Bombay High Court
Saheba Gajanan Kale And Nar vs The State Of Maharashtra And Ors on 13 January, 2021
Bench: T.V. Nalawade, M. G. Sewlikar
1 CriWP-363-08-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 363 OF 2008
1. Saheba s/o Gajanan Kale,
Age 22 years, Occu. Labourer,
R/o. Tambe Mala, Burudgaon,
Taluka and District Ahmednagar
2. Girish s/o Japkar Chavan,
Age 37 years, Occu. Private Service,
R/o. 'Sankalp Colony', Burha Nagar,
Ahmednagar, Taluka and District
Ahmednagar. .. PETITIONERS
VERSUS
1. The State of Maharashtra,
through the Secretary,
Home Department, M.S.,
Mantralaya, Mumbai- 400 032.
2. The District Magistrate / Collector,
Ahmednagar.
3. The Sub Divisional Magistrate,
Ahmednagar Division, Ahmednagar.
4. The Director General of Police (C.I.D.)
M.S., Pune.
5. The Superintendent of Police (C.I.D.)
Nashik Region, Nashik.
6. The Superintendent of Police,
Ahmednagar.
7. The Deputy Superintendent of Police,
State Crimes Investigation Division,
(Crimes) Squad, Ahmednagar.
8. Sunil B. Ramanand,
Addl. Commissioner of Police,
Sp Bench CID, Passport Office,
2nd floor, Near V.J. Times of India Lane,
Fort, Mumbai -1.
9. Central Bureau of Investigation,
New Delhi, through its Director.
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10. Shivaji s/o Vitthal Kale,
Age :34 Yrs, Occ. Service,
R/o Row House No. B-9-1,
First Floor, Sambhaji Nagar,
Dhankawadi, Pune. .. RESPONDENTS
...
Mr. Rajendra S. Deshmukh, Senior Advocate for petitioners
Mr. M.M. Nerlikar, APP for respondents No. 1 to 7
Mr. V. D. Hon, Senior Advocate for respondent No. 8
Mr. N.B. Narwade, Advocate for respondent No. 10
...
CRIMINAL WRIT PETITION NO. 1658 OF 2015
1. Saheba s/o Gajanan Kale,
Age 29 years, Occu. Labourer,
R/o. Tambe Mala, Burudgaon,
Taluka and District Ahmednagar
2. Girish s/o Japkar Chavan,
Age 45 years, Occu. Private Service,
R/o. 'Sankalp Colony', Burha Nagar,
Ahmednagar, Taluka and District
Ahmednagar. .. PETITIONERS
VERSUS
1. The State of Maharashtra,
through the Secretary,
Department of Home, M.S.,
Mantralaya, Mumbai.
2. The Deputy Secretary,
Department of Home, M.S.,
Mantralaya, Mumbai.
3. The Desk Officer,
Department of Home, M.S.,
Mantralaya, Mumbai.
4. The Director General of Police,
M.S., Mumbai.
5. The Superintendent of Police,
(C.I.D.), M.S. Mumbai.
6. The Special Inspector General of Police
(Law and Order), M.S., Mumbai.
7. The Superintendent of Police
(C.I.D.), Nashik Region, Nashik.
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8. The Superintendent of Police,
Ahmednagar.
9. The Deputy Superintendent of Police,
State C.I.D. (Crime Squad),
Ahmednagar.
10. Tukaram s/o. Kondiba Vahile,
Age 56 years, Occu. Service as
Police Inspector with Lonavala
Police Station, R/o. RA-5/9,
Shantivan Society, Chinchwad,
Pune, Taluka and District Pune.
11. Devidas s/o. Baburao Sonawane,
Age 59 years, Occu. Retired,
R/o. Chhatrapati Colony, Bhistbag Naka,
Pipe Line Road, Ahmednagar,
Taluka and District Ahmednagar.
12. Shivaji s/o. Baburao Sudrik,
Age 65 years, Occu. Retired A.S.I.,
R/o. Varad Colony, Bhutkar Wadi,
Ahmednagar, Taluka and District
Ahmednagar.
