The State Of Maharashtra vs Subhash Gangadhar Panhale And ...
2007 Latest Caselaw 288 Bom

JUDGMENT

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 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. Ushas father (PW 14) Madhukar had lodged complaint against Chandrakant and others about this kidnapping etc and therefore accused No. 1 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 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).

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 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.

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 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 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 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 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 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 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 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 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. 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. 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 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 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. Accused No. 1 has recorded his statement. He came back to his house at 9 O clock in the night and after his dinner he went to the house of P.W.1 i.e. at about 10.30 p.m. to 10.45 p.m. and at that time P.W.1, Arun, Vilas etc were present and he told them that he was called by the police and his statement was recorded.

23. The next witness examined by the prosecution is Narayan Ramchandra Bhandari (PW 7). He is shoe-maker doing same business as of P.W.1 and his family. He has stated that he was working with P.W.1 2 and 1/2 years before the incident of Usha and Chandrakant. He was working in their house which is situated in Sonya Maruti Chowk, Kolhapur. On 15.12.1985 he was called in Shahupuri Police Station in connection with elopement by Inspector Jadhav -accused No. 3. Accused No. 2 had come to call him. He went there at about 3 p.m. He was asked to sit there in the room. He told same facts to the police about his meeting with Chandu or Chandrakant. Then he stated that he was beaten by accused Nos. 1 and 2 on his back and abused him in filthy language and he was assaulted with hands and legs. He further stated that Arun came to the police station to see him at 9.30 p.m. Arun gave Rs. 300/- to accused No. 2 in his presence and then P.w.7 came out of the police station or brought out of the police station by Arun. When Balasaheb (PW1) asked him as to why he was called to the police station, he told everything that was happened in the police station including beating and also showed marks of beating to Balasaheb and others. He took dinner with them and went to sleep in the temple of Deity Masoba. This all happened on 15.12.1985.

24. Then on 16.12.1985, P.W.7 was in the house of P.W.1 in the evening. There was discussion about marriage of Arun. Then all of them had a dinner between 9.30 to 9 45 p.m. Everybody including Arun was present. The dinner was over by 10.30 p.m. Thereafter he did not see Arun alive.

25. From Paras 17 to 24 We have considered the evidence tendered by the prosecution to show that deceased Arun was picked up from his house by the police i.e. accused Nos. 1, 2 and 3 around midnight.

26. As against this, it is the defence of accused, particularly accused Nos. 1, 2 and 3, that they picked up Arun from Sonya Maruti Chowk on the night of 16/12/1985. They brought him to the police station. At that time had injuries on his person and when questioned Arun told that he was beaten and assaulted by some unknown person. It is necessary to find out how the defence tried to prove this fact through the witnesses of prosecution or circumstances or documents produced by prosecution.

27. In order to prove this fact the prosecution has examined P.W.19 Shamrao Patil - a driver of police jeep, P.W.21 Gundu Satavekar - a panch witness and statement of this witness recorded before the Special Judicial Magistrate Kolhapur at Exhibit 77, P.W.22 Tanaji Jadhav - a panch witness and statement of this witness recorded before the Special Judicial Magistrate, Kolhapur at Exhibit 80.

28. Out of these witness P.W.19 Shamrao Patil has stated that he was in M.T.Section of the police at Kolhapur and was in-charge of a jeep bearing No. MTJ 7527. He was attached to Shahupuri Police Station. On 16/12/1985 at 8 p.m. he took the police jeep to Shahupuri Police Station. Accused Nos. 1, 2 and 3 came in the jeep for the night round at 0.10 a.m. The jeep was latter on taken to Sonya Maruti Chowk. It was stopped there. Accused Nos. 1, 2 and 3 got down from the jeep and went away from the jeep on foot. They returned within 15-20 minutes alone with one man. Then the jeep was taken on the main road and all the three accused i.e. accused Nos. 1, 2 and 3 and the said man i.e. the deceased Arun sat in the jeep. He was taken to the police station. On way two scooteries were apprehended for driving the scooter without licence. They were brought to the police station. Then all the four got down from the jeep and went in the police station. At about 1.10 a.m. on 17.12.85 the accused No. 1 and accused Dilip Bhosale went for round in the said jeep. They visited different places. Entries were made in that regard. Then night round was over by 5 a.m. of 17.12.85 and the accused was in the police jeep till then. He then came back and asked the driver to drop him at his residence. Accordingly, accused No. 1 was dropped at his residence.

29. At this juncture it is necessary to note that this witness has stated that from Sonya Maruti Chowk accused Nos. 1, 2 and 3 was brought one man meaning thereby Arun was brought from Sonya Maruti Chowk. The defence had not cared to show the photograph of deceased Arun to him and get an admission that it was Arun who was brought by accused Nos. 1,2 and 3 from Sonya Maruti Chowk.

