JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals are filed by the original accused challenging the judgment of conviction dated 4.3.1997 rendered by the learned Additional City and Sessions Judge, Ahmedabad, in Sessions Case No. 378/1993. 2. Briefly stated, prosecution version was that one Jeeva Vaiyapuri Kvandar had appeared before the Amraiwadi police station late at night on 10.6.1992 where he was one of the accused in the FIR registered before the said police station alleging offences punishable under sections 143, 147, 148, 149, 307, 323, 324 and 427 of the Indian Penal Code. Accused No. 1 Vinod Jaswantray Vyas was the police inspector at Amraiwadi police station at that time. Accused No. 2 Chinubhai Govindbhai Patel was the Superintendent of Police. Jeeva Vaiyapuri had come along with his advocate Shri Patanwadia, his two sisters and co-accused Anna Dorai to the police station. Shri Patanwadia left after production of the said accused. The two sisters however, lingered on. According to the prosecution, the two police officers beat up Jeeva with fists and sticks causing serious multiple injuries. He was then dragged and locked up in the lock-up room of the police station. Next day evening, he was produced before the Magistrate and then sent to Sabarmati Central jail where his condition deteriorated. He was rushed to the hospital but the doctor declared him dead. Charge was therefore, framed against both the accused at exh. 2 alleging that they had committed offence punishable under section 302 read with section 114 of the IPC. The learned Additional Sessions Judge convicted the accused for offence under section 302 read with section 114 of the IPC and sentenced them to imprisonment for life. Fines were also imposed. 3. Accused No. 1 filed Criminal Appeal No. 210/1997, accused No. 2 filed Criminal Appeal No. 226/1997 to challenge the said judgment. During the pendency of the appeals, original accused No. 2 died. However, being a Government servant, the question of his conviction had a direct bearing on his death-cum-retiral benefits. His heirs applied and were granted permission to prosecute the appeal. That is how, we have heard both the appeals of the accused. Considering the issues involved and the case being one of custodial death, we had requested learned advocate Shri Pratik Barot to assist as an amicus curiae, which responsibility, he willingly accepted and efficiently performed. 4. His heirs applied and were granted permission to prosecute the appeal. That is how, we have heard both the appeals of the accused. Considering the issues involved and the case being one of custodial death, we had requested learned advocate Shri Pratik Barot to assist as an amicus curiae, which responsibility, he willingly accepted and efficiently performed. 4. We may record the gist of the evidence produced by the prosecution. 5. Selvin Prabhakar, PW-1, exh. 12, was the sister of deceased Jeeva. She deposed that she lived in slum quarters at Khokhra along with her family which comprised of five sisters, deceased Jeeva and others. Few days before the incident, a quarrel had taken place in their locality on 24.5.1992. Name of her brother was involved in such incident. The police officers from Amraiwadi police station were looking for her brother along with another boy called Anna. In presence of their advocate Shri Laxmanbhai Patanwadia, they had gone to the police station for their brother to surrender at 11:45 at night which was done in presence of Shri Vyas i.e. accused No. 1 who was the PSI. When Jeeva and Anna were produced before the police station, her younger sister Dhanlakshmi was also present. After production, the advocate left. She and her sister however, remained at the police station. At about 11:15 pm, PSI Shri Vyas made her brother stand facing the wall with his hands raised. Shri Vyas then beat him up with a stick on the hands, back, buttocks, bottom of the feet and also on the chest. This went on for about half an hour. Her brother collapsed on the ground. Two policemen lifted him and put him on the bench. At about 2 O' clock at night, S.P. Shri C.G. Patel (accused No. 2) came. Again he made her brother stand facing the wall and beat him with his stick. After that two policemen put her brother in the lockup room. All throughout, she and her sister Dhanlakshmi were present in the police station. After the brother was sent to the lock-up room, they left at about 2 O' clock. Next day on 11.6.1992 at about 11 O' clock, she and her sister had gone to the police station but were not allowed to meet the accused. They waited outside the police station. After the brother was sent to the lock-up room, they left at about 2 O' clock. Next day on 11.6.1992 at about 11 O' clock, she and her sister had gone to the police station but were not allowed to meet the accused. They waited outside the police station. At about 2 O' clock in the afternoon, the police officers took their brother in an auto-rickshaw. They followed them in another auto-rickshaw. First the brother was taken to Karanj police station before DCP Shri Surelia. They waited outside. At about quarter to 6 in the evening, he was taken to the Court No. 7 where she went with her sister. Since the documents were not complete, the police officers had to wait. During this time her brother complained to her in Tamil language about severe pain in chest and stomach. He refused to complain to the Magistrate since he