IN IN IN THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA CRIMINAL CRIMINAL CRIMINAL APPEAL NOS.3 AND 4 OF 2002 APPEAL NOS.3 AND 4 OF 2002 APPEAL NOS.3 AND 4 OF 2002 CRIMINAL APPEAL NO. 3 OF 2002 CRIMINAL APPEAL NO. 3 OF 2002 CRIMINAL APPEAL NO. 3 OF 2002 Mr. Sanvlo Naik, Police Constable, Ponda Police Station, Ponda. ... Appellant. versus State ... Respondent. Mr. S. D. Lotlikar, Senior Advocate with Mr. A. D. Bhobe, Advocate for the Appellant. Mr. V. P. Thali, Senior Central Government Standing Counsel for the State/Respondent. CRIMINAL APPEAL NO. 4 OF 2002 CRIMINAL APPEAL NO. 4 OF 2002 CRIMINAL APPEAL NO. 4 OF 2002 Mr. S. V. Caeiro, Retd. Police Inspector, Margao Town Police Station, Goa and permanent resident of H.No.392/A, Botica, Navelim, Salcete, Goa. ... Appellant. versus State ... Respondent. - 2 - Mr. S. G. Dessai, Senior Advocate with Mr. Arun Bras de Sa, Advocate for the Appellant. Mr. V. P. Thali, Senior Central Government Standing Counsel for the State/Respondnt. CORAM: P. V. HARDAS, J. DATED: 1ST AUGUST, 2003. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT The Appellants who are Original Accused Nos.5 and 2 have filed the Appeals challenging their conviction for an offence punishable under Section 304(II) r/w 34 of the Indian Penal Code and sentence of 3 years Simple Imprisonment and fine of Rs.25,000/-, in default Simple Imprisonment for 1 year for Accused No.2 and Simple Imprisonment for 2 years and fine of Rs.5000/-, in default Simple Imprisonment for 3 months for Accused No.5, by the Sessions Judge, South Goa, Margao, by Judgment dated 21st January, 2002, in Sessions Case No. 19 of 1996. 2. The facts in brief as are necessary for the decision of the Appeals are set out hereunder:- The Appellant Sanvlo Naik, Original Accused No.5 in Criminal Case No.3 of 2002 was working as Police Constable attached to the Margao Town Police Station. The Appellant S. V. Caeiro, Original - 3 - Accused No.2 in Criminal Appeal No.4 of 2002 was the Inspector in-charge of the Margao Town Police Station. Deceased Abdul Gaffar Khan was arrested on the midnight of 16/17th May, 1994 by Accused No.2, S. V. Caeiro and with Accused No.5, Sanvlo Naik as the deceased Abdul Gaffar Khan was an Accused in Crime No.141/94 under Sections 447, 506(II) of the Indian Penal Code, registered by the Margao Town Police Station, on a complaint filed by P.W.1, Kulsum Bi Khatib. He was taken to the Margao Town Police Station. The deceased Abdul Gaffar Khan was declared dead on being taken to the Hospicio Hospital. He was examined by P.W.5, Dr. Anand Sawant and P.W.13, Dr. Jayant Dessai, who pronounced him dead at 2.45 a.m. on 17th May, 1994. At about 3.30 a.m., the Superintendent of Police was informed about the death by Original Accused No.1, Joe D’Souza and at 4.00 a.m. the Superintendent of Police, P.W.15, Dattaram P. Dessai, informed the District Magistrate, P.W.12, Dharmendra. P.W.12, District Magistrate, Dharmendra, instructed the Sub Divisional Magistrate, P. K. Goel, who seized the lock-up register, arrest register and other documents of the Margao Town Police Station. A formal intimation in writing regarding the custodial death of deceased Abdul Gaffar Khan was received by P.W.12, District Magistrate, Dharmendra at Exh.78 at about 5.30 a.m. from Accused No.1, Joe D’Souza. - 4 - P.W.12, District Magistrate, Dharmendra, then took up an enquiry under Section 206 of the Code of Criminal Procedure and conducted an inquest on the dead body of deceased Abdul Gaffar Khan, instructed photographs to be taken of the dead body, appointed a Committee of medical experts to conduct the autopsy and examined 29 witnesses. His report is at Exh.76. It was forwarded to the Chief Secretary, Government of Goa on or about 23rd May, 1994. 3. One Liyakat Ali Khan, P.W.21, brother of deceased Abdul Gaffar Khan, filed a private complaint at Exh.103 in the Court of the Judicial Magistrate First Class, Margao. The said private complaint was registered as Criminal Case No.213/P/94/C. After recording the verification statement of the Complainant, the learned Judicial Magistrate First Class, Margao, issued process against all the Accused except Original Accused No.3, Gundu Naik and Original Accused No.4, Narayan Yetale. It appears that against the issuance of process, the Accused filed Criminal Revision Application No.21 of 1994 and the same was allowed by Order dated 17th August, 1994. By the said Order, it appears that the learned Magistrate was directed to record his findings regarding the fulfilment of the requirement of obtaining previous