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CASE NO.: Appeal (crl.)  478 of 2005

PETITIONER: Sadashio Mundaji Bhalerao

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 28/11/2006

BENCH: G.P.MATHUR & A.K. MATHUR

JUDGMENT: J U D G M E N T  W I T H :

Criminal Appeal Nos. 479 & 480  of 2005  

A.K. MATHUR, J.

               These appeals are directed against the order dated  17.1.2005 passed by the Division Bench of the Bombay High Court at  Nagpur Bench in Criminal Appeal No.242 of 1996 whereby the  Division Bench has reversed the acquittal of all the accused-  appellants  and convicted them under Sections 302 read with Section  34 of the Indian Penal Code ( for short, ’IPC’) and sentenced them to  suffer life imprisonment. The Division Bench also directed payment of  fine  of Rs.30,000/- each by original accused Nos.1,2 & 3;   Rs.15,000/- by original accused No.6; Rs.10,000/- each by original  accused Nos.10, 11, 13, 15, 16 & 17.  In default of payment of fine,  they were also directed to undergo rigorous imprisonment for five  years.  So far as the offence under section 201 read with 34, IPC was  concerned, the original accused Nos.1,2,3,6,10,11,13,15,16 & 17  were sentenced to undergo rigorous imprisonment for five years.  Original accused Nos.1 to 3 were directed to pay a fine of Rs.10,000/- each; accused No.6 to pay fine of Rs.5,000/- and accused  Nos.10,11,13,15,16 & 17 were directed to pay a fine of Rs.2,500/-  each. In default of payment of fine, they were to suffer further  rigorous imprisonment for two years.  The substantive sentences  under section 302 read with 34, I.P.C. and under section 201 read  with section 34, I.P.C. were directed to run concurrently.  Hence, the  present appeals by the accused-appellants.

               This is one of the unfortunate case where the deceased  has died in the police custody.  We are conscious that such incidents  of suspect dying in the police custody has lately increased.  This is an  unfortunate scenario.  But nonetheless we have to examine the  matter objectively though keeping in mind the fact that the accused  involved in all these appeals are nobody else that the Police officers  and the investigation was being undertaken by their colleagues only.  Therefore, we have to examine all the aspects objectively keeping in  mind the fact that the accused involved in the present appeals are  nobody else but the colleagues of another investigating agency.

       Brief facts giving rise to filing of the present appeals are that   the deceased Dilip along with other suspects were involved in a  dacoity case which took place in the village Takarheda within the  jurisdiction of Police-station, Arvi.  One Namdeo Tulshiram Taywade,   filed a complaint to this effect that the alleged dacoity has taken place  in his house in which  the inmates of  the house were injured and  certain ornaments had been taken away from his house. On the basis

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of this report, a case was registered on 24.10.1987 against unknown  persons under sections 395, 397 & 398, IPC vide Crime No.254 of  1987.  The investigation of the case was taken over by P.I. Bhadikar-  the accused appellant.  During the course of investigation, on  5.11.1987 the police arrested seven persons namely (1) Bastam  Devidas Pawar, (2) Comrade Bhimrao Pawar, (3) Dilip Khusmya  Ghosale, (4) Chaubharat Ramchandra Ghosale, (5) Partya Khusmya  Ghosale, (6) Navbharat Ramachandra Ghosale and (7) Gangacharan  Sukhadeo Pawar. The police arrested these persons and sought for  judicial remand from the Judicial Magistrate for the purpose of  investigation.  The police was granted custody remand for seven  days  for the purpose of recovery of weapons of offence as well as  stolen property.  Till this time there was no complain of any ill- treatment of the accused. After taking remand from the Magistrate,  the accused persons brought them to the Police-station.