30. The next witness is Gundu Satavekar (PW 21). He is the rickshaw driver. He was called in the police station at 12.30 midnight on 16.12.1985. 4 to 5 persons were there in the verandah. One PSI told him that one person, who was there, was to be arrested. Then panchanama was written. The person to be arrested was Arun Namdeo Pandav. Then personal search of Arun Pandav was taken. He had one money purse and some chits in his pocket. He was asked to take off his clothes. There were 2-3 bruises on his back and black spot on the waist portion. PSI asked Arun how he got those injuries and Arun told that while he was coming from Kaval Naka he was beaten by 2-3 persons with fist blows and kicks by asking where Chandya is, and therefore, he received injuries. PSI asked him whether he wants to go to dispensary and Arun told that he does not want to got to the dispensary as the injuries were minor. Thereafter this panchanama was prepared. This witness was declared hostile by the prosecution. Suggestion to him was put to him that the panchanama which was already prepared was brought and shown to him and his signatures were obtained on it on 20.12.85 at 4.30 p.m. This witness was confronted with the statement recorded by CID herein he has stated that on that night he drove rickshaw up to 1 O clock, that he did not go to Shahupuri Police Station at all, that he did not act as a panch on that night. He was confronted with the portion marks A, B, and C. He also denied his statement before the Special Judicial Magistrate and stated that he did not make the statement voluntarily. He denied that inland letter (Exhibit 78) was written by him to the Chief Judicial Magistrate, Kolhapur. He also denied his statement to the Addl. District Magistrate Shri Sangle wherein he was shown the photographs of the dead body of Arun and he stated before the Addl.District Magistrate that the injuries seen in the photographs on the body of Arun were not seen by him at the time panchanama.

31. The next witness on this point is Panch Tanaji Jadhav (PW 22). He is an agriculturist residing at Bhosalewadi, Kolhapur. On 16.12.85 he had gone to see a movie by name "Janu" for the night show from 9 to 12. There after he was going by the side of Shahupuri Police Station. He was called in the police station. One rickshawala, (may be P.W.21), was present. PS.I. told both of them that arrest panchanama of one man was to be made. That man was Arun Pandav. He was already present in the police station. Then search of Arun Pandav was taken. There were injuries on his back and Arun Pandav told them that he received those injuries in the beating of Kavala Naka. The PSI asked him whether he wanted to go to hospital. Arun refused and then panchanama (Exhibit 76 was written and signed it by both the panchas and the PSI. This witness was declared hostile, as like P.W.21. He was confronted with his statement recorded by the CID with reference to portion marks A, B, C, D, E and F. He also confronted with his statement before the Special Judicial Magistrate and his inland letter and also with the statement recorded by the Additional District Magistrate and Dy.S.P. Prasad.

32. At this juncture it is required to be noted that when Arun died in the police station, there was hue and cry in the society. Many people assembled in the or around the police station. They raised shouts and slogans demanding an inquiry into custodial death of Arun or an inquiry into his death. Political leaders were also present. They addressed the mob and then inquiry was started by the Sr.Police Officers. Inquiry was also conducted by the District Magistrate in the death of Arun. Statements of witnesses were recorded at different stages by the different officers including the magistrate, the police officers and the CID. The statements of some of the witnesses were got recorded before the Special Judicial Magistrate and, therefore, the crucial witnesses of the prosecution were confronted both by the prosecutor or by the defence when the evidence of the witnesses was contrary to the prosecution case or not benefiting the accused with their previous statements recorded by different officers as stated above.

33. It is to be noted here that panchanama of arrest of Arun Exhibit 76, according to the prosecution, is a document fabricated by the accused in order to save their skin. It is an attempt by these accused to show that when Arun was brought to the police station, he had already injuries on his person and, therefore, his death might be on account of those injuries and none of the accused, particularly accused Nos. 1, 2 and 3, assaulted him in the police station. In order to falsify this defence of the accused, which according to the prosecution, was an afterthought invented to save their own skin, the prosecution got statements of these two panchas recorded before the Special Judicial Magistrate wherein both these panch witnesses stated that the panchanama Exhibit 76 was subsequently prepared at the instance or at the behest of the accused Nos. 1, 2 and 3. Like these two witnesses, the witnesses from the family of Arun were also confronted by the defence with their earlier statements recorded by different authorities.

34. According to the prosecution, this arrest panchanama of Arun is fabricated and created by the accused to save themselves subsequently so also the inquest panchanama prepared was a fabricated document to save the accused. Because this inquest panchanama and its contents, if compared with the post mortem report, are diagonally opposite. It is better to find out what is there in the inquest panchanama. To prove the inquest panchanama the prosecution has examined P.W. 8 Dhanaraj Khamatkar who was the Prant Officer of Karvir Division. We have told during arguments that he was equivalent to S.D.O. he has stated that on 17.12.1985 he was at his house. In the morning he received a message from Shahupuri Police Station about death of a person. He went to his office, got the message, then went to the police station where Add.SP Mrs.Boravankar, Assistant S.P. Mr.Prasad and the Inspector of that police station were present. P.W.8 was told that an inquest panchanama of dead body was to be made. He insisted some of the relatives of the deceased should be present there. Therefore mother of deceased Arun and a boy from the neighbourhood of the deceased were called in the police station. P.W.8 told the mother about the death. She received shock and asked him how her son was died though he was well till yesterday. Thereafter she controlled herself. She identified the body. Then two panchas were called and the inquest panchanama was made.

35. During inquest panchanama it was noticed that yellowish red fluid had come out of the mouth of dead body. The body was seen from both sides by turning it. The blackish blue marks were seen on the back of the dead body. There were about 10 to 15 such marks on the back of the dead body. Then noting was taken down and the panchanama was prepared at Exhibit 37. Then the body was forwarded for post mortem along with a carbon copy of the inquest panchanama. An inventory of all the articles which were then found on the body of the deceased was made as per Exhibit 38. Those articles were seized after making a list thereof. They are at Exh.39 & 40.

