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Development Of Evidence Law In Cases Of Custodial Violence By - Aditya Juneja

Development Of Evidence Law In Cases Of Custodial Violence


Authored By - Aditya Juneja


“No one can truly know a nation until one has been inside the jail. A nation should not be judged by how it treats its highest citizen but its lowest ones” – MAHATMA GANDHI


Torture and other forms of violence against prisoners in Indian prisons remain widespread. Year after year, the National Human Rights Commission's data shows that the situation has worsened.1 Some of the worst crimes that can be committed in a civilised and democratic society are those that occur in prisons. Abuse of authority, torture of suspects, and the killing of people while in police custody are all flagrant violations of the rights and liberties guaranteed by our democracy's founding documents. Because they involve a public official betraying the confidence of the public against a citizen who is unable to defend themselves, crimes committed while a person is in custody are more serious. India has signed the UN Convention against Torture in 1984 and has constitutional protections for the rights to life and freedom of all citizens, but the country lacks effective laws and institutional procedures to address violence in prisons. The frequency with which these crimes occur shocks the public's conscience, and there has been an enormous backlash against proposing new legislation or amending existing ones to address custodial violence.

This study examines the various judicial initiatives taken to address the problem of violence against prisoners. Even while the Indian Evidence Act of 1872 is where this paper's primary focus lies, it will also examine developments in the Criminal Procedure Code of 1974, the Indian Penal Code of 1860, and the Prevention of Torture Act of 2010. This paper will discuss the numerous Supreme Court opinions that have addressed this topic and will propose


1 Baljeet Kaur, India’s Silent Acceptance of Torture Has Made It a Public Secret, ECONOMIC AND POLITICAL WEEKLY ENGAGE Vol 53 Issue No 36


potential revisions to the law. This presentation will also discuss the several Law Commission of India Reports and the suggestions made by those reports in an effort to address the problem of custodial violence in India.


The relationship between law and society is dynamic. Both parties adjust to the other's new circumstances. The law has been sluggish to respond to developments in society in the case of custodial violence. To appreciate the evolution of the law, one must first grasp the social reality of criminals who are incarcerated.



The present situation of custodial violence in India paints a very bleak image. From 1 April 2017 to 28 February 2018, the NHRC recorded 1674 deaths while in detention.2 Of these, 1530 occurred in judicial custody and 144 occurred in police custody. Over the course of 11 months, this amounts to more than five deaths each day. Uttar Pradesh (374), Maharashtra (137), and West Bengal are the top three states in terms of the number of deaths that occur in prisons (132).3 Since last year, the situation has only worsened. This is due to the fact that between 2001 and 2010, a total of 14,231 people in Indian custody died, as reported by the Asian Centre for Human Rights. Since 2000, that amounts to four deaths each day for an entire decade while in prison.4 The tragic death of Devender, the father of a child rape victim, in police custody stands out as the most flagrant example of this trend.5 BJP MLA Kuldeep Singh Sengar and his brother were accused of raping a juvenile girl. The victim's father was falsely accused, jailed by the police, and ultimately slain while in police custody after the victim sought to speak out. The frequency with which such events occur is alarming, and yet no institutional framework exists to address them. Foreign courts and intranational human rights organisations have both reprimanded the Indian Government for the worsening situation in prisons.


2 National Human Rights Commission Report on Custodial Violence 2018, https://www.state.gov/wp- content/uploads/2019/03/INDIA-2018.pdf

3 Ibid.

4 Torture Update: India, Asian Centre for Human Rights, June 2018. http://www.achrweb.org/wp- content/uploads/2018/06/TortureUpdateIndia.pdf.

5 Divya Triviedi, Unnao Rape Case : Corrupt Nexus, FRONTLINE Aug 30 2019 https://frontline.thehindu.com/the-nation/article29132282.ece.


It is also important to note that people from historically oppressed groups are disproportionately affected by custodial violence. The majority of victims of custodial violence have been members of the Schedule Castes and Schedule Tribes.6 People from the SC and ST castes in India are powerless to resist the State's oppression because of the country's social structure. They have no access to formal channels for assistance, such as bribing a police officer or lobbying for change at the municipal level.