       On the night intervening between 5.11.1987 and 6.11.1987  when all the accused above mentioned were in police custody on  remand by the Magistrate,  the police was interrogating  all the  accused at the Police-station, Arvi. Dilip  Khusmya Ghosale  (hereinafter to be referred to as ’Dilip’)  who was one of the Suspects  in the aforesaid crime was taken up from the police lock up to  Detection Branch room for interrogation by some of the accused- appellants and it is alleged that his hands were tied down and he was  administered beating by kicks and fist blows and during this  interrogation, Dilip died  in the Detection Branch centre.  It is alleged  that  though Dilip died on account of beating , but in order to cover up  this fact, the police registered a case under section 224, IPC on  6.11.1987 at 2.15 O’ clock that the accused- Dilip has escaped from  the police custody and thereafter wireless message was sent all over  the State describing the general features of the accused-Dilip.   It is  alleged by the prosecution that a dead body was found lying  in  Adilabad, Andhra Pradesh and the post-mortem  was conducted on  the dead body by the P. S.Adilabad. The dead body was in a  decomposed condition and it was cremated. During the course of  investigation this fact came to the light.   It was alleged that this dead  body was that of deceased-Dilip and his finger prints were taken and  it was sought to be matched with the finger prints on one receipt of  purchase of a cow  and it was sought to be connected with that of the  deceased so as to establish that this was the dead body of deceased  Dilip who was taken away by the police jeep  and the same was  disposed of at Adilabad  in A.P. by the accused persons.

It appears that for some time nothing happened but some  public spirited persons got a scent of it  that some accused has died  in police custody. Therefore, one Dr.Shyam Sundr Bhutada  approached the concerned Superintendent of Police and informed  him that  it was a rumour in the town that one Dilip has died in the  police custody. Thereafter, he lodged a written complaint in the  police-station and this report was taken up by the In-charge  of the  Police-station. Accused No.2- Bhadikar registered the offence under  section 302 read with 34, I.P.C. vide crime No.263/87. Accused \026 appellant No.1 took up the investigation. It appears that after some  time  the higher-ups in the Department came to know about this fact  and therefore, this case was taken up by the C.I.D., Crime and  it was  entrusted to P.W.,28, Deputy Superintendent of Police-  Bhagwangir  Goswami on 24.12.1987.  Thereafter, the investigation was taken up  by Shri Goswami  who recorded the statement of all the co-accused  who were held up in that dacoity case along with deceased Dilip and  after completion of necessary investigation all the 17 accused  persons  including one D.S.P., incharge of the Police-station were  charged under sections 302, 201 read with Section 34, IPC.  The  case was committed to the court of session. The prosecution  examined a large number of witnesses in order to substantiate the  allegation that accused- Dilip died in the police custody. Learned

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Second Additional Sessions Judge  after recording necessary  evidence came to the conclusion that the prosecution has failed to  substantiate the allegation against the accused \026 police personnel   and gave  the benefit of doubt to all the accused persons and  acquitted all of them.  Aggrieved against the order of acquittal passed  by learned Second Additional Sessions Judge dated 30.4.1996, the  State preferred an appeal before the High Court  against all the  accused persons.  The Division Bench of the High Court, Bombay ;  Bench at Nagpur reviewed the whole evidence on record and  reversed the order of acquittal of all the accused persons and  convicted them as aforesaid by its order dated 17.1.2005.  Hence, the  present appeals by the accused-appellants.