was threatened by the two accused. At about 7 O' clock, the papers arrived but the Court had shut down by then. Shri Vyas took her brother telling her that he will be produced before the Magistrate and then to Sabarmati jail. On 12.6.1992, at about 12:30 in the afternoon, two policemen came to her house and told her that her brother had died and the dead body was kept in the postmortem room in Civil hospital. She, her sister and Jeeva's wife Meena went to the postmortem room and saw that the body was kept there. There was blood oozing out of mouth and nose. Blood was also coming out from the palm. There were marks on the wrists and feet. She had sent a telegram to the DCP office. She had later given a complaint to the Magistrate which was produced at exh. 13. In the cross examination, she was questioned on deceased and other family members being involved in illegal liquor trade. Though she did not know how many criminal cases were registered against her brother, she remembered that in the year 1990, Jeeva was arrested and released after about four months. She agreed that there were couple of prohibition cases filed against her also in addition to one case of beating. Prohibition cases were also filed against her sister Dhanlakshmi. She denied that since PSI Shri Vyas was responsible for clamping down on their business of liquor, he was being falsely implicated in the present case. She agreed that there were couple of prohibition cases filed against her also in addition to one case of beating. Prohibition cases were also filed against her sister Dhanlakshmi. She denied that since PSI Shri Vyas was responsible for clamping down on their business of liquor, he was being falsely implicated in the present case. She clarified that she and her sister had waited in the police station to ensure that their brother was not beaten up. When her brother was brought before the Court, she had not seen marks of rope on the wrists or on the feet. She had not given the details of who or how her brother was beaten up in the telegram. She agreed that in her statement she had not mentioned about the marks of rope on the feet or the wrists. She agreed that the complaint before the Magistrate was filed 17 or 18 days after the death of the brother. She had not seen Shri Surelia beating her brother. She however, agreed that she had also filed complaint against Shri Surelia along with the two accused. She admitted that against her mother and father also prohibition cases have been filed. 6. Dhanlakshmi Vaiyapuri, PW-2, exh. 16, was the other sister of deceased Jeeva. She deposed that there was a quarrel on 24.5.1992 in their locality involving one Lalchand Sindhi. Her brother was falsely involved in such case. The police were looking for him. On 10.6.1992, she along with her sister Selvin had taken their brother Jeeva to the police station along with advocate Shri Patanwadia at about 10:45 at night. After production, the advocate left. They were sitting in the police station. They stayed there till 2 O' clock at night. At about 11, PSI Shri Vyas came, made her brother stand facing his back, raising his arms and beat him up with a stick on the hands, back, thighs, bottom of the feet and chest. Her brother collapsed. Two policemen lifted him and put him on the bench. At about quarter to 2 at night, Shri Patel came from the second floor. He also made her brother stand facing the wall and beat him up with a stick on the hands, back, side and on the chest. At 2 O' clock, she and her sister left for home. Next day, on 11.6.1992, both the sisters went to the police station. He also made her brother stand facing the wall and beat him up with a stick on the hands, back, side and on the chest. At 2 O' clock, she and her sister left for home. Next day, on 11.6.1992, both the sisters went to the police station. They were not allowed by the police to meet the brother. They waited outside the police station. At about 12 O' clock, the brother was first taken in an auto-rickshaw to the office of the DCP Shri Surelia. They followed him. She also referred to taking their brother to the Magistrate for production when they were present and taking away by Shri Vyas later on saying that he will be sent to Sabarmati jail. She also referred to the news being given to them on 12th June that her brother had died, upon which, they went to the hospital and saw the dead body. In the cross examination, she was also questioned at length on the criminal past of the entire family and in particular her brother. She agreed that her brother was detained under the Prevention of Anti-Social Activities Act. She admitted that the prohibition cases were lodged against her also. She and her sister had lingered on at the police station apprehending that their brother may be tortured. She denied that there was no conversation between the deceased and herself and her sister at the Magistrate's Court. 7. Naykar Vasudev, PW-3, exh. 17, was arrested and kept in the same police station around the same time. He deposed that one Babu Rajaram had filed a case against him for which he along with two others, Ravi and Harish, had surrendered before the police station at about 8 O' clock on 10.6.1992. Shri Vyas was also present at that time. At about quarter to 11 at night, five people which included advocate Shri Patanwadia, two ladies and two men had come to the police station. Advocate Patanwadia left soon. The two ladies were sitting near the table of the PSO. One of the two men was sent in lock-up room along with the witness himself, Ravi and Harish. 