13. Deepak s/o. Nanasaheb Haral (Died)
14. Arun s/o. Ramchandra Deokar,
Age 45 years, Occu. Service as P.S.I.,
R/o. At Post Found Shiras,
Taluka Malshiras, District Solapur.
15. Bmalasaheb s/o. Shankarrao Ahiwale,
Age 56 years, Occu. Service as Police
Constable, R/o. Kaveri Nagar,
Police Line, Building No. 37, Room No.7,
Wakad-Pune, Taluka and District Pune.
16. Sunil s/o. Sitaram Chavan,
Age 39 years, Occu. Service as
Police Constable, R/o. Plot No. 118,
'Seetakunj', Taluka and
District Ahmednagar. .. RESPONDENTS
...
Mr. Rajendra S. Deshmukh, Senior Advocate i/b. Mr. Govind A. Kulkarni,
Advocate for petitioners,
Mr. M.M. Nerlikar, APP for respondents No. 1 to 9
Mr. N. V. Gaware, Advocate for respondent No. 10
Mr. R. N. Dhorde, Senior Advocate i/b. Mr. V. R. Dhorde, Advocate for
respondents No. 11 and 14
Mr. V. P. Latange, Advocate for respondent No. 15
...
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CRIMINAL WRIT PETITION NO. 139 OF 2009
Shivaji Baburao Sudrik,
Age 59 years, Occu. Retired,
R/o. Bhutkarwadi, Varad Colony,
Ahmednagar, Taluka and District
Ahmednagar. .. PETITIONER
VERSUS
1. The State of Maharashtra,
through the Secretary,
Home Department,
Mantralaya, Mumbai.
2. Saheba s/o Gajanan Kale,
Age 22 years, Occu. Labourer,
R/o. Tambe Mala, Burudgaon,
Taluka and District Ahmednagar
3. Girish s/o Jagkar Chavan,
Age 37 years, Occu. Private Service,
R/o. 'Sankalp Colony', Burha Nagar,
Ahmednagar, Taluka and District
Ahmednagar. .. RESPONDENTS
...
Mr. V. D. Hon, Senior Advocate for petitioner
Mr. M. M. Nerlikar, APP for respondent No. 1
Mr. Rajendra S. Deshmukh, Senior Advocate for respondents No. 2 and 3
...
CRIMINAL WRIT PETITION NO. 900 OF 2011
Dr. Sidhavaram Deepak Subramanyam,
Age 57 years, Occu. Medical Practitioner,
R/o. Deepak Hospital, Savedi,
Ahmednagar, District Ahmednagar. .. PETITIONER
VERSUS
1. The State of Maharashtra,
2. Girish s/o Jankar Chavan,
Age 41 years, Occu. Agriculture,
R/o. Sankalp Colony, Buranagar,
Taluka and District Ahmednagar.
3. Sayba s/o Gajanan Kale,
Age 29 years, Occu. Agriculture,
R/o. Tambe Mala, Burudgaon,
Taluka and District Ahmednagar .. RESPONDENTS
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...
Mr. V. D. Hon, Senior Advocate for petitioner
Mr. M. M. Nerlikar, APP for respondent No. 1
Mr. Rajendra S. Deshmukh, Senior Advocate for respondents No. 2 and 3
...
CORAM : T. V. NALAWADE AND
M.G. SEWLIKAR, JJ.
DATE : 13th JANUARY, 2021
JUDGMENT : (Per : T.V. Nalawade, J.)
Rule. Rule made returnable forthwith. By consent, heard
both the sides for final disposal.
2. One Suman Kale, a lady aged about 50 years of Pardhi, tribal
community, died while in custody of Police. All the proceedings are in
respect of death of Suman Kale. Petitioner No. 1 and 2 from Criminal Writ
Petition No. 1658 of 2015 are the son and the real brother of deceased
Suman respectively and Criminal Writ Petition No. 363 of 2008 is also
filed by them. This Court is mentioning as to who has filed other
proceedings and for what purposes.
