JUDGMENT 1. - "Third degree methods" of 19th Centuary, British and Feudal era. persisting in free India of three decades of functioning of Constitution and that too in space age. shocks the judicial conscience. Inspite of ultra advanced scientific investigation methods, forensic science and several Commissions, Seminars and tall talk of "reforms", the Kotwals Danda welcomes the 'suspects in mere Kotwals like Jan Gan Man," as if it is Police Anthem or Enbalim Proverbially, traditionally and environmentally the cells echo the threshing of suspects, and these respect suffers from its "night mare". 2. The present one is a typical case where there has been a successful 'catch of this third degree" outdated, outlived, obsolete, universally condemned but paradoxically frequently applied "police device". 3. The complainant claims to be victim of "Police Danda", but the trial Magistrate has acquitted the "accused" for want of proof. Hence this appeal. 4. Kewal Ram complainant has filed this appeal against Ram Saran and Mohan Lal, aggrieved by the order of Additional Munsif Magistrate No. 1, Kota dated 6-3-1974. The accused were prosecuted under Sections 325 and 323 read with Section 34 I.P.C. The case of the complainant was that on 23rd August, 1969, he was unlawfully arrested by accused who were police employees. The accused tried to implicate him in some excise offence. 5. While he was in custody accused gave beating by dandas resulting in a fracture, and many other enjuries. This complaint was filed on 28th August, 1969. According to the complainant he was released on 24th August, 1969. The Medical evidence consists of PW. Dr. B.L. Maheshwari, who testify that complainant was examined on 25th August, 1969 and there were abrasions caused by blunt weapon and one simple fracture. Ail the injuries were of duration upto four days. 6. In support of the complaint, complainant examined himself and PW. 2 Kheeya Ram, PW 3 Mishri Lal and PW. 4 Dr. B L. Maheshwari. The accused have denied the charges and the allegations levelled against them. They examined DW. 1 Kishan Chand and DW. 2 Siraj. The trial Court acquitted the accused on the ground that statement of PW. 1 Kewal Ram is the sole evidence and the other witnesses are not reliable. 7. PW. 4 Dr. B L. Maheshwari. The accused have denied the charges and the allegations levelled against them. They examined DW. 1 Kishan Chand and DW. 2 Siraj. The trial Court acquitted the accused on the ground that statement of PW. 1 Kewal Ram is the sole evidence and the other witnesses are not reliable. 7. PW. 2 Kheeya Ram is the surety who gave surety bond on 24th August, 1969 and brought the complainant on bicycle and observes injuries on his hand and feet. PW. 3 Mishrilal also corroborated that there were injuries on the person of complainant when he came from the police station. Dr. B L. Maheshwari PW. 4, as mentioned above has proved that there were 8 injuries on the persons of complainant, out of which the injury No. 2 was grievous. 8. The trial Court was persuaded to acquit he accused on the ground that the complaint was filed on 28th August, 1969 even though the complainant was released from police custody on 24th August. 1969 and this delay has not been explained. The second ground given was that complainant went to the police lines but did not lodge report there and this is not corroborated by PW. 2 Kheeya Ram. Yet another infirmity found by Magistrate was that whereas the complainant was examined by the doctor on 25th August, 1969 but he has stated that he was examined on 24th August, 1969. Learned Magistrate laid more emphasis on this point why the accused did not get himself examined on 24th August, 1969, in the city like Kota when he was suffering the fracture and this create doubt in the prosecution case. Yet another ground given was that X-Ray report and Plate have not been proved and therefore, it cannot be said that injury No. 2 was grievous. The trial court also found that there was discrepancy in the statement of PW. 1 Kewal Ram and PW. 2 Kheeya Ram. Kewal Ram has stated that injuries were caused on the hand and legs whereas injuries No. 5 and 6 were on right thigh. Kheeya Ram was found to be related to the complainant and therefore, considered to be an interested witness. PW. 3 Mishrilal was disbelieved on the ground that he has stated that Kewal Ram was taken to police station without hand cuffs but Kewal Ram stated that hand-cuffs were put. Kheeya Ram was found to be related to the complainant and therefore, considered to be an interested witness. PW. 3 Mishrilal was disbelieved on the ground that he has stated that Kewal Ram was taken to police station without hand cuffs but Kewal Ram stated that hand-cuffs were put. It was then mentioned that Ram Singh and Madan Singh were not produced. 