1 Crias.59,60-08 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEALS NO. 59 & 60 OF 2008 CRIMINAL APPEAL NO. 59 OF 2008 Madhu Dessai, s/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. ........ Appellant. V/s 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 Quarters, Pajifond, Margao, Goa. ......... Respondents. Mr. S. G. Dessai, Senior Advocate with Mr. Pavithran A.V., Advocate for the Appellant. Mr. S. R. Rivonkar, Special Public Prosecutor for the State- Respondent. CRIMINAL APPEAL NO. 60 OF 2008 Shripati Dessai, major of age, son of Yeshwant Dessai, resident of H.No.B-3-23, Junta Quarters, Pajifond, 2 Crias.59,60-08 Margao, Goa and native of Lingur, Post : Mungurwadi, Tal: Gadhinglaj, Dist : Kolhapur, currently in Judicial Custody. ......... Appellant. V/s State of Goa, (C.I.D. Through Crime Branch,Panaji, Goa.) ......... Respondents. Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for the Appellant. Mr. S. R. Rivonkar, Special Public Prosecutor for the State- Respondent. CORAM : S.C. DHARMADHIKARI & F.M. REIS, JJ. Date of reserving Judgment : 21st April, 2011. Date of pronouncing Order : 6th May, 2011. J U D G M E N T : (Per DHARMADHIKARI, J.) These Criminal Appeals are by Accused Nos. 2 and 1, both of whom have been arrayed as Accused in Sessions Case No.29/02 and convicted for the Offences punishable under Sections 220, 342, and 302, read with Section 120-B of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a term of three years, for the offence punishable under Section 220 of the Indian Penal 3 Crias.59,60-08 Code, for a period of six months under Section 342 of the Indian Penal Code and they have been sentenced to undergo Imprisonment for Life for the Offence punishable under Section 302 of the Indian Penal Code, so also fine of Rs.5,000/-. The Judgment and Order of conviction and sentence has been rendered by the Additional Sessions Judge, South Goa, Margao, in the above Sessions Case, on 24th/25th /26th November, 2008. 2. The case of the prosecution, in brief, is that the Accused Nos. 1 and 2 were, at the relevant time, working as Assistant Police Inspector and Police constable respectively. They along with original Accused Nos. 3 and 4, who were also Police Constables, posted at Cuncolim Police Station. At the said Police Station, they caused death of one Dattu alias Murgesh Anant Naik Dessai (“the Deceased” for short). Thus, it is a case of death of the Deceased within the precincts of this Police Station. It is alleged that Accused No.1 Shripati Dessai, was Day Officer on duty at this Police Station from 08.00 hrs. of 27th June, 2001 to 08.00 hrs. of 28th June, 2001 and from 08.00 hrs. of 29th June, 2001 to 08-00 hrs. of 30th June, 2001 and had attended the duty. Accused No.2 Madhu Dessai, Head Constable, was working as a 4 Crias.59,60-08 Writer Head Constable at this Police Station and had attended the duty on 27th, 28th, and 29th June, 2001. Accused No.3 Jeetendra Fal Dessai, was working as Duty Master and Beat Constable of Cuncolim Town Beat. Narendra Fal Dessai, Accused No.4 was working as Beat Constable of Cuncolim Beat. Both the Police Constables, namely Accused No.3 and Accused No.4 had attended the duty at the Cuncolim Police Station. On 27th June, 2001, at about 11.05 hours, in the morning, a phone call was received by Accused No.1 who was on Day Officer duty from one Miss Prashila Raut Dessai, Resident of Quitola, Fatorpa, Goa, informing that the Deceased was assaulting her mother and she requested that police be sent to the spot. Accordingly, Station Diary Entry vide No.28 at 11.05 hours was effected by Accused No.1 and Accused No.1 deputed PC- 3239 Nilu Shet and PC-3333 Shyam Dessai on a Government Motor Cycle to the spot at Quitola, Fatorpa. It is alleged that Accused No.1 was the Senior Most Police Officer present at the Cuncolim Police Station and was Incharge at that point of time and as such, he was Officer Incharge of the Cuncolim Police Station, as envisaged by Section 2(o) of the Code of Criminal Procedure, from 11.00 hrs. on 27th June, 2001 till arrival of Shri Lawrence D’Souza, Police Inspector of the Cuncolim Police Station, at 5 Crias.59,60-08 about 12.45 hours on 27th June, 2001. 