       We have heard learned counsel for the parties and have  perused the records. It is an admitted fact that the deceased was  arrested in a dacoity case along with other persons and he was in the  police custody. The case of the prosecution was that he was taken for  interrogation in the interrogation room on the relevant date and he  expired and in order to substantiate the allegation, the prosecution  produced some of the witnesses who were already in the custody  along with accused- Dilip, namely; P.Ws. 2,3,4 & 5.  These witnesses  alleged that deceased  Dilip was detained along with them and Dilip  was being taken with his hands tied  for interrogation and he was  administered beating  and he shouted for sometime but after some  time no shouting was heard and thereafter the deceased died. The  police prepared a defence that the accused escaped from the Police- station and therefore, registered a case being crime No.624/87 under  Section 224, IPC on 6.11.1987.  The first part of the evidence has to  be closely examined whether the testimony of these witnesses is to  be accepted and to what extent ? P.W.2  was an accused who was  being prosecuted under Sections 302 & 307, IPC. He was also  arrested  along with the deceased Dilip and another accused  detained in the police custody.  Other accused were also there with  him i.e. Babarao Neware and Sadashiv Uike involved in some other  crime. He deposed that  there is a police lock up which is separate  from the Magistrate lock up. The distance between the two is 30 feet.  He stated that one Paradhi boy was brought out of the Police-station   and the accused persons were beating him with sticks, fist and kicks.  They were assaulting the boy in front of the temple of the Police- station. He  deposed that there are three windows in the room and  that he heard the shricks,  therefore he woke up and noticed the  incident  through that window and he found that as a result of beating  the paradhi boy i.e. the deceased Dilip became unconscious. He  further stated that  some water was brought and sprinkled on the face  of the deceased. Then  some of the accused persons told that  the  deceased was knowingly pretending to be unconscious and  therefore, they further subjected him to beating.  Then the deceased  boy did not regain his consciousness  and a police jeep was called  and he was taken with handcuffed.  This witness has an outstanding  criminal records i.e. 35-36 criminal cases are pending against him.  He has also stated that he could not say as to how the blows landed  on what part of the body as it was dark and he was at some distance.  He also denied some suggestions made to him that he has not  deposed that accused Kishore was asked to bring water and he has  also deposed that  the police jeep returned back in the Police-station  at about 10 A.M. A suggestion was also given to him that since he  has been implicated in number of cases by the Arvi Police therefore,  out of vengeance  he is deposing against the police. He went to the  extent of implicating the DSP, In-charge of the Police-station. He also  admitted that he has not deposed before the Police but for the first  time he is deposing in the Court.  P.W.3- Babarao Naware, another  witness who was also there in the police lock up along with the  deceased. He deposed that he knew accused Nos.1,2,3, 7,9,11, 13  and 16 and he admitted that he along with deceased Dilip were held  up in a dacoity case. He also deposed that the accused No.2 along

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with other members of the Staff of police administered beating to the  deceased and he went to the extent of implicating Deputy  Superintendent of Police. He stated that he saw the whole incident   through the window of the lock up and he noticed the incident from 10  to 15 feet. He also deposed that  it was about 2.30 A.M.,  the police  jeep took the dead body of the deceased Dilip and returned at about  7 to 8 A.M.  This witness has also deposed that he has 31 criminal  cases pending against him. He also admitted that one Deputy  Superintendent of Police, Mr.Sharma  met him but he did not state  anything to him about this incident. According to him, the incident of  beating continued for about three hours. He did not make a complain   about this incident   before the lock up guards nor did he tell them  about this incident of kicks and blows being administered on the  deceased during investigation but for the first time  he  deposed in the  court, he made a lot of improvement in his testimony,  during the trial.   P.W.4, who was also held up in a dacoity case, has admitted that he  was arrested along with other accused persons. He also deposed  that he heard the screaming of Dilip  in the night at about 12 to 2 A.M.   Thereafter, it is alleged that the deceased Dilip was not brought back  alive in the Police-station.  He also made a lot of improvements in his  testimony like that he involved Deputy Superintendent of Police,  Wardha  who is one of the assailants  and according to him, accused  Kishore assaulted. P.W.5 was also arrested along with the deceased  Dilip. He only deposed that  the police took  accused Dilip handcuffed   from the  room and he heard the shout of Dilip of beating. After some  time  the beating stopped and Dilip was not brought back to the room.   P.W.5 did not state who did the beating. Though he was called to  identify the dead body of Dilip but he deposed that he failed to identify  the dead body of the deceased Dilip. He was the brother of deceased  Dilip.  He was shown  the photograph of the dead body of the  deceased Dilip at Adilabad Police-station but he failed to identify the  dead body.  He also deposed that  Dilip had sold his cow to Baraku  Wadi ( carpenter) and a receipt was executed to that effect. He has   deposed that this receipt was given by him to the Police.  He has  categorically denied that the body which was shown to him was that  of Dilip. This receipt is alleged to have been received by him from his  mother. This is the total eye witnesses produced by the prosecution  to substantiate the allegation against the accused. After appreciating  the evidence the trial court disbelieved  all these witnesses.  Apart  from this evidence, circumstantial evidence was also sought to be  pressed into service that the dead body which was seized by the  Adilabad Police-station was that of the deceased- Dilip.  For this the  prosecution has led the evidence of some of the witnesses like  P.Ws.7, 20 and 21 to substantiate that the dead body of the  deceased was seized by  the Police at Adilabad (A.P.).  P.W.5   produced a sale receipt  of cow from another person to whom the  deceased Dilip had sold his cow, which bears his thumb impression.   The finger prints which were taken by the Police before disposal of  the dead body  by the Police at Adilabad Police-station was sought to  be matched with the thumb impression of  the deceased Dilip by  producing handwriting expert, P.W.23 that the thumb impression was  that of the deceased. But unfortunately, P.Ws.7, 20, 21, 9 & 10 all  have been declared hostile. P.Ws.7, 20 & 21 were produced to  substantiate  that the dead body of the deceased was taken in a jeep   and P.Ws.9 & 10 were produced to show that the receipt which was  scribed by P.W.10  which bears the thumb impression of the  deceased and the same was sought to be connected with the finger  prints which were taken from the dead body by spoon method but this  circumstantial evidence has also not been accepted by the trial court.    This is the total evidence which had been sought to be pressed by  the prosecution to substantiate the guilt of the accused.