36. At about 4 to 4.30 p.m. P.W.8 received a call from the Collector wherein P.w.8 was informed that according to the Civil Surgeon the inquest panchanama was not correctly drawn. P.W.8 therefore immediately went to the CPR hospital where huge mob of people was assembled. He met the Civil Surgeon. M.L.A. N.D.Patil was sitting in the chamber of the Civil Surgeon. He explained details of the inquest panchanama to the Collector. Then P.W.8 and the Collector had gone to see the dead body of Arun and P.W.8 noted two injuries on both the shoulders of the dead body but he did not see any injury on the legs. Then he was confronted with 35 photographs of the dead body and he admitted to be of the same person.

37. During post mortem of the deceased conducted by Dr.Vilas Manade (PW 13) and Dr.Baburao Ghatage (PW 20) the following injuries were noted on the body of Arun.

1. Contusion on top of right shoulder circular 1" in diameter with brown discolouration.

2. Abrasion on right shoulder just posterior to injury No. 1.

3. Contusion on left shoulder ovel 2" x 1/2" brown discolouration.

4. Multiple minor abrasions on left shoulder posterior to injury No. 3.

5. Contusion with brown discolouration on left writ radial aspect circular 1" in diameter.

6. Minor abrasion on left forearm radial aspect 2" above the wrist.

7. There was swelling of left foot ondorsel aspect with brownish black discolouration, incisions taken on dorsel left foot. There was morked haematoma on dorsum extending onmedial and lateral aspect of ankle.

8. Contusion on shin of right tibia, vertical, measuring 3" x 1" extending from 1" above the ankle.

9. Contusion on left elbow posterior aspect ovel 1" x 1/2" brownish discolouration.

10. Contusion on right elbow medial aspect 1" x 1/2"

11. Contusion on right elbow lateral aspect 1" x 1/2".

12. Weal mark, on back extending from medial angle of right scapula to inferior angle of right scapula 6" x 1" brown discolouration.

13. Weal mark just on right side of throasic spine extending from T.1 to T7, 7" x 1" brownish.

14. Weal mark on back left side horizontal extending from posterior auxiliary line to midline (spine) 7" x 1" brown.

15. Weal mark oblique extending from inferior angle of left scapula to right renal angle 6" x 1"

16. Weal mark horizontal at the level of L4 measuring about 2" x 1" brown discolouration.

17. Contusion on right renal angle circular 2" in diameter brownish.

18. Contusion on right parietal region circular 12" in diameter.

19. Contusion on left parietal region circular 1/2" in diameter. The internal examination of the dead body of Arun the following injuries were found:

1. Haematoma on right pareital region circular 2" in diameter.

2. Haematoma on left pareital region circular 2" in diameter.

3. Coverings of brain normal, brain conjusted weight 1200 grams.

4. Fractured ribs 7th 8th on right side posteriorily 2" from spine. Pleura normal Trachea food particles, right lung, left lung were conjusted. Peil cardian was normal. Heard : Weight 400 grams large vessels empty.

5. The walls of abdomen were normal. Feritonium peritonjurn normal except tear on posterior surface. Cavity - about 2 litres of blood, buckle cavity All teeth were present. Oesophabes -no abnormality detected. Stomach and its contents:-About half WAI brownish fluid containing rice small intestine and its contents :-Semi digested food, large intestine and its contents :-faecal matter. Liver :- Wt. 1.5, laceration postero superior surface of right lobe of liver 2" x 1" x 1" bleeding plus, laceration on posterior surface of right lobe of the liver just above inferior border 3" x 1/2" x 1/2" bleeding plus. According to Dr.Manade (PW 13), the cause of death was shock due to haemorrhage due to laceration of liver due to fracture of ribs with multiple injuries.

38. It is general defence of the accused that the injuries noted in the inquest panchanama were factually correct and proper, whereas the injuries noted in the post mortem report were because of pressure of the mob and citizens upon the police and interference of the political leaders who were present in the civil hospital and this pressure was exerted to book these accused falsely in this case.

39. According to the prosecution, on the other hand, P.W.8 - the Prant Officer did not do his duty honestly and sincerely. He did not note down all and each of the injury on the body of Arun and either he was careless in this case or he wanted to oblige these accused.

40. This post mortem was conducted by two doctors, P.W. 13 Dr.Manade, who was senior, and P.W.20 Dr.Ghatage, who was junior. Both these doctors are examined by the prosecution as P.W.13 and P.W.20. So far as number of injuries and nature of injuries are concerned, the doctors are consistent and therefore even at this juncture it can be held that the inquest panchanama was not properly done, not carefully done and all the injuries were not noted. And when Arun died there were 19 injuries on his body, as noted above, coupled with the internal damage. P.W.8 Prant Officer has also stated that during inquest panchanam or after it, a list of things got from the body of Arun was prepared vide Exhibit 40 and as per that list the following articles were found:

1. Rs. 30.90 hand cash of different denomination.

2. A receipt of Rs. 21/- of Maratha Bank.

3. A receipt of Bhavya Bhit Yojana Maratha Mandal Nipani, Dist Belgaum.

4. Kolhapur Mahanagar Palika Chemical Laboratory case paper. Date 2/8/85.

5. Receipt of 15 days accounts.

6. Slip paper of savings bank.

7. A M.T. purse of money. There is a noting on Exhibit 40 that all these articles were kept in an envelope which was given in possession of police inspector Jadhav. It is to be noted here that the item No. 4 - the case paper of chemical laboratory, as stated above, has been relied upon by the defence and the lower court to show that Arun died by heart failure. We found these reasons perverse, as stated above in the initially paras.

