HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.884 of 2006 JUDGMENT: This Criminal Appeal is directed against the conviction and sentence recorded in S.C.No.376 of 2003 by the learned III Addl. Sessions Judge (Fast Track Court), Asifabad, vide judgment dated 06.07.2006, whereby and whereunder the appellants-accused herein were convicted under Section 235(2) Cr.P.C. for the offence punishable under Section 302 Part-II r/w 34 IPC and, accordingly, sentenced to suffer simple imprisonment for ten years and to pay a fine of Rs.5,000/- each, in default, to suffer simple imprisonment for three months each. 2. The case of the prosecution, as unfolded during the trial of the case, in brief, is as under: i) The deceased was a resident of Bheemaram Village which falls within the territorial jurisdiction of the Excise Police Station, Mancherial. A.1 is the Excise Circle Inspector of Police, A.2 and A.12 are the Excise Sub Inspectors of Police, A.3 and A.10 are the Excise Head Constables, A.4, A.7, A.8, A.9 are the A.P.S.P. Constables working on deputation in the Excise Police Station at Mancherial and A.6 and A.11 are the Excise Constables. All of them were working in the Excise Police Station during the period of the alleged incident. ii) On 08.10.1997 A.1 to A.5 conducted raids on I.D. centers in Bheemaram Village and other Villages. In that process, they went to the house of Macha Narsaiah (hereinafter called as ‘the deceased) in Bheemaram Village. At that time, the deceased was consuming liquor in his house. His wife Macha Laxmi-P.W.1 was present in the house. The excise police apprehended the accused at his house, beat him and forcibly took him to the Excise Police Station. From 09.10.1997 to 12.10.1997 there were public holidays. On 09.10.1997 in the morning, the deceased was produced by A.11 along with remand report vide Ex.P.10 alleging that he had committed the offence under Section 34- A of the Andhra Pradesh Excise Act and Section 8-B of the Andhra Pradesh Prohibition Act, at the residence of the Judicial First Class Magistrate, Luxettipet-P.W.17. Since that day was holiday, the learned Magistrate endorsed on the remand report directing the Excise police to produce the deceased on the next working day. Accordingly, the deceased was brought back to the police station. Macha Laxman- P.W.2 and Macha Shankaraiah-P.W.4 sons of the deceased went to the excise police station on 09.10.1997 and 10.10.1997 for release of the deceased since there was Dasara festival, but could not get his release. They also took an Advocate namely Sham Rao-P.W.15 to the Excise Police Station for release of the deceased but in vain. iii) On 11.10.1997 at 11.00 a.m. P.W.4 went to the Excise Police Station and found the deceased in unconscious state and with an injury on his left eye. On 12.10.1997 the deceased was taken by the Excise Police to the Government Civil Hospital, Mancherial. Dr. Surya Rao-P.W.10, the then Civil Assistant Surgeon of the Hospital, examined the deceased and found multiple pinpoint abrasions on his left upper eyelid with bleeding marks. Since the condition of the deceased was found to be serious, the sons of the deceased took him to the Osmania General Hospital, Hyderabad. The deceased died in the hospital on 18.10.1997. iv) On 19.10.1997 K.Sudhakar Reddy-P.W.13 went to the Police Station, Mancherial and gave Ex.P.13 complaint informing about the death of the deceased and for taking necessary action. Mohammed Razzak Khan-P.W.20 the then S.I. of Police of the station, on the basis of the same, registered Crime No.247 of 1997 under Section 176 Cr.P.C. and issued Ex.P.14-FIR and informed the same to Ch.Ramchander-P.W.21 the then Circle Inspector of Police, Mancherial. On 20.10.1997 G.Radhakrishna, S.I. of Police, CCC Narsapur on instruction from the Circle Inspector of Police, Mancherial- P.W.21 proceeded to Hyderabad and gave requisition to the R.D.O., Hyderabad to nominate a Mandal Revenue Officer to conduct inquest over the dead body of the deceased. Mohammed Byas Hussain Osmani-P.W.12 the then Mandal Revenue Officer, Charminar, held inquest over the dead body of the deceased in the presence of Mohammed Yousuf-L.W.12 and Mohammad Ameenuddin-P.W.16. On the same day, Dr. Ramchander Rao-P.W.14 the then Professor of Forensic Medicines, Osmania Medical College assisted by Dr. G. Surender Reddy-P.W.11 another Professor of Forensic Medicines of the same College conducted post mortem examination over the dead body of the deceased and found two external injuries and two internal injuries and gave opinion that the death was due to encephalopathy with renal failure and issued Ex.P.6-post