1 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPEAL NO.1084 OF 1988 CRIMINAL APPEAL NO.1084 OF 1988 CRIMINAL APPEAL NO.1084 OF 1988 The State of Maharashtra ] Appellant. versus 1. Subhash Gangadhar Panhale ] Age 30 yrs. Occ. Service ] of Ichalkaranji. ] 2. Ananda Maruti Bhosale, ] Age 28, Occ. Service ] of Nesari. ] 3. Sunil Mahadeo Jadhav, ] Age 27, Occ. Service ] of Nesari. ] 4. Shamrao Nana Kurane ] Age 38, Occ. Service ] of Vadgaon. ] 5. Dastagir Hamid Mulla ] Age 44, Occ. Service ] of Kolhapur. ] 6. Khanderao Atmaram Nimbalkar ] Age 34. Occ. Service ] 2 2 2 of Shiroli ] 7. Dinkar Balu Khot, Age 31 ] Occ Service of Kodoli. ] 8. Mahadeo Dattatraya Sathe ] Age 31, Occ. Service ] of Hatkanangale. ] 9. Bharat Jayasingrao Patil ] Age 24, Occ. Service ] of Panhala. ] 10.Changdeo Krishna Patil, ] Age 30, Occ. Service ] of Jayasinghpur. ] 11.Sarjerao Shivram Zurala ] Respondents. Age 26, Occ Service ] (Org.Accused Ichalkaranji. ] Nos.1 to 11) All residing at Kavak Naka ] Kolhapur. ] WITH WITH WITH CRIMINAL REVISION APPLICATION NO.82 OF 1989 CRIMINAL REVISION APPLICATION NO.82 OF 1989 CRIMINAL REVISION APPLICATION NO.82 OF 1989 Shri Balasaheb Namdeo Pandav : Petitioner versus 3 3 3 1. Subhash Gangadhar Panhale ] Occ. Service of Ichalkaranji] 2. Ananda Maruti Bhosale, ] Occ. Service of Ajara ] 3. Sunil Mahadeo Jadhav, ] Occ. Service of Nesari ] 4. Shamrao Nana Kurane ] Occ. Service of Vadgaon ] 5. Dastagir Hamid Mulla ] Occ. Service of Kolhapur ] 6. Khanderao Atmaram Nimbalkar ] Occ. Service of Shiroli ] 7. Dinkar Balu Khot, ] Occ Service of Kodoli. ] 8. Mahadeo Dattatraya Sathe ] Occ. Service of Hatkanangale ] 9. Bharat Jayasingrao Patil ] Occ. Service of Panhala ] 10.Changdeo Krishna Patil, ] Occ. Service of Jayasingpur ] 11.Sarjerao Shivram Zurale ] Respondents. Occ Service of Ichalkarngi ] (Org.Accused Respondents Nos.1 to 11 ] Nos.1 to 11) All residing at Kavak Naka ] 4 4 4 Kolhapur. ] 12.The State of Maharashtra ] Mr.V.B.Konde-Deshmukh, APP, for the State. Mr.S.V.Marwadi with Ms.Pritam Punwal for Respondent No.1. Mr.S.A.Ingawle for Respondent Nos.5, 7 & 10. Mr.Umesh Mankapure with Mr.Ashok Chougule for Respondent Nos.2, 3 and 11. CORAM : D.G.DESHPANDE CORAM : D.G.DESHPANDE CORAM : D.G.DESHPANDE S.R.SATHE, JJ. S.R.SATHE, JJ. S.R.SATHE, JJ. DATED : MARCH 22, 2007. DATED : MARCH 22, 2007. DATED : MARCH 22, 2007. JUDGMENT [IN CHAMBER] : [PER D.G.DESHPANDE,J] JUDGMENT [IN CHAMBER] : [PER D.G.DESHPANDE,J] JUDGMENT [IN CHAMBER] : [PER D.G.DESHPANDE,J] 1. This appeal is filed by the State against acquittal of all the respondents/accused from different offences of the Indian Penal Code viz. under Sections 302, 326, 442, 331, 218 and 193 r.w section 34 of the Indian Penal Code. 2. In short this is a case of custodial death of one Arun Pandav at the hands of the accused/respondents and the trial Court acquitted 5 5 5 them of all the offences relating to the said custodial death. The accused are all police officers. The main offence against accused Nos.1, 2 and 3 is about causing custodial death of deceased Arun and the offences against other accused are manipulating and fabricating of the record to suppress the truth and to protect the accused Nos. 1, 2 and 3. 3. The brief facts giving rise to this prosecution are as under. A minor girl by name Usha d/o Madhukar Gaikwad fell in love of P.W.15 Chandrakant Namdeo Pandav. The parents of Usha were opposing their friendship and relationship. But Usha continued to run after P.W.15 Chandrakant Pandav. They wanted to marry but the caste and minority of Usha were the main obstacles. Efforts were made to persuade Usha to give all the thoughts of marriage and company of Chandrakant. But ultimately Usha and Chandrakant eloped from Kolhapur where they were residing in the neighbourhood. They travelled a lot and settled at Umbrat near Kankavali in Konkan area. Usha’s father (PW 14) Madhukar had lodged complaint against Chandrakant and others about this kidnapping etc and therefore accused No.1 6 6 6 who was the officer of police station was entrusted with the job of investigation. 4. Deceased Arun was the brother of Chandrakant. He was not involved in kidnapping of Usha by his brother Chandrakant. But he was found dead in the lock-up of Shahupuri Police Station at Kolhapur in the morning of 17th December 1985. The prosecution version and the defence version are different regarding the condition in which Arun was taken to the police station on the night of 16th December 1985. 