41. If at this stage two stories are compared, we find that according to the relatives of Arun, Arun was at home on that day up to 12.30 or up to midnight and he picked up from his home by the accused Nos. 1, 2 and 3. He had not received any injury while at his home. One of the witnesses was called in the police station, and beaten and assaulted, therefore, Arun had gone to release him. On the other hand, according to defence, Arun was brought or taken in custody because an offence was registered against him about aiding in abduction or kidnapping of a girl. He was brought from Sonya Maruti Chowk. When he was brought to the police station in the jeep, as stated above, he had injuries on his person. They were noted in his arrest panchanama. He was asked to whether he wanted to go to dispensary. He refused contending that the injuries are simple and then he kept in lock up. The question is, which of these two stories, is true.

42. We have already noted that the witnesses examined by the prosecution for proving the 1st story were confronted with their previous statements recorded by different agencies, so also the witnesses examined by the prosecution to prove the falsity of the 2nd story of the accused were confronted with their statements recorded by the Magistrate. Giving maximum latitude to the defence and taking these contradictions and omissions as proved, We have no hesitation to hold that the prosecution has succeeded in proving that Arun was picked up from his house in the midnight of 16.12.1985 and 17.12.1985 and, from there he was taken to the police station. The story of the defence, that he was picked up from Sonya Maruti Chowk, that he had injuries on his person because of the assault by some unknown persons and he refused to go to dispensary because the injuries were simple, is false, bogus and invented by the accused to escape from their liability. We have following reasons to come to this conclusion.

1. If the arrest panchanama was done accused Nos. 1, 2 and 3, as stated above, there is no corresponding entry about arrest of Arun in the station diary at least nothing was shown or brought to our notice by defence in this regard.

2. If Arun had so many injuries on his person and he was to be kept in lock up, then it was obligatory upon the accused Nos. 1, 2 and 3 to send him for medical examination and get certificate from the doctor irrespective of the fact that it was midnight time. Nothing is done by accused Nos. 1, 2 and 3 in this regard.

3. If Arun was assaulted by some unknown persons and as a result he had received so many injuries it was bounden duty of the accused Nos. 1, 2 and 3 to get his complaint recorded regarding the incident of assault in detail irrespective of fact that whether the assailants were known to him or not and offence should have been registered against those unknown persons so that the assailants of Arun did not go unpunished.

4. When a man is arrested and to be put in lock up, search of his person is taken and everything that is found on his person is seized by police, there was no reason for the police i.e. accused Nos. 1, 2 and 3 to defer the seizure of articles on the person of Arun till the inquest panchanama was prepared on the next day morning.

5. The defence of the accused that at 5 O clock in the morning of 17.12.1985 Arun demanded water and it was given to him by somebody in the police station has got to be rejected as false defence because the defence did not examine anyone from the police station to testify about this fact. This defence was raised to show that Arun was alive up to 5 O clock and at that time none of these accused Nos. 1, 2 and 3 were in the police station.

6. The evidence of driver of the jeep that accused Nos. 1, 2 and 3, particularly accused No. 1, visited different places within Shahupuri Police Station area during the night in his jeep and that accused No. 1 was not in the police station after 0.10 hours till 5.00 a.m. is concocted story, once it is held that the defence of the accused that Arun was brought in the police station with injuries on his person is discarded and disbelieved as being totally false.

43. We had, during arguments, brought to the notice of learned advocates for the defence that if the Court comes to the conclusion that Arun was brought in the police station, he had no injuries, then very heavy burden would lie upon the defence to show as to how and from where Arun received those injuries. We have discussed the evidence of relatives of Arun. Their evidence is most natural and when all of them have repeatedly stated that Arun was at home up to midnight, he had taken meal and was slept in the front room of 1st floor along with two more persons and from there around midnight he was picked up, then the story of the defence that he was picked up from Sonya Maruti Chowk becomes false and unreliable. Therefore, the defence story is required to be rejected on two grounds. Firstly because of the consistent and reliable evidence of relative of Arun and the improbabilities and lacunae noted by us in the story of the defence.

44. It is true that when the relatives and people in the vicinity came to know about the death of Arun, heavy mob gathered and assembled in and around the police station. It was an angry mob. All of them demanding inquiry into the death of Arun. It is true that the MLA and political leaders were present in the police station and also in the civil hospital, but that in itself is not a ground to discard all that evidence collected by the prosecution by labelling it as the evidence collected under public pressure as vindictive attitude to punish some police officer for the death.

45. The crucial question is, whether Arun died as a result of assault upon him by unknown persons as per the defence story or, whether Arun died as a result of injuries after he was brought to the police station.

46. However, it is also necessary at this juncture to consider other points raised by the accused in this very regard. Our attention was drawn by the counsel for the accused to the evidence of both the doctors and the admissions given by them in the cross examination which, according to them, falsify the story of prosecution about Arun being assaulted in the police station by the accused. Dr.Manade has opined in para 6, after noting all the internal injuries, that these injuries are possible by hard and blunt object and, fist blows and kicks are included in hard blunt object. Dr.Manade given his opinion regarding the cause of death as "shock due to haemorrhage due to laceration of liver, due to fracture of ribs with multiple injuries. He produced original post mortem notes (Exhibit 58) bearing his signature as well as of Dr.Ghatage and also counter signed by the civil surgeon. He stated that these injures were ante mortem; they were sufficient to cause the death in ordinary course of nature; the liver was injured because of the fractures of ribs and penetration of bones in liver. He also opined that if the fist blows and kicks are given on the ribs, they can be fractured. He stated that from the contents of stomach it appeared that the deceased might have taken his last meal within 6 to 8 hours before the death. The age of the injuries at the time of post mortem examination was probably 12 to 15 hours. In next sentence he stated that the age of injuries might be between 2 hours to 3 days. Dr.Manade has further stated that these injuries are probably caused in a beating by immobilisation of the victim; the man would not be able to walk on receiving such injuries.

