GOVT. APPEAL (SJ) NO.65 of 1990 Against the judgement and order of conviction dated 9th of August, 1990 passed by the Court of XIV, Additional District & Sessions Judge, Patna, in Criminal Appeal Nos. 301/87, 306/87 & 303/87. THE MATTER OF STATE (THROUGH SPE/CBI/PATNA) -----Appellant Versus 1. MD.WASIMUDDIN, SON OF MD. HARUM, OFFICER IN CHARGE, SABOUR P.S. (UNDER SUSPENSION) DISTRICT- BHAGALPUR, RESIDENT OF VILLAGE BARDH, P.S. MOFASSIL, DISTRICT- MONGHYR 2. SRI BINDA PRASAD, SON OF BIR CHAND RAI, P.S.SABOUR, DIST.BHAGALPUR 3. SRI MANKESHWAR SINGH, SON OF LATE MUNESHWAR SINGH, RESIDENT OF VILLAGE- BHITH BHAGWANPUR, P.S. MADHAOPUR, DISTRICT-MADHUBANI, INSPECTOR OF POLICE(UNDER SUSPENSION)POSTED WITH HQRS. MONGHYR ---RESPONDENTS. ----- For the appellant : -Sri Bipin Kr. Sinha(SC, CBI) For the respondent no.1: S/Sri S.N.P.Sinha,Sr.Advocate Pramod Kumar,Advocate For the respondent no.2: Sri Om Prakash Pandey (Amicus Curiae) For the respondent no.3: S/Sri Kanhaiya Pd. Singh, Sr.Advocate, Prabhat Kr. Sinha, Advocate. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The present appeal has been preferred by the State through Special Police Establishment, CBI, Patna to challenge the judgment of acquittal passed by learned 14th Additional Sessions Judge, Patna in a batch of Criminal Appeals bearing no; 2 301 of 1987, 307 of 1987 and 303 of 1987 on the 9th day of August, 1999 by which the judgement of conviction and order of sentence passed upon the three respondents by Special Magistrate, C.B.I., Patna on 31.8.1987 in Trial No.2 of 1987 arising out of RC 12 and 13 of 1981 was set aside and the three respondents were acquitted of the charges under Sections 120B read with 326, 220 and 109 of the IPC. 2. On 24.7.1980 the respondents along with one S..Hembram, who was on that day Dy.S.P., Nathnagar, Bhagalpur recorded their departure from Sabour police station at 12.15 hours in Station Diary Entry no.408 dated 24.7.1980(Ext-2) showing the purpose of the departure to arrest the criminals. Ten persons were taken into custody from two different village, Lakshmipur and Khirjan; they were Lakhi Beldar(P.W.1), Shankar Tanti(P.W.2) Saldeo Tanti(not examined), Anirudha Tanti(P.W.7) all of village Laxmipur, Putul Tanti, Baldeo Tanti, Jagdish Mandal, Wakil Tanti(P.W.4), Dhanna Tanti(P.W.3) and Paran Tanti all of village Khirjan at or about 3 to 4 A.M. on 25.7.1980. They were brought to Simro Salpur School and were detained there for the whole day on 25.7.1980. Out of the above noted ten persons, Dhanna 3 Tanti(P.W.3) and Paran Tanti(not examined) were let off from Simro Salpur School whereas the remaining eight persons were brought to Sabour police station. The arrival of eight arrested accused persons along with the respondents was entered into Station Diary Entry No.438 dated 26.7.1980 at 20 hours, i.e., 8 P.M.(Ext-2/1 and they were shown detained for two days. The same entry Ext-2/1 indicated that Lakhi Beldar(P.W.1) and Shanker Tanti(P.W.2) and others were shown arrested in connection with Sabour P.S.Case No.11(7) of 1980 under Sections 399, 402, etc IPC and 27 of the Arms Act by the police party consisting of the respondents and other police personnel. The arrest was allegedly made somewhere at village-Alang Pargarhi. While Lakhi Beldar(P.W.1) and Shanker Tanti were in police custody, as per the prosecution case, respondents Md. Wasimuddin and others caused grievous hurt to their eyes by piercing a sharp pointed weapon like Takua into them and by pouring some corrosive substance resulting in the permanent deprivation of their visions and also caused simple hurt to them. Lakhi Beldar(P.W.1) and Shankar Tanti(P.W.2) along with six others, as per the prosecution story, were wrongfully confined at 4 Sabour police station by the accused police officers till 11 A.M. of 28.7.1980. Wakil Tanti(P.W.4) was let off from the police station at the intervention of a person whereas the other arrested persons, like, P.Ws. 1 and 2 were asked to pay bribe for being freed else, were threatened to be blinded in the manner as just stated. The story further states that P.Ws.1 and 2 were blinded one after the other by respondent Md. Wasimuddin and other police officers and constables and they along with others were sent to Bhagalpur and by obtaining an illegal remand order, were sent to Bhagalpur jail. In order to cover up the wrongful confinement of seven arrested persons at the police station, respondent Md. Wasimuddin and other police officials posted there, created record, thats Station Diary Entry (SDE for short)No.450 dated 27.7.1980(Ext-2/2) at 18 hours which indicated as if the arrested persons had been sent to Bhagalpur from Sabour police