5. According to the prosecution, accused No.1 with the help of accused Nos. 2 and 3 picked up Arun on the midnight of 16th December 1985 i.e. between 12.00 and 12.30 midnight on suspicion that he had helped Chandrakant to elope from Kankavali out of the reach of the police along with Usha. Therefore, the police party i.e. accused Nos. 1, 2 and 3 picked him up, took him to the Shahupuri Police Station, beat and assaulted him mercilessly to extract the information and as a result of which Arun died in 7 7 7 the lock up some time during the night between 16th December 1985 and 17th December 1985. His death was noticed at about 7.00 a.m. News of his death spread in the said city. People in large number gathered around the police station. They started making demand of an inquiry. Political leaders arrived. In the mean time inquest panchanama was made. Body was sent to the Civil Hospital for post-mortem. There also people protested. They wanted an inquiry into the death of Arun. Then civil Surgeon gave assurance to the people. At that time also political leaders were there. Then post mortem was conducted by two medical officers Dr.Vilas Manade (PW 13) and Dr.Baburao Ghatage (PW 20). They found that inquest report was not true reflections of the injuries sustained by Arun. There was major variance between the inquest report and the injuries noted by the doctors. Therefore, they prepared separate post-mortem report and gave cause of death as "shock due to hemorrhage due to laceration of liver due to fracture of ribs C multiple injuries." Both the doctors, who conducted the post mortem, found that there were in all 19 injuries as per the list separately attached to the post mortem report (Exhibit-73). 8 8 8 6. The doctors’ opinion and finding of so many injuries change the whole scenario. It was found to be a case of custodial death of Arun - a young sturdy and strong boy of 25 years of age approximately. Then offences against these accused Nos. 1, 2 and 3 and then Sr.PI of Shahupuri Police Station were registered. [The Senior Police Inspector was subsequently not prosecuted and the inquiry was dropped against him]. Some part of investigation was done by local police then it was handed over to CID and ultimately it was revealed that accused Nos.1, 2 and 3 had mercilessly assaulted and beaten Arun and, therefore, Arun died while in custody. But in order to suppress this fact, accused Nos.1, 2 and 3 indulged in creating fabricating documents to show their innocence. It was found that the panchanama of arrest of Arun prepared by the accused was false and fabricated; it was found that the entries of arrest of Arun made in the police station record were false and fabricated; it was also found that similar entries made in the police record about the accused No.1 being busy in night duty out side the police station between 12.30 night and 5 ‘O’ Clock were all 9 9 9 false and fabricated. 7. After doing investigation in all aspects of the matter a charge sheet came to be filed against all these accused for different sections of the Indian Penal Code. More than 33 witnesses were examined by the prosecution to prove the charges which were as under :- . So far Accused Nos.1, 2 and 3 are concerned, the charges against them were wrongful confinements of Arun under Section 342 r/w 34 of the Indian Penal Code; causing grievous hurt for the purpose of extorting information regarding the whereabouts of his brother Chandrakant under section 331 r/w 34 IPC; then voluntary causing grievous hurt to Arun in the same transaction individually under section 326 r/w 34 IPC; and causing such bodily injury with intention to cause death of Arun under Section 302 r/w 34 IPC. Then all the accused were charged for preparation and fabrication of records for saving accused Nos.1, 2 and 3 from the legal punishment under Section 218 r/w 34 IPC and, also under Section 193 r/w 34 IPC. 10 10 10 8. The defence of the accused Nos.1, 2 and 3 was that Chandrakant had eloped with Usha and had taken her to Kankavali. The police were to nab Chandrakant with Usha at Kankavali, but Arun helped Chandrakant to go away from Kankavali. Therefore, in order to find out truth, they arrested Arun on the night of 16th December 1985 from Sonya Maruti Chowk. They brought Arun to the police station, they found that Arun had injuries on his person, but when asked Arun complained to them that he was assaulted by the