3. In prayer clauses (C) and (D) of Criminal Writ Petition
No. 1658 of 2015, the petitioners have claimed reliefs like quashing and
setting aside order of the State Government, by which, sanction is refused
to prosecute the Police Officers for the offences punishable under Sections
306, 120-B, etc. of Indian Penal Code ("IPC"). The interim relief was
claimed to see that Sessions Case is kept pending till Criminal Writ
Petition No. 1658 of 2015 is decided. It appears that interim relief was
granted and due to that Sessions Case No. 184 of 2013 is still pending in
the Court of Sessions Judge, Ahmednagar.
6 CriWP-363-08-J.odt
4. In Criminal Writ Petition No. 363 of 2008, reliefs are claimed
like, giving directions to see that crime is registered for the offence
committed by Police and others under Section 302 of IPC. The prayer is
also made to transfer the investigation to Central Bureau of Investigation
("CBI"), as Central Investigation Department ("CID") had filed charge-
sheet for the offence punishable under Section 306 of IPC.
A compensation of Rs.3,00,000/- (Rs. Three Lakh only) is claimed in
respect of custodial death of Suman.
5. The charge-sheet is filed by CID (Deputy Superintendent of
State CID) for the offences punishable under Sections 306, 330, 331,
341, 343, 201, 109, 166, 193 read with Section 34 and 120-B of IPC.
The charge-sheet is filed against seven Police Officers and one private
doctor. In the charge-sheet allegations are made that on 12-05-2007,
Local Crime Branch, Ahmednagar and Police of Kotwali Police Station,
Ahmednagar, illegally picked-up deceased Suman from her residential
place situated at Burudgaon, tahsil Ahmednagar, at about 12.30 p.m. It
is also alleged that mobile handset of Suman having SIM No. 9860351639
was taken by Police with them, and after that, she was illegally detained
at the places like Kotwali Police Station, LCB Office situated in the building
of office of District Superintendent of Police Ahmednagar, Government
Rest House, Jamkhed, tahsil Jamkhed and Deepak Hospital, Ahmednagar
till 16-05-2007.
6. There is allegation in the charge-sheet that no record of
arrest of Suman was prepared by the Police and on aforesaid places
Suman was tortured both physically and mentally to extract some
information from her in respect of Crime No. 261 of 2006, which was
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registered in Shrirampur Police Station, District Ahmednagar for the
offence punishable under Section 395 of IPC. Suman was not made
accused in the said crime. On the basis of statement of One Smt. Astari,
Police wanted to extract information from Suman in respect of stolen
property and they felt that gold weighing One Kilogram, which was from
that case, was in possession of Suman.
7. There are allegations against Police Officers that in between
12-05-2007 and 14-05-2007 Suman was assaulted, serious injuries were
caused to her both external and internal, and ultimately, she become
unconscious on 14-05-2007 and then She was shifted to private Hospital
of Dr. Sidhavaram Deepak Subramanyam (accused No.7) on 14-05-2007.
There are allegations that to screen the offence committed by Police and
Doctor from Deepak Hospital, false record was created in respect of
injuries and treatment. It is fact, which is on record that Suman died in
Deepak Hospital on 16-05-2007, which is of accused No. 7. In the
charge-sheet, allegations are made that due to torture of Police, other
accused from the case, Suman consumed poison and she died suicidal
death. In view of the the opinion formed of suicide by Police, the charge-
sheet is filed for aforesaid offences.
8. On the basis of investigation made by CID, opinion is formed
by the Investigating Agency and it is as under:-
"The investigation revealed that Suman was illegally picked-up
from her residential place on 12-05-2007 and from that time she was
illegally detained by Police Officers, who are accused, till 16-05-2007." In
view of this nature of opinion formed by Investigating Agency and as one
accused has challenged something like report of Sub-Divisional Magistrate
8 CriWP-363-08-J.odt
prepared during enquiry under Section 176 of Cr.P.C., there is no need to
make detail discussion about facts which resulted in aforesaid opinion.