3. It is alleged that the Two Police Constables deputed by Accused No.1 visited Quitola and brought the Deceased on a Government Motor Cycle No.GA-01, G 0847 to the Cuncolim Police Station and produced him before Accused No.1 at about 11.50 hours on 27th June, 2001. The Deceased was made to sit in the Reporting Room of Cuncolim Police Station. It is alleged that the Deceased was handicapped in his right hand. However, when the Deceased was brought to the Police Station, and made to sit thereat, there was no external visible injuries on his person. When the Deceased was sitting in the Reporting Room of Cuncolim Police Station, he started arguing with the Police for not recording his complaint against Smt. Shobhawati alias Vijay Raut Dessai, the mother of the Complainant Prasheela Dessai. The Deceased also abused with filthy words, a Lady Police Constable Mrs Swati alias Madhavi Dessai, wife of Accused No.2. This Lady Police Constable was also present in the Reporting Room and was on a day reserve duty, at Cuncolim Police Station at the relevant time. In view of this, there was exchange of words between the Deceased and Accused No.2 in the Reporting Room of the Police 6 Crias.59,60-08 Station. In order to protect the honour and dignity of the Lady Police Constable, Accused No.2 and Accused No.1 assaulted the Deceased with slaps and dandas. Thereafter, the Deceased was forcibly taken towards lock-up by Accused No.1. He was placed in a Female Lock-up of the Police Station, thereby he was illegally detained by Accused No.1. The Deceased was not formally arrested, and as such, his detention in the lock-up was illegal. As per the Station Diary at that particular point of time, no Policeman was posted on lockup guard duty. The Deceased was not formally arrested and, therefore, there is no entry in the Station Diary regarding his arrest. It is alleged that the guidelines of the Hon'ble Supreme Court in the case of D.K. Basu vs. State of West Bengal were violated. It is alleged that there was no complaint on record of the Cuncolim Police Station, which would empower Accused No.1 to legally arrest the Deceased. A complaint of the complainant Shobhawati Raut Dessai was registered subsequently, being NC Complaint No.420/2001 under Section 504, 323 IPC. It is alleged that one Lucas Rebello was present in the Male Lock-up which is opposite the Female Lock-up at that very point of time. He had seen the Deceased in the Female Lock-up of Cuncolim Police Station. He had also seen the Deceased crying and the tears 7 Crias.59,60-08 rolling down his eyes, so also the Deceased abusing Accused No.2. Thereafter, at about 12.25 hours, said Lucas Rebello was taken to the Primary Health Centre for his medical examination and the Deceased remained alone in the Female Lock-up. In order to teach the Deceased a lesson for abusing and insulting the honour and dignity of the Lady Police Constable Swati alias Madhavi Dessai, it is alleged that all the Accused brutally assaulted the Deceased. This assault took place after Lucas Rebello was taken for medical examination. As a result of this brutal assault, the health of the weak and handicapped Deceased worsened. It is alleged that after sometime of his assault, being inquisitive, original Accused Nos. 3 and 4 again went to the lock-up to see the Deceased and at that time, at about 12.50 hrs., they saw him in bad state of health and they also saw froth coming out from the mouth of the Deceased. Accused No.4 gave water to drink and Accused No.3 went to the Reporting Room and informed Accused No.1 about the bad state of health of the Deceased. Accused No.1 came to the Female Lock-up and observed the state of health and this was disclosed by Accused No.3 and 4 to the Police Inspector, Lawrence D'Souza and Shri Thorat, Sub-Divisional Officer, Margao in the fact finding inquiry. It was also disclosed to the Sub-Divisional Magistrate Margao, who 8 Crias.59,60-08 was inquiring into the matter, about his bad state of health. The Deceased was not given any medical treatment, nor taken to any hospital for medical examination by Accused Nos. 1, 3 or Accused No.4. He continued to be illegally detained in this condition in this Female Lock-up. Thereafter, the Deceased fell unconscious. Seeing him unconscious, the Accused were perturbed and thought that he was dead. Considering the Deceased to be dead and in order to cover up their misdeeds, all the Accused hanged the Deceased to one Acacia tree which was behind the Police Station in the thick bushes and created a false scene of the Deceased having committed suicide by hanging himself. Thus, they caused the death of the Deceased. 4. It is alleged that on 29th June, 2001, an inquiry was conducted by the sister and father of the Deceased with the Cuncolim Police about whereabouts of the Deceased and evasive replies were given to them. On 29th June, 2001, Accused No.1 even offered Rs.50/- to Shri Anant Naik Dessai, father of the Deceased when he had personally come to the Cuncolim Police Station to inquire about whereabouts of the Deceased. It has been alleged that when Lucas Rebello was brought to the Cuncolim Police Station, after medical 9 Crias.59,60-08 examination and he was put back in the male lock-up, at that time he did not see the Deceased in the Female Lock-up. It is also alleged that the entries were effected in the Station Diary by Mr. Lawrence D'Souza, then Incharge of Cuncolim Police Station. 