relatives of Usha or some unknown persons and, therefore, there were injuries on his person. Accused Nos.1, 2 and 3, therefore, made panchanama of arrest of Arun showing the presence of some injuries on the person of Arun in the said panchanama and then kept him in the lock-up of police station. The entry about the same was made in the police station record or police station diary. Thereafter i.e. from 12.30 (midnight) onwards accused No.1 in the jeep of Shahupuri police station went on patrolling duty at different places within his jurisdiction. Accused Nos. 2 and 3 left for their home by 12.30 midnight. Accused No.1 completed his duty by 5 ‘O’ clock. He then went home i.e. the 11 11 11 driver of the police jeep dropped him at his house and at about 7 ‘O’ clock in the morning he came to know, i.e. accused No.1 came to know, that Arun died in the police station. He also learnt that at about 5 ‘O’ clock Arun had demanded water while Arun was in the lock up from other constable on duty in the police station. 9. Therefore, it is the clear defence of the accused that they did not cause any injury to Arun after he was brought to the police station. They had not assaulted him at all. They had done their duty honestly and sincerely. In the arrest panchanama, they had shown the injuries on the person of Arun. They were not in the police station. [It is necessary to clarify that in the absence of any specific mention our reference to accused herein after shall be to accused Nos. 1, 2 and 3 only]. They were on their duty outside the police station and they did not manipulate any record to protect themselves, Arun died because of the injuries sustained by him in the assault that was committed by some unknown persons and, therefore, they are not guilty of any of the offences charged. The trial Court not only accepted the defence of accused but came to 12 12 12 the conclusion that the prosecution has failed to prove the connection of the accused with the death of Arun and, therefore, the trial Court acquitted all the accused. 10. Even though, this is an appeal by State against acquittal of all the accused, Mr.Marwadi, the learned advocate appearing for accused No.1, and the other advocates for other accused, vehemently urged in the beginning that this is a case of acquittal and, therefore, this court should not interfere with the order of acquittal unless the judgment of trial Court was found to be perverse and devoid of merits. They pointed out that before interfering with the judgment, the court will have to come to the conclusion in favour of the prosecution in this regard. But if the court finds that out of two views possible in the given set of circumstances, the view adopted by the trial court was just and reasonable, then no interference was required. 11. Some of the submissions made by defence advocates in this regard were that it has come on record that Arun was alive up to 5 ‘O’ clock because at that time he demanded water and it was 13 13 13 given to him by one of the constables in the police station. Secondly, when the search of the clothes of Arun was taken in the lock up after his death, certain documents were found. One of them was, a paper or certificate of Kolhapur Mahanagar Palika Chemical Laboratory dated 2.8.85 which showed that Arun has got his blood examined from the said laboratory and from this particular document the accused raised defence that there were reasons to believe that Arun died not as a result of beating but because of heart failure or some other natural cause or ailment. 12. It must be noted here that We are stating this peculiar fact firstly in order to find out whether the judgment of the trial court was perverse or not. We have already noted that while conducting the post mortem both the doctors found that there were about 19 injuries on the body of Arun and the cause of death is due to laceration of liver on account of fracture of ribs. However, the trial Court has noted in para 34 in this regard as under :- "It is the specific defence of the accused that Arun Pandav died of heart 14 14 14 failure. In view of the above discussed medical evidence the hypothesis that Arun Pandav might have died of heart failure cannot be ruled out. The prosecution has also not put-forth the requisite evidence to rule out this hypothesis. Admittedly, the report relating to the examination of the blood and urine of the deceased Arun Pandav was found on his death body at the