10 or 15 minutes after that PSI Shri Vyas came out of his cabin and beat up the other man with a stick on both hands, back, buttocks, thighs and shoulders. This was barely about 20 feet from the lock-up room. One of the two men was sent in lock-up room along with the witness himself, Ravi and Harish. 10 or 15 minutes after that PSI Shri Vyas came out of his cabin and beat up the other man with a stick on both hands, back, buttocks, thighs and shoulders. This was barely about 20 feet from the lock-up room. He could see this. This lasted for 15 to 20 minutes. The boy collapsed unconscious. He was dragged and put on the bench by two policemen. He then went to sleep and woke up later when he heard shouts for help. This was at about quarter to 8 at night. He saw SP Shri Patel beating up the boy with a stick on his back, buttocks and bottom of the feet. When the person was brought to the lock-up room, he learnt that person was Jeeva. On account of beating, the boy had collapsed on the ground. When he was dragged into the lock-up room, he was screaming and rolling on the ground out of pain. He then went to sleep. When he woke up next morning at about 8 O' clock, he found Jeeva was still lying in the same condition. In the cross examination, he was confronted with his police statement in which he seems to have stated that when he was sent to the lock-up room, at the same time, Jeeva and Anna Dorai were also kept there. He had seen the two sisters Selvin and Dhamlakshmi visiting the police station next morning. He had not given the names of Shri Vyas and Shri Patel to the Sabarmati jail since they had not asked about it. 8. Harishkumar Fakirswamy, PW-4, exh. 20, had also presented himself before the Amraiwadi police station in connection with the quarrel involving Baburao. He deposed that on 10.6.1992 at about 8 O' clock, he, Vasu and Ravi had gone to the police station. At about 10 O' clock, five people had come to the police station which included one advocate and two ladies. Advocate had left in a short while. One of the boys was sent to lock-up room where he and others were kept. Having supported the prosecution till this stage, this witness turned hostile and claimed that after he was sent to the lock-up room, he was feeling dizzy and had therefore, gone to sleep. Advocate had left in a short while. One of the boys was sent to lock-up room where he and others were kept. Having supported the prosecution till this stage, this witness turned hostile and claimed that after he was sent to the lock-up room, he was feeling dizzy and had therefore, gone to sleep. Before the Court, he could not say what had happened after that. He was therefore, declared hostile and cross examined by the public prosecutor. During such cross examination, he stated that he had seen Jeeva lying on the floor but had not seen him convulsing. He had seen blood coming out of Jeeva's hands. 9. Dr. Digant Kalidas Dikshit, PW-5, exh. 21, was the medical officer at Civil hospital, Ahmedabad, to whom Jeeva was first taken by the police in the morning of 12.6.1992. He deposed that when he was on duty at about 8:30 in the morning, jailor of Sabarmati Central prison and other policemen had brought one Jeeva Vaiyapuri from Sabarmati Central prison. He had examined him and found that he had already died and conveyed this to the police officer. In the cross examination, he stated that he had not given any treatment to the deceased. He could not ascertain the time of death before he had examined the person. 10. Pratapbhai Jaggannath,PW-6, exh. 26, was part of surveillance squad at Amraiwadi police station. According to his deposition, on 11.6.1992 at about 2:30 in the afternoon, he was instructed to carry the two accused Jeeva Vaiyapuri and Anna Dorani to the Court from the lock-up room. He had taken out the two accused from the lock-up room and under the instructions of PSI Shri Vyas, had taken the accused to the house of Jeeva for drawing panchnama. From there they came back to Amraiwadi police station. Later on, at 4:30, accused were taken to Gheekanta Criminal Court. The documents for production were incomplete. Shri Vyas came to the Court at about 5:30. Since the Court time was about to be over, Shri Vyas instructed that the accused may be presented before the Court of Shri Shukla. From then on, this witness was declared hostile and cross examined by the APP. In the cross examination by the defence, this witness stated that Jeeva had climbed five floors to reach the office of Shri Surelia. The Court of Shri Shukla was on the fifth floor. From then on, this witness was declared hostile and cross examined by the APP. In the cross examination by the defence, this witness stated that Jeeva had climbed five floors to reach the office of Shri Surelia. The Court of Shri Shukla was on the fifth floor. Since the Court timing was over, the lift was not working. Jeeva had therefore, climbed the stairs without anyone's help. 11. Dr. Nayankumar Natvarlal Parikh, PW-9, exh. 49, had carried out the postmortem of the dead body of Jeeva on 12.6.1992 at BJ Medical college, Ahmedabad, along with senior doctor Dr. D.D. Desai. In the postmortem note, following external injuries were recorded: "(1) There was abrasion on the doram of right hand 1 x 1 cm in size which was red in colour. (2) Abrasion on the posterior aspect of middle