mortem examination report. On 21.10.1997 P.W.21 took up investigation and after completion of investigation and after receipt of necessary reports from the authorities concerned, he filed charge sheet against the accused for the offence punishable under Section 302 r/w 34 IPC. v) Subsequently, the case was transferred to Crime Investigation Department (CID). S.Srinivas Rao-P.W.18 the then Zonal Inspector of Police, Adilabad, took up further investigation in this case. Having obtained orders under Ex.P.18 and P.19 from the Revenue Department for prosecution of the accused and recorded the statements of P.Ws.1 to 6, 8, 16, 9, 11, 14, 13, he filed additional charge sheet in the case. The plea of the accused was of total denial. 3. In order to prove the guilt of the accused, the prosecution examined P.Ws. 1 to 22 and got marked Exs.P.1 to P.27. On behalf of the defence, no oral evidence was adduced, but Exs.D.1 to D.15-161 Cr.P.C. statements of P.Ws.1 to 4 and 7 were marked. 4. P.W.1 is the wife of the deceased. She deposed that the Excise police took away her husband three days prior to Dasara festival and after beating him, they admitted him in the Government Hospital at Mancherial and her husband died since the Excise police beat him. 5. P.W.2, son of the deceased, deposed that on 12.10.1997 he went to the Government Hospital, Mancherial, since his father, the deceased herein, was admitted therein and he found one injury on his left eye and the doctor informed him that the deceased sustained serious injuries and so he would die in the hospital. He further deposed that the deceased died since he was beaten by the Excise police. 6. P.W.3, another son of the deceased, deposed with regard to the fact that the Excise police had taken away the deceased forcibly from their house by heating him. He further deposed that he went to the Government Hospital, Mancherial and saw the deceased lying with bleeding injuries on his left eye and they shifted the deceased to Osmania Hospital, Hyderabad, where the doctor informed them that both the kidneys of the deceased were in trouble. He further deposed that the deceased died since he had been beaten by the Excise police. 7. P.W.4, another son of the deceased, deposed that after hearing that his father was taken away by the Excise police, he went to the police station and questioned as to why his father was taken to the police station and also requested the police to produce him before the Court and on the day of Dasara festival he went to the Excise Police Statiion, Mancherial, for giving Tiffin to the deceased and found him lying in unconscious state on a heap of sand and with an injury on his left eye and when he asked in the station he was informed that the deceased had no sleep on the previous night and that he would wake up after some time. He further deposed that he went to the Government Hospital Mancherial and found the deceased lying on a bed taking oxygen and when he enquired the doctor, Suryarao, he informed that the left eye ball of the deceased was ruptured and his kidneys were in trouble and so he would die. In cross examination he stated that on 09.10.1997 and 10.11.1997 he went to the Excise Police Station and found the deceased in a lock up room and there are no bodily injuries on him and the deceased also did not complain anything to him. He further stated that on 11.10.1997 he saw an injury on the left eye of the deceased for the first time when he went to the station and admitted that the injury to the left eye of the deceased shows that he was bitten by big ants and he did not give any police complaint. 8. P.W.5, a resident of Bhimaram Village, deposed that the accused was taken by the Excise police and he does not know as to what was done to him. 9. P.W.6, a resident of Bhimaram Village, deposed that the Excise police took away the deceased after beating him and he is not aware of the cause of the death of the deceased. 10. P.W.7 is relative of P.Ws.1 to 4 and he is a hearsay witness. He deposed that the deceased was taken to Excise Police Station and the deceased died since the accused beat him. 11. P.W.8, who worked as a reporter for Telugu daily Andhra Jyothi previously, deposed that when he was in his native place, one Vittal, grand-son of the deceased, informed that the deceased was taken by the Excise police and requested for his help. On 12.10.1997 the said Vittal telephoned him informing that the deceased had been admitted in the Government Hospital, Mancherial and immediately he went to the hospital and saw the deceased with injuries and his condition was bad and the deceased was alive for seven days and thereafter