station for being remanded in connection with above noted Sabour P.S.Case No.11(7)80(Ext- 11). In fact the investigation indicated that the illegally arrested and detained persons, like, P.Ws.1, 2 and others had been sent to Bhagalpur Civil Court and from there to Central Jail, 5 Bhagalpur on 28.7.1980 at 11 A.M. and they were admitted to the said jail. 3. Some of the documentary and oral evidences indicate that on being admitted into the Bhagalpur jail, some injuries were noticed by the jail authorities in the eyes of P.Ws.1 and 2 and, as such, they were sent to jail hospital and were admitted there and were checked up by the jail doctor and injuries in their eyes were recorded as may appear from Ext-16 which is hospital register of the jail hospital and the entries in the above respect appears at serials no.118/860 dated 28.7.1980 and 119/161 dated 28.7.1980. 4. It appears further from the record that the victims, like, P.Ws.1 and 2 sent their respective typed letters which were typed at the orders of the jail Superintendent by P.W.22 Sri Shankar Mishra who was employed in the Bhagalpur Central Jail as a Warden, who was doing typing works too. The applications of P.Ws.1 and 2 were addressed to the Sessions Judge, Bhagalpur and those indicated almost in same terms that the two witnesses had been arrested from their respective houses at villages-Lakshmipur and Khirjan situated in police Stations-Sanhaula and Jagdishpur respectively and had been kept under confinement 6 for five days or so at Simro Salpur School and Sabour police station by the officer-in-charge of that police station and the other Sub-Inspector of Police and, thereafter, their eyes were pierced with a sharp pointed instrument and acid was also poured into them. They were brought to Sabour police station and kept confined there and, thereafter, they were brought to the courts at Bhagalpur on 28.7.1980 and from there, they were sent to jail. They were pointing out to the Sessions Judge, Bhagalpur that there was no law entitling the police officers to blind any person and they were desirous to prosecute the erring police officers, but they could not do it on account of their poverty. They made a prayer to the Sessions Judge, Bhagalpur for providing an advocate at the state expense so that they could seek justice against the culprit police officers before a court of law. 5. From perusal of Exts-14 and 15 which are the two applications under the thumb impressions of P.Ws.1 and 2, it appears that the jail doctor was also certifying over it that the two persons had been seriously injured in their eyes and there was little chance of their eye sight being restored. 7 6. What appears further from the record is that the District & Sessions Judge, Bhagalpur sent the applications, probably, to the Superintendent of Police of the district and that resulted into institution of Sabour police station cases no.11(11) of 80 and 12(11) of 80. 7. Subsequently, under notification no.228/1/81-ABD dated 28.1.81 of the Govt. of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms, New Delhi which was in the form of an order under Section 5 of the Delhi Special Police Establishment Act issued with consent of the Govt. of Bihar, Home(Police Department), Patna, Sabour P.S.Cases No.11 and 12 dated 27.11.80, were transferred to the Special Police Establishment for investigation and, accordingly, the C.B.I. took over the investigation of the case and after close of the investigation, submitted chargesheet sending up ten accused persons including the three respondents for their trial for having committed the offences under Sections 120B, 323, 324, 326, 342/109 of the IPC. It appears that sanction to prosecute the respondents and other accused persons was duly accorded by the State Government. 8. The case was sent to trial before the 8 Special Judicial Magistrate, C.B.I., Patna by framing charges against respondent no.1 and other accused under Section 120B IPC. Respondent no.1 Md. Wasimuddin was distinctly charged also under Sections 326 and 220 IPC. Likewise, the remaining accused persons were charged together under Section 120B and 220 read with 109 IPC. The prosecution examined a total number of 29 witnesses and brought on record huge number of documents in order to establish the charges and after considering the evidence, both oral and documentary, the learned trial Magistrate by judgment dated 31.8.87 acquitted accused S.M.Hembram, Dy.S.P., Nathnagar, Jairam Singh, Jainuddin, Arun Paswan, Ramesh Chandra Ram, Ramjee Singh and Ramjatan Yadav all constables while convicting the three respondents. Respondent Md. Wasimuddin was convicted for committing offence under Sections 120B read with 326 and was sentenced to rigorous imprisonment for two years. He was also found guilty under Section 326 IPC and a sentence of rigorous imprisonment for three years as also to pay a fine of Rs.1,000/- in default of which and additional term of simple imprisonment for one year was inflicted upon him. He was also directed to suffer rigorous 9 imprisonment for two years under Section 220 of the IPC. The sentences passed against Md. Wasimuddin were directed to run concurrently. The remaining two respondents were convicted of the offence under Section 120B read with 326 IPC and each of the two was directed to suffer rigorous imprisonment for two years. 