other circumstances which dis- associate the cause of death to the actions of the appellant officers are available. It is on record that the injuries noted in the post-mortem report clearly indicate that the nature of these injuries were not grievous. The head injury noted does not show any internal fracture to the skull bone. Therefore, when, on facts, it is concurrently inferred by the courts below that the cause of death was due to asphyxiation, we do not see any reasons for accepting a different factual inference herein, as the same is not perverse.
20. Further, we agree with the reasoning of the High Court on the aspect that the PW-1 (Zarina) has not been completely honest in her statements. She has at times deposed over-zealously, thereby mandating us to be cautious in accepting her evidence. Further no witness has clearly deposed on the aspect of injuries and how they happened to be, except for blank statements that ‘beatings were given to the deceased Joinus’. Further we may note that the surrounding circumstances also strengthen our conclusions such as firstly, the condition of the deceased was said to be good as per the statements of PW-21 (cell-inmate) and PW-42 (head constable) although he was suffering from tuberculosis, when he was admitted in the lock-up. Secondly, Joinus (deceased) was heavily inebriated when he was arrested and thirdly, the aspect of asphyxiation which is a significant cause to break the chain of causal link between the death of Joinus and the injuries inflicted by the appellants herein.
21. As discussed above, the causal link between the injuries caused to the deceased by the erring officers and the death is not connected, therefore, Section 299 of IPC is not attracted. Accordingly, there is no question of attracting Section 302 or 304 of IPC.
22. In any case this Court in catena of cases has taken a view that, as regards the inference of facts, when two Courts have acquitted the accused-appellant of charges under Section 302 of IPC, then it would not be appropriate upon this Court to overturn the factual finding, unless the view taken by the lower courts is shown to be highly unlikely or unreasonable or perverse. Although the learned counsel for the State has tried to argue that the cumulative effect of the injuries was responsible for the death, but the medical evidence itself, on the other hand affirms the high possibility of death due to asphyxiation. Further there is no material brought before us to portray that the courts below had taken a perverse view. In this light, when two reasonable views are possible, then reversal of concurrent acquittal would not be appropriate herein [refer Chandrappa v. State of Karnataka, (2007) 4 SCC 415; Mahtab Singh v. State of U.P, (2009) 13 SCC 670].
23. It may not be out of context to note that it is generally difficult to prosecute the custodial torture cases as the evidence available on record may not sufficient. It is in this context that Law Commission in its 113th Report published in 1985 had recommended inclusion of Section 114-B to the Evidence Act, but the same was never materialized into a statutory law. Further this Court in State of M.P. v. Shyamsunder Trivedi, 1995 (4) SCC 262, appealed to the Parliament for considering such amendment.
24. The Second question is with respect to the defence of superior order or infamously known as ‘Nuremburg defence’ pleaded by the accused-appellants (subordinate officers). The earliest known example, wherein such defence was pleaded was before an international ad hoc tribunal, can be traced to the trial of Peter Von Hagenbach for occupation of Breisach on the orders of Duke of Burgundy in the year 1474.2 We are aware of the fact that IPC allows such a defence if conditions provided under Section 76 of IPC are fulfilled. A three-Judge Bench of this Court in State of West Bengal v. Shew Mangal Singh and Ors., AIR 1981 SC 1917, observed as under- Section 76 of the Penal Code provides that nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law, to do it. The illustration to that section says that if a soldier fires on a mob by the order of his superior officer, in conformity with the commands of the law, he commits no offence. The occasion to apply the provisions of the section does not arise in the instant case since the question as to whether the accused believed in good faith on account of a mistake of fact that he was bound by law to do the act which is alleged to 2 Y. Dinstein, “The Defence of Obedience to Superior Orders in International Law”, Leyden, 1965. constitute an offence, would arise only if, to the extent relevant in this case, the order or command of the superior officer is not justified or is otherwise unlawful.
25. It is a matter of record that accused A-1 has passed away and the matter against him stands abated. The other accused-appellants, with a view to take advantage of this situation, as an after-thought have pleaded herein the defence that they were merely executing the orders of accused A-1. At the outset we may indicate that it is not merely that the accused-appellants have to prove that they have followed the order of the superior officer (accused A-1), rather they need to also prove to the Court that the aforesaid appellants bonafidely believed that the orders issued by accused A-1 were legal. However, our attention was not drawn to any argument before the courts or evidence on record to this effect that the accused-appellants were merely acting on the orders of their superiors on a bonafide belief that such orders were legal. It was not even their case from the beginning that the accused-appellants were not aware of facts and circumstances, rather all of them started out as a investigation party with full knowledge and participation. On the perusal of the record, we may note that this argument is only taken before this court, to seek a re-trial and such attempt cannot be taken into consideration herein.
26. The third question concerns about the acquittal of Accused A-10 (Raghunath Bhakte). It would be necessary to deal with the individual liability of accused A-10, as he states that he was not present with the investigation party. Although some evidence points to his presence with the investigation party, but the fact remains that all the other accused have unanimously stated that A-10 did not accompany them as he fell sick during the investigation and accordingly, went home. We need to examine the liability of accused A-10, with the above premise in mind.