one-third of the right arm 1 x 1 cm in size red in colour. (3) There were two abrasions on the right shoulder each admeasuring 17 x 1 cm in size and red in colour. (4) Two bruises on the right scapular region each 6 x 4 cm in size on the back. (5) There were seven bruises on the back each varying in size but about 2 x 4 cms to 4 x 1 cm. (6) Abrasion on the left wrist 1 x 1 cm. (7) Abrasion on the middle third of left forearm posterior aspect about 2 x 1 cm. (8) Abrasion on the left shoulder 1 x 1 cm. (9) Abrasion on the left side of ligome 1 x 1 cm. (10) Bruise on the left lateral aspect of abdomen on mid-axillary line at 10th rib 6 x 4 cm in size. (11) Bruise on the front of chest midline at w2nd and 3rd rib 6 x4 cm in size. (12) Bruise on the left anterior axillary line 4 x 5 cms in size at nipple level. (13) Bruise on the left side of knee 2 x 5 cm. (14) Bruise on the left third 4 x 4 cm in size on thigh on front middle." Corresponding to such external injuries, following internal injuries were recorded: "There was fracture of sternum under external wound No. 11 which was transverse in direction. There was fracture of 4th, 5th and 6th ribs under external injury No. 12. Pleura on left side was cut. There was fracture of 4th, 5th and 6th ribs under external injury No. 12. Pleura on left side was cut. Left lung was ruptured under external injury No. 12. There was about 600 ml fluid and clotted blood in thorasic cavity. Paretareal cavity contained 1600 ml of clotted blood and fluid blood. Rupture of liver on the interior aspect of right lobe 3 x 4 cm in size. There was rupture of spleen under external injury No. 10. Rupture of 4 x 6 in size at diaphragmatic surface." In the postmortem note exh. 50, it was opined that death was due to shock as a result of injuries present on the body. It was also noted that injuries were possible by blunt instrument like mukka, lathi, etc. and injuries were sufficient to cause death in ordinary course of nature. The witness clarified that no injury individually was likely to cause death. Collectively all the injuries were sufficient to cause death. In the cross examination, the witness stated that the injuries were extremely fresh and would have been caused within six to eight hours before the death. The police had raised certain queries regarding the age of the injuries which he had replied. The time of the injuries could be ascertained on the basis of colour of the bruises. 12. Prosecution had examined one Dr. Ravindra Srikrishna Bhise, PW-10, exh. 51, as an expert witness, in connection with the time of injuries before the death. He deposed that he was the head of the department of Forensic Medicines in v. hospital. He was MD of Forensic Medicines. He had teaching as well as practical experience in the field, particularly, regarding postmortem examination in medico-legal cases. He had performed thousands of postmortems during his career. He had received a letter from Superintendent of v. hospital which was written by Dy. S.P. Crime branch, seeking his opinion regarding the death of Jeeva Vaiyapuri and certain questions related with it. He was supplied the postmortem report. He had received a further letter on 12.4.1993 seeking his opinion on certain issues. He had asked for a copy of inquest panchnama. After studying the papers, he had given an opinion on 5/6th August, 1993 in writing which was produced at exh. 53. In such letter, exh. He was supplied the postmortem report. He had received a further letter on 12.4.1993 seeking his opinion on certain issues. He had asked for a copy of inquest panchnama. After studying the papers, he had given an opinion on 5/6th August, 1993 in writing which was produced at exh. 53. In such letter, exh. 53, he had opined that the injuries recorded in the postmortem report were possible by forcible contact and/or collision with any hard and blunt object. The injuries could be possible by blows from fists and kicks but would require tremendous force in inflicting the blows. According to him, the death had occurred 24 hours before the postmortem examination. The injuries on the body seems to have been caused within 24 hours before the death. According to him, survival of the person receiving such injuries would depend on many factors, so also, the time for which the person can survive after receiving such injuries. 13. In the statement under section 313 of the Code of Criminal Procedure, accused No. 1 admitted his presence at the police station when Jeeva had surrendered. When pointed out that witness Selvin had deposed that at 6:45 when the Court was shut down, he had come before the Court and taken away Jeeva saying that he would be produced before the Magistrate, from there, he would be sent to Sabarmati jail, the said accused stated that he had gone to the Court where he had met one lady. He however, did not know who she was. Regarding the incident of the first night, he was confronted with the witness's statement that at 10:45, five people had come to the police station which included advocate Shri Patanwadia and two ladies who were sitting near the table of PSO. He stated that advocate Shri Patanwadia had come along with two ladies but they had left the police station together. 