9. The accused produced evidence of DW. 1 Kishan Chand, who stated that injuries were caused due to fall in the Nallha. Dr. B.L Maheshwari PW. 4, has stated that such injuries can be caused by fall and when there were repeated falls. DW. 2 Siraj also says that injuries were caused by fall in the Nalla. The Magistrate has held that since the police wanted to arrest this person by passing a five rupees note, the possibility of complainant running away and falling in Nalla cannot be rules out. The Magistrate has also held that the complainant has failed to prove the motive. On the above premise the acquittal was ordered by giving benefit of doubt. 10. I have heard Mr. Dave, learned counsel for the complainant. As per PW 4 Dr. B.L. Maheshwari, the following injuries were found on the person of complainant on examination which was conducted on 25th August 1969. "(1) Abrasion 1" x ⅓" on the dorwal surface of the middle of right fore arm. (2) Simple fracture with swelling and bruise on the lower part of left fire arm. Fracture of the ulna was there on the dorsal of middle surface of the left forearm at the upper 3/4 and lower 1/4 part. (3) two horizontal surface bruises (A) size 21/2" x ⅔" ) (B) 11/2" x ⅔" ) on the right, gluteal region in the middle part. (4) horizontal bruise 3" x 3/4" on the left gluteal region. (5) Horizontal bruise 11/2" x 1/2" on the posterior surface of the middle part of right thigh. (6) Bruise 11/4" x 1/2" on the posterior surface of right thigh. (7) Abrasion ⅓" x 1/4" on the posterior of right leg (8) Swelling with pain 4" x 3" on the dorsal surface of the right foot." Except injury No. 2 which was grievous being fracture, all other injuries are simple and all the injuries were caused by blunt weapon. Duration mentioned in the injury report is two to three days back. Duration mentioned in the injury report is two to three days back. It is not without significant that the doctor in his statement has expressly mentioned that such injuries cannot be caused by one fall only. It is only if the injured falls twice or thrice then such injuries can be caused. In this view of the matter the learned Magistrate was not justified in holding that the defence story may be true. 11. The statement of DW 1 Kishan Chand is that five rupees note was passed over to complainant, who used to sell illicit liquor and the police caught him and recovered the note and prepared a recovery memo, but the injuries were caused when the complainant tried to run away and fell in Nalla. In cross examination Kishan Chand states that hand-cuffs were used. He further admits that for two to three furlana the accused walked on feet. Curiously enough, he in the cross examination, cannot say on what part of the legs injuries were caused and he observes no injuries on the hand. 12. Another defence witness Siraj also gives the same story that Thanedar sent Kishan Chand to purchase liquor and he would accompany him but the complainant ran away and fell in Nalla and he was caught and five rupees note was recovered. He was called in the police station and them examined and the signatures were obtained. He admits that PW 2 Kheeya Ram came to give surety on second day. He invents a new story that when he was going out side the Thana, there was a cycle accident in which the complainant received some injuries. This witness is a person against whom criminal proceedings under Section 110 Cr. PC. were taken in the Court of City Magistrate and another case of Section 307 I P C. was pending. According to him there was no bleeding before arrest on account of fall in the Nalla. In the cross examination he states that he never told Thanedar that complainant received injuries by cycle accident. 13. It would thus be seen that the defence evidence admit injuries on the person of complainant but gives different stories, wherein one story is of fall in the Nalla and the other story is of cycle accident. 14. It is to be noticed that one of the accused is Sub Inspector and another is Head Constable. 13. It would thus be seen that the defence evidence admit injuries on the person of complainant but gives different stories, wherein one story is of fall in the Nalla and the other story is of cycle accident. 14. It is to be noticed that one of the accused is Sub Inspector and another is Head Constable. In the statement, Ramsaran admits that he arrested the complainant under the Excise Act at about 7:00 A M. He also admits that PW 2 Kheeya Ram came and gave surety. But curiously enough shows his ignorance about his injuries. It is not without significance that in the statements these two accused who are police official do not say that when they arrested accused there were injuries on the person and that he tried to run away at the time of arrest and fell in the Nalla. No arrest memo showing the injuries on the complainant at the time of arrest has been produced in this case, nor it has been proved. Defence has not even tried to show whether any recovery was made of Rs. 5/- as alleged by defence witness. S.H.O. and the Head Constable has not been able to prove that five rupees note was given and two defence witnesses were asked to purchase liquor from the complainant and the recovery memo was prepared. The so-called recovery memo as alleged by defence witnesses have not only dis-appeared from the statement of these accused person but it has not seer the light of the day, in as much as it has not been filed in this case. The S.H.O. and the Head Constable has not even filed any copy of the report under Section 54 of the Excise Act in which they arrested the complainant. 