Bombay High Court
The State Of Maharashtra vs Milind Shridhar Kulkarni & Ors on 7 April, 2016
Bench: S.S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 2 OF 1998
The State of Maharashtra .....Appellant
V/s.
1. Milind Shridhar Kulkarni }
Occupation : Service, }
Resident of Karad, Taluka Karad, }
District : Satara. }
2. Balasaheb Tukaram Jadhav }
Occupation : Service }
Resident of Umbraj, Taluka Karad, ig }
District : Satara. } Respondents
3. Hambirrao Dhondiram Kumbhar }
Occupation : Service, }
Resident of Patan, Taluka Patan, }
District : Satara. }
4. Changdev Shankar Agawane }
Occupation : Service }
Resident of Satara, Taluka and }
District : Satara. }
5. Ramesh Vitthal Toraskar }
Occupation : Service }
Resident of Karad, Taluka Karad, }
District : Satara }
6. Anil Vishnu Choudhari }
Occupation : Service, }
Resident of Umbraj, Taluka Karad, }
District : Satara. }
Mrs. A. A. Mane APP for the State
Mr. Rahul Kate for Respondent nos. 2, 4, 5 & 6.
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CORAM : SMT. SADHANA S. JADHAV, J.
DATED : APRIL 7, 2016.
JUDGMENT:
State of Maharashtra being aggrieved by Judgment and Order
passed by Additional Sessions Judge, Satara dated 22/01/1997 thereby
acquitting the respondents herein of the offence punishable under
section 306, 323, 342 r/w 34 of Indian Penal Code in Sessions Case No.
229 of 1995, has filed the present appeal. During the pendency of
appeal accused Milind Kulkarni has expired on 07/12/2012. Death
certificate is taken on record and marked as article 'X' for the purpose
of identification.
2) It is the case of the prosecution that respondents herein were
working with Detection Branch at Karad City Police Station. That in the
midnight of 16th and 17th February 1993 a telephonic message was
received at Karad City Police Station that a person has been accosted by
the public while he was committing theft in front of the bus stand at
Karad. Assistant Sub Inspector Balasaheb Jadhav asked Police Head
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Constable Hambirrao Kumbhar and Police Constable Changdev
Agawane, Ramesh Toraskar & Anil Chaudhari to go to the said place
and bring the person concerned. Pursuant to the said direction, officers
had been to the scene. They had taken Shivaji Bhojgaonkar in custody
along with property that was attached. He was detained in the lock up
room and the police personnel had left in search of the owner of the
scooter.
3)
Police had arrested one Sanjay Nimbalkar and brought him to the
police station. They had left the police station in search of the owner of
the scooter. It is the case of the prosecution that Shivaji was dealt with
in the interrogation room. He was again kept in a lock up. Entries in
the police station record as well as arrest register showed that Shivaji
was arrested on 12.45 noon on 17/02/1993. At about 3.00 p.m., one of
the inmate in the lock up room had noticed that Shivaji had committed
suicide by hanging in the latrine of the said lock up room with the use
of the strings of the mat provided to under trial prisoners. Police
Inspector in charge of Karad City Police Station was informed about the
said incident. Initially it was registered as A.D. No. 9 of 1993 and the
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investigation was entrusted with local Crime Branch Satara.
Investigation was completed and charge-sheet was filed on
15/12/1995. Case was committed to the court of Sessions. Prosecution
examined as many as 12 witnesses to bring home the guilt of the
accused.
4) P. W. 1 Ananda More happens to be Panch for seizure of the
scooter from the deceased Shivaji. He has admitted before the court
that deceased was giving evasive answers in respect of his possession of
scooter. That the employees of Video Parlour had caught Shivaji Tupe.
Scooter was attached and the accused was arrested.
5) P. W. 2 Kamalakar Kamat was attached to C.I.D. Crime Unit,
Kolhapur as Police Inspector. He had received the papers of inquiry in
A.D. No. 9 of 1993. He had received the orders to lodge F.I.R. and
accordingly on 23/01/1994 on behalf of the State, he had lodged the
report at Karad Police Station. He has proved the contents of F.I.R. And
it is marked at Exhibit 36. On 23rd itself he had seized the registers
from the police station. He had submitted a report for seeking sanction
to prosecute the accused. It is admitted in the cross-examination that
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there is no reference to accused no. 1 Milind Kulkarni in the said crime.
It is admitted by P.W. 2 that section 41 of Code of Criminal Procedure,
1973 empowers the police officer to arrest any person who is found in
possession of any property in suspicious circumstances and for it he
could not account for his possession. It was revealed in the course of
investigation that the scooter did not belong to deceased Shivaji. That
one Parekel had lodged complaint of theft of his scooter. It is further
admitted in the cross-examination that he had not ascertained as to
who was the scribe of the entries in the duty register or who had made
the entries in the station diary of 16 th and 17th February 1993. It is also
admitted that he had not seized lock up register.