14. Both the accused had filed written statements before the Court in which mainly two defences were raised. One was that they were wrongly involved in the criminal case because of criminal past of the deceased and other family members and the second was that Jeeva was sent to Sabarmati Central jail, till then, he was not in distress. He was kept at Sabarmati Central jail along with other persons. One was that they were wrongly involved in the criminal case because of criminal past of the deceased and other family members and the second was that Jeeva was sent to Sabarmati Central jail, till then, he was not in distress. He was kept at Sabarmati Central jail along with other persons. Accused therefore, would not be responsible for any injuries that he might have received during such time. 15. This in the nutshell is the evidence on record. As noted, the trial Court convicted both the accused for offence punishable under section 302 of the IPC. 16. Learned advocate Shri Shethna for the appellant submitted that the evidence of so-called eyewitnesses was not reliable. The two sisters of the deceased were themselves involved in multiple criminal cases. They had tendency to falsely implicate a person, as can be seen from the written complaint filed by Selvin against present two accused and DCB Shri Surelia. Upon investigation, it was found that the allegations against Shri Surelia were completely baseless. He further submitted that the inmates in the lock-up room could not have witnessed the incident since the topography of the police station would make it impossible. The fact that Jeeva had not received any injuries during his stay at the police station can be gathered from the fact that he had climbed five stairs, first to the office of Shri Surelia and then to reach the fifth floor of the Court building at Mirzapur. He contended that as per the medical evidence, the injuries were fresh. In other words, such injuries would have been caused barely five to six hours before the death completely eliminating the involvement of the two accused. Counsel lastly contended that at any rate offence under section 302 was not made out, with or without the aid of section 114 of the IPC. According to him all the injuries were simple in nature. 17. Learned APP Ms. Jirga Jhaveri opposed the appeals contending that the trial Court had properly considered the evidence on record and come to the conclusions which are not required to be disturbed. 18. Learned advocate Shri Pratik Barot submitted that the evidence on record was sufficiently clear implicating both the accused in beating up Jeeva at the police station. Versions of eyewitnesses are corroborated by other evidence on record. 18. Learned advocate Shri Pratik Barot submitted that the evidence on record was sufficiently clear implicating both the accused in beating up Jeeva at the police station. Versions of eyewitnesses are corroborated by other evidence on record. There is no reason to discard the testimonies of three witnesses in this respect who claim to have seen both the accused beating up Jeeva, who are identified before the Court also. The medical evidence would suggest multiple injuries which could be caused by hard and blunt substance. Counsel however, submitted that looking to the nature of injuries, application of section 302 of IPC seems to be harsh. He drew our attention to certain judgments to which we will refer to at a later stage. 19. This brings us to our assessment of the evidence on record. We may recall, according to Selvin Prabhakar, PW-1, sister of the deceased, she, her younger sister Dhanlakshmi and advocate Shri Patanwadia had gone to Amraiwadi police station for surrender of Jeeva and co-accused Anna Dorai. The two accused were wanted in a case of rioting which was registered before the said police station. They had gone to the police station at about 10:45 at night on 10.6.1992. According to this witness, the advocate left as soon as the basic formalities were over. The two sisters however, stayed back apprehending that their brother may be beaten up. She stated that her brother was first beaten with stick by accused No. 1 Shri Vyas who came out of his cabin. Later at night, accused No. 2 Shri Patel also came and assaulted her brother with a stick. Somewhat similar version was given by Dhanlakshmi Vaiyapuri, PW-2, the other sister of deceased Jeeva. She was also present before the police station. She had accompanied her brother and others on the night of 10th June. She also referred to her brother being first beaten up by accused No. 1 Shri Vyas and thereafter, by Shri Patel. Naykar Vasudev, PW3, was kept in the same police station though in connection with another criminal case. According to him, when he was kept in lock-up room, these five people arrived at the police station. One of the two accused was sent to lock-up room. The other one was assaulted first by Shri Vyas and thereafter, by Shri Patel. Naykar Vasudev, PW3, was kept in the same police station though in connection with another criminal case. According to him, when he was kept in lock-up room, these five people arrived at the police station. One of the two accused was sent to lock-up room. The other one was assaulted first by Shri Vyas and thereafter, by Shri Patel. Harishkumar Fakirswamy, PW-4, was also one of the accused present before the Amraiwadi police station at that time. This witness however, turned hostile and did not support his police statement in which he claimed to have seen the incident when five people had come to the police station which included the advocate and two ladies. He also stated that one of the two accused was sent to lock-up room, the