* HON'BLE SRI JUSTICE K.C.BHANU AND HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO + CRL.A.No.490 OF 2007 % Dated 27-12-2010 # State of A.P., rep.by the Public Prosecutor, High Court of A.P., Hyderabad. ... APPELLANT V. $ G.Veereshalinga, S.I. of Police, formerly of Rajapet Police Station, Nalgonda District and another. ...ACCUSED ! Counsel for the appellant : Public Prosecutor ^ Counsel for A-1 : Sri E.V.Bhagiratha Rao Counsel for A-2 : Sri D.Srinivasa Rao < Gist : > Head Note: ? Cases Referred: Nil IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT HON'BLE SRI JUSTICE K.C.BHANU AND HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.No.490 OF 2007 Date:27-12-2010 Between:- State of A.P., rep.by the Public Prosecutor, High Court of A.P., Hyderabad. .. Appellant/Petitioner And G.Veereshalinga, S.I. of Police, formerly of Rajapet Police Station, Nalgonda District and another. .. Accused/Respondents JUDGMENT:- (per Hon’ble Sri Justice N.R.L.Nageswara Rao) The State represented by the Public Prosecutor is the appellant and the acquittal of the accused in Sessions Case No.322 of 2000 on the file of the Principal Sessions Judge at Nalgonda is under challenge. 2. The case of the prosecution is that A-1 was the Sub Inspector of Police and A-2 was the Head Constable at Rajapet and a complaint was registered in Crime No.3 of 1994 under Section 380 I.P.C. on the complaint of one Konaganti Venkatamma about the loss of properties and the deceased was suspected of the offence. According to the case of the prosecution, during the course of investigation, on 08-08- 1994, A-1 apprehended the deceased at Lalapet and brought him to Rajapet and confined him in the police station and during that period, the deceased was interrogated by A-1 and A-2 and they also brought the wife of the deceased, Mysamma, P.W.3. She was also ill treated for getting the stolen properties. Due to the continuous beating of the accused, the deceased developed chest pain on 12-08-1994 at about 2 p.m. and evidently, A-2 sent for P.W.5, who is a local doctor, and he examined the deceased and advised the deceased to be taken to Bhongir Hospital as his condition was precarious. Thereafter, the deceased was taken by A-2 in a jeep to Bhongir Hospital and on the way, the deceased lost his breadth and A-2 kept the body at Government Hospital, Bhongir and informed the same to Sub Inspector by way of a report on which a case was registered in Crime No.117 of 1994 under Section 174 Cr.P.C. A requisition was given to the Mandal Revenue Officer to conduct inquest and accordingly, the M.R.O., P.W.13, conducted the inquest over the dead body of the deceased and the dead body was sent for post mortem examination to Osmania Hospital and a team of doctors conducted post mortem examination and found multiple injuries. As against the complaint of police, the Government ordered for magisterial enquiry and accordingly, the Sub Collector, Bhongir conducted an enquiry and recommended action against A-1 and A-2. Thereafter, the Superintendent of Police, Nalgonda directed the Sub Divisional Police Officer, Bhongir to conduct personal investigation against A-1 and A-2 for registering a case. Accordingly, a case in Crime No.5 of 1996 under Sections 342 and 302 I.P.C. were registered and investigation was taken up. During the course of investigation, the statements of the witnesses were recorded and the investigation disclosed that the accused are guilty of illegally detaining the deceased Bixapathy from 08-08-1994 to 12-08-1994 and subjecting him to torture and therefore, they are responsible for the death of the deceased. After completion of the investigation, the accused were charged for the offence under Sections 343 and 302 read with 34 I.P.C. 3. The case was taken on file as P.R.C.No.57 of 1997 by the learned Additional Judicial Magistrate of First Class, Bhongir and committed the same to the Court of Sessions. The case was made over to the III Additional Sessions Judge, (I Fast Track Court), Nalgonda and on appearance of the accused, the learned Sessions Judge framed the following charges: “FIRSTLY: That you A-1 and A-2 from 8th August, 1994 to 12th August, 1994, wrongfully confined Bhupathi Bhixapathi in Rajapet Police Station for the purpose of extorting confession or any information which may lead to the detection of offence of theft in Cr.No.3/94 registered under Section 380 I.P.C. in the said Police Station, basing on the report of Smt.Konaganti Venkatamma of Parupally village to cause restoration of the