               Learned counsel for the accused- appellants has  seriously contested and submitted that all the eye witnesses who  have been produced by the prosecution have criminal records and

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secondly, they are also inimically disposed  against the accused. It  was also pointed out that the incident is said to have taken place in  the dead of the night and  it  is very difficult for these witnesses to  have seen the incident of beating by the accused persons to the  deceased Dilip. It was pointed out that firstly no evidence had been  led to show  what was the height of the window from where these eye  witnesses could see the beating to the  deceased.  Some witnesses  state that  some accused persons took the deceased by handcuffing  with the rope in the D.B. room where they heard the shouting.  But  some said beating took place in open place near the temple.  It was   pointed out that there was no unanimity among the prosecution  witnesses that who beat the deceased and how; whether all the 17  accused persons  who were charged were all involved in beating to  the deceased  or some of them were involved in beating.   Therefore,  learned counsel has submitted that  this kind of omissions in   evidence cannot be accepted for convicting all the 17 accused  of the  P.S., Arvi, though the High Court has wrongly accepted their  testimony on the face of it.  

       Learned senior counsel for the State, Shri Shekhar Naphade   has fairly submitted that there are shortcomings in the testimony of  these witnesses. But he has submitted that  the fact remains that the  deceased was in the custody of the police and the police has not  accounted for him except by registering a case under Section 224,  IPC  and did not pursue the investigation further. He has also pointed  out that the theory of escape is nothing but a fake make believe story  by the accused and they abandoned that by closing the case on  29.4.1989 because they were aware of the fact that the deceased  has not escaped  but he has been the victim of their beating.   Learned counsel for the State has emphasized that the investigation  has also been done by the Police personnel  i.e. by the C.I.D. and all  the accused  who are the eye witnesses are practically won over  because their dacoity case was also closed on 24.10.1988.  Therefore, their testimony has also to be closely scrutinized keeping  in view the fact that they also stand  to gain by siding towards the  accused on the closure of the dacoity case.  Learned counsel has  also emphasized  if the accused had pursued the theory of escape  the case under section 224, IPC would not have been closed,   Secondly   they could have cross-examined the witnesses in that light  but no such cross-examination has been done  by the accused.  Therefore, this theory of escape  of the deceased Dilip is nothing but  a false theory. It is  only with a view to create an evidence and to find  an escape route for the accused persons.  