sanction. The learned Magistrate by his Order dated - 5 - 27th February, 1996, dismissed the complaint against all the Accused for want of a valid sanction. The Order of the learned Magistrate dismissing the complaint was challenged by the Complainant before the Additional Sessions Judge who by his Order dated 24th February, 1997, set aside the Order of the learned Magistrate. The learned Magistrate was directed to commit the case to the Court of Sessions. The said Order was challenged before this Court at the behest of Original Accused No.1, Joe D’Souza, Accused No.6, Jerry Gomes and Accused No.8, Pequeno. The revision was partly allowed by this Court and it quashed the Order dated 24th February, 1997 of the learned Additional Sessions Judge to the extent that no previous sanction was necessary. On committal of the case to the Court of Sessions, it was registered as Sessions Case No.25 of 1997. 4. In the meantime, P.W.22, G. P. Chimulkar, Joint Secretary(Home) wrote a letter at Exh.111 to the Inspector General of Police with a request to register the offence under Section 302 of the Indian Penal Code and to commence investigation through the Crime Branch and also requested to move the C.B.I. for taking over the investigation of the case. Accordingly, Dy.S.P., C.I.D. Crime Branch, Panaji, registered Crime No.2 of 1994 on 1st July, 1994 and executed the scene of - 6 - offence panchanama at Exh.105. The station diary, lock-up register etc. came to be attached. After issuance of the Notification at Exh.114, P.W.25, James Kurien, Dy.S.P. of C.B.I. commenced investigation from 27th September, 1994. After completion of the investigation, a charge-sheet against the present Appellant S. V. Caeiro, Original Accused No.3, Gundu Naik, Original Accused No.4, Narayan Yetale and Appellant/Accused No.5, Sanvlo Naik came to be filed. It was committed to the Court of Sessions after the Government had accorded sanction to prosecute Accused No.2 and the case was registered as Sessions Case No.19 of 1996. 5. Vide Exh.31, charges against 7 Accused was framed by the learned Sessions Judge, South Goa, Margao, for an offence punishable under Section 302 r/w 34 of the Indian Penal Code. The prosecution in support of its case examined 25 witnesses. The learned Trial Judge by his aforesaid Judgment convicted and sentenced the Appellants as aforestated who in the present Appeals have challenged their conviction and sentence. 6. The learned Trial Court in respect of the eye witnesses namely P.W.6, Ravi Kerkar, P.W.8, Altaf Baig, P.W.9, Rama Surmeia and P.W.21, Liyakat Ali Khan - 7 - has doubted their claim for being eye witnesses to the incident. The learned Trial Court in para 33 of its Judgment held that Original Accused No.4, Narayan Yetale and Accused No.3, P.S.I. Gundu Naik, were entitled to be acquitted as there was no direct or circumstantial evidence on record to justify their involvement in the assault of the deceased. In para 34 of the Judgment, the learned Trial Court while considering the case of the Appellants S. V. Caeiro and Sanvlo Naik considered their case differently by adopting "a realistic approach in the light of the principles laid down by the Hon’ble Supreme Court in the case of State of M.P. State of M.P. State of M.P. v. Shamsunder Trivedi and Shamsunder Trivedi and Shamsunder Trivedi and others others others reported in (1995) 4 SCC 262 i.e. by considering ground realities and circumstances". 7. I have heard Mr. S. G. Dessai, learned Senior Counsel and Mr. S. D. Lotlikar, learned Senior Counsel appearing on behalf of the Appellants. The learned Senior Counsel appearing on behalf of the Appellants have urged that there is no evidence whatsoever that deceased Abdul Gaffar Khan was assaulted by the Appellants in the cabin of the Police Inspector. They have also urged that there is no evidence whatsoever that the deceased was assaulted in the female lock-up in which he was placed. According to the learned Senior Counsel, the conviction is based - 8 - on conjectures and surmises and the conviction is wholly unsustainable in the absence of any evidence regarding the involvement of the Appellants. They have also urged that the defence of the Appellants particularly the fact that after placing the deceased in the lock-up, the Appellants had left the Police Station is clearly borne out from the substantive evidence of the witnesses and the documents on record. 