47. Dr.Manade was cross examined at length by the defence obviously with an object of challenging his opinion. In the cross examination Dr.Manade stated that injuries adopt different colours at different stages i.e. from blue, bluish, black, brown and livid, greenish and yellowish. The first colour is red, then it is blue, then it is bluish black and then brown. Then the doctor admitted that the brownish contusion in this case might have been caused 2 days before the death. The doctor could not give the age of abrasion. He agreed with the suggestion that the injuries on the dead body would have been caused at different times. He further stated that in his opinion the injuries would have been caused within 10 to 12 hours of the death. Then he admitted that the injuries to liver could be caused by a fall so also laceration of liver. If there is laceration of liver, the death may occur within 48 hours. He further stated that if the liver alone is injured, the death may be prolonged for days and a man can survive for 5 days after the laceration to the liver and, some times a man receiving injury to liver can walk if there is no bleeding. Regarding fracture of ribs, the doctor admitted that if such type of fracture to ribs is caused, a man may generally walk and work. He agreed with the suggestion that if the ribs break and pierce in the liver, pleura must be torn. But there was no blood in the plueral cavity.

48. The next witness to corroborate the testimony of Dr.Manade is, Dr.Ghatage (PW 20). He has stated that he carried out post mortem along with Dr.Manade and wrote post mortem notes Exhibit 58. They bear his signature and that of Dr.Manade and civil surgeon. He scored out the words "normal " written against "pleura" and he put his initial. This was done at the time preparing the post mortem notes. He also stated that on the copies of the post mortem notes the word "normal" against "pleura" remained to be scored out due to inadvertence since he had to make many copies. He stated that the injuries might have been caused 12 to 15 hours before the post mortem examination and that it was not possible for the deceased to walk despite such injuries. He was shown blood report from the Municipal Chemical Laboratory. It is marked as "X" and, according to him the report was normal. Regarding the injuries, he also opined that the injuries to the liver are sufficient to cause death in ordinary course of nature.

49. In the cross examination P.W.20 has stated that the P.M. notes were prepared within half an hour after 7.45 p.m. of 18.12.85 and copies of the P.M. notes were prepared on the very night and some copies on the next day. These copies were handed over to different authorities. He also admitted that in the copies pleura was shown as normal. He stated that the other contents of the P.M.notes except the word "normal and rupture" are true and correct which means that the word "normal" against word "pleura" in the other copies of P.M.notes is not correct. Because as per Dr.Ghatage the word "normal" was scored out immediately while the P.M.Notes were being written.

50. The counsel for the accused strenuously urged that making correction in the P.M.Notes amounts to interpolation of the document. According to them, pleura was normal, but only to implicate these accused, it was changed as "ruptured". They tried to seek corroboration to their arguments from the facts that in the copies of P.M.notes given to other authorities, pleura is shown as normal. Further Dr.Ghatage (PW 20) has admitted that he did not make any statement before the A.D.M. that the pleura was ruptured and was not normal.

51. We do not find any substance in this argument. Both the doctors are the responsible doctors of civil hospital. Dr.Ghatage has stated that he has conducted more than 60 post mortems so also Dr.Manade. They are well experienced doctors and there is nothing on record to doubt about their integrity and honesty. Dr.Manade has specifically stated that the correction in the P.M. notes regarding normal and ruptured was made then and there immediately.

52. It is the fact that because of custodial death many agencies were working to find out the truth. They were recording statements of different witnesses. The copies of post mortem were required to be given to them and, therefore, if in giving copies certain mistake cropped up in the copies supplied, then only on that ground the evidence of both these doctors cannot be thrown out.

53. The advocate for the accused also drew our attention to certain admissions given by Dr.Ghatage (PW 20) He has stated in para 4 of his cross examination that all the external injuries of the dead body were simple and because of those external injuries it was not difficult to walk and move. A man may walk for about three days even after receiving the injury in the liver. But the doctor immediately in the next sentence clarified that in this case it was not possible for the deceased to walk. Dr.Manade (PW 13) has also admitted that if the liver alone is injured, death may be prolonged for days and a man can survive for 5 days and if such type of fracture to the ribs is caused, man may generally walk and move.

54. From these two admissions of Dr.Manade and Dr.Ghatage, the counsel for the defendants strongly urged that these admissions support the defence that deceased Arun was assaulted out side the police station at the Chowk by unknown persons, he had injuries on his person and in spite of those injuries he could come to the police station without taking any treatment. All these arguments are fallacious in spite of the admissions given by both the doctors. It has to be borne in mind, and We have pointed out to the counsel for the accused, that Arun was not suffering only from a single solitary injury to the liver or single solitary injury because of fracture of ribs. He had upon his person 19 injuries of different intensity and gravity. Some weal marks were longer than 6" x 7". Injury No. 7 on the left foot indicates that he was assaulted on the sole of foot which generally does not leave any mark. On internal examination 7th and 8th ribs of right side ere found fractured. Two litres of blood was found in the cavity of abdomen and so far as liver is concerned, the specific findings of the doctor are, Weight 1.5, laceration postero superior surface of right lobe of liver 2" x 1" x 1" bleeding plus, fracture of the rib on right side posteriorily, right lung and left lung were congested and there were two haematoma on right and left parietal region circular 2" each in diameter.