       Learned counsel in support of this has invited our attention to a  decision of the Calcutta High Court in A.E.G.Carapiet v.  A.Y.Derderian [ AIR 1961 Cal.359] wherein it had been held that the  parties should put their case in cross-examination of  the witnesses. It  was also held that this is the rule of one of the essential justice and  not merely technical one.  Learned counsel further invited our  attention to a decision of this Court in State of M.P. v. Shyamsunder  Trivedi & Ors.[ (1995) 4 SCC 262] wherein it has been held that in a  case of custodial death or police torture, generally ocular or other  direct evidence is not available and  the police officials alone can  explain the circumstances in which a person in their custody died.  Exaggerated adherence to and insistence upon establishment of  proof beyond every reasonable doubt was improper and the Court  must adopt a realistic rather than a narrow technical approach.  Learned counsel submitted that the deceased was last seen in the  custody of the Police and he is not found alive.  Therefore, this  circumstance should alone be sufficient to hold  the accused guilty.  Learned counsel has also invited our attention to a decision of this  Court in Sahadevan alias Sagadevan v. State represented by  Inspector of Police, Chennai [ (2003) 1 SCC 534] and submitted that   last seen is a very important circumstance and if a person is last seen

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in the company of the accused  and was never seen thereafter,  it is  obligatory on the accused to explain the circumstances in which the  missing person  and the accused parted company.   It was also held  that  false explanation can be taken as a circumstance against the  accused. Learned counsel also invited our attention to a decision of  this Court in Mani Kumar Thapa v. State of Sikkim [ (2002) 7 SCC  157]. In that case their Lordships held that in case of custodial death,  failure  of the accused in explaining the inculpating circumstance  could form an additional link in the chain of circumstances. Learned  counsel also invited our attention to  a decision of this Court in  Devender Kumar Singla v. Baldev Krishan Singla [ (2005) 9 SCC 15].  This was a case of cheating.   In this case it was held that the  statement under Section 313 of the Code of Criminal Procedure is not  evidence. It is only  a stand of the accused or his part of story.  It was  pointed out that in the absence of evidence, statement cannot be  used to make up absence of any suggestion during cross- examination.

       Now, a review of the ocular evidence produced by the  prosecution keeping in view the submission made by learned counsel  for the parties, we are of opinion  that the statements of the witnesses  cannot be accepted on their face. It is true that the deceased was not  found alive but his dead body was found within the jurisdiction of  Police-station, Adilabad in Andhra Pradesh.  Keeping in view that the  investigation has been done by the police personnel against the  police personnel and also keeping in view the previous antecedents  of the prosecution witnesses and the way they have described the  beating, it is very difficult to rope in all the 17 accused persons for  commission of the crime. In fact, the Police should have properly  scrutinized the evidence and they could have pinpointed  the person  who was responsible for beating.  But unfortunately, the police has  not taken enough care to produce material evidence and pinpoint the  person who was alleged to have been involved in beating the  deceased. It is true that the deceased was last seen  in the custody of  the Police and thereafter he was not found alive. Though the police  has made an attempt to cover up the story by registering a case  under section 224, I.P.C. but that was closed shortly thereafter.   Therefore, in this background to draw inference from these  circumstances, the guilt of the accused is very difficult.  We are  conscious that  there is rise in  incidents of custodial  deaths  but we  cannot completely de hors  the evidence and its admissibility  according to law to convict accused.  We cannot act on presumption   merely on a strong suspicion or assumption and presumption. We  can draw only presumption which is permissible under the law and  we cannot rush to the conclusion just because the deceased has died  in the police custody without there being any proper link with the  commission of the crime.  