time of inquest panchanama. That report is at Ex.71. DR.Vilas Manade in his cross-examination has categorically stated that in case of heart patients, they got blood and urine examined. The report at Ex.71 shows that the deceased Arun Pandav had got his blood and urine examined on 2.8.1985. The prosecution has not led any evidence as to why the deceased Arun Pandav had got his blood and urine examined. As has been stated by Dr.Vilas Manade in case of heart patient, his blood and urine are examined. On this evidence, it is probable that the deceased Arun Pandav would be suffering from heart disease. The prosecution has not ruled out this 15 15 15 probability by leading cogent evidence. Therefore, it can very well be inferred that Arun Pandav might have died due to heart failure. In the attending circumstances, this probability cannot be ruled out. This is wholly inconsistent with the guilt of the accused 1 to 3." We need not consider other part of the judgment of the trial Court in order to find out whether the judgment is perverse or not. We may be scanning the judgment for other purpose subsequently. But in order to find out whether the approach of the trial Court is perverse, this one single finding is more than sufficient. Merely because Arun had with him case paper showing examination of his blood and urine from the laboratory, to infer or conclude that he might be suffering from heart failure is nothing but a fulmination of brain and height of perversity of reasonings and perversity in approach. A man gets urine and blood examined now a days for hundreds of reasons right from severe cold to any kind of infection. The doctors may advise or asked him to get his blood and urine examined for any reason or reasons 16 16 16 which could be innumerable. But to come to a conclusion only on the basis of such a document that Arun must be suffering from heart failure and he must have died as a result of heart failure is nothing but a sign of perversity in approach, perversity in reasoning, perversity in conclusion. Therefore, this alone entitles this court to hear the appeal on merits and interfere with the judgment. What would be the consequence, apart. 13. Admitted and undisputed fact in this case is that Arun was brought to police station by accused Nos. 1, 2 and 3 on the night of 16th December 1985 around midnight and he was found dead in the lock up of Shahupuri Police Station at about 7 ‘O’ clock. He has not died as a natural death like heart failure as found by the trial Court. His death is unnatural and, therefore, the only question is, whether he died as a result of injuries already sustained by him before he was taken in-charge by these accused Nos. 1 2 and 3 and brought to the police station i.e. the injuries as result of assault by the unknown persons or, whether he died as a result of beating or thrashing given to him by these 17 17 17 accused Nos.1,2 and 3. 14. It is required to be mentioned here that in this case these two stories, both different to certain extent, run parallel. One story is put-forth by the prosecution and the other story is put-forth by the accused in their defence. We are aware that in a criminal case, it is the prosecution that has to prove the guilt of accused and, falsity of defence does not necessarily result in drawing an inference that the prosecution story must be true. However, the accused are the police officers and the accused Nos.1, 2 and 3 in particular, have raised a specific and particular defence and all the three of them have filed additional supplementary statement under Section 313 of the Criminal Procedure Code. They are at Exhibit 140 and 141 respectively. And, therefore, we propose to consider both these stories simultaneously i.e. the story of the prosecution and the story of the defence. 15. The first part of the story of prosecution is deceased Arun Pandav was at his home on 16th December 1985. He was amongst his 18 18 18 family members. He had a dinner with them. There was talks about the marriage of Arun. Arun slept in his house and then some time around midnight. Accused Nos.1, 2 and 3 came to his house and picked him up from there and took him to the police station. 16. As per the story of defence, Arun was found involved in eloping Usha with Chandrakant. He was made accused. Investigation for arrest of Arun was going on and on 17.12.1985 at 00.10 hours accused Nos.1, 2 and 3 had been to Sonya Maruti Chowk by jeep where Arun found. He was taken in the jeep and brought to the police station. 