55. Therefore, it will be clear that deceased Arun was not suffering from simple laceration of liver. He was brutally assaulted and the cumulative effect of those injuries has to be seen and not the effect of fracture of ribs alone or laceration of liver alone. Both the doctors have opined about laceration of liver simplicitor. They have not opined that in spite of these 19 external injuries and 5 external injuries resulting in accumulation of 2 litres of blood in the cavity of abdomen. Arun was till capable of walking. Therefore, these so called admissions of the doctors do not benefit the accused at all.

56. Further Dr.Manade has given some evidence regarding colour of injuries and age of injuries. He has stated that the brownish contusion in this case may have been caused two days before the death. The age of injuries at the time of post mortem was probably 12 to 15 hours and in the next sentence he has stated that the injuries might be between 2 hours to 3 days. But he has also stated that the determination of exact age of the injuries was not possible.

57. According to the counsel for accused the evidence of this doctor about age of the injuries has to be accepted. Once we say that he is expert in his field, then if Dr.Manade has stated that injuries were between 2 hours to 3 days or 12 to 15 hours or from the colour of the injuries, they were caused two days before the death, then according to the accused, these injuries were not and could not have been caused in the police station between the midnight of 16.12.1985 and 17.12.1985.

58. The argument of the accused may sound attractive but it is devoid of any substance. The dead body of Arun was received in the hospital at 1.30 p.m. In the requisition sent along with the dead body it was stated that death was caused between 7.00 a.m. of 17.12.1985. The post mortem started at 5.45 p.m. and concluded at 7.45 p.m. If the opinion of the doctor that the injuries could have been caused between two hours to three days is accepted, then the injuries become post-mortem and not ante-mortem. Because if the post mortem was started at 5.45 p.m. and the injuries were two hours prior thereto, then it means that injuries were caused to the body while body was in wait for post-mortem. This is impossible and nobody has suggested such a theory that even after the death, the injuries were caused to Arun.

59. Similarly, the opinion of the doctor that the injuries could be caused between two hours to three days prior to death is also required to be rejected. Because none of the witnesses, related to deceased Arun, has stated any where that Arun was assaulted either on 14th, 15th or 16th of December 1985 by anybody. To the contrary, P.W.1 has categorically stated in para 5 of his evidence that, "When I last seen Arun alive, he was in a happy mood. There was nothing wrong with him. There were no injuries on his person. He had no enmity with anyone. He had also not made complaint against anybody."

60. All those witnesses examined by the prosecution on the point one, as stated above, i.e. the relatives of deceased Arun regarding what happened on 16.12.1985 at the house of P.W.1 no where state that anyone had beaten Arun any time prior to 16.12.1985 or before he was taken to the police station in the mid night. The opinion of the doctor regarding the age of injuries, being contrary to the ocular evidence regarding physical condition of Arun, is not required to be accepted.

61. Dr.Ghatage (PW 20) was further asked about difference in the inquest report regarding injuries and the injuries noted by them in the post mortem. He has candidly stated that the injuries that were on the person of Arun were not properly noticed and noted in the inquest panchanama. In view of the fact that the post mortem notes or conducting of post mortem examination is done by two doctors who were examined by the prosecution, it has to be held that the inquest report does not reflect correct and true picture for obvious reason. The evidence of Dr.Manade about the colour of injuries and opinion given by him on that basis that injuries must be more than two days old is also required to be rejected on the same ground as stated above in the earlier para.

62. One of the major submissions of the counsel for the accused was that if Arun was so mercilessly beaten in the police station, the clothes on his person were not found torn or damaged in the assault. It is true that the clothes of Arun do not show any such mark of assault. But this argument has to be out right rejected. Because it is not the case of the prosecution that Arun was assaulted with some weapon. The doctors have opined that these injuries are possible by fist and kick blows and if the fist and kick blows were given and when there was no bleeding injuries then clothes were not likely to reflect any mark of injury. The seizure panchanama of the clothes of Arun is at Exhibit 106. Full sleeves shirt, full pan, white banian, underwear were the clothes found on the dead body of Arun with no tear and torn.

63. It is now necessary to turn to another aspect of the matter as argued by the counsel for the accused. It was mainly the defence of accused that accused No. 1 in particular was on patrolling duty on the night of 16.12.1985 and 17.12.1985. That is after Arun was brought to the police station, arrest panchanama was made and he was put in the lock up. Accused No. 1 along with accused Nos. 2 and 3 went in police jeep, did his patrolling duty in the city till 5 O clock, when at 5 O clock he was dropped at his house by the driver of jeep (PW 19). In order to support this, attempt was made to rely upon the evidence of two witnesses of the prosecution who were brought to the police station as they had no licence to drive the scooter. They are P.W.23 Vasant Dadhibude and P.W.24 Vijay Kanitkar. P.W.23 Vasant Dadhibude was declared hostile but he was confronted with his signature. He identified it and stated that he made this signature on the night between 16th and 17th December 1985 at about 0.30 a.m. and this signature was obtained in connection with a fact that he had no licence of scooter driving. He made this signature in Shahupuri police station. He also admitted that when he had gone to film show and while returning he met his friend Kanitkar who told him that light of his scooter was not in order. The witness was declared hostile because in his statement before the CID Officer he has stated that on the night of 16th and 17th of December 1985 he had slept in his shop and he did not got out of station or to any police station.