property or valuable security belonging to her, or to get information which may lead to the restoration of property or valuable security, and thereby you committed an offence punishable under Section 348 I.P.C., and within my cognizance. SECONDLY: That you A-1 and A-2 at or about the same time and place stated supra, interrogated Bhupathi Bixapathi by using third degree methods and did commit murder by intentionally or knowingly causing the death of the said Bhupathi Bixapathi, and that you thereby committed an offence punishable under Section 302 of Indian Penal Code, and within my cognizance. THIRDLY: That you A-1 and A-2 at about or about the same time and place stated supra, voluntarily caused hurt to Bhupathi Mysamma with sticks, used as a weapon of offence likely to cause death and thereby committed an offence punishable under Section 324 of Indian Penal Code, and within my cognizance”. 4. When the charges were read over and explained to the accused, they pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 17 were examined and marked Exs.P-1 to P-6. The accused marked Ex.D-1 on their side by maintaining their plea of innocence about the incriminating material available in the evidence of the prosecution witnesses. 5. After considering the evidence on record, the learned Sessions Judge found the accused not guilty and accordingly, acquitted him. Aggrieved by the said judgment, the present appeal is filed. 6. Heard the learned Public Prosecutor for the State and also Sri E.V.Bhagiratha Rao, Advocate for respondent No.1 and Sri D.Srinivasa Rao, Advocate for respondent No.2. 7. The points that arise for consideration are: 1. Whether the deceased Bixapathy was detained by the accused in the police custody from 08-08-1994 to 12-08-1994, as alleged by the prosecution? 2. Whether the accused have subjected the deceased Bixapathy to torture and ill-treatment causing his death? 3. Whether the prosecution has proved beyond all reasonable doubt the guilt of the accused for the offences with which they are charged? 4. Whether the acquittal of the accused by the lower Court is on proper appreciation on the evidence and facts and if not, whether this Court can interfere with the said acquittal granted by the lower Court to the appellants? 8. POINTS:- In support of the prosecution case, P.W.1 deposed that the deceased Bixapathy belongs to his village and coming to know about the unconscious state of the deceased on 12-08-1994, he went to the police station and found the deceased unconscious and when the police brought a jeep and while taking Bixapathy in the said jeep, he died on the way. He does not know the reason for the cause of the death. P.W.2 deposed that he was a Senior Assistant in Mandal Parishad Office, Rajapet and on 12-08-1994, in the morning, Rajapet police came to him and took the jeep bearing No.ADM 9517 for urgent use and one Sathyam, who was the constable, P.W.10, came and took the jeep. The evidence of P.W.3 is that since the deceased confessed to the police that he committed the theft and handed over the stolen property to her, she was taken to police station where she was beaten by A–1 with a stick. The deceased denied handing over of the theft property to her. The evidence of P.W.4 is that there was a theft of properties in her house and she lodged a complaint with Rajapet police and the police arrested the deceased in connection with that offence and the deceased died a day after the arrest. The evidence of P.W.5 is that he is a private medical practitioner at Rajapet and in August, 1994, P.W.7 came to him and took him to the police station and found the deceased Bixapathy with low blood pressure and advised them to take the deceased to Bhongir. Again, he was informed two or three hours later by the police that the deceased is not well and therefore, he could not be shifted. Therefore, he again went to Rajapet police station and found the deceased unconscious. Again, he advised them to take the deceased to the hospital and even he came to know about the death of the deceased. The evidence of P.W.6 is that the deceased was husband of her sister-in-law and the deceased was taken to the police station where he was beaten in the police station and he has been taken to the hospital but he died. She and the wife of the deceased were said to be present there. The evidence of P.W.7 is that he worked as a Police Constable at Rajapet from 12-03-1993 to 10-08-1998 and A-1 was the Sub Inspector of Police and A-2 was Head Constable and on 08-08-1994, he went to