other was kept outside. We may also recall that according to the witnesses Selvin Prabhakar, PW-1 and Dhanlakshmi Vaiyapuri, PW-2, next day morning, they had gone to the police station but were not allowed to meet their brother. In the afternoon, the brother was taken out of the police station and later on taken to the Court for production. Formalities took some time and the Court's time was over. He would therefore, be produced before the Magistrate Shri Shukla and then sent to Sabarmati Central jail as stated by Shri Vyas. We also notice that next morning at about 8:30, Jeeva was brought before Dr. Digant Kalidas Dikshit, PW-5 at Civil hospital, Ahmedabad. He found that Jeeva had already died. The postmortem carried out by Dr. Nayankumar Natvarlal Parikh, PW-9 and panel doctor Dr. D.D. Desai showed as many as 13 different injuries on all parts of the body. Though these injuries externally were described as bruises and abrasions, there were substantial internal damages corresponding to such injuries. In the postmortem note, it was noticed that there was fracture of sternum, 4th 5th and 6th ribs were also fractured, left lung had ruptured. There was rupture of liver and spleen both. 20. In the cross examination of various witnesses by the defence, neither of the two accused have taken a stand that they were not present in the police station when deceased Jeeva was brought. There was rupture of liver and spleen both. 20. In the cross examination of various witnesses by the defence, neither of the two accused have taken a stand that they were not present in the police station when deceased Jeeva was brought. Shri Vyas in his statement under section 313 of the Code of Criminal Procedure has not only admitted his presence at the police station, had also admitted that Jeeva had come with his advocate and two ladies. He also admitted to be present in the Court of Magistrate when Jeeva was taken for production and having met a lady there. 21. From such evidence on record, few preliminary facts emerge as either admitted or undeniable. Such facts are: "(1) That Jeeva had surrendered before Amraiwadi police station at about quarter to 11 at night of 10.6.1992. Such surrender took place along with co-accused Anna Dorai in presence of his advocate Shri Patanwadia and accompanied by his two sisters Selvin Prabhakar, PW-1 and Dhanlakshmi Vaiyapuri, PW-2. (2) That at the time Jeeva went to the police station, he was not carrying any injuries or serious illness. (3) Towards the evening of 11.6.1992, Jeeva was produced before the Magistrate and, thereafter, sent to Sabarmati jail. (4) At 8:30 on 12.6.1992, Jeeva was brought to the doctor where he was declared dead. (5) The death was due to multiple injuries which were inflicted on Jeeva which could be caused by hard blunt substance, be it lathi or fist blows." 22. The fact that present is a case of custodial death is therefore, beyond any cavil. A person, may be an accused having criminal history, walked into the police station hale and hearty. Some 36 hours later, he was brought before the hospital in a dead condition. The death was solely on account of blows which could be attributed either to assault with sticks or with fist and kick blows. As noted, though the external injuries were recorded as bruises and abrasions, they were not really simple in nature. The internal damage included multiple fractures including fracturing three ribs. There was rupture of lung, liver and spleen. 23. The only question is, were the two accused responsible for causing such injuries and if so, what is the offence they could be stated to have committed? In this context, the evidence of eyewitnesses becomes crucial. The internal damage included multiple fractures including fracturing three ribs. There was rupture of lung, liver and spleen. 23. The only question is, were the two accused responsible for causing such injuries and if so, what is the offence they could be stated to have committed? In this context, the evidence of eyewitnesses becomes crucial. We have as many as three witnesses' deposition that Jeeva was assaulted by the two accused on the night between 10th and 11th June itself. Selvin Prabhakar, PW-1 and Dhanlakshmi Vaiyapuri, PW-2, who were both present when Jeeva had surrendered before the police station, claimed to have sat back when their advocate Shri Patanwadia left after completion of formalities of the surrender. Both of them referred to Jeeva being beaten up by Shri Vyas first with stick and, thereafter, by Shri Patel later at night before they left for home. Both of them had claimed that they had stayed back because they were afraid that their brother may be beaten up by the police. Their version was corroborated by Naykar Vasudev, PW3. He was also one of the accused locked up in the same police station. About his presence at the police station, the defence cannot and has not raised any dispute. He also referred to the two persons arriving at the police station with advocate and two ladies. One of the two accused was sent in the lock-up room, the other was kept outside. Person who remained outside was first assaulted by Shri Vyas and thereafter, by Shri Patel. Harishkumar Fakirswamy, PW-4, was also one of the inmates of the lockup room. Though he turned hostile and did not support the prosecution claiming that he was feeling giddy and had gone to sleep, did refer to presence of ladies along with advocate and two accused who had come to surrender on the night of 10th June. He had seen blood coming out from Jeeva's hand. He had also seen Jeeva lying on the floor. 