1 IN THE HIGH COURT OF BOMBAYAT GOA CRIMINAL MISCELLANEOUS APPLICATION NOS. 311 AND 316 OF 2008 CRIMINAL MISCELLANEOUS APPLICATION NO. 311 OF 2008 Shripati Dessai, major of age, son of Yeshwant Dessai, resident of House No.B-3-23, Junta Quarters, Pajifond, Margao, Goa, and native of Lingur, Post: Mungurwadi, Tal: Gadhinglaj, Dist: Kolhapur, currently in Judicial Custody. ... Applicant versus The State of Goa, through the CID, Crime Branch, Panaji, Goa. ... Respondent Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the Applicant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. 2 CRIMINAL MISCELLANEOUS APPLICATION NO. 316 OF 2008 Madhu Dessai, w/o Narayan Dessai, 52 years of age, married, Indian National, resident of H.No.2507(L), Carojem, Demani, Cuncolim, Goa. Presently in judicial lock-up at Margao, Goa. ... Applicant versus 1. State of Goa(C.I.D., Crime Branch, Panaji, Goa) 2. Shripati Dessai, son of Yeshwant Dessai, resident of H.No.B-3-23, Junta Qtrs., Pajifond, Margao, Goa. ... Respondents Mr. S. G. Dessai, Senior Advocate with Mr. P. Talaulikar, Advocate for the Applicant. Ms. Winnie Coutinho, Public Prosecutor for Respondent No.1. Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for Respondent No.2. 3 CORAM : A. P. DESHPANDE & N. A. BRITTO, JJ. DATE : 17TH DECEMBER, 2008. ORDER(Per N. A. BRITTO, J.) A-1(Shripati Dessai) and A-2(Madhu Dessai) whose appeals against conviction and sentence have been admitted, seek suspension of their sentence and release on bail. They have been convicted and sentenced, inter alia, under Sections 302/120-B I.P.C. to suffer life imprisonment and pay a fine of Rs.5000/-. Both the accused were on bail during the pendency of the trial, the first accused on regular bail and the second accused on bail by default. No reply in writing, as required, has been filed on behalf of the Respondent-State but the applications have been opposed by the learned Public Prosecutor, inter alia, contending that the accused who ought to have been in jail have been admitted in the hospital for hypertension. It appears that on the date they were convicted i.e. on 25-11-2008 the said accused upon arrest, got admitted to hospital and since then they continue to remain there. The sentence was pronounced on 26-11-2008. 2. Mr. S. D. Lotlikar, learned Senior Counsel on behalf of A-1 has submitted that the case in hand is not of custodial death as the deceased was not arrested. Learned Senior Counsel further submits that A-1 while on bail did not misuse his liberty and he was only the duty officer on the date the deceased was brought to Police Station and is not the author of the death of the deceased. 4 Learned Senior Counsel further submits that presently A-1 has retired and therefore he be ordered to be released on bail with conditions as deemed fit. 3. On the other hand, Mr. S. G. Dessai, learned Senior Counsel on behalf of A-2, has submitted that A-2 was a Writer Head Constable and was in no manner connected with the arrest of the deceased. Learned Senior Counsel further submits that the case is based on circumstantial evidence and even the injuries on the deceased as found by the Medical Officer show that they were on the lower part of the body and were not grievous and therefore no intention to murder could be gathered therefrom, inviting Section 302 I.P.C. Learned Senior Counsel further submits that there is also divergence of medical opinion whether the said injuries were sufficient in the ordinary course to cause death or not and considering that A-2 was on bail and had not violated the bail order, A-2 be released on bail. Learned Senior Counsel also submits that there is no specific finding given against A-2 by the learned trial Court. 4. On the other hand, Ms. Winnie Coutinho, learned Public Prosecutor relying on the case of State of Maharashtra v. Madhukar Wamanrao Smarth (2008 AIR SCW 2475) has submitted that only because the accused were on bail during trial, they are not entitled for suspension of sentence and release on bail. Reference is made particularly to para 9 of the aforesaid case wherein the Apex Court referring to Kishori Lal v. Rupa and others(2004(7) SCC 639) observed that Section 389 of the Code dealt with suspension of execution of sentence 5 pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. The Apex Court in para 10 referring to the case of Vasant Tukaram Pawar v. State of Maharashtra(2005(5) SCC 281) observed that the gravity of the offence, the sentence imposed and several other similar factors need to be considered by the Court. The fact that the accused was on bail during trial certainly is not a relevant factor. 