Suryapet and returned on 12-08-1994 and he found the deceased in the police station and the wife of the deceased also came with food. The deceased refused to take food and on request of A-2, he called P.W.5 and P.W.5 informed that the deceased was having low blood pressure and advised him to take the deceased to the hospital and when he was taken to the hospital at about 11 a.m., he died on the way. The evidence of P.W.8 is that he worked as Constable at Rajapet Police Station and on 12-08-1994, when he was at his house, one Ramulu, Sweeper, came to him and asked to attend watch duty in the police station and accordingly, he went at about 7 a.m. and found the deceased in the police station with hand cuffs and in bad condition. Then, he went to P.W.5. He came and examined and he was advised to be taken to the hospital and accordingly, while he was being shifted to the hospital, he died on the way. The evidence of P.W.9 is that he worked as Head Constable at Rajapet Police Station and on 08-08-1994, the deceased was apprehended in Crime No.8 of 1994 and kept in the police station from 08-08-1994 to 11-08-1994 and was interrogated by A-1 and A-2. On 12-08-1994, while the deceased was in serious condition and being shifted to government hospital, on the way, he died. According to him, during interrogation, A-1 and A-2 beat the deceased and therefore, his condition became serious. In the cross examination, it was elicited that he cannot say the date when he joined as Constable at Rajapet and he denied the suggestion that since A-1 has sent a report against him, on the basis of which he was suspended, he was speaking falsehood. He denied the suggestion that the deceased was not brought to the police station on 08-08-1994 and A-1 was not at all present from 08-08-1994 to 11-08-1994. The evidence of P.W.10 is that he also worked as Constable at Rajapet Police Station from September, 1994 to December, 1994 and on 10-08-1994, Bixapathy was brought to Rajapet Police Station in connection with a theft case and after two days, his condition became serious and he was taken to the hospital. Even though the deceased died on the way, he was taken to the hospital. The death was informed to their relatives. The evidence of P.W.11 is that the deceased was her husband and the deceased was taken in connection with a theft case and kept in police station for four days and she went to give meals to her husband and she saw A-1 beating her husband while interrogating and according to her, P.W.5 was called and thereafter, her husband was taken in a jeep and she also followed. The police declared him dead. The evidence of P.W.12 is that he was present at the time when the inquest was held over the dead body of the deceased and clearly deposed that they found that the deceased was having injuries. He denied the suggestion that there were no injuries on the dead body of the deceased. P.W.13 is the Mandal Revenue Officer, who conducted the post mortem examination over the dead body of the deceased and prepared Ex.P-1 report and according to him, the opinion at the time of inquest is that due to the beatings of the police, the deceased died. In the cross examination, he stated that in Ex.P-1, there is no mention that the deceased died due to the beatings of the police. The evidence of P.W.14 is that he was the Sub Inspector of Police, Bhongir. On 12-08-1994, A-2 lodged a complaint about the death of the deceased and it was registered as a case in Crime No.117 of 1994 under Section 174 Cr.P.C and investigation was taken up. The evidence of P.W.15 is that he along with a team of doctors conducted post mortem examination over the dead body of the deceased Bixapathy on the requisition of the M.R.O., Yadagirigutta and found the following injuries and opined that the cause of death was due to multiple injuries. “External Injuries: 1. Abraded Contusion of 4 x 2 cm over right side of fore head 1 cm above the right eye brow obliquely placed. 2. An abraded contusion of 9 x 5 cm over right fronto parital region of the scalp. 3. An abraded contusion of 16 x 4 cm over right side of the abdomen 3 cm away from ubblicus obliquely placed. 4. An abraded contusion of 15 x 2 cm, 1 cm below injury No.3 5. An abrasion of 2 x 1 cm, 1 cm above the lateral end of injury No.3 6. An abrasion of 5 x 4 cm over right side of the chest 2 cm below the right nipple. 7. An abraded contusion of 11 x 1.5 cm over outer aspect of lower part of the right thigh obliquely placed. 