he died. 12. P.W.9 is a vital witness relied on by the prosecution. He was also detained along with the deceased in the police station in connection with a prohibition case. He deposed that by the time he was taken to the police station the deceased was already in the station. The accused did not take him and the deceased to Court as there were three holidays and so they were kept in the station on those days. The sons of the deceased came to the police station and supplied food to the deceased. He further deposed that the deceased was well on the first day and on the night of second day he got fever and fell down from the bench and received an injury on his right eye brow and the Excise police did not beat the deceased. In cross examination also, he stated that the deceased while suffering from fever climbed the steps of the stair case and developed giddiness and fell down and received an injury on his left eye. The deceased went to the heap of sand situated inside the station to sleep and there he vomited and as a result of vomiting some ants gathered and bit him on his left eye and later the police took him to the Government Hospital, Mancherial. The said witness was not treated as hostile, even though he stated that the Excise police has not assaulted the deceased. 13. P.W.10, a retired Civil Assistant Surgeon, Government Civil Hospital, Mancherial, examined the deceased and issued Ex.P.3 medical certificate. The deceased was admitted in the hospital by the Excise Circle Inspector in an unconscious state with fever since the night of 11.10.1997. He found multiple pin point abrasions on the left upper and lower eye lids with bleeding marks. He did not find any other external injuries except the said injuries. When he was questioned as to whether the injury found on the body of the deceased can result in his death, he answered that the injuries found on the body of the deceased cannot result in his death and in reply to another question he stated that the injuries found on the left eye are possible by insect bites. 14. P.W.11, Professor of Forensic Medicine, Gandhi Medical College, Hyderabad, conducted post-mortem examination on the dead body of the deceased and found the following injuries: External Injuries: 1) Abrasion 4 x 1 cm black in colour horizontally placed on the left upper eye lid. 2) Abrasion 3 x 1 cm black in colour horizontally placed on the left lower eye lid. Sub conjutivel haemorrhage on the left eye present. Internal Injuries: 1) Contusion 10 x 6 cm on the left perito occipital region. 2) Haemotoma around the right kidney with 50 ml blood clots. He opined that the death was due to encephalopathy with renal failure. In cross examination he categorically stated that the external injuries and internal injury No.1 are possible by a fall from a table and internal injury No.2 is possible if a person while climbing steps accidentally falls and comes into contact with a projecting object, namely, step of a stair case. 15. P.W.12, a retired Mandal Revenue Officer, Charminar, Hyderabad, conducted inquest over the dead body of the deceased on 20.10.1997 and he was the opinion that the cause of death is not known. 16. P.W.13, who has been working as the Superintendent of Prohibition and Excise, Warangal, deposed regarding the duties vested with the accused. P.W.14, retired Professor of Forensic medicine, Osmania Medical College, along with P.W.11 conducted post-mortem examination on the dead body of the deceased. He also deposed in the same lines as deposed by P.W.11. 17. P.W.15, a practising Advocate, deposed in connection with his visit to the Excise police station to get the deceased released on bail. He also deposed that he found injuries on the left eye brow of the deceased and informed to the Revenue Divisional Officer regarding the death of the deceased in the police station and also informed the said incident to the local press in Mancherial. He also participated in a bundh organised in connection with the death of the deceased. 18. P.W.16 is a panch witness and P.W.17 is a retired Junior Civil Judge, before whom the deceased was originally produced for judicial remand. He deposed that the deceased was produced before him on 09.10.1997 along with remand report and he endorsed on the remand report as follows: “The accused is produced by Excise Police Constable B. Prabhakar, at 12.00 noon. Today is holiday. The escort P.C. is directed to produce the accused on the next working day.” and further deposed that on 13.10.1997 the said constable informed him that the deceased was admitted in the hospital for medical treatment. 