64. P.W.24 Vijay Kanitkar gave similar story of being caught on the night when he was driving his scooter without light. The police officer demanded licence, but he had no licence, therefore, he was taken to police station and he paid Rs. 15/-. He was also declared hostile. He was confronted with his statement with the CID officer wherein he has stated that on 16.12.1985 he did not got to any police station on that night.

65. Whether these two witnesses P.S.23 and 24 support or do not support the prosecution is immaterial. What is material for the defence is that while coming back from Sonya Maruti Chowk along with Arun, they had caught two persons without licence which shows that the accused Nos. 1, 2 and 3 were discharging their duties honestly, sincerely and in continuation of those duties, they arrested deceased Arun, brought him to police station, put him in the lock up and again went on their night round of which entries were made by the police jeep driver at different places.

66. Before considering this part of the story of defence, it is necessary to give our finding on the crucial issue. If Arun died as a result of injuries he had before he was being arrested by police at Sonya Maruti Chowk, then nothing remains in the prosecution case. But if, on the other hand, Arun died as a result of brutal assault in the police station after he was brought from his home, then nothing of the defence story matters. That has to be rejected out right. From our earlier discussion on this crucial aspect, We have no hesitation to hold that the prosecution has succeeded in proving that when Arun was brought from home by these accused Nos. 1, 2 and 3, he had no injuries on his person. The story of the police that he was found at Sonya Maruti Chowk and then brought to the police station is false and concocted. Their further story that he already had injuries on his person is false and concocted. Their further defence that he refused to go to the doctor even though offer was made is false and concocted and, the entire defence particularly of accused Nos. 1, 2 and 3 raised in their statements Under Section 313 of the Cr.P.C. is nothing but full of lies and concoction. Arun was beaten and assaulted while he was in the police lock up or police station. Admittedly, there cannot be an eye witness because all those who were inside the police station were the police officers. Though everybody expects police officers to stand by truth whatever that may be. We do not expect the police officers of Shahupuri Police Station to come toward and tell the truth that Arun was assaulted mercilessly in the police station by these accused and admittedly none has come forward to say it even though everyone present in the police station was asked to give a statement in writing as to what has happened on the night of 16.12.1985.

67. Therefore there may not be direct evidence of assault, but the circumstances brought on record and discussed by us as above do clearly and unerringly show that Arun was mercilessly assaulted and brutally beaten in the police station. He had no injuries on his person when he was brought from his house and since it was accused Nos. 1, 2 and 3 who are responsible for bringing him from their own admission from the other circumstances discussed above and he was in their custody, they are required to be held responsible for the assault.

68. Even at the risk of repetition it is necessary to observe that the crucial factor in this matter is, whether deceased Arun had injuries when he was brought in the police station or not, and our answer is, he had no injuries on his person when he was brought in the police station. All the injuries were caused subsequently thereto. Therefore, whether accused No. 1 performed his duty in the night or not; whether accused Nos. 2 and 3 went to their respective houses directly after bringing deceased Arun to police station or not; is of no consequence.

69. It is also necessary to repeat here that the story of defence that Arun alive up to 5 O clock when he demanded water is false and concocted story. Because nobody has testified this fact that Arun demanded water at 5 O clock and it was given to him by some "kind hearted police officer in the police station". This story is invented by the defence to come out of the rigorous of their criminal assault. If they succeeded in showing that Arun was alive at 5 O clock, then the story of assault in the police station, according to their own logic and thinking, automatically stands wiped out. But since this is the fact pleaded by the accused in their defence i.e. the fact of giving water to deceased Arun at 5 O clock and since they have failed to prove it in any manner whatsoever, this story has to be rejected out right. Arun had been assaulted in the police station and the assault could have been at any time after he was brought till he was found dead.

70. It is very significant and pertinent to note that not a single police officer came forward to state as to when Arun was found dead in the lock up, who was the officer who noted this fact first. That aspect is kept untouched or has remained untouched during the entire investigation.

71. At this juncture, it is necessary to consider the lengthy cross examination of the relatives of Arun on the point of their previous statements to the CID or to the inquiry officers i.e. the District Magistrate. We have discussed the evidence of these witnesses. Their simple story is Arun was at home on 16.12.1985 and he had a dinner with them in the night and he slept in the house. It is clear from their statements that none of the relatives of Arun who have examined by the prosecution knows anything as to what happened in the night of 16.12.1985. They are not the eye witnesses of the assault. They have not raised any suspicious finger against anybody except narrating the circumstances in which Arun was picked up from the house on the midnight of 16.12.1985 by the accused. Therefore when this type of evidence is given by the relatives of Arun on the first aspect of matter, viz. from where Arun was picked up by the police, then any contradiction or omission in their statements to different authorities would not and do not affect this material and vital aspect that Arun was taken up or picked up from the house and not arrested by police from Sonya Maruti Chowk. At this juncture it can be pointed out that the prosecution examined 3/4 witnesses from Sonya Maruti Chowk to prove that no Maramari took place in that Chowk on that night. Such an evidence, according to us, was absolutely not necessary, and even if PWs. 2, 3 and 4 are examined, their evidence neither helps the prosecution nor it helps the accused.