Because of this, we can observe the terrible reality of prison brutality in India. This circumstance necessitated institutional adjustments, as seen by a number of recent Supreme Court rulings, Law Commission reports, and brand-new laws.



“Gauri Shanker Kumar v. State of Uttar Pradesh”7 is one of the earliest instances to address custodial violence. Three police officers have been charged in connection with Ram Dhiraj Tiwari's death while in prison. The court found that the decedent had been subjected to third- degree torture, and that his death was the result of several physical wounds. The three police officers were found guilty of the serious offence of custodial violence by the court. As an interesting aside, the court noted that courts should be aware of how challenging it is to gather evidence of custodial deaths. Courts should move toward a presumption of guilt against the police in cases of custodial violence because direct proof is unlikely to be found in such cases.

The precedent-setting decision of DK Basu vs. State of West Bengal8provided further support for the obiter dictum cited in the prior case. The petitioner in this case is the director of Legal Aid Services for the state of West Bengal, and he or she submitted a letter to the Chief Justice of India (CJI) about the deaths of inmates in police and judicial custody in the state. Mahesh Bihari, another prisoner, died while the case was being heard. The Court ruled that deaths that occur while in police custody are among the greatest crimes that can occur in a civilized society.




6 Human Rights Watch, Broken System : Dysfunction, Abuse, and Impunity in the Indian Police https://www.hrw.org/report/2009/08/04/broken-system/dysfunction-abuse-and-impunity-indian-police. 7 Gauri Shanker Kumar vs State of Uttar Pradesh, 1990 AIR SC 709.


The court outlined 11 rules that must be followed whenever an individual is taken into police custody and placed under arrest. These cases resulted in changes to the CrPC, but the Court here reaffirmed the advice of the 113th Law Commission to add Section 114B to the Indian Evidence Act, so that the Court might presumptively hold the police liable for any physical harm a detainee sustains while in police custody. Because it's so difficult to collect evidence of custodial brutality, this reinforced the widespread belief that the cops are always at fault.

The Court later sharply criticised the worrying state of custodial violence in India in the case of “Munshi Singh Gautam vs. State of Madhya Pradesh”9. Shambhu Tyagi, the victim in this case, was murdered by five police officers who kidnapped him and beat him to death at the police station in an effort to extract a confession. After his death, the officers cleaned up the crime scene and dumped his body near a Nala. The court has noted in this instance how the police officers involved conspired and pretended they knew nothing about the case in order to cover for one another. It argued that the need of proof beyond a reasonable doubt should not be applied in circumstances of custodial violence. Given how difficult it is to gather evidence against corrupt police officers, the report argued that such a threshold of proof was unrealistic and should not be followed. The need for the implementation of the 113th Law Commission's suggestion was also reinforced by this case. The only way to fix the flaw in the evidentiary standard we follow in such circumstances is for section 114B to be added to the Indian Evidence Act.

Sube Singh vs. State of Haryana10 marks a recent judicial development concerning custodial violence. In this case, police wrongfully arrested and beat up the family members of a man named Joginder Sharma, who was wanted for the murder of three police officers. In this case, the Court believes that the petitioners are exaggerating the extent to which they were tortured.

Thus, the evolution of the legislation on custodial violence is quite obvious thanks to Supreme Court rulings. In the earlier rulings, the shift in the burden of proof was merely noted obliquely. The decision-making ratio comes into play in later stages. The Court also recognises the relevance of these instances in defending our constitutional values and labels custodial abuse as a violation of Article 21.

8 D K Basu vs State of West Bengal, 1997 (1) SCC 416).

9 Munshi Singh Gautam vs State of Madhya Pradesh, 2005 9 SCC 631.

10Sube Singh vs State of Haryana, 2006 3 SCC 178.