6) P.W. 3 Dr. Pandurang Pawar who was working as Medical Officer
in Cottage Hospital at Karad has described the external injuries on the
person of the deceased including a ligature mark on the neck,
contusions, abrasions etc. He had opined that all injuries were anti
mortem in nature and caused by hard and blunt object. The age of
injuries was said to be about 1 - 4 days. He had further opined that the
principal cause of death is "Asphyxia due to hanging". Post mortem
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notes are at Exhibit 38 whereas the advance death certificate is at
Exhibit 39. In the cross-examination he has stated that even after death
the process of change in colour continues. Colour of contusion was
bluish brown and therefore according to P. W. 3 he has opined that
deceased had sustained injuries 2 - 4 days prior to his death. The
possibility of withdrawal symptoms was not ruled out.
7) P. W. 4 Siddhanath Shirtode. He has deposed before the court that
except accused no. 2 Balasaheb other accused were interrogating
Shivaji in the detection room. At about 12.30 noon one more person
was taken in the lock up room. At about 12.45 p.m., Head Constable
Kumbhar brought deceased Shivaji in the room of P.W. 4. At about 3.00
p.m., police had come to the said room to produce accused Shivaji
before the Magistrate and at that time it was revealed that Shivaji had
committed suicide in the latrine by hanging. That Shivaji had used torn
pieces of the mat to commit suicide. P.W. 4 therefore, lodged a report.
On the basis of which A.D. No. 9 of 1993 was registered. It is elicited in
the cross-examination that deceased had explained the contusions on
his person to the police by saying that he was assaulted two days back
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when he was drunk. It is also elicited in the cross-examination that
Detection Branch Room and the lock up room have windows.
8) P. W. 5 Arjun Chorage. He has deposed before the Court that on
17/02/1993 at about midnight, a message was received from Chetna
Vedeo Parlour that a person was caught while he was committing theft
of scooter. Shivaji was taken into custody by the police.
9) P.W. 6 was also brought to the police station as an accused and he
was being prosecuted for offence punishable under section 122 of
Bombay Police Act. He was detained in the lock up room. At about 9.30
a.m., Shivaji was also kept in the same lock up room. The said witness
was declared hostile.
10) Upon perusal of the substantive evidence, it can be seen that
there is no cogent and convincing evidence to hold the accused liable
for offence punishable under section 306 of Indian Penal Code. The
scene of offence Panchanama clearly shows that deceased Shivaji had
committed suicide by hanging himself with the aid of torn mat to the 'L'
angle of the pipe in the toilet. He was found in a bent position.
11) In any case, it cannot be said that accused who are police officers
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had abetted the commission of suicide. That accused had taken custody
of Shivaji on the basis of an information by received by him and the
said act was done by the accused in discharge of their official duties. At
night he was taken into custody. There is evidence that they had
supplied food to the accused Shivaji. Since he was giving evasive
answers, officers had found it necessary to hold custodial interrogation
and the same would not amount to facilitate the commission of suicide.
12)
Section 107 of Indian Penal Code defines abetment as follows:
"Abetment of a thing - A person abets the doing of a thing, who -
Fist - Instigates any person to do that thing; or
Secondly - Engages with one or more other person or persons in
any conspiracy for the doing of that thing, if an act or
illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
Thirdly - Intentionally aids, by any act or illegal omission, the
doing of that thing."
13) In the present case, by no stretch of imagination, it can be said
that accused persons who had arrested Shivaji in the course of
administrative of Law and Order had not facilitated or abetted the
commission of suicide. It is true that there were injuries on the person
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of the deceased, however, there is no admission in the cross-
examination by the Medical officer that injuries found on the person of
the deceased were 2 - 4 days old. The said fact is corroborated by the
evidence of P.W. 5 who has categorically stated in the course of
interrogation that deceased himself had disclosed to the police that he
was assaulted two days ago by the public while he was committing
theft. Hence, the accused, by way of cross-examination have offered an
explanation for the injuries on the person of the deceased and
therefore, it cannot be said that deceased was assaulted by the police.
In any case, assault by itself would not amount to abetment,
commission of suicide. Learned Sessions Judge has recorded justifiable
reasons for recording acquittal in favour of the accused persons.
14) It is settled principle of Criminal Jurisprudence that in cases
wherever there are two view possible, the Court should normally tilt in
favour of the evidence which is in favour of the accused. It is in these
circumstances that the findings recorded by Sessions Court do not call
for any interference. Hence, appeal deserves to be dismissed. Legal
heirs of Milind Kulkarni would be entitled to the consequential benefits
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of the dismissal of the appeal.
O R D E R
(i) Appeal stands dismissed.
(ii) The Judgment and Order dated 22/01/1997 passed by Additional
Sessions Judge, Satara in Sessions Case No. 229 of 1995 is maintained.
(iii) Appeal stands disposed of.
ig (SMT. SADHANA S. JADHAV, J.)
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