27. It is wrought in our criminal law tradition that the Courts have the responsibility to separate chaff from the husk and dredge out truth. It may not be out of context to note that the legal maxim ‘falsus in uno, falsus in omnibus’ is not applicable in India, thereby the courts are mandated to separate truth from falsehood. [refer Kulwinder Singh v. State of Punjab, (2007) 10 SCC 455;Ganesh v. State of Karnataka, (2008) 17 SCC 152;Jayaseelan v. State of Tamil Nadu, (2009) 12 SCC 275] It is not uncommon that in some cases witnesses in the jealousness to see all the accused get conviction, may stretch the facts or twist them. In those instances, it is necessary for the Courts to be cautious enough to not ‘rush to convict’ rather uphold justice. It is clear from the statements of all the accused as well as the evidence of PW-41 (Driver Vijay Thengde), PW-48 (HC Telgudiya) and PW-66 (I.O Dy. SP. Godbole) that there exists a reasonable doubt as to the presence of A-10, during the patrolling party and thereafter. Therefore, we are not inclined to disturb the findings of the High Court on this aspect as well.
28. The fourth question, which we need to consider, concerns the punishment under Section 330 of IPC. At the outset, we need to state that we do not find any material on record to interfere with the conviction of the accused under the aforesaid Section, except for the quantum of punishment, which we need to determine.
29. Recently, this Bench in State of Rajasthan v. Mohan Lal and Anr3, following Soman v. State of Kerala, (2013) 11 SCC 382 and Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 observed as under- From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances have to be borne in mind while imposing the sentence. The Court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The Courts must see that the public does not lose confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance.
30. From the facts portrayed it is clear that the police knew the identity of the deceased was different from the person, they wanted to investigate initially. The manner in which the deceased and his family members were taken into custody reflects pure act of lawlessness and does not befit the conduct of the Police. The High Court of Lahore in 3 Criminal Appeal No. 959 of 2018 Lal Mohammad v. Emperor, AIR 1936 Lah 471, had observed that there was a requirement to treat the crime under Section 330 with stringent punishments in order to have deterrent effect, in the following manner- In my opinion, however, conduct of this sort by responsible police officers engaged in the investigation of a crime, is one of the most serious offences known to the law. The result of third degree methods or of actual torture or beating such as in this case must be that innocent persons might well be convicted, confession being forced from them which are false. In almost every case in which a confession is recorded, in criminal Courts, it is alleged by the defence that the police have resorted to methods such as these. It is seldom, however, that an offence of this nature is or can be proved. It clearly is the duty of the Courts when a case of this kind is proved to pass sentences which may have a deterrent effect.
31. In Ratanlal and Dhirajlal’s Law of Crimes (27th Ed.), the author while discussing the sentencing under Section 330 of IPC notes as under- The causing of hurt by a responsible police officer engaged in investigation of a crime is one of the most serious offences known to law and deterrent punishment should be inflicted on the offender. (emphasis supplied)
32. The factual narration of the events portrayed herein narrate a spiteful events of police excessiveness. The motive to falsely implicate Joinus for a crime he was alien to was not befitting the police officers investigating crimes. The manner in which Joinus was taken during late night from his house for investigation ignores the basic rights this country has guaranteed its citizen. It is on record that injuries caused to the individual were in furtherance of extracting a confession. The mala fide intention of the officers-accused to undertake such action are writ large from the above narration, which does not require further elaboration.
33. As the police in this case are the violators of law, who had the primary responsibility to protect and uphold law, thereby mandating the punishment for such violation to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. It may not be out of context to remind that the motto of Maharashtra State Police is “Sadrakshnâya Khalanîghrahanâya” (Sanskrit: “To protect good and to Punish evil”), which needs to be respected. Those, who are called upon to administer the criminal law, must bear, in mind, that they have a duty not merely to the individual accused before them, but also to the State and to the community at large. Such incidents involving police usually tend to deplete the confidence in our criminal justice system much more than those incidents involving private individuals. We must additionally factor this aspect while imposing an appropriate punishment to the accused herein.
34. In the facts and circumstances of this case, the punishment of three-year imprisonment imposed by the Trial Court under Section 330 of IPC, would be grossly insufficient and dis-proportional. We deem it appropriate to increase the term of sentence to maximum imposable period under Section 330 of IPC i.e., seven years of rigorous imprisonment, while maintaining the fine imposed by the Trial Court. Accordingly, we modify the sentence to this limited extent.
35. In light of the afore-said discussion, we partly allow the Criminal Appeal Nos. 182-187 of 2009 in the afore-stated terms. Further Criminal Appeal Nos. 385-386 of 2008, Criminal Appeal Nos. 387-388 of 2008, Criminal Appeal No. 299 of 2008 stand dismissed.
36. The appellants-accused are directed to surrender before the authorities for serving out the rest of the sentence forthwith. Ankit Gyan Appeals disposed of.