9. Respondent Md. Wasimuddin preferred Criminal Appeal No.301 of 1987 whereas respondent Binda Prasad presented Criminal Appeal No.303 of 1987. The third Criminal Appeal bearing No.306 of 1987 was preferred by respondent Mankeshwar Singh. All appeals were heard together by the 14th Additional Sessions Judge, Patna and were allowed by the judgment under appeal. 10. The learned lower Appellate Court while allowing the three appeals was recording many findings. It was held as may appear from paragraph-9 of the judgment passed by the learned Additional Sessions Judge that the reports of P.W.15, namely, Dr. Karuna Sindhu Roy was not supporting the prosecution case that corrosive substance was poured in the eyes of Lakhi Mahto(P.W.1) and Shanker Tanti(P.W.2). It was further held that there was no mention in the report of P.W.15 that any corrosive substance had 10 caused the injuries to the eyes of both P.Ws.1 and 2. After considering the evidence of other doctors, like, P.W.11 Dr. J.N.Rohtagi and P.W.29 Bharendra Pal Singh it was held that there was variance in the opinion of the doctors as regarded the injuries to the eyes so much so that there was no opinion coming from the initial examination of the injured that those could have been caused by any corrosive substance and also by piercing takua into the eyes of P.Ws.1 and 2. The next finding which appears recorded by the learned trial Judge was based on the two applications Exts-14 and 15 sent by the two victims P.Ws.1 and 2 to the District & Sessions Judge, Bhagalpur and it was held by the learned lower Appellate Court that as regards the dates of blinding of the two injured those were differing and the period of five days stated by one of them, was making the story improbably. Besides, there was no mention as to who had specifically done what act. It was, lastly, held that there was variance in the two documents Exts-14 and 15 as regards the arrest of P.Ws.1 and 2 along with others and keeping them at different places and that was also not stated in the two documents and that falsified the evidence of P.Ws.2 and 1 both as the prosecution case 11 appears doubtful. It was held, lastly, that some spurious drugs might have been administered by some untrained hands causing blindness of the two persons as was suggested by one of the doctors, namely, P.W.8 Dr. Gopal Chand Prasad in paragraph- 6 of his evidence. On these and other reasons, the learned Additional Sessions Judge went on to hold the charges not proved and as such allowed the appeals and thereby acquitted the three respondents. 11. During hearing of the present appeal, I was taken through the evidence of the witnesses and through the judgments of the two lower courts. It was contended by the appellant, C.B.I. that the evidence on record duly established that P.Ws.1 and 2 along with others were picked up from different villages in the night intervening 24th and 25th of July, 1980 by the three respondents and acquitted accused persons and from there they were brought to Simro Salpur School and were detained there on the whole day on 25.7.1980 from where Paran Tanti was released. Thereafter, the arrested persons were shifted to Sabour police station and were confined there from 26.7.1980 till the early hours of 28.7.1980 and false records were created so as to justifying their 12 arrest. P.Ws.1 and 2 were blinded by piercing sharp cutting instruments in their eyes as also by pouring some substance, like, acid and were forwarded to the court after creating. Ext-11, i.e., FIR of Sabour P.S.Case No.11(7)80. The opinions of doctors who were examined in the trial court definitely pointed out that the eyes of P.Ws.1 and 2 had been privated by external means aforesaid and they had completely been blinded. The evidence of different witnesses, it was contended, proved the illegal arrest and wrongful confinement of the eight persons including P.Ws.1 and 2 and they were blinded in that course. It was contended that the Additional Sessions Judge read the evidence in