19. P.Ws.18 to 22 deposed as to their part of investigation and filing of charge sheet. 20. After hearing the arguments on both sides and after evaluating both oral and documentary evidence, the learned Sessions Judge convicted and sentenced the accused as stated supra. Being aggrieved thereby, the accused filed this Criminal Appeal. 21. Learned counsel for the appellants-accused contended that there is no eye witness to the said occurrence, the case is entirely based on circumstantial evidence, and none of the witnesses deposed before the Court that the appellants herein caused the injuries that resulted in the death of the deceased. He further contended that when there are 12 persons working in the Excise police station and when there is no specific evidence as to who participated in the said crime, there cannot be conviction for all the 12 persons. He further contended that that the prosecution miserably failed to prove any offence under Section 302 r/w 34 IPC and in the absence of any evidence to connect the appellants-accused to the crime, conviction under Section 304 Part-II IPC is not sustainable in law. 22. Per contra, learned Public Prosecutor submitted that on appreciation of the oral and documentary evidence, the trial Court rightly convicted and sentenced the appellants-accused and there are no grounds to interfere with the conviction and sentence recorded by the trial Court. 23. This Court perused the entire record and also the evidence adduced by the prosecution. 24. Admittedly, there is no eye witness to establish the fact that the deceased sustained injuries in the police station. The evidence of P.W.1 would also clearly reveals that she is not an eye witness to the occurrence. Further, P.Ws.1 to 4, who are closely related to the deceased, categorically stated that the deceased was allowed to move freely in the police station and they were also allowed to provide food to the deceased. It is also the evidence of P.W.9, who was detained in the police station along with the deceased, that the deceased was allowed to sleep on a bench and he was provided with food by his family members. The said witness further deposed that the Excise police did not beat the deceased. In cross examination also, he stated that the deceased while suffering from fever climbed the steps of the stair case and he developed giddiness and fell down and received injury on his left eye and the deceased went to the heap of sand situated inside the station to sleep and there he vomited and as a result of vomiting some ants gathered and bit him on his left eye. 25. Further, the evidence of P.W.1 in cross-examination runs as follows: “It is true that when the deceased was detained in the Eexcise police station, Mancherial, my sons approached an Advocate by name Shyam Rao and took that Advocate to the Excise Police station. It is true that my son also took one newspaper reporter to the Excise police station. It is true that the said advocate and the news paper reporter went to the accused and threatened them to give Rs.2 lakh or Rs.3 lakh. It is true that the accused refused to give Rs.2 lakh or Rs.3 lakh as demanded by us. It is true that since the accused refused to pay the money demanded by us, we sent petitions to the Mancherial police, Hyderabad police (C.B.C.I.D) and Chief Minister of the State.” 26. It is clear from the evidence of P.W.1 that they had an intention to grab money from the appellants herein by threatening them since the deceased died while he was in the custody. It is pertinent to note that after arrest of the deceased there is no allegation that he was assaulted by the appellants herein and the appellants caused any injury to him. P.W.17, the Magistrate, specifically stated in cross- examination that when the deceased was produced before him on 09.10.1997 he did not complain any ill-treatment by the Excise police and the relatives of the deceased also did not complain any ill- treatment by the Excise police during the period of custody of the deceased i.e. from 09.10.1997 to 12.10.1997. It is unfortunate to note that the learned Magistrate refused to remand the deceased on the ground that the date on which the deceased was produced was holiday. Once an accused person is arrested and is shown as an arrestee, it is the duty of the Investigating Officer to produce him within 24 hours before the competent Court or nearest Magistrate for purpose of remanding him to the judicial custody. It is also unfortunate to note that without any valid reasons and without knowing the procedure to be followed, the learned Magistrate directed the police officials to produce the deceased on the next working day. More over, there is