72. The counsel for the accused also tried to contend that even though Chandrakant, the brother of Arun, had eloped with Usha, he subsequently married her and that takes away the very foundation of the case of the accused. We are not in agreement with this submission. The question in this case is not whether Chandrakant eloped with Usha or committed any offence. Because neither Chandrakant is an accused in this case nor his abduction or kidnapping Usha is the subject of the issue. The question is whether for making investigation in the case of elopement of Usha with Chandrakant, the police took Arun in their custody or not. Admittedly. Arun was taken in custody for that purpose as the offence was registered against him about causing abetment in the elopement of Usha.

73. Following police officers were examined by the prosecution. P.W.32 - Arun Karkhanis Assistant Police Commissioner, who was at the relevant time Dy.S.P. CID, Flying Squad; P.W.31 Ramchandra Bhosale, P.W.30 - Kakani Laxmi Prasad -the then SDPO, City Sub-Division, Kolhapur from 16.8.85 to 16.7.85; P.W.29 - Balkrishna Jadhav, who was the Inspector of Shahupuri Police Station from April 1984 till 17.12.85, P.W.27 - Nanasaheb Suryavanshi who was attached to the police station and who took the body of Arun to C.P.R.Hospital from police station; P.W.26 Vasant Rane - the Deputy Collector who was the Special Judicial Magistrate at that time. He recorded the statements of Tanaji Jadhav and Gundu Satvekar and also recorded the statement of Vijay Kanitkar; P.W.25 - Damodar Kamble -the Joint Secretary in the Home Department for sanction to prosecute the accused. He proved Exhibit 89 in that regard.

74. One of the submissions of the counsel for accused was that it was the case of political pressure and these accused have been made scapegoat and falsely implicated in this case. If we had found that the defence of the accused was true or probable to create doubt about the case of the prosecution, then certainly the conclusion would have been that the accused are falsely implicated. But We have found that the defence of the accused is totally false, bogus and concocted. Therefore, there is no case of false implication and consequently presence of political leaders soon after the death of Arun in the police lock up does not help the accused. A churning that took place after the death of Arun has resulted in an inquiry and thorough probe which ultimately culminated in filing the charge sheet against the accused and since We have held that the death of Arun is not a natural death or death on account of heart failure as per the findings given by trial Court nor Arun died as a result of injuries sustained by him due to assault prior to his being taken in custody at Sonya Maruti Chowk. But he died only because of the assault upon him in the police lock up.

75. The question, however, that remains lastly, is, which of the 11 accused can be held guilty and for what offence. The charges were framed by the trial court against all these accused as per Exhibit 9. Accused Nos. 1, 2 and 3 are the main culprits and the charges against them are wrongful confinements of Arun Under Section 342 r/w 34 of the Indian Penal Code; causing grievous hurt to Arun 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. Accused No. 1 was the Investigating Officer and Accused Nos. 2 and 3 were assisting him. There is evidence on record to show that when deceased Arun was lifted from his house, it was accused No. 2, then accused Nos. 1, 2 and 3 brought him to the police station and then Arun was found dead in the lock up. Therefore, all these accused Nos. 1, 2 and 3 are required to be held guilty for custodial death of Arun. We, therefore, hold that the charges Under Section 342 r/w 34 and Section 302 r/w 34 of the Indian Penal Code are proved beyond reasonable doubt against Accused Nos. 1, 2 and 3. So far as preparing or fabricating incorrect records is concerned, needless to say that these documents were prepared by accused Nos. 1, 2 and 3 in order to save themselves from the prosecution and other serious consequences. Therefore, Accused Nos. 1, 2 and 3 are also required to be held guilty Under Section 218 r/w 34 of the Indian Penal Code and Under Section 193 r/w 34 of the Indian Penal Code.

76. So far as Accused Nos. 4 to 11 are concerned, they cannot be held guilty for the offence of preparing or fabricating incorrect records. There is no specific, pointed, clear and clinching evidence as to which of the accused Nos. 4 to 11 was responsible for making this false documents. Therefore, acquittal of accused Nos. 4 to 11 from all the charges is required to be up held.

77. About question of punishment. This is a serious offence. An innocent boy, not having criminal antecedents, was brought in the police station, brutally assaulted and killed and then false, fabricated documents were prepared by accused Nos. 1, 2 and 3 for saving their skin. Therefore they deserve to be awarded maximum sentence. Hence, we pass the following order:

ORDER:

Accused Nos. 1, 2 and 3 are held guilty Under Section 302 r/w 34 of the Indian Penal Code and they are sentenced to suffer imprisonment for life with fine of Rs. 5,000/- in default to suffer R.I. for two years.

Accused Nos. 1, 2 and 3 are also held guilty Under Section 342 r/w 34 of the Indian Penal Code and they are sentenced to suffer R.I. for one year with fine of Rs. 1,000/- in default to suffer R.I. for three months.

Accused Nos. 1, 2 and 3 are also held guilty Under Section 218 r/w 34 of the Indian Penal Code and they are sentenced to suffer R.I. for three years with fine of Rs. 3,000/- in default to suffer R.I. for six months.

Accused Nos. 1, 2 and 3 are also held guilty Under Section 193 r/w 34 of the Indian Penal Code and they are sentenced to suffer R.I. for three years with fine of Rs. 3,000/- in default to suffer R.I. for six months.

All the substantive sentences to run concurrently.

Acquittal of Accused Nos. 4 to 11 from all the charges is upheld. Their bail bonds stand cancelled.

Accused Nos. 1, 2 and 3 to surrender before the trial Court within eight weeks from today for under-going sentence imposed upon them. If they do not surrender, the trial Court shall take steps to arrest them and send them to jail for under-going sentence.

Appeal is disposed of accordingly. CRA disposed of accordingly.