8. An abraded contusion of 3 x 2 cm transversely placed in the form of 2 lines with a pale area between them at the junction of upper 2/3rd with the lower 1/3rd of the front of the thigh. 9. An abraded contusion of 5 x 3 cm over lateral aspect of the middle part of the right leg. 10. An abraded contusion 2 x 1 cm over outer aspect of right leg in the middle 1/3rd of the shin, obliquely placed. 11. An abraded contusion 18 x 5 cm around left leg above left ankle the inner aspect is covering the medial mallous. 12. Two abrasions of 2 x 0.5 cm above 1.5 x 0.5 cm below at distance of 1 cm over left side of the abdomen 12 cm below the left nipple. 13. Parallel abrasions of 3 x 1 cm, 3 in number over inner aspect of right elbow with swollen elbow. 14. Abraded contusion of 4 x 3 cm over right knee cap. 15. An abrasion of 2 x 1 cm below the outer angle of the right eye. 16. 2 abrasions of 1 x 0.5 cm at a distance of 2 cm over right cheek. 17. An abrasion of 1.5 x 0.75 cm over the middle part of the lower lip. 18. Diffusion contusion of 10 x 8 x 0.5 cm over dorsum of the right and left hand. 19. Diffused contusion of 10 x 8 x 0.5 cm over front of the left knee. 20. Contusion of 8 x 6.5 cm over proximal half of sole of left foot. 21. Practure proximal phalynx of little toe of left foot. 22. An oval abraded contusion of 4 x 3 cm over left side of the back of the chest over left shoulder blade 4 cm from the midline with pale area centrally. Internal injuries: 1. Fracture 6th rib on left side in middlavicular line. 2. A blood clot of 15 x 6 x 1 cm partially autholysed over left tempro parieto occipital region. 3. 3 lenior contusions of big is 2 cm in length, small 0.5 cm in length over dorsal aspect of the splean. 4. Abdominal wall on left hypochondrium is showing discoloration responding to external injury No.12. All the abrasions and contusions are reddish in colour except injury No.22 which is bluish and black in colour”. In the cross examination, it was sought to be elicited that the requisition was originally sent to Gandhi Hospital but he cannot say as to how the dead body was brought to Osmania General Hospital where the inquest was conducted. He denied the suggestion that he has not conducted the inquest over the dead body of the deceased. He also admitted that by the time of post mortem examination, the dead body was decomposed. He denied that no injuries were found on the body of the deceased but at the instance of the M.L.A. of Alair, he has prepared post mortem report showing the injuries. He filed Ex.P-2-original post mortem report. The evidence of P.W.16 is that he was Deputy Superintendent of Police, Bhongir and on the instructions of Superintendent of Police, Nalgonda, he registered a case in Crime No.5 of 1996 against the accused and investigated into the case. The evidence of P.W.17 is about completion of the investigation and filing of the charge sheet. 9. This being an appeal against an acquittal recorded by the lower Court, this Court has to see as to whether the reasons given by the lower Court are sound, valid and sustainable and further, to see as to whether there is proper application and appreciation of the evidence on record by the lower Court. The Court has to see as to whether the acquittal recorded by the lower Court is on a reasonable benefit of doubt or on surmises or improbabilities, which are beneficial to the accused ignoring the material evidence on record. 10. As can be seen from the judgment of the lower Court, it has not accepted the prosecution case that from 08-08-1994 to 12-08- 1994, A-1 was on duty and it has relied mostly on Ex.P-6, which is said to be a General Diary of the Police Station, produced by the prosecution and came to the conclusion that A-1 was not on duty. The lower Court also rejected the evidence of P.W.9 saying that an enquiry was ordered against him on the complaint of A-1 and therefore, it cannot be accepted. The lower Court also carried away by the plea of the accused that while conducting post mortem examination at Gandhi hospital or Osmania General Hospital, there was a changing of the dead bodies and therefore, there is every possibility of the post mortem examination being conducted on a different dead body when the requisition was sent to Gandhi Hospital but the post mortem examination was conducted at Osmania General Hospital. Strength is sought to be gained from the fact that the evidence of P.W.3 and the inquest report-Ex.P-1 shows that there are no injuries recorded on the dead body of the deceased and therefore, consequently, finding of several injuries on the person of the deceased on whom the post mortem examination was conducted is improbable. All these circumstances were accepted by the lower Court. On the other hand, the learned Public Prosecutor contends that the discarding evidence of P.W.9 and relying on Ex.P-6 is futile and the evidence on record and the document submitted to the Court clearly goes to show that the accused have detained the deceased and was put to harassment. 