9. Criminal Writ Petition No. 900 of 2011 is filed by
Dr. Sidhavaram Surbramanyam of Deepak Hospital for relief of quashing
First Information Report (FIR) and charge-sheet. Criminal Writ Petition
No. 139 of 2009 is filed by accused No. 3 - Shivaji Baburao Sudrik, Police
Officer for relief of quashing enquiry conducted by Sub Divisional
Magistrate, Ahmednagar, under Section 176 of Cr.P.C. This Court is
considering the relevant material available against accused - Shivaji
Sudrik. When after hearing learned counsel appointed by petitioner-
Doctor of Deepak Hospital and other side, this Court expressed that the
Court is not inclined to grant relief as prayed, learned counsel for the
petitioner - Doctor, on instructions, submitted that he wanted to withdraw
the proceeding. So, Criminal Writ Petition No. 900 of 2011 can be
disposed of as withdrawn and there is no need to discuss the record
created by Doctor of Deepak Hospital in detail. Only for some relevant
points, the record is being discussed.
10. The material collected by Police, which is filed along with
charge-sheet and contentions made by son and brother of the deceased
show that there are some inconsistencies at least in the record created by
Police about versions of the petitioners. Specific allegations are made by
the close relatives of the deceased that Police made an attempt to obtain
their signatures on blank papers by showing that they will not allow the
relatives to see the deceased in Deepak Hospital if signatures are not
made. It appears that in one police statement of the husband of
deceased, there is signature of husband of deceased, but for the present
9 CriWP-363-08-J.odt
purpose and in view of provisions of Sections 161 and 162 of Cr.P.C., not
much weight can be given to these statements. It is always open to the
defence to confront such statements to the witnesses during cross-
examination. It is specific contention of the close relatives of deceased
that they were helpless and they ran from pillar to post, but, nobody was
ready to listen to their grievance, as Police Officers were involved in the
incident. It is their contention that they had approached to concerned
Police Station, from where deceased was picked-up, but, said Police
Station flatly refused to entertain the complaint. It is their contention
that when they realized that Police are not taking action as Police are
involved in the case, they were required to rush this Court. It is their
contention that when sanction could have been granted by the State
Government, the State Government has refused to accord sanction and
when case ought to have been filed for the offence under Sections 302 of
IPC, the case is filed for offence of abetment of suicide.
11. The material collected by Police shows that accused No. 1
Mr. Vahile, was working as Police Inspector of Kotwali Police Station,
Ahmednagar, at the relevant time. There are statements of aforesaid
close relatives of the deceased and one Police Officer and they are to the
effect that on 12-05-2007 at about 12.30 p.m. he had gone to residential
place of deceased-Suman with four members of Police Staff, and from
there, they had taken deceased to Kotwali Police Station, Ahmednagar.
There is a statement of driver of police jeep. Here, only it needs to be
observed that it will be duty of the trial Court to segregate truth from
falsehood, as in most of the statements of Police Officers an attempt is
made to see that the accused, Police Officers, do not get conviction.
10 CriWP-363-08-J.odt
This Court has carefully gone through the entire record and it shows that
even when deceased was taken to the Police Station, accused No.1 did
not create any statutory record in respect of bringing Suman there. When
he had brought Suman on 12-05-2007 and apparently from that time, she
was in the custody of Police, no record of her arrest was made and no
entry of any kind in respect of Suman was made in Kotwali Police Station.
These circumstances also can be used against him as there will be other
direct and circumstantial evidence against him.
12. Accused Sonwane was attached to LCB and most of the
allegations are against squad of LCB, which was prepared for detection of
crimes of robbery and dacoity. There will be direct evidence that in the
office of LCB, which is situated in the building of office of the
Superintendent of Police, accused assaulted the deceased at least from
13-05-2007 to 14-05-2007. The deceased was not under arrest and so it
was illegal detention as per the case of prosecution. There is statement of
one witness, Advocate Mr. Shaikh to the effect that deceased died in
Deepak Hospital and she had disclosed to him that Police had assaulted
her. Whether his evidence can be believed or not, can be decided in trial,
but at present it can be said that such material is against the Police
Officers. There is statement of one Mr. Kisan Chavan showing that
accused admitted that he had detained Suman.