17. In order to prove the 1st story of Arun being taken away from the house the prosecution has examined P.W.1 Balasaheb Namdeo Pandav. He is the brother of deceased Arun. He has stated that he himself, his wife, their 3 children, his mother, brothers Arun, Chandrakant and Vilas were the members of his family. Tanaji Mahajan was the servant in his garage and was staying with them. So also Narayan Ramchandra Bhandari was the servant in the business of making chappals. 19 19 19 He stated that Madhukar Gaikwad was residing behind his garage and, Usha - the daughter of Madhukar Gaikwad fell in love with his brother Chandrakant. On 11.11.85, his brother Chandrakant and Usha eloped from Kolhapur. Madhukar Gaikwad, therefore, lodged a complaint to Shahupuri Police Station in this regard. 18. Then P.W.1 has further stated that on 15.12.1985, the accused No.2 Ananda Bhosale @ Bandu Bhosale took his servant Narayan Bhandari to Shahupuri Police Station. He was detained in the police station up to 6 p.m. and he came back at 10 p.m. In the mean time, deceased Arun had gone to bring him from the police station. When Narayan was brought back or came back, he started weeping and there were marks of beating on his back. Homely first aid was given to him. 19. Then P.W.1 further stated that on 16.12.1985 one Manohar Upalekar was taken to Shahupuri Police Station. He came back to his home at about 8.20 p.m.. All the family members wee there including Arun and Vilas and both the servants. There was discussion about proposal of marriage of Arun. Thereafter they had dinner. 20 20 20 At about 10.30 Manohar Upalekar came to their house and told that he was taken to police station for inquiry about elopement of Usha. Narayan Bhandari expressed his fear of being beaten at the hands of police. 20. P.W.1 further stated that they were talking till 11.30 p.m. Arun was with them. All of them slept. Arun, Vilas and Tanaji slept in the front room of 1st floor and others slept in other rooms on other floors. Then at about 2 a.m. mother of P.W.1 awoke him from sleep and told him that about two hours before Arun was taken by the police to Shahupuri Police Station. The mother asked P.W.1 to go to the police station because she apprehended that the police would beat Arun. P.W.1 got himself ready and went to the police station. But he did not have courage to enter the police station because he also feared that the police would beat him. He, therefore, came back. Then on the next day morning at 7.30 a.m. he went to Shahupuri Police Station. He was told in the police station that Arun was taken to Kanakavali for taking search of Chandrakant and police also asked him to come back about 11.00 a.m. to see Arun. That is 21 21 21 different part of the story. 21. Then another witness P.W.5 Vilas Namdeo Pandav was examined by the prosecution. He has stated that he is the brother of deceased Arun and P.W.1. He has stated that he saw Arun lastly on 16.12.1985. Then they had gone to see bride for Arun on 16.12.1985 in the morning at 11 a.m. They returned back about 7 ‘O’ clock in the evening. All of them are at home at that time. P.W.1 came between 8 to 8.30 p.m. They had discussion about the marriage of Arun. Then all of them, including P.W.1 and Arun and the servants, had dinner. Then Tanaji told P.W.1 and all that policemen had come to the workshop and he feared that he would be beaten by the police. Then one Manohar Upalekar also came there. Thereafter, according to this witness P.W.5, all of them went to sleep . P.W.5 - Arun and servant slept in the front room of the first floor. Others slept in different rooms and at about 12.30 or 1 a.m. he heard the sound of opening the latch of the room. He woke up and slid the curtains of door and saw that four persons were there. Amongst them accused No.2 was there and he also gave reason for identifying the accused 22 22 22 No.2 because accused Banda Bhosale was residing opposite to his house in police head quarters. Then in the morning he learnt from Balasaheb (PW1) and he told him that Arun was taken to Kankavali for search of Chandrakant. 22. The next witness of the prosecution on this point is P.W.6 Manohar Dattatraya Upalekar. He has stated that he was knowing P.W.1 as they were classmate, that Chandrakant had kidnapped a girl and, therefore he was called in the Shahupuri police station on 16.12.1985 in that regard.