such a way as only to acquit the accused persons. There was no evidence brought on record that any spurious drug was administered to P.Ws.1 and 2 and as such there could not be any finding that the blinding could have been induced by administering some spurious drugs by untrained hands. There was clear evidence of damaging the eyelids of the two victims and again the learned Additional Judge was recording that there was no such injury indicating the damage to the eyes. It was contended that primarily, Exts-14 and 15, which were the basis of 13 the case, were sent to the District & Sessions Judge, Bhagalpur with a view to initiating criminal proceedings. The learned Additional Judge if had read and considered the two documents correctly which were jail-petitions by two prisoners P.Ws.1 and 2, he could have found that those were applications seeking legal aid on account of their financial disability. The contents of the two documents might further have indicated that they were not sure that the barbaric acts which had been perpetrated upon them were illegal or legally prohibited act made punishable also, rather the very language indicates that the two victims were still labouring under an impression as if the police might have legal sanction to commit those brutal acts to any individual. It was contended that evidence was sufficient to indicate that the accused persons had participated in illegally arresting innocent persons and there was no evidence in initial records of the police that there was any injury on their persons. It was contended that the learned Additional Judge has simply recorded perverse findings which were not borne out of the record to acquit the respondents. It was contended that the evidence which was 14 produced before the learned trial Magistrate could not have led to any other views than those recorded by the learned trial Judge and it was a case in which the charges had been proved to the hilt. 12. Sri K.P.Singh and Sri S.N.P.Sinha both senior Advocates appearing on behalf of respondents no.1 and 3 and Sri Om Prakash Pandey appearing as Amicus curiae on behalf of respondent no.2 were making submissions on various aspects of the case to justify the judgment of acquittal passed by the learned Additional Sessions Judge. It was submitted by Sri Sinha, the learned counsel appearing for respondent no.1 that Exts-14 and 15 were not containing the details as to how the two witnesses P.Ws.1 and 2 were blinded and at what place. In this connection, it was contended by Sri K.P.Singh and Sri Om Prakash Pandey that the participation of respondent Binda Prasad and Mankeshwar Singh was also not established satisfactorily as persons who had participated in any manner in blinding of P.Ws.1 and 2. The evidence of doctors examined in the case also indicated contrary views and those were not supportive of the time and date of occurrence when the acts could have been committed. The argument 15 was also that there was variance in the statements in Exts-14 and 15, the two jail applications sent by P.Ws.1 and 2 to the District & Sessions Judge, Bhagalpur regarding the places where they had been brought or confined and also regarding the places where the act of blinding them by piercing an instrument into their eyes or by pouring acid into them. It was contended that they had properly been arrested in connection with a substantive criminal offence for which Sabour P.S.Case no.11(7)80(Ext- 11) was drawn up. They were remanded by proper judicial order and they were not complaining to the Magistrate remanding them about the acts of the accused persons. 13. It was contended both by Sri K.P.Singh and Sri Om Prakash Pandey appearing on behalf of respondents no.3 and 2 respectively that the identification of Binda Prasad and Mankeshwar Singh who were Sub-Inspector and Circle Inspectors respectively on the date of occurrence as participants in commission of the offence, has not satisfactorily been established and as such their acquittal appears proper. 14. The present is the appeal against a judgment of acquittal which was passed to set aside the judgment of conviction recorded by a 16 Magistrate who carried out the trial proceedings. As regards the approach of an Appellate Court in such an appeal there was quite some controversy. This could be apparent from the following paragraph of the Supreme Court in the case of Sanwat Singh Vrs. State of Rajasthan reported in AIR 1961 SC 715:- “In recent years the words “compelling reasons” have become words of magic incantation in every appeal against acquittal. The words are so elastic that they are not capable of easy definition; with the result, their interpretation varied between two extreme views-one holding that if a trial court acquitted an accused, an appellate court shall not take a different view unless the finding is such that no reasonable person will come to that conclusion, and the other accepting only the conscience of the appellate court as the yardstick to ascertain whether there are reasons to compel its interference. In the circumstances we think it necessary to clarify the point.” 