5. It is the case of the prosecution that on 29th June, 2001, about 17.00 hrs., an anonymous phone call was received at the Cucncolim Police Station, informing that a dead body of one person was seen hanging to a tree, behind the Cuncolim Police Station. At that time also Accused No.1 was on day officer duty. He informed about the same to the Police Inspector Mr. Lawrence D'Souza. Thereafter, U.D. Vide No.27/2001 under Section 174 of the Criminal Procedure Code was registered by Accused No.2. The dead body of the Deceased was seen hanging to a tree within the precincts of the Cuncolim Police Station, which was partly covered by barbed wire fencing and partly by compound wall. Mr. Lawrence D'Souza sent a wireless message to the Senior Police Officers and Sub-Divisional Magistrate, Margao, informing about the death of Dattu Dessai. Legs of the Deceased were not touching the ground. After conducting the inquest Panchanama, the dead body was removed from the hanging 10 Crias.59,60-08 position and was shifted to Hospicio Hospital, Margao. The family members of the Deceased were not informed by the Police before removing the dead body from the tree and also before conducting the inquest panchanama. It is alleged that on receipt of information from the S.D.P.O. Margao, Shri Sanjit Rodrigues, S.D.M. Margao visited Cuncolim Police Station and conducted an inquiry. As it was a custodial death, Post-mortem examination was conducted by a team of Doctors. They gave their opinion and stated that about 12 injuries were caused, which are in the nature of bruises; whereas Injury No.13 was on account of blue check design shirt tied around the neck with knots. As per the Post Mortem Report, the approximate time of death of the Deceased was around 48 hours, plus – minus 6 hours, prior to preservation of dead body at Hospicio Hospital, Margao. Thus, it is alleged that the Deceased died between 13.00 hrs. of 27th June, 2001 to 01.00 hrs. of 28th June, 2001. The S.D.M. submitted the inquiry report and on the basis of this Report, the offence vide CID CB Cr. No.22/2001 under Section 302, 342, 201, read with 34 of the Indian Penal Code was registered on 16th July, 2001 and the investigation commenced. It is thereupon that the Accused were arrested. After the usual investigations, the Accused were put up for trial. 11 Crias.59,60-08 6. On 26th February, 2001, charges were framed against the Accused under Section 120-B, 342, 302, 220 and 201 of the Indian Penal Code. The Charges read thus : “ That you on or about 13.00 hours of 2.6.2001 and 01.00 hours of 28.6.2001, at Cuncolim Police Station at Cuncolim : Firstly, you being police officers attached to Cuncolim Police Station and having legal authority to commit persons for trial or to confinement maliciously committed Dattu Naik Dessai in confinement in exercise of that authority knowing that in doing so you were acting contrary to the law and thereby committed an offence punishable under Section 220 read with 120-B I.P.C. Secondly, on the said time, date and place agreed amongst yourselves to wrongfully restrain, assault and murder the said Dattu Naik Dessai and thereby committed an offence punishable under Section 120-B I.P.C. Thirdly, on the said time,date and place you in furtherance of the said criminal conspiracy, wrongfully confined the said Dattu Naik Dessai and thereby committed an offence punishable under Section 342 read with 120-B I.P.C. Fourthly, on the said time, date and place and in furtherance of the said conspiracy assaulted the said Dattu Naik Dessai and committed murder by intentionally or knowingly hanging him and thereby committed an offence punishable under Section 302 read with 120-B I.P.C. Fifthly, on the said time, date and place knowing that the above offences were committed, caused the disappearance of Lock-up Sentry Guard Register and opened another Lock-up Sentry Guard Register with the intention of 12 Crias.59,60-08 screening yourselves from legal punishment and thereby committed an offence punishable under Section 201 read with 120-B I.P.C., and all within the cognizance of this Court. And I hereby direct that you be tried by this Court on the said Charge. 26th February, 2001. Sd/- (N.A. Britto ) Sessions Judge, South Goa, Margao.” 7. The Accused pleaded not guilty to the charges and claimed to be tried. That is how the Sessions Case proceeded. 