15. In the normal course if the accused is arrested with injuries on his person and that too caused during the process of arrest, when the accused tried to run away, then the police officers are under the obligation to mention in the arrest memo and get the accused medically examined. Neither of the two was done in this case. It is surprising that inspite of that the trial court has believed the defence story and give benefit of doubt to the accused. 16. Neither of the two was done in this case. It is surprising that inspite of that the trial court has believed the defence story and give benefit of doubt to the accused. 16. It is true that the prosecution must stand on its own legs and the case of the defence cannot be used in support of the prosecution case. 17. In the instant case complainant was arrested by the police and was in the police station. It is now established on the record that he had eight injuries on his person and they were on the hand and legs both and caused by blunt weapon. It is admitted by the accused and also by defence witnesses that Kheeya Ram came to police station and gave surety and took accused on the next day. 18. In such circumstances the statement of PW 2 Kheeya Ram assumes great importance and could not have been dis-believed on the grounds which have been given by the trial court. 19. The complainant was lonely person in the police custody. It would be too much to expect that police officials when they give beating, they would do so in the presence of any independent witnesses. The atmosphere of the police station and cell in which the accused is kept under arrest is too horrible and fear full to permit any independent person to witness third degree methods used by police. Any other person cannot be allowed to stand by because he would be liable to become victim himself. 20. The learned Magistrate, therefore, should not have insisted upon the production of an independent witness in such a case. The statement of complainant inspires confidence, as undoubtedly he was arrested and again undoubtedly he was having injuries. It is true that the defence version cannot be used to strengthen the prosecution case and the prosecution has to stand on its own legs. But if the defence witnesses themselves admit injuries. complainant version cannot be discarded solely because no independent witness has been produced, for observing beating in the police custody. Again Kheeyararo's statement provides full corroboration that when the complainant was released from the police station he bad injuries on his person and he was taken on cycle due to that. 21. But if the defence witnesses themselves admit injuries. complainant version cannot be discarded solely because no independent witness has been produced, for observing beating in the police custody. Again Kheeyararo's statement provides full corroboration that when the complainant was released from the police station he bad injuries on his person and he was taken on cycle due to that. 21. The trial court discarded the prosecution case on the ground that injury report bears the date of 25th and the complainant was released from police custody on 24th. In the very nature of things when the complainant had eight injuries and the police was after him, it certainly requires some courage to go to the doctor and get medically examined by medical jurist, when there is a inherent truth about the injuries, the evidence both by complainant and statement of defence witness, the trial courts discarding the complaint on the ground of one days delay in medical examination, appears to perfunctory and tentamounts to cutting ts and dotting is. For the same reason filing of the complaint after four days cannot be said to be a case of un-explained in-ordinate delay. In the statement recorded on the back of the complaint, it has been mentioned that on 24th my condition was bad and therefore, I got myself medically examined on the next date. It is obvious that complaint was filed after obtaining the medical certificate, which again must have taken some time. In any case the medical evidence provides clinching proof of the injuries on the person of the complainant which have not been denied by accused and on the contrary, which have been admitted by defence witnesses. 