13. Accused Deokar was PSI of LCB and Special Squad and he
played role at Jamkhed rest house on 13-05-2007. On that day, he had
stayed in Jamkhed rest house where Suman was taken and then tortured.
There will be direct and circumstantial evidence in that regard.
11 CriWP-363-08-J.odt
14. Shivaji Sudrik was working as ASI and he was also attached
to LCB, aforesaid squad. He was in-charge of log book of the vehicle and
it shows that he was there to take deceased in the custody and then to
detain the deceased. There will be evidence against him of the relatives
of the deceased and Police Officer like Mr. Gore. There will be evidence
against Mr. Deepak Haral, Mr. Ahilwal, and Mr. Sunil Chavan of similar
nature.
15. Against Officers of LCB, there will be evidence of Doctor
Smt. Sonali Gadhe @ Nikam. She was working as Medical Officer in Police
Headquarters. The statement of Dr. Smt. Sonali Gadhe @ Nikam shows
that she was called by the Police to examine the deceased, who had
become unconscious in the office of LCB, which is situated in the building
of office of Superintendent of Police. There will be evidence to show that
she had helped the Police Officer to shift the deceased to Deepak Hospital.
In ordinary course, she ought to have seen that deceased was shifted to
Government Hospital, which was nearer than Deepak Hospital. The record
is sufficient to create possibility at this stage that she helped the Police
Officers in their attempt to screen the offence and she had gone to
Deepak Hospital to see that particular kind of treatment was given to the
deceased. Her police statement shows that attempt is made to see that
she made enquiry with deceased at headquarters and deceased disclosed
that she had consumed poison. In respect of this version of Dr.Smt.
Nikam, relevant circumstances will be mentioned at proper place.
Apparently, this witness could not have made such enquiry, as it is case of
the Police Officer that deceased had become unconscious, and in that
state, she was shifted to Deepak Hospital. In such cases the Court can
12 CriWP-363-08-J.odt
consider as to whether this accused can be treated as co-accused and she
can be tried by using Section 319 of Cr.P.C. There is clear probability that
she will help every way to the Police Officers.
16. Due to the way in which record is created by the
Investigating Agency, it can be said that prosecutor of the present case
needs to be very competent and impartial. He needs to take decision as
to whether and which witness needs to be examined and examination of
which witness needs to be avoided. In the say filed by accused in these
proceedings, they have apparently taken false defence that the deceased
was not shifted by them to Deepak Hospital and they had not arrested or
detained the deceased. Due to aforesaid facts and circumstances on
record, the trial Court will have to be very cautious and trial Court will be
required to segregate truth from falsehood. For most of the pieces of
evidence in such cases, Sections 106 and 114 of the Evidence Act need
to be used.
There are following circumstances, which are some of the
relevant circumstances:
(I) The deceased Suman was picked-up by the Police from
her residential place on 12-05-2007 at about 12.30 p.m.
and in that incident five Police Officers, who are made
accused, were involved.
(II) The deceased was taken to Kotwali Police Station first,
but no entry of incident of taking the deceased to Kotwali
Police Station was made in record of Kotwali Police
Station. No female member was included in the team,
which had gone to residential place of the deceased,
13 CriWP-363-08-J.odt
when right from beginning the Police knew that they were
going to bring a lady to Police Station.
(III) There is no record to show that deceased was brought to
Police Station by LCB. There is no record to show that
deceased was allowed to leave either from Police Station
or LCB Office from 12.30 pm. of 12-05-2007 till her
death. As against this, there will be direct evidence to
prove detention of Suman.
(IV) The deceased was taken to Jamkhed rest house for the
purpose of interrogation, but entry of that incident was
also not made in Jamkhed Police Station. One of the
accused as mentioned above had taken room in
Government rest house and he was there on that day.
(V) Near relatives of the deceased were not allowed to see
the deceased from 12.30 PM. Of 14-05-2007 till the time
of her death. The son of informant heard the shouting
and crying of the deceased when torturing was going on.
(VI) In Inquest panchnama and Post-mortem report the
injuries, which were caused due to assault are
mentioned. All of them were ante-mortem injuries and
out of (12) injuries (09) injuries were caused due to
assault. No explanation is offered in the say filed in the
proceedings by respondents-accused.