24. We have no reason to discard the testimonies of as many as three eyewitnesses which was partially supported by Harishkumar Fakirswamy, PW-4, hostile witness. The evidence of witnesses gets credence from the medical evidence. The postmortem note showed injuries on various parts of the body which corresponded with blows by hard and blunt substance such as stick and fist blows. We have no reason to discard the testimonies of as many as three eyewitnesses which was partially supported by Harishkumar Fakirswamy, PW-4, hostile witness. The evidence of witnesses gets credence from the medical evidence. The postmortem note showed injuries on various parts of the body which corresponded with blows by hard and blunt substance such as stick and fist blows. Merely because both the sisters of deceased Jeeva had a criminal past would not automatically mean that their version was entirely untrue and, therefore, had to be disbelieved. Since the accused were police officers, the past of the witnesses may carry some relevance. It would therefore, be our duty to scrutinise their evidence very minutely. However, it does not mean that evidence of the witnesses, if otherwise found to be reliable, consistent and corroborated by independent witnesses and materials, cannot be relied upon. 25. Before concluding, we may iron out a few rough edges. It was argued that Jeeva could not have climbed five stairs twice in the afternoon of 11.6.1992 if he was carrying such serious injuries. This version however, has come from the sole witness who had been declared hostile. This statement was made by Pratapbhai Jaggannath, PW-6. After he was declared hostile, in the cross examination, he agreed with the defence version that Jeeva had climbed five floors to reach to the office of Shri Surelia and later in the day, he again climbed five floors to reach the Court of the Magistrate. His version in this respect raises multiple doubts. Firstly, though he is a departmental witness, he did not support the prosecution during his deposition before the Court. Secondly, his explanation that the lift at the Court complex was not operational because the Court time was over seems rather unusual. We are not aware of any such procedure where once the Court time is over, the elevators are shut down, even though one of the Courts on the fifth floor was still working, presumably taking up production and other related urgent work. 26. It was argued that as per the deposition of Dr. Nayankumar Natvarlal Parikh, PW-9, the injuries were fresh and would have been caused some four to six hours before the death. This version of the doctor was not agreed to by Dr. Ravindra Srikrishna Bhise, PW-10. He was examined by the prosecution as an expert. 26. It was argued that as per the deposition of Dr. Nayankumar Natvarlal Parikh, PW-9, the injuries were fresh and would have been caused some four to six hours before the death. This version of the doctor was not agreed to by Dr. Ravindra Srikrishna Bhise, PW-10. He was examined by the prosecution as an expert. He had a vast experience and knowledge on postmortem and medico-legal cases. At the time of his deposition, he was the head of the department of Forensic Medicines at v. hospital and earlier, he was holding similar position at SSG hospital, Baroda. His opinion was sought on certain specific questions. He called for necessary information which included postmortem note and inquest panchnama. On the basis of available materials, he could state that the death would have occurred 24 hours before the postmortem examination and the injuries caused could be within 24 hours of the death. This evidence thus clearly neutralizes the statement of Dr. Nayankumar Natvarlal Parikh, PW-9, that the injuries were fresh just prior to the death. Apparently, the attempt on part of the defence was to suggest that no injuries were caused to Jeeva while he was in police station. He carried no injuries till he was produced before the Magistrate in the evening of 11th June and any injuries thereafter, can be attributed only to his stay at Sabarmati Central jail. Looking to the oral as well as documentary evidence on record, this version is not acceptable. 27. In case of State of Madhya Pradesh v. Shyamsunder Trivedi & Ors. reported in 1996 (1) GLH 9, the Supreme Court observed as under: "17. ...The High Court erroneously overlooked the ground realities that rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available, when it observed that 'direct' evidence about the complicity of these respondents was not available. Generally speaking, it would be police officials alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues, and the present case is an apt illustration, as to how one after the other police witnesses feigned ignorance about the whole matter." 28. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues, and the present case is an apt illustration, as to how one after the other police witnesses feigned ignorance about the whole matter." 