{1} First Appeal No.413/1998 Drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.413 OF 1998 1. Kubra Begum w/o Shaikh Munir APPELLANT Age-50 years, Occ-Household R/o Sanjaynagar, Baijapura, Aurangabad 2. Shabana Begum Sk.Muneer Age-Major, Occ-Household, R/o As above 3. Fareeda Begum Sk.Muneer (Dead) 4. Asma Sk Muneer Age-Minor, Occ-Nil u/g of her mother plaintiff No.7 R/o As above VERSUS 1. The State of Maharashtra RESPONDENTS Through the Collector, Aurangabad 2. Mr.Sayyed Usman Sayyed Karim Police Constable, Badge No.1825 3. Mr.Devchand Fakira Rathod, Police Constable Badge No.139 4. Mr.Murlidhar Bhaurao Sangale, Police Constable Badge No.1361 {2} First Appeal No.413/1998 5. Mr.Anwarkhan Ahmedkhan, Police Constable, Badge No.1918 6. Mr.Vasantrao Bodhaji Sanap Police Inspector, C/o Commissioner of Police, Police Commissionerate, Aurangabad 7. Mr.Ashok Salve, Police Constable (Traffic Branch) Badge No.1330, City Chowk Police Station, Aurangabad 8. Mr.Pawar, Police Constable APPEAL ABATED Badge No.1397 9. Shaikh Muneer Shakh Mehboob Age-55 years, Occ-Driver R/o Sanjay nagar, Baijipura, Aurangabad 10. Mehommda Begum Sayed Raheem Age-30 years, Occ-Household R/o Kachiwada, Chelipura, Aurangabad 11. Sk Akbar Sk Muneer Age-28 years, Occ-Rickshaw Dirver 12. Shaikh Kareem Sk Muneer Age-26 years, Occ-As above 13. Shaikh Azeez Sk Muneer Age-24 years, Occ- As above 14. Shaikh Naseer Sk Muneer Age-Major, Occ-Labourer 15. Sk Shakir Sk Muneer Age-Major, Occ-Nil {3} First Appeal No.413/1998 ....... Mr.P.V.Mandlik, Sr. Counsel with Mr.Amol Gandhi for appellants Mr.S.D.Kaldate, AGP for respondent State Mr.N.G.Kale, Advocate for respondent No.2, 4 and 6 Mr.A.B.Kharosekar, Advocate for respondent No.7 Appeal abated against respondent No.8 ....... [CORAM : A.V.POTDAR, J.] DATE: 5 th December 2011 ORAL JUDGMENT: 1. This is an appeal filed by original plaintiffs which challenges the judgment and decree dated 23.02.1998 passed by 6 th Joint Civil Judge, Senior Division, Aurangabad in Special Civil Suit No.303/1991 thereby dismissing the suit. 2. Heard learned counsel for the respective parties. 3. The appellants-original plaintiffs had filed a suit for compensation from the respondent-defendants to the tune of Rs.5 lakh with costs. It was alleged that Jakir, the son of plaintiffs No.1 and 2 and brother of plaintiffs No.3 to 11, who was residing with his brother Akbar and while he was in the house, was caught hold and dragged by the respondent-defendants to inquire in connection {4} First Appeal No.413/1998 with some offence. It is also alleged that in search of the house nothing incriminating was recovered from the house. After dragging Jakir outside the house he was assaulted by the respondents No.2 to 8 with kicks and fist blows and was taken to police station in a auto rickshaw and while doing so, the respondent-defendants dashed head of Jakir against a wall. It is also alleged that Jakir was beaten by the respondent-defendants in the police station mercilessly not only with fists and kick blows but also with some hard and blunt objects. It is alleged that due to such assault Jakir succumbed to the injuries in the police station itself, however he was shifted to hospitable ostensibly for treatment. In view of the allegations that Jakir succumbed to the injuries sustained during the assault by the police while he was in their custody, a suit for compensation was filed. It is further alleged that the deceased was working as carpenter and was earning Rs.50 per day and the entire family was dependent on him. It is further alleged that at the time of the alleged incident, Jakir was about 24 years old and considering his earning capacity and age, compensation of Rs.5 lakh was claimed. It is further stated that before instituting the suit, a notice u/s 80 of the Civil {5} First Appeal No.413/1998 Procedure Code was served on the respondent-defendants. It is stated that respondents No.2 to 6, who are arrayed as defendants though were put under suspension, yet were regularly attending the Head Quarter and the notice was addressed to them to be served through Superintendent of Police, Aurangabad, however, they managed to avoid service of notice, which was returned with remarks “not met”, which amounts to service of notice on the defendants before institution of the suit. 4. In response to the suit summons, it appears that, the respondent-defendant No.1 appeared and filed written statement denying the claim of the plaintiffs. It is stated by the respondent defendant No.1 that the defendants have been tried and acquitted by the Sessions Court in criminal trial, which decision has been confirmed by this Court by dismissing the appeal preferred by the plaintiffs for lack of proper evidence and hence it was prayed that the plaintiffs are not liable for any compensation as claimed. It was also alleged that notice u/s 80 of the Civil Procedure Code was not served on the Collector Aurangabad and hence the suit shall be liable to be dismissed as against the Collector. {6} First Appeal No.413/1998 5. Respondents No.2 to 5 had filed separate written statement claiming that Jakir was accused in an offence Crime No. 153/1991 registered u/s 392 of the Indian Penal Code and investigation of the said crime was entrusted to these respondents and in that connection they had visited the house of the deceased and had taken him to the police station, They, however, denied that they have assaulted Jakir, as alleged. According to these respondents they are not responsible for the death of Jakir, as alleged. They had also contended that they were tried before the Sessions Court in a criminal trial and