8. Mr. V. P. Thali, learned Counsel appearing on behalf of the State/Respondent in both the Appeals has submitted that the learned Trial Court has recorded the conviction and sentence of the Appellants after appreciation of the evidence. According to him, there is no perversity in the reasoning. The learned Trial Court has rejected the plea of the Appellants that they had left the Police Station and, therefore, the Appellants have been rightly convicted. 9. I will first advert to the medical evidence which consists of P.W.13, Dr. Jayant Dessai. P.W.13, Dr. Jayant Dessai, states that at the relevant time, he was attached to the Hospicio Hospital as a Medical Officer. From 9 a.m. of 16th May, 1994 to 9 a.m. of 17th May, 1994, he was on emergency duty at the hospital. P.W.5, Dr.Anand Sawant was also working on - 9 - emergency duty on that day. At 2.40 a.m., a patient by name Abdul Gaffar Khan was brought to the Casualty by Police Constable Buckle No.687. He examined the said patient and found that there were no respiratory movements, no cardiac sound, pupils were fixed and moderately dilated. The patient was, therefore, declared dead. He has identified his signature on the register maintained by the hospital at Exh.80. He further states that on 17th May, 1995, he examined Police Constable Buckle No.2899, Sanvlo Naik. According to him, the said Sanvlo Naik, had minor superficial bruises caused by hard object and was simple in nature. He had also an abrasion on the right index finger caused by hard object and simple in nature. According to him, there were no injuries which were caused by tooth bite. Exh.81, is the Memo for examination and Exh.82 is the Hurt Certificate. In the cross-examination, it was admitted that he was in the Casualty Department when the patient was brought. P.W.5, Dr. Anand Sawant, had first examined the patient in the Casualty Department and then he had examined. He has stated that he does not remember whether he had stated to the Magistrate that the servant had come and informed him that a patient was brought at 2.40 a.m. He has denied the suggestion that the timings as to when the patient was brought have been tampered with. He has also stated that he - 10 - does not remember exactly for how long he attended the patient but might have taken 15 to 20 minutes to examine him. In the further cross-examination, on behalf of the other Accused, he admitted that his statements were based on the record of the hospital. He has admitted that a number of patients are brought to the hospital, both during day time and night time and it would not be possible for a doctor to remember the injuries and observations on a patient unless records are seen. He has admitted that he has described the injuries on Sanvlo Naik on the basis of the Hurt Certificate issued by him. He has admitted that it is possible that injury no.2 on Sanvlo Naik was caused by tooth bite. 10. P.W.5, Dr. Anand Sawant, states that in 1994, he was working as a Medical Officer in Hospicio Hospital, Margao. P.W.13, Dr. Jayant Dessai, was also working in the hospital. He was on duty from 9 a.m. of 16th May, 1994 to 9 a.m. of 17th May, 1994. He was on duty in the Gynaecology Department as at that time, the Hospicio Hospital did not have a Casualty Department. On 17th May, 1994, at 2.40 a.m., one person was brought to the Casualty Department by the Margao Police. He was brought by Constable Buckle No.687. The name of the person who was brought to the Casualty Department was Abdul Gaffar Khan. According - 11 - to P.W.5, Dr. Anand Sawant, he examined the said person and found him dead. He accordingly declared the said person as dead. Xerox copy of the Memo is at Exh.49 and Exh.50 is the true copy of the Casualty register. He has admitted that there were injuries on the said Abdul Gaffar Khan but he could not describe the said injuries because he did not prepare any Hurt Certificate. He was shown the photographs and he identified the said person in the photograph to be the person who was brought in the Casualty Department. 