8. The prosecution examined as many as 46 witnesses. Accused Nos.1, 3 and 4 neither examined themselves on oath, nor led the defence evidence. Accused No.2 did not examine himself on oath, but examined a witness, namely, Dr. Giri Kamat in his defence. Statements of the Accused, as required under Section 313 Cr.P.C. were recorded. Thereafter, the arguments of the learned Public Prosecutor and the Advocates for the defence were heard. Learned Addl. Sessions Judge held that the prosecution has proved that the Accused, in pursuance of the agreement, detained or kept the Deceased in confinement in exercise of their legal authority, knowing that in doing 13 Crias.59,60-08 so they were acting contrary to the law. Learned Judge also held that the prosecution has proved that in pursuance of the agreement, the Accused have wrongly confined the Deceased in the Police Station. The learned Judge held that the Prosecution has proved that the Accused in pursuance of the agreement, committed murder of the Deceased (Dattu). However, the learned Judge held that the Prosecution has failed to prove that the Accused, in pursuance of the agreement, caused disappearance of the Lock-up Sentry Guard Register and opened another Lock-up Sentry Guard Register with an intention of screening themselves from legal punishment or with the intention gave any information respecting the offence which they knew or believed to be false. It is pertinent to note that it is only as against Accused Nos. 1 and 2 that the Charges are held to be proved and they have been convicted; whereas Accused Nos. 3 and 4 have been acquitted. 9. It is the afore-referred Judgment of Conviction and Sentence which is challenged in these Appeals. 10. Mr. S. G. Dessai, learned Senior Counsel appearing in 14 Crias.59,60-08 Criminal Appeal No.59/2008, on behalf of Accused No.2, submitted that the Charges framed would show that the Accused are charged with an offence punishable under Section 120-B of IPC. That is a substantive offence. However, in the entire Judgment of the learned Addl. Sessions Judge, there is no discussion, nor has the learned Judge dealt with this charge, in any manner. He has not recorded that this charge stands proved and when he has not decided this aspect of the matter at all, yet, he has proceeded to convict the Accused for the offence punishable under Section 120-B IPC. This conviction and sentence is, therefore, clearly vitiated. Inviting our attention to Section 120-B of IPC., read with Section 109 of the same, it is submitted that for the Accused to be convicted and sentenced for this offence, it must be concluded that all ingredients of this Section stand proved. Shri Dessai submits that in the entire Judgment, such a conclusion has not been recorded. Therefore, the conviction and sentence not only for this offence, but as a whole, stands vitiated. 11. Mr. Dessai submits that Accused No.2 was working as a Writer at Cuncolim Police Station. He was doing more clerical work. He was not entrusted with any investigating function or duty. He 15 Crias.59,60-08 submits that Accused No.2 had thus, no role in recording the complaint of Ms. Prasheela, daughter of the Complainant Shakuntala. He had no role in the direction to bring the Deceased to the Police Station. The only act that is attributed to him is that the Deceased was brought to the Police Station and made to sit thereat. He abused the Lady Police Constable Ms. Swati alias Madhavi Desai, who is the wife of this Accused No.2. Hence, angered and enraged by the abuses hurled at his wife, the Appellant Accused is supposed to have told Accused No.1 Shripati Dessai to arrest the Deceased. This incident takes place after the Deceased is brought to the Police Station. This is an isolated allegation. Accused No.2 had, thus, nothing to do with the complaint against the Deceased being brought to the Police Station or being allegedly detained in the lock-up. In such circumstances, there cannot be any conspiracy, because the act or the incident that took place at the Police Station allegedly of abusing the Lady Constable had nothing pre-planned or premeditated about it. There is no conspiracy, much less any agreement. In such circumstances, and when the Deceased died some time between 27th to 28th June, 2001, then, all the more this conviction and sentence of Accused No.2 is completely erroneous. 