after a full fledged trial they have been acquitted. They had also contended that the notice u/s 80 of the Civil Procedure Code was not served on them. 6. Respondents No.7 and 8 had also filed their separate written statement, which is on the similar lines with the written statement of respondents No.2 to 5. They had contended that they are not connected in any way with the alleged incident. They also denied service of notice u/s 80 of the Civil Procedure Code. They have specifically contended that the evidence in the criminal case {7} First Appeal No.413/1998 was so lacking that their statements u/s 313 of the Criminal Procedure Code were also dispensed with by the trial court and hence they had prayed for dismissal of the suit. 7. In the light of the rival pleadings, trial court had framed as many as 9 issues including the issue as regards untimely death of Jakir allegedly while in custody of the respondents so also about the maintainability of the suit for non service of statutory notice u/s 80 of the Civil Procedure Code. 8. Record indicates that the plaintiff, to substantiate their claim, had examined 5 witnesses including brothers and father of the deceased so also Dr.Jinturkar, who had performed the postmortem on the dead body and had issued postmortem report and death certificate and an independent witnesses Shaikh Ajij and Shaikh Azhar, who claim to be the alleged eye witnesses of the incident happened in the police station. On appreciation of the evidence, trial court came to the conclusion that the plaintiffs have failed to establish that death of Jakir caused due to the assault by the defendants while in custody of the respondent-defendants and {8} First Appeal No.413/1998 recorded its finding in negative. The trial court also held that notice u/s 80 of the Civil Procedure Code was not properly served on the respondent-defendants and hence the suit is not maintainable. The trial court also discarded the evidence of the brothers of the deceased on the count that they cannot be termed as eyewitnesses and their evidence is hearsay evidence. The trial court also held that the evidence of independent alleged eye witnesses is not of confidence inspiring and hence discarded the same. Thus, the trial court dismissed the suit in toto, which order is impugned in the present first appeal. 9. Heard learned counsel for the parties. Learned counsel for the parties took me through the entire pleadings of the parties so also through the evidence on record. According to the learned counsel for the appellants, in view of the evidence of Dr.Jinturkar, it can safely be inferred that death of Jakir was unnatural and it was a homicidal. He would further urge that admittedly the police had admitted Jakir in the hospital from police station and hence it can safely be termed that death of Jakir is a custodial death and hence the appellants are entitled for the compensation as claimed {9} First Appeal No.413/1998 for. According to the learned counsel for the appellants, in view of sub clause 3 of section 80 of the Civil Procedure Code, the assault on Jakir would not come within the purview of official discharge of duties by the respondents. He would also urge that though investigation of the crime and arrest of the accused is part of discharge of official duties, yet while arresting and investigating the offence, overpower by using force on accused would not form part of official duty. Hence, according to the learned counsel for the appellants, though the findings recorded by the trial court on the issue that notice is not properly served on the respondents yet as the act of the respondents does not cover while discharging official duty, according to him service or issuance of notice u/s 80 is not mandate due to which there is bar to the present suit. In this respect, it is further urged that in the evidence given by the plaintiffs they have brought on record the age and the income of the victim at the material time and hence prayed to quash and set aside the order impugned and award the compensation as prayed for. 10. Per contra, learned AGP for respondent No.1 would {10} First Appeal No.413/1998 urge that from the perusal of the remarks on the notice allegedly served on respondent No.1, it will be clear that the notice u/s 80 of the Civil Procedure Code has been served on the Principal Secretary, Government of Maharashtra, whereas the Collector, Aurangabad has been made party defendant in the suit and hence service of notice u/s 80 of the Civil Procedure Code on the wrong person would amount non service and therefore the suit fails and consequently the appeal is also liable to be dismissed as against respondent No.1 11. Learned counsel for respondents No.2, 4 and 6 would urge that the Criminal Court has already acquitted these respondents so also this Court has confirmed their acquittal. It is further urged that once the criminal court has exonerated these respondents in absence of any independent evidence, the trial court has correctly dismissed the suit for compensation, which need not be disturbed in the appellate jurisdiction. 12. While arguing on behalf of respondent No.7, it is urged by the learned counsel that firstly the notice u/s 80 of the Civil {11} First Appeal No.413/1998 Procedure Code, as required, is not properly served on respondent No.7 and secondly there is no direct or otherwise evidence against respondent No.7 as it appears from the record of the criminal trial that even the statement of respondent No.7 u/s 313 of the Criminal Procedure Code has been dispensed with and on this ground it is prayed to dismiss the appeal against respondent No.7 13. Considering the rival submissions and after perusing the record, I have framed the following points for my consideration- 1. Is it proved by the appellants that the victim Jakir was assaulted by defendants No.2 to 8 while he was in their custody, which resulted into his death? 