It also acknowledges the power differential between police officers and innocent persons incarcerated in jails, as well as the sociological repercussions of such custodial violence incidents in subsequent cases. After a while, the courts began deciding whether or not such accusations were legitimate by establishing criteria that must be followed in order to prove cases of custodial assault.



There has been an epidemic of custodial violence in India, necessitating the passage of a new law. India, as was stated before, is a signatory to the UN Convention against Torture of 1997. As a result, the Lok Sabha recently approved the Prevention of Torture Bill, 2010. However, it was referred to a Rajya Sabha select committee in 2010 due to some incompatibilities. In 2017, after activists, scholars, and some legislators intervened, the select committee finally presented its report with amendments to the bill.11 The special committee recommended several significant amendments to the bill, including clarifications on what constitutes torture, how long complaints can be filed, who is considered a public servant, and how compensation is determined. The burden of proof is shifted in cases of alleged custodial violence, which is a significant change as a result of this bill. The burden of proof in cases of custodial violence is altered by a significant provision in the Bill. There is a provision that reads, "the court may presume that the death or injury was caused by the police officer having custody of that person during that period if there is evidence that the death or injury was caused during a period when that person was in the custody of the police." Consequently, in cases of custodial violence, the burden of proof would shift from the police to the accused. Years of wrongdoing toward those who have died while in custody have led to this dramatic shift in the evidentiary standard of burden of proof. No police officers have faced charges for flagrant abuse of authority because of a lack of evidence in such cases.

Although this is a tremendous advance in the pursuit of justice for victims of custodial violence, the bill has not yet been signed into law. The Rajya Sabha has been sitting on it for almost a decade. A careless attitude toward fixing such a serious problem would only lead to more injustice.

11 Report of the Select Committee of the Rajya Sabha on Prevention of Torture Bill 2010, http://www.prsindia.org/uploads/media/Torture/Select%20Committee%20Report%20Prevention%20of%20Tort ure%20Bill%202010.pdf.




The Law Commission of India Reports are another resource for tracking the evolution of Indian law. There have been other law commission reports that have addressed the problem of violence towards prisoners over the years. Various governments have established them in response to societal changes and developments in order to bring the law up to date.

The 1st Report on "Liability of State in Tort" was the work of the first law commission to investigate this topic in a cursory manner (1956).12 To determine the scope of State liability, the panel investigated the specific legal matter of what claims citizens have under tort law against the activities of the State. On the question of what law should hold the state liable for tortious acts, the Commission's recommendation was to strike "undoubtedly, a nice balancing consideration so as not to unduly restrict the sphere of activities of the State and at the same time to afford sufficient protection to the citizen."

The 78th Commission Report, titled "Congestion of Under-Trial Prisoners in Jails," was the second to investigate this issue (1979).13 The issue of undertrial prisoners and the need for legal reforms pertaining to them was the primary focus of this commission. It implied that prisoners already found guilty should be housed in prisons rather than those still on trial. Inmates awaiting trial should not be housed with convicted criminals; instead, they should be housed in a facility specifically designed to house them.

The 113th Report on "Injuries in Police Custody" is the third commission to examine this issue (1985).14 The problem of violence in prisons has never been addressed in such a direct manner before. In light of the Supreme Court's ruling in State of Uttar Pradesh vs. Ram Sagar Yadav15, this Report was commissioned. The primary focus was on the onus of proof required to establish a charge of custodial violence. Due to the absence of evidence in such cases, it was suggested that Section 114 B be added to the Indian Evidence Act. This would shift the burden of proof to the police personnel who have been accused of the crime. The commission also suggested that the Magistrate take into account the defendant's length of detention, the victim's statement, any medical reports, and any other information available to them while deciding whether or not to apply the presumption of guilt in such cases.

The 152nd Report on "Custodial Crimes" from 199616 was the fourth commission to examine

12 1st Law Commission Report, ‘Liability of State in Tort’, 1956.