11. In order to accept the prosecution case against the accused, the first point to be considered by this Court is whether the deceased was detained in the police station from 08-08-1994 to 12-08-1994 and as to whether the plea of the first accused that he was not on duty from 09- 08-1994 till 12-08-1994 being on bandobasth duty is true or not. In this case, the complaint was lodged by a person not less than the Superintendent of Police and a direction was given to the Deputy Superintendent of Police to register the case and for investigation. The allegations in the complaint-Ex.P-1 clearly goes to show that it is A-1 that has apprehended the deceased Bixapathy at Lalpet on 08-08- 1994 and brought him to the police station and detained him. This part of the statement in Ex.P-1 was never confronted to be untrue when the investigating officer was in the box and therefore, the first circumstance against the accused is the complaint-Ex.P-1 clearly mentioning that the deceased was apprehended on 08-08-1994 at morning and brought to the police station. This fact is also further reinforced by the evidence of P.W.9, who was the Head Constable, who spoke about the deceased being brought to the police station on 08-08-1994 and kept in custody till his death i.e., on 12-08-1994. Added to that, the reliance on the plea of the accused that he was on bandobasth duty and Ex.P-6 supports his case cannot be accepted. We have no hesitation to hold that the lower Court has not properly considered Ex.P-6. Ex.P-6 is only a general diary entry said to be dated 20-07- 1994 to 09-08-1994. The lower Court accepted that this Ex.P-6 clearly goes to show that till 12-08-1994, A-1 was on other duty as per Ex.P-6. This inference drawn by the lower Court is not warranted and Ex.P-6 does not rely to the days 10-08-1994, 11-08-1994 and 12-08- 1994. Therefore, it is a futile plea raised by the accused and evidently it is a false plea set up by A-1 to avoid prosecution against him. Added to that, he has submitted case I Diary to the Court, which are dated 10- 08-1994 and 11-08-1994. These extracts clearly go to show that on 10-08-1994 and 11-08-1994 also, A-1 was chasing for the deceased and he was actually on his duty and not on bandobasth duty, which was claimed and accepted by the lower court. Therefore, this is another circumstance where the false plea of the accused has been clearly projected and therefore, there is absolutely no reason before us to accept the evidence of P.W.9, who has specifically stated that on 08-08-1994, the deceased was brought to the police station. In fact, A- 1, being the Sub Inspector, does not say at any stage as to on what date the deceased was brought to the police station and who brought him to the police station and was detained. His plea is only about escaping from his liability and not explaining as to how the person was brought to the police station and detained in the custody for which he is the only man that has to explain. Therefore, the above circumstance also is against the conduct of A-1. Therefore, from the circumstances narrated above and the documents relied on by the accused, it is quite clear that on 08-08-1994 only, the deceased was brought to the police station and was detained. The fact that the deceased died while he was in police custody is not in serious dispute. The only dispute is as to when he was brought, whether he was brought on 08-08-1994 or only on 11-08-1994 or 10-08-1994. When once we are inclined to accept the prosecution case as true of detention of the deceased from 08-08-1994, it is a clear case of illegal detention of the deceased without producing him before any Court and thereby, an offence under Section 384 I.P.C. has been squarely established and there can be no escape for the above offence. 12. So far as the next question about the cause of death of the deceased is concerned, reliance is placed by the accused on the inquest report and also the other evidence giving a suspicion as to the nature of the post mortem examination. It is well known that the police method of causing injuries are very