11. In the cross-examination, he has admitted that the timing 2.40 in the register at Exh.50 has been written twice. Earlier, the timing 2.40 was written by a nurse and thereafter, it was overwritten again. He has admitted that usually, the Memo which they have received is pinned to the register. He has also stated that he must have pinned the Memo but does not remember about the same. He has stated that he does not know whether on that particular night some Police personnel were also examined in the hospital. He has admitted that the timing 2.40 written below the first timing 2.40 on Exh.50 was written by him because it was a Medico Legally Significant Case. He does not remember whether who had given the history of the patient which is mentioned in Exh.50. - 12 - 12. The post mortem on the dead body of Abdul Gaffar Khan was conducted by P.W.10, Dr. Silvano Dias Sapeco. P.W.10, Dr. Sapeco, states that on 17th May, 1994, the District Magistrate, Margao, requested the Medical Superintendent of Hospicio Hospital to appoint a Board of three senior doctors to perform the post mortem examination of deceased Abdul Gaffar Khan. The said letter is at Exh.65/A. Vide Exh.66, the Medical Superintendent constituted a Board consisting of P.W.10, Dr. Silvano Dias Sapeco, Dr. Sanjeev Dalvi and Dr. Ricardo L. Tellis. The post mortem was conducted by the three doctors under the "Chairmanship" of P.W.10, Dr. Silvano Dias Sapeco. The deceased had following ante-mortem injuries:- 1. In an area of 40 x 40 cms. on nape of neck to back of chest, there were 39 railrod patterned contusional marks with abrasional areas on some of them along various sites and positions, the maximum being 22 x 1 cms. and minimum being 6 x 1 cms. 2. The right buttock has 8 railrod patterned contusional marks along various positions. The maximum being 11 x 1 cms. and minimum being 6 x 1 cms. 3. The right dormen along back and outer aspect in an area of 84 x 13 cms. has blue contusional marks(consequent to multiple impact by broad - 13 - object or force or surface impact) with abrasional area of 7 x 4 cms. at ankle region. 4. Along back of left buttock to lower leg in an area of 90 x 19 cms, there are 17 railrod patterned contusional marks at various positions, the maximum being 15 x 1 cm and minimum being 6 x 1 cm and blue contusional marks along lower third of thigh onwards upto scalp and foot. 5. Along back of right upper limb in an area of 45 x 9 cms there are 3 railrod patterned contusional marks, the maximum being 9 x 1 cm and the minimum being 6 x 1 cm at the dorsum of right forearm, there are blue contusional marks. 6. Along scalp vault there are 4 haemotomas and at right temple there is one haemotoma, each of 4 x 3 cms. in size and at various positions on frontal region of forehead and at left temple there are abrasions each being 1 x 1 cms. 7. The outer aspect of left upper limb is in an area of 69 x 10 cms. and has 15 railrod patterned contusional marks along various positions, the maximum being 15 x 1 cms and the minimum being 6 x 1 cms and blue contusional marks along dorsum of left hand, wrist and forearm. 8. The front and outer aspect of right upper limb in an area of 69 x 10 cms. has railrod patterned - 14 - contusional marks along various positions, the maximum being 15 x 1 cm and the minimum being 6 x 1 cm and blue contusional marks along the dorsum of right hand, wrist and forearm. 9. In an area of 63 x 20 cms from the right loin to the right knee there are 19 railrod patterned contusional marks along various positions, the maximum being 17 x 1 cms and the minimum being 6 x 1 cm and blue contusional marks along outer aspect of left thigh. 10. In an area of 50 x .13 cms. along right lower leg from knee cap to the ankle foot there are 13 abrasions, the maximum being 2 x 1 cms and the minimum being 1 x 1 and half cms. and blue contusional marks are seen along outer aspect of right thumb and skin region. 11. In an area of 40 x 14 cms along front of right thigh and leg there are 14 railrod patterned contusional marks at various positions, the maximum being 19 x 1 cms and the minimum being 6 x 1 cms and blue contusional marks are seen along outer aspect of the whole thigh. 12. In an area of 24 x 10 cms along front of left, lower leg there are 4 contused lacerated wounds each of 1 x 1 x 1 cms. along the chin aspect acqui distant irregularly. 13. At the dorsum of left foot in an area of 13 x 7 cms. there are blue contusional marks. - 15 - 14. Irregular linear abrasions directed from above downwards having a peri-metric length of 28 cms. x linear is seen from left side of breast to abdominal front. 