22. Yet another reason given for dis carding the complainant story is that he did not file report in the police lines and did not produce person from the police lines before whom he made complaint. The Magistrate concerned forgot that the accused were official of the police and head constable and therefore, the complainant could not have produced any one from the police lines and non-filing of the complaint in the police linen cannot be a circumstance to be used against the complainant. The Magistrate concerned forgot that the accused were official of the police and head constable and therefore, the complainant could not have produced any one from the police lines and non-filing of the complaint in the police linen cannot be a circumstance to be used against the complainant. The trial courts finding that Kheeya Ram was a interested witness is equally untenable because Kheeya Ram was the person who admittedly gave surety and took the accused from the police and this all is admitted by the defence witnesses and the accused themselves. 23. To me, it appears, that the learned Magistrate has acquitted the accused on most un-satisfactory grounds and the offence of Section 323 read with Section 34 is proved by the statement of Kheeya Ram and the complainant, in addition to medical evidence of Dr. B.L Maheshwari. The defence evidence and the statement of the accused instead of creating a doubt against the complainant provides corroboration indirectly so far as factual aspect of the matter is concerned. Though the defence case of the injuries have been differently stated as already explained above, I am not using the defence evidence for corroboration and I am of the view that accused are guilty on the basis of prosecution evidence which have proved the case beyond all reasonable doubt. I have mentioned above the defence witnesses because the trial court relying upon them has given benefit of doubt. 24. It is a case where a complainant under the custody of police has been beaten and third degree method has been used by the S.H O. and the Head Constable. Both the respondents Ram Sharan Lal Sharma and Mohan Lal are, therefore, convicted under Section 323 I.P.C. read with Section 34 I.P.C. Only a few such cases come to the Courts. I would have taken serious view about the sentence also but because the incident is of 1969, I am of the view that it would not be in the interest of justice to send the accused in Jail in 1980. The ends of justice would be met if each is sentenced to pay fine to the extent of Rs 5,00/-each and out of this, amount of Rs. 5,00/-in all, is paid to the complainant, as compensation. In case of default of payment of fine the accused would undergone sentence to one months rigorous imprisonment. 25. The ends of justice would be met if each is sentenced to pay fine to the extent of Rs 5,00/-each and out of this, amount of Rs. 5,00/-in all, is paid to the complainant, as compensation. In case of default of payment of fine the accused would undergone sentence to one months rigorous imprisonment. 25. The appeal is accepted Two months time from the date of the receipt of record by trial court is allowed to the accused respondents to deposit the fine failing which the trial court would take steps to arrest and send them to Jail for undergoing sentence passed against them in payment of default of fine. 26. The acquittal of the accused under Section 325 I.P.C. is maintained because the X Ray plates were not proved and there is no evidence that complainant suffers grievous hurt. 27. Before parting with this case, I must mention that though "standard of proof" in a criminal case cannot differ as long as the law makers no exception, yet the Courts should remain alive to the peculiar features of each case and should not act: mechanically. If an un-corroborated statement of a ravished helpless girl can be accepted to fasten the liability of life sentence under Section 376 I P.C., why should the Magistrate hesitate to accept the sole testimony of a "helpless suspect" beaten in close door Police cell in well guarded and segregated Police Station, more so when bleeding injuries provide corroboration, for recording conviction under Section 323 I.P.C. 28. Prosecutions Burden of Proof,"Proof beyond all shadow of reasonable doubt". "Accused proverbial entitlement of benefit of doubt" though well known as golden principles of criminal jurisprudence are not to be used as catch word or Allaudins lamp for ordering acquittals. They are neither abstract propositions for handy formula's. They are all handmaids of Justice" and the courts should supply these touchstones consciously to the hard realities and specific speaking circumstances of each case. The present one is a case of that peculiar species and there should not have been any hesitation and effort to avoid conviction simply because the accused are Police officer and complainant is a suspect accused, as after all, all are citizens, answerable to rule of law.The appeal is allowed.Appeal Accepted. *******