16 Crias.59,60-08 12. Shri Dessai emphasized the fact that one Lucas Rebello was allegedly present at the Police Station being brought in for some other offence and detained in the Male Lock-up. He is alleged to have seen the Deceased in the Female Lock-up. However, although this Lucas Rebello was available, the prosecution has not examined him. He was the only witness, present at the Police Station at the relevant time and on the relevant date. Thus, he was a material witness. His non-examination by the prosecution is fatal. There is no explanation for his non-examination. Merely because said Rebello was out of India or Abroad, is no ground not to examine him and hardly constitutes sufficient reason for his non-examination. In these circumstances, the other allegations, namely, of assault of the Deceased by all the Accused in the Female Lock-up; that his state of health worsening, and on account of the same, these Accused hanging him to a tree behind the Police Station and thus causing his death, is not at all proved. All the persons examined have not witnessed either the Deceased or the persons at the Police Station or in any event, his presence after the N.C. Complaint was not contemplated in law and the parties were directed to go and adopt appropriate proceedings. Thus, this is a case of circumstantial evidence. Once, there is no 17 Crias.59,60-08 situation or circumstance, suggesting criminal conspiracy, and all acts are individually attributed to the Accused, then all the more the conviction and sentence under Section 120-B IPC is vitiated. 13. Then, it is submitted by Shri Dessai that it is not a case of Prosecution that the Deceased was killed by hanging him to the tree. The evidence shows that duty hours of the Appellants are entered in appropriate diaries and books. In these circumstances, and when there is no proof of detention of the Deceased, beyond 13.50 hours on 27th June, 2001 and even the so called eye witness Lucas Rebello had not seen the Deceased at the Female Lock-up when said Rebello returned to the Police Lock-up, after his medical check up, then, the conviction under Section 342 and 220 IPC is wholly unsustainable. In other words, Section 220 speaks of confinement and that itself is not proved. Section 342 deals with a case of wrongful confinement. When there is no restraint placed on the Deceased because the complaint against him was non-cognizable, then, there is no question of wrongful restraint. Even as the complainant had left the Police Station, there is no proof of the Deceased remaining in the Police Station and nobody had seen him after the Complainant Shakuntala had returned to the Police Station 18 Crias.59,60-08 upon her medical check up. In such circumstances, the conviction under both the Sections is bad in law. 14. Mr. Dessai, then submitted that as far as the conviction under Section 302 is concerned, that is also not sustainable. It is wholly erroneous and bad in law. The circumstances that are alleged do not lead to a complete chain, pointing to the guilt of the Accused and negativing the innocence. The chain is not at all consistent, leave alone pointing towards the guilt. The events would disclose that some overt acts are attributed to individual police officers. In these circumstances, even if the case of the prosecution is taken as true, there is no offence of murder. The incident of 26th June, 2001 was not preplanned one, but an usual incident at the Police Station. At a Police Station, several complainants who have fight or quarrels with their neighbours come and make complaints. This is a case of two ladies residing in the neighbourhood of the Deceased and it was alleged that the Deceased had caused injuries to one of the ladies. That her daughter's complaint was taken seriously and the Duty Officer directed two Constables to go and bring the Accused. The record indicates that there were some incidents in the past and the Accused 19 Crias.59,60-08 was alleged to be harassing the lady as she had refused to return his money. In such circumstances, it cannot be a case of any premeditation, much less prior agreement to bring the Accused to the Police Station, and thereafter, assault him. All the powers that are exercised in this case are in accordance with law. From the records, the only allegation is that the Lady Police Constable was present at the Police Station. The Deceased abused this Lady Constable, who is the wife of Accused No.2. On asking the Deceased why he was abusing them, the Deceased was pushed towards Accused No.1 and he was told to arrest the Deceased. This is the only act attributed to Accused No.2. 15. Mr. Dessai, then submitted that if deposition of PW.39 is seen, it is clear that the Deceased was grumbling and complaining as to why he was brought to the Police Station again and again. He hurled abuses loudly. Thus, if the wife of this Accused was abused by the Deceased, and the Accused is supposed to have said that the Deceased must be arrested, that by itself is no ground to presume that thereafter this Accused allegedly assaulted the Deceased and