       Learned senior counsel for the State,  Mr. Shekhar Naphade  very fairly submitted that despite  the strong loopholes in the  prosecution case the strongest circumstance which stand against the  appellants is that the deceased was in the custody of the police and  that he was last seen alive in  the custody of  the Police.  Thereafter,  he was not seen alive. Therefore,  presumption should be drawn  of  the guilt of the accused. Commission of crime with reference to this  type of presumption is perverse.  It is true that  the accused involved  are police personnel but we cannot stand to condemn the whole  police-station just on the basis of only circumstantial evidence of the  deceased last seen in the custody of the police  and thereafter he  was not reported alive. Apart from this direct shaky evidence, it is  very difficult to accept the aevidence  to connect the dead body  with  that of the deceased Dilip which came to the light after two years i.e.  1989. An attempt was made to connect  the body of the deceased  with that of Dilip, the prosecution led evidence  of P.W.22 who took  the finger prints of the deceased body. P.W.22  took the finger prints

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of  the deceased on 10.11.1987 though he admitted that the prints  were not visible and these finger prints were sought to be  corroborated with the receipt which was produced by P.W.5 which  also bears the finger print of the deceased Dilip. For this the  prosecution has also led evidence of P.W.10, the scribe of the receipt  and P.W.11. Both the witnesses turned hostile. Consequently, it is  very doubtful how could the receipt given  to the  purchaser was with  the  seller i.e. Dilip which was scribed by P.W.10 and it was said to be  in possession of P.W.5, the brother of the deceased and the  explanation was that his mother gave it to him. The thumb impression  of Dilip in the said receipt was sought to be connected with the finger  prints of the deceased taken by P.W.22. P.W.22  obtained the same  with spoon method of right hand thumb impression and left hand  thumb impression of the deceased  which was in highly decomposed  condition, dermis and epidermis of fingers were not found.  Firstly  the  thumb impression on the receipt was of Dilip  has not been proved as  P.W.10 turned hostile.  However, the prosecution tried to  connect the  body of the deceased by leading evidence of handwriting expert,  P.W.23. P.W.22 was produced  by the prosecution to show that he  has taken the finger prints of the deceased through spoon method  and that  finger prints  had been produced by the prosecution and  P.W.23, the handwriting expert  has been examined. P.W.23  has of  course deposed that he has sent his report  and as per his finding the  thumb impression on the receipt  and that of the dead body taken by  P.W.22 are of the same person. But the question is whether the  finger prints obtained on the receipt on sale of a cow by the deceased  Dilip  bears the thumb impression of Dilip or not. Since P.W.10 has  denied that the thumb impression of  Dilip was taken in his presence   and since the receipt produced by the prosecution bearing the thumb  impression of deceased Dilip  is not proved, therefore, the  comparison  of the finger prints of the deceased with that of the  thumb impression is of no consequence. More so,  the brother of the  deceased,  Paratya  and his wife- Shobha  have also declined to  identify the dead body. Therefore, under these circumstances, the  prosecution has failed to establish that the dead body was that of the  deceased, Dilip. As such, this circumstantial evidence is also not of  worth that it can connect the accused persons with the commission of  the crime.  

       As a result of our above discussion we are of opinion that the  view taken by the Division Bench  of the High Court in reversing the  judgment of  Second Additional Sessions Judge,  does not appear to  be well founded. Normally, the appellate court  is very slow in  interfering with the order of acquittal unless  there are compelling  circumstances to do so. After  going through the judgment of the trial  court, we are of opinion that the view taken by the trial court appears  to be just and proper in the given facts and circumstances of the case  and it was not proper for the Division Bench of the High Court to  reverse the finding. We are satisfied that the reasons given by the  High Court in reversing the order of acquittal of the accused  persons  are not cogent and does not appeal to the reason so as to justify the  conviction of the appellants. Hence, we allow  the appeals filed by the  appellants and set aside the impugned  judgment of the High Court  and affirm the judgment of the trial court and acquit all accused-  appellants from the charges. The appellants shall be released  forthwith if they are not required in any other case.