28. In case of K.H. Shekarappa and others v. State of Karnataka reported in (2009) 17 SCC 1 , it was observed as under; "50. The fact that the deceased and injured were arrested and brought to the Police Station is not in dispute. It is not in dispute that the deceased and the injured were brought to the Police Station on their two feet. The testimony of the Medical Officers, who had performed autopsy on the dead bodies of the two deceased, would indicate that both the deceased were brought dead to the hospital. When the deceased, who were brought to the Police Station, were alive and were produced dead before the Medical officer, it is for the appellants to explain as to in which circumstances they had died. The deceased were in the custody of the appellants, who were police officials. During the time when they were in police custody they had expired. Therefore, it was within the special knowledge of the appellants as to how they had expired. In view of the salutary provisions of Section 106 of the Evidence Act, 1872, it was for the appellants to offer explanation regarding the death of the two deceased." 29. In case of Haricharan and others v. State of Madhya Pradesh and others reported in (2011) 4 SCC 159 , it was observed as under: "49. The prosecution has proved beyond reasonable doubt that Mathura was taken to the police station. Whilst at the police station, he was subjected to third degree torture. He was given electric shocks in the scrotum. Such torture was inflicted on Mathura merely for the purpose of extracting a confession that he was guilty of the offence of theft. Upon his release, the police personnel terrorized the entire family. This is evident from the fact that the widow, the son and the brother of the deceased Mathura, all turned hostile. Such torture was inflicted on Mathura merely for the purpose of extracting a confession that he was guilty of the offence of theft. Upon his release, the police personnel terrorized the entire family. This is evident from the fact that the widow, the son and the brother of the deceased Mathura, all turned hostile. However, there is sufficient evidence on the record given by PW6, PW23 and PW24 to prove beyond reasonable doubt that Mathura died due to the inhuman torture inflicted upon him by the appellants." 30. In case of Sunil Mahadeo Jadhav v. State of Maharashtra reported in (2013) 15 SCC 177 , it was observed as under: "36. Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it was Accused 1 who had arrested the deceased at 00.45 a.m. On 17-12-1985 and kept the deceased in police lock-up after his arrest was complete, it was for Accused 1 to explain the injuries on the body of the deceased other than those which were noticed in Ext. 76. Accused 1 has not stated anything in this regard in his statement under section 313 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") nor adducted any evidence in defence to explain these injuries. In the absence of any explanation by Accused 1 or any evidence adducted on behalf of Accused 1 to explain these injuries on the body of the deceased, there can be no escape from the conclusion that these injuries have been caused on the body of the deceased by Accused 1 and no on else." 1. We have therefore, no hesitation in concluding that deceased Jeeva was assaulted by Shri Vyas and Shri Patel when he was at Amraiwadi police station kept as an under-trial prisoner. It was however, argued that assault was carried out, even as per the prosecution witness, totally separately and independently. Neither of the two accused therefore, can be blamed for causing fatal injuries. Section 114 of the IPC was even otherwise wrongly invoked. From the evidence on record, which we have accepted, it emerges that Jeeva was subjected to extreme torture in police custody by both the accused. It may be that actual point of assault may be different. Neither of the two accused therefore, can be blamed for causing fatal injuries. Section 114 of the IPC was even otherwise wrongly invoked. From the evidence on record, which we have accepted, it emerges that Jeeva was subjected to extreme torture in police custody by both the accused. It may be that actual point of assault may be different. Both the accused cannot escape the liability of carrying out the assault with a common intention, presumably to extract information or confession from the accused. The sole surviving question then is, for which offence, should the accused be appropriately held guilty for? 2. Looking to the nature of injuries, weapon used and the manner of causing injuries, this certainly is not a case where the accused intended to cause death. However, we cannot lose sight of the fact that there were multiple injuries on different parts of the body. The blows would have been given with such ferocity that as many as three ribs were broken. There was rupture of lung, spleen and liver. The accused therefore, cannot escape the liability of having caused death by causing such bodily injuries as were likely to cause death. 3. In our opinion therefore, the conviction of both the accused should be converted into one under section 304 Part I of the IPC. As noted, accused No. 2 has already died. There would therefore, be no question of quantifying his sentence or for him to undergo the remaining sentence. So far as accused No. 1 is concerned, we are informed that he is aged about 76 years. The incident took place in the year 1992. He is therefore, ordered to undergo rigorous imprisonment of eight years. He shall pay compensation of Rs. 50,000/- to the heirs of the deceased. Bail bond stands cancelled. The said accused would have time upto 15.4.2017 to surrender. Criminal Appeals allowed in part and disposed of. R&P may be transmitted back to the concerned trial Court."