13. The internal examination of the patterned contusional and blue contusion showed pooling of blood effect within the underlying tissues ranging from 3 to 10 cms. The cause of death was due to haemorrhage and shock as a result of multiple injuries which were caused within 6 hours prior to death. He also opined that the injuries were fatal within the ordinary course of nature. According to him, the injuries were caused by hard and blunt object and were ante mortem in nature. The report of the post mortem is at Exh.67. He has admitted to have received the letter at Exh.68 from the Appellant S. V. Caeiro, P.I. regarding the examination of the deceased by P.W.5, Dr. Anand Sawant at 2.40 a.m. on 17th May, 1994. Exh.69 is a copy of the letter for examination of the viscera. In the cross-examination, it is admitted that injury no.6 hypothetically could be caused by banging the head on the wall by four different impacts. He has also admitted that an injury changes its appearance from the time it is inflicted and with the passage of time until its complete healing. Because the injuries were fresh in nature that is why he had opined that it had been caused within 6 hours - 16 - from death. He has also admitted that individually none of the injuries were fatal in the ordinary course of nature but were fatal cumulatively. He was asked the following question:- Q. On what basis do you say that the said injuries are cumulatively fatal in nature? Do you have anything to support your opinion? A. When I made an internal examination, underneath the patterned contusions and the blue contusions, there was pooling of blood effect seen within the underlying tissues ranging to a depth of 3 to 10 cms. 14. He has also admitted that the shock factor comes into play when blood is collected beneath the tissues and the return of the blood to the heart becomes nil or less. In the further cross-examination, he has admitted that "Injury No.6, the 4 haematomas could not have pooled that much blood as to give rise to shock and death". He has admitted that he has not mentioned in his report about the constriction regarding the blood vessels which normally occur in case blood does not return to the heart. He has also admitted that the nature of the injuries found on the deceased could be caused in a gang fight. The maximum injuries were on the back. - 17 - In further cross-examination, he has admitted that except injury no.12 which was a bleeding injury there were no external bleeding injuries. In the further cross-examination, he has admitted that all the injuries were collectively fatal and not individually. 15. I shall now advert to the evidence of the Police Officers who were attached to the Margao Town Police Station. P.W.2, A.S.I. Yeshwant Dessai, states that he was attached as Assistant Sub Inspector in the Margao Town Police Station from 1990 to 1995. Exh.40 is the F.I.R. which was registered on the basis of the complaint of P.W.1, Kulsum Bi Khatib. On the basis of the complaint of P.W.1, Kulsum Bi Khatib, an offence under Sections 447 and 506 of the Indian Penal Code was registered against Abdul Gaffar Khan. The case was handed over to Head Constable Buckle No.1257 for further investigation. He has further stated that the Accused No.2, Caeiro was the Officer in-charge of the Margao Police Station and Accused No.1 was the Dy.S.P. In the cross-examination, he has admitted that Margao Police Station is located near the Old Bus Stand at Margao. It is a huge building having length of about 25 to 30 metres. There were two Police Stations, one being Margao Town and the other being Maina-Curtorim. The building has ground - 18 - floor plus two floors. The C.I.D. Department is also located in that building as also the Offices of the Superintendent of Police, South Goa and of the Dy.S.P. The Office of the Fire Brigade is also located in that building. There is a Police canteen located in that building. There are Police barracks on the first floor which are occupied by 25 to 35 Police Officers. In respect of the evidence of P.W.6, Ravi Kerkar, P.W.8, Altaf Baig, P.W.9, Rama Surmeia and P.W.21, Liyakat Ali Khan, the learned Trial Court in paragraph 22 of its Judgment has observed that "in the light of contradictions, improvements and improbabilities in their evidence, that they were not present at all and had not seen the assault. Probably, they like everybody else knew that the deceased Abdul Gaffar Khan was assaulted in the lock-up and had died due to that assault, but have concocted facts and have deposed as if they had witnessed the assault". The learned Trial Judge in the same paragraph has further observed " the evidence of the aforesaid witnesses, therefore, has also got to be rejected being inherently improbable. No Accused can be convicted on the basis of such evidence". 16. The prosecution has examined P.W.11, Keshav Komarpant and the other Police Officers who were at the Police Station namely P.W.16, Ulhas Saluke, - 19 - P.W.17, Constable Abdul H.K.Khan, P.W.18, Constable Anil Kerkar, P.W.19, Constable N.Kalangutkar and P.W.20, Head Constable Balkrishna Moge. 17. P.W.11, Keshav Komarpant, states that he was attached to the Margao Town Police Station from