2. If answer to point No.1 is in negative then whether notice u/s 80 of the Civil Procedure Code is necessary to be served on original defendants No.2 to 8? {12} First Appeal No.413/1998 3. Whether the appellants are entitled for any compensation? 4. If the finding on point No.3 is recorded in affirmative then what is the quantum of compensation? 14. Finding on point No.1 – Finding on point No.1 would decide the fate of this appeal. At this juncture it is necessary to find out as to what was the exact cause of death of Jakir and for this purpose it would be necessary to advert to the evidence of PW-3 Dr.Anil Jinturkar. Dr.Jinturkar, PW-3 has opined that the cause of death of Jakir is “Intracrenial haemorrhage in form of subdural haemorrhage on both sides more pronounced on right side with associated contusions on scalp, both shins and on buttocks”. According to PW-3 Dr.Jinturkar the injuries noticed on the dead body can be caused by hard and blunt objects. In view of this evidence of the medical officer, now it is necessary to ascertain as to what evidence was lead before the trial court disclosing that Jakir was assaulted by defendants No.2 to 8 by hard and blunt {13} First Appeal No.413/1998 objects. Though it is submitted on behalf of the respondents that they have been acquitted by the trial court from the charge of murder and their acquittal has been confirmed by this Court and hence they be exonerated from the allegations, yet the law is settled on this aspect, as the findings recorded by the criminal court are not necessarily binding on the civil court. Thus, though the respondents-defendants are acquitted in the criminal case that does not mean that they are not entitled to pay any compensation in the civil suit. However, for this purpose, the plaintiffs need to adduce sufficient evidence to that effect. 15. While discussing the evidence lead on behalf of the plaintiffs, I have already observed that evidence of PW-2 cannot be accepted being hearsay. So also evidence of PW-1 cannot be accepted in respect of assault on Jakir in the police station, as his evidence is silent on the point that he was present when Jakir was taken to the police station. Then remained the evidence of PW-4 and 5, as both of them claimed to be the eye witnesses to the incident allegedly taken place in the police station. PW-4 Shaikh Ajij claimed that he followed the police while they were taking Jakir {14} First Appeal No.413/1998 to Jincy police station and after he came to know that Jakir cannot be released on bail, he returned to his house where he came to know about demise of Jakir and thereafter he rushed to the police station. Surprisingly, his entire evidence is silent as regards presence of PW-5 Shaikh Azhar in the police station. As against this, perusal of the evidence of PW-5 Shaikh Azhar, who claims to be the eye witnesses of the incident allegedly taken place in the police station, as he had been to the police station in connection of renewal of his licence and at that time he witnesses that Jakir was being assaulted by respondents No.2 to 8 and he was being beaten mercilessly and suddenly Jakir collapsed due to the said assault. What is material is, in the entire evidence of PW-5 Shaikh Azhar, I do not find any reference as regards presence of PW-4 Shaikh Ajij. Thus, it is clear that evidence of PW-4 and 5 is silent about the presence of another, which amounts that if evidence of one of them is accepted then it falsifies the evidence of another and in the light of this, the evidence of PW-4 Shaikh Ajij and PW-5 Shaikh Azhar needs to be discarded totally. 16. Once the evidence of PW-4 and 5 is discarded, in {15} First Appeal No.413/1998 respect of the alleged assault on Jakir by the defendants No.2 to 8, then there is no independent evidence on record as regards assault on Jakir by the respondent-defendants. Apart from the evidence lead in criminal trial, satisfactory evidence is required to be lead in the civil trial to establish that Jakir was in fact assaulted by defendants No.2 to 8, which ultimately resulted in his untimely and unnatural death. Thus, the evidence on record failed to establish that the respondent-defendants are responsible for the death of Jakir and hence, the finding against point No.1 would required to be given in negative. 17. Finding on point No.2 – Once finding is recorded on point No.1 in negative then if any action is proposed against the respondents then notice u/s 80 of the Civil Procedure Code is mandatory. Learned counsel for the appellants fairly conceded that there is no documentary proof to show that the notice was in fact served on the respondent-defendants No.2 to 8. In view of this fact, the finding has to be recorded on point No.2 that notice as required u/s 80 of the Civil Procedure Code, was not served on the respondents – defendants. {16} First Appeal No.413/1998 18. Finding on points No.3 and 4 – In view of the finding on point No.1 in negative, the appellants are not entitled for any compensation as claimed for and hence it is not necessary to answer points No.3 and 4. 19. Consequently, for the above discussion, the appeal, being sans merits, stands dismissed with no order as to costs. 20. As the appeal itself is dismissed, the pending civil application/s if any, does not survive and hence disposed of accordingly. [A.V.POTDAR, J.] drp/B11/fa413-98