5. The parameters as regards the grant of bail, under Section 389 of the Code for serious offences specified therein are fairly well settled by various decisions of the Apex Court. Though, it is a matter of discretion, bail cannot be granted as a matter of course. The mere fact that the appeal has been admitted can be no ground to admit an accused to bail under Section 389 of the Code. Likewise, the fact that the accused was earlier on bail during trial and did not abuse liberty per se can be no ground to admit an accused on bail. There must be exceptional circumstances and reasons must be given in support thereof. The Court is bound to consider the gravity of offence and relevant factors like the nature of accusation 6 made against the accused, the manner in which the crime is alleged to have been committed, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. In our view there are no exceptional circumstances in this case in favour of either of the accused to be enlarged on bail, after suspending the sentence. The decision of this Court dated 29-7-2008 in Criminal Miscellaneous Application No.185 of 2008 in the case of Monica @ Mona D'Souza v. State of Goa stood on its own facts and cannot be followed in this case. 6. The case has been considered as a case of custodial death. That was the opinion of the SDM who inquired into it as well as of the learned trial Court, after referring to two decisions of the Apex Court (in paras 90 and 91). The SDM in his report dated 14-7-2001 came to the conclusion that the deceased (Dattu Anant Naik) was detained in Police Station without an entry in the station diary, and that he was assaulted while in police custody and the death was occasioned due to injuries due to strangulation and it was homicidal death and the police officials with a view to screen themselves, caused disappearance of the concerned records. 7. Admittedly, this was not the first case when the deceased was arrested by Cuncolim Police Station in connection with the complaints of Smt. Shobavati Desai. On 27-6-2001 the deceased was arrested at the instance of A-1 (Shripati Dessai) and brought by two constables and produced before him in 7 the S.H.O. room. A-1 at the relevant time was the day duty officer at the Police Station. A-2(Madhu Dessai), Writer Head Constable, was also present at that time in the said room. Upon the arrival of the said Smt. Shobavati Dessai the deceased got excited and gave bad words to the policemen including Swati, the constable- wife of A-2 who was also present there whereupon A-2 is stated to have pushed the deceased and stated that he should be arrested. A-1 then took the deceased towards the female lock-up and that is how the deceased was last seen and parted company of A-1 and A-2, only to be found on the 3rd day hung on a tree behind the Police Station with 13 injuries. Before that, inquiries made at the Police Station by the family members of the deceased gave only evasive answers. According to the accused the deceased disappeared from the lock-up at about 1.40 p.m. but that disappearance was not even recorded on any of the registers of the Police Station and on the contrary it appears that the relevant registers including the lock-up register were made to disappear. It is apt to refer, in this context, to the observations of the Apex Court in the State of Maharashtra v. S. Trivedi and others((1995) 4 SCC 262) wherein the Apex Court has noted that rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be 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. 8 8. The dead body of the deceased was then found on the third day hung to a tree behind the Police Station but within the compound wall with as many as 12 injuries on the lower limbs. It may be true that the said injuries were not grievous and the question whether the said injuries were sufficient in the ordinary course of nature to cause death is debatable but the fact remains that it is injury no.13 which proved fatal and was also the cause of death. There is more than one opinion given to prove that the deceased on account of his disability of upper limbs of 55% as well as the girth of the trunk of the tree was not in a position to climb the tree to hang himself. He had no grip to tie a knot either. In all human probability therefore there is reason to infer that the deceased was beaten in the police lock-up and thereafter hung to the said tree and that is the conclusion arrived at by the learned trial Court. In fact, the learned trial Court has come to the conclusion that there is no evidence to show that the deceased has escaped from the police custody before he was done to death. The learned trial Court has come to the conclusion that the plea of the defence that the deceased after escaping from the Police Station, climbed the tree and committed suicide by hanging himself to the branch of the tree is intrinsically improbable and unreliable. The learned trial Court has also come to the conclusion that both the accused had an opportunity to commit crime and thus in all human probability the crime was committed by accused nos.1 and 2. 9. Considering the gravity of offence, the severity of punishment and the evidence produced we do not find that there are any exceptional circumstances 9 in this case which would enable this Court to suspend the sentence and grant bail to the two accused. Consequently, the bail applications filed on behalf of both the accused are hereby rejected. 10. Before parting with the order, we must again take note of the fact that although both the accused were convicted by Judgment dated 25-11-2008 and sentenced by Order dated 26-11-2008 the accused have not been committed to prison to undergo the sentence imposed upon them. We direct the learned trial Court to take immediate steps in that direction in case they are not already taken. A. P. DESHPANDE, J. N. A. BRITTO, J. RD