15. The Supreme Court, thereafter, went on to consider the decision of the Privy Council in Sheo Swarup Vrs. Emperror AIR 1934 PC 227 and other decision of the Supreme Court in subsequent paragraphs of the judgment and went on to lay down the final opinion of their Lordships as regards the approach to be adopted by an appellate court while considering the judgment of acquittal. I am tempted to reproduce the final opinion of the Apex Court which is contained in paragraph-9 of Sanwat 17 Singh(Supra) which is as follows:- “The foregoing discussion yields the following results :(1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2)the principles laid down in Sheo Swarup’s case, 61 Ind App 398 : (AIR 1934 PC 227 (2) afford a correct guide for the appellate court’s approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) “substantial and compelling reasons”,(ii)”good and sufficiently cogent reasons, and (iii) “strong reasons”, are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgments, which lead it to hold that the acquittal was not justified.” 16. Thus, it was finally laid down that the appellate court is empowered in an appeal against acquittal to review the entire evidence against acquittal and to come to its own conclusion but while so doing, it must not only consider every matter on record having a bearing on the questions of facts but must also consider the reasons given by the trial court in support of its orders of acquittal in arriving at its conclusion on those facts, but should also express its own reasons in its judgment on those issues 18 which laid it to hold that the acquittal was not justified. 17. Going by the above principles this court is required to reconsider the evidence in the teeth of the findings recorded by the learned Additional Sessions Judge while passing the judgment of acquittal in the light of the contentions of the parties. 18. It is not disputed that P.Ws.1, 2 and 6 others were arrested from two different places, namely, Laxmipur and Khirjan Tantitola, as may appear from the evidence of P.Ws.1, 2, 3, 4, 5, 6, 7 and 10. These are witnesses who have stated that in the night intervening 24-25 of July, 1980 at about 3-4 A.M. a group of policemen picked them up either from their residences or from places they were at and took them to a particular place which has been pointed out as the basa of one Jagdish Chaudhary. P.W.1, namely, Lakhi Mahto @ Lakhi Beldar was stating that when he was objecting to his arrest and wanted to know the reason thereof he was commanded to keep silent else he would be shot dead. P.W.2 the other victim Shankar Tanti who was the resident of the village Khirjan under police station Jagdishpur which was quite outside the jurisdiction of the respondents specially 19 respondents 1 and 2 was picked up from his house at 3 A.M. as per his evidence by respondent no.1 and was brought to the same basa of Jagdish Choudhary where he found P.W.1 Lakhi Beldar of village Laxmipur, police station Sanhaula and others, similarly arrested persons which included P.W.3 Dhanna Tanti and others. Subsequently, Anirudha Tanti(P.W.7), Jagdish Mandal(not examined), Baldeo Tanti(not examined), Putul Tanti(not examined) and Wakil Tanti (P.W.4) were also brought there after being arrested from their respective houses. All the arrested persons, as may appear from the evidence of these witnesses, were beaten up and were asked as to where were their properties. They were brought to Simro Salpur School and were put in there after getting a room of the school opened. As may appear from the evidence of P.W.2 Shankar Tanti he and others of his co-villagers were brought to police station and on the 3rd day, P.W.2 Shankar Tanti and P.W.7 Anirudh Tanti were brought to their place of residence at Khirjan and their houses were searched. Nothing was recovered from the houses of P.Ws.2 and 7 as may appear from the respective evidence of the two witnesses but respondent no.1 was demanding as per the evidence of P.W.1 20 Rs.500/- for releasing him which was not paid by P.W.1 stating that he was a poor fellow and he could not pay that amount upon which respondent 1 stated told him that if he paid the amount, he will be let off, else his eyes would be privated. P.W.2 stated that