13 78th Law Commission Report, ‘Congestion of Under-trial Prisoners in Jails’, 1979.


this problem. Arrests and official misconduct were among the topics investigated by this inquiry. The report reaffirmed the 113th Law Commission's call for the addition of Section 114B to the Indian Evidence Act 1872, making reference to applicable constitutional and legislative provisions. Sections 41(A) and 50(A) of the Criminal Procedure Code were also the subject of proposals from this commission.

The 154th Report on "The Code of Criminal Procedure, 1973 (1996)"17 was the fifth commission to examine into this problem, albeit indirectly. The fundamental goal of this reform was to eliminate factors that cause unnecessary delays in the resolution of criminal cases. Its suggestions were all-encompassing, calling for changes to the Criminal Procedure Code and the Police Acts. The reduction of custodial violence and erroneous convictions is an indirect result of these suggestions for improving the efficiency of investigations.

The 185th Report on the "Review of the Indian Evidence Act,1872" (2003)18 is the sixth commission to address this topic. The 153rd Report not only reaffirmed the recommendations of the 113th and 152nd, but also expanded the scope of "police officer" to include "officers of the para-military forces and other officers of the revenue, who conduct investigation in connection with economic offences."

It wasn't until the 273rd Report on "Implementation of United Nations Convention against Torture and other Cruel, Inhuman, and Degrading Treatment or Punishment through Legislation" (2017)19 that a commission finally addressed the matter. The commission suggested a number of changes to the legislation, one of which was to include section 114B, a change that has been recommended by three prior law commissioners.

The issue has recently been addressed by a commission, with their 277th Report on Wrongful Prosecution (Miscarriage of Justice): Legal Remedies.20 People who have been wrongly prosecuted and harmed by the State in criminal cases were the primary focus of this commission's investigation of available remedies. To compensate those who have been wrongly convicted or harmed by the State, the group recommended creating new legal protections. It outlined the steps to take when filing a complaint and the criteria that would be used to determine the amount of any compensation awarded.


14   113th Law Commission Report, ‘Injuries in Police Custody’ 1985.

15 State of Uttar Pradesh vs Ram Sagar Yadav, 1985 AIR SC 416.

16 152nd Law Commission Report, ‘Custodial Crimes’, 1996.

17 154th Law Commission Report, ‘The Code of Criminal Procedure, 1973’, 1996.


The issue has recently been addressed by a commission, with their 277th Report on Wrongful Prosecution (Miscarriage of Justice): Legal Remedies.20 People who have been wrongly prosecuted and harmed by the State in criminal cases were the primary focus of this commission's investigation of available remedies. To compensate those who have been wrongly convicted or harmed by the State, the group recommended creating new legal protections. It outlined the steps to take when filing a complaint and the criteria that would be used to determine the amount of any compensation awarded.

Therefore, the numerous Law Commission Reports have contributed to the growth of law in the domain of evidence as it pertains to Custodial violence. Since custodial violence was not a high profile issue when the commission was established, the first two reports dealt with it in a general way. Later reports, when the matter has been brought to light by various court decisions and independent body reports, examine more closely at it. Finally, the most recent report demonstrates our progress toward enacting a framework that compensates those who have experienced such custodial violence. Therefore, it is safe to say that a great deal of progress has been made in this field with regard to law commission reports.



The tragedy of crimes committed by inmates still occurs today. Section 114 B has not been included to the Act despite being recommended by numerous law commissions throughout the years. The Lok Sabha has approved the necessary legislation to implement this change, but it has not yet been approved by the Rajya Sabha.

The 2017 Prevention of Torture Act is similar in this respect. If we are serious about ridding our nation of the scourge of incarceration-related crime, we must enact both of these legal frameworks. There can be no place for such widespread custodial violence in a criminal justice system that aspires to safeguard the rights of citizens in a democratic society. It is necessary that we enact such laws, and it is even more crucial that we successfully implement such laws to ensure that those who commit such crimes are punished accordingly.

18 185th Law Commission Report, ‘Review of the Indian Evidence Act,1872’, 2003.

19 273rd Law Commission Report, Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment‟ through Legislation’, 2017.


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