no evidence to show that the appellants have any motive against the deceased and when the fact remains that immediately after arresting the deceased, the appellants wanted to remand the accused for judicial custody, the reason of causing any injury to the deceased is highly improbable and unbelievable. It is also the evidence of the relatives of the deceased that the deceased was allowed to move freely in the police station and he was also allowed to sleep on a bench available in the police station. In such circumstances, there is no necessity for the appellants to cause any injury as alleged by the prosecution. This case is partly based on circumstantial evidence and partly on direct evidence. When the circumstances clearly shows that the deceased was taken to police station in connection with the offence, but at the same time there is no specific evidence adduced by the prosecution that whose appellants caused injuries to him. 27. The evidence of P.W.11, who examined the deceased, is that the death of the deceased was due to encephalopathy with renal failure. Further, P.W.3, son of the deceased, deposed that the Doctor of Osmania University informed him that both the kidneys of the deceased were in trouble. It is also the evidence of P.W.4 that when he enquired the doctor, Government Hospital, Mancherial, he was informed him that the kidneys of the deceased were in trouble. So, there is every possibility of the death of the deceased due to renal failure. More over, there is no specific evidence by P.W.11 that the renal failure was due to the injuries suffered by the deceased. 28. Further, if it is the case of the prosecution as well as P.Ws.1 to 5 that the death of the deceased was due to the injuries sustained by him and when the injuries caused by the appellants herein were not explained by the said witnesses or by the prosecution, what prevented them from lodging any complaint against the appellants before the Higher Authorities. In such a case, when there is no specific evidence to connect the appellants to the crime, the learned Sessions Judge ought to have acquitted the appellants-accused. 29. The learned Sessions Judge appreciated the evidence and came to the conclusion that the appellants herein have not committed the offence punishable under Section 302 r/w 34 IPC, but however, convicted them for the offence under Section 304 Part-II r/w 34 IPC. I deem it appropriate to reproduce Section 304 Part II IPC and Section 34 IPC which read as under: “Section 304 Part-II IPC - If the act is done with the knowledge that is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” “Section 34 IPC – Acts done by several persons in furtherance of common intention – When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” The learned Sessions judge has decided the issue that the appellants- accused have no intention to cause death or to cause such bodily injury as is likely to cause death and accordingly invoked the provisions of Section 304 Part-II IPC. When the learned Sessions Judge has decided that the appellants have no intention to cause death of the deceased, convicting the appellants under Section 34 IPC is totally erroneous and against the decision taken by him. In the present case, when there is no specific evidence and participation of any particular individual, it is highly unsafe to convict the appellants herein on mere suspicion and presumption that they are guilty of the offence. 30. The entire reading of the evidence more particularly the evidence of the relatives and the evidence of the person who claims to be a Reporter, and the Advocate, clearly shows that with some vindictive intention, the present prosecution is launched against the appellants herein. In the absence of any specific reliable evidence adduced by the prosecution, the appellants cannot be convicted for the offence under Section 304 Part-II r/w 34 IPC. 31. In view of the foregoing discussion, this Court is of the view that the entire evidence does not disclose any specific offence committed by the appellants herein and the State has also not preferred any appeal against the acquittal of the appellants under Section 302 IPC and therefore the conviction and sentence recorded by the trial Court against the appellants are liable to be set aside. 32. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants-accused by the learned III Addl. Sessions Judge (Fast Track Court), Asifabad, in S.C.No. 376 of 2003, vide judgment dated 06.07.2006, are hereby set aside and consequently the appellants-accused are acquitted of the charge leveled against them and they shall be set at liberty forthwith, if not required