14 CriWP-363-08-J.odt
(VII) In Deepak Hospital, aforesaid injuries were not noted.
There was also one injury showing that there was
haemorrhage in brain, but papers of Deepak Hospital do
not show that treatment was given in respect of head
injury. In ordinary course, when there was injury to
head, C T Scan would have been done but that did not
happen.
(VIII) No MLC was prepared by Deepak Hospital. Even if it is
presumed that there was suspicion that the deceased had
consumed poison, the Doctors of Deepak Hospital ought
to have prepared MLC and ought to have given
information to the concerned Police Station about
admission of Suman in the Hospital. No such record was
created by Deepak Hospital and due to that inference is
possible that Deepak Hospital and accused who is owner
of that Hospital wanted to conceal everything and he
acted as per the instructions, which he received from the
Police. Apparently, some false record was prepared in this
Hospital.
(IX) Police wanted to discover and seize gold weighing more
than one Kilogram by making interrogation with the
deceased. For that reason, she was picked-up from her
residential place, but she was taken to different places
and she was detained at different places as mentioned in
the petition by Police Officers. The Crime Number in
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which the inquiry was made is available and deceased
was not shown as accused in that crime.
(X) In the say filed by Police Officers, accused, in matters
filed for compensation, they have denied that they had
picked-up the deceased from her residential place, they
had taken her to Kotwali Police station, to LCB Office, to
Jamkhed rest house and then to Deepak Hospital. The
record is otherwise. Even Dr. Gaikwad of Deepak Hospital
noticed Police in Deepak Hospital as they were interested
in seeing that nobody is able to meet and see Suman in
the Hospital.
(XI) Post mortem examination was conducted on the dead
body on 16-05-2007. Nine injuries were ante-mortem in
nature. There was one injury on head like contusion over
both high parietal region of size of 18x14 cm. There was
patechial haemorrhage in white matter. No explanation is
there in respect of this external injury.
(XII) Lungs, Liver and Kidney were found oedematers. Though
these circumstances were there, Doctor reserved opinion
as Doctor wanted to see report of chemical analyzer and
Histopathology report and also doctor wanted to see
scene of crime.
(XIII) The chemical analyzer's report dated 01-09-2007 in
respect of stomach wash of Suman is available on record.
It shows that no poison was detected. Similarly, no
16 CriWP-363-08-J.odt
arsenic was detected. The Chemical analyzer's report
shows that no poison and arsenic was detected in hair
and nails. The CA report shows that ethyl alcohol, which
was used for preservation of viscera and sodium chloride
were detected in viscera. Thus, no poison was detected in
Laboratory after chemical analysis of stomach wash,
viscera, and also in nails and hair of the deceased.
(XIV) The C.A. report dated 01-09-2007 in respect of cloths of
deceased, shows that blood was detected on the cloths,
but no poison was detected even when saliva of the
deceased found on the cloths.
If saliva and froth had come from mouth of deceased and she
had consumed poison, which must have been in liquid form then some
poison could have been detected in the aforesaid articles. That did not
happen.
17. It is the contention of son and brother of the deceased that
she was hale and hearty and she was not suffering from any disease of
lungs, kidney or heart. She was so active in social life. The Investigating
Agency did not collect any record to show that in the past she had
received treatment in respect of any ailment. Due to her social life and
status, it can be said that she was definitely in a position to get medical
treatment, but record of such treatment is not available. In ordinary
course, when Police are involved as accused, if she had received such
treatment, they would have certainly collected that record as every other
attempt is made to see that Police Officers are protected.
17 CriWP-363-08-J.odt
18. Though there are reports of Chemical Analyzer of aforesaid
nature, there is opinion of three doctors of J. J. Hospital, Mumbai, dated
19-01-2009, which is as follows:
"Septic shock with pneumonia and Pancreatitis in case
of poisoning (he most likely poison being
organophosphorous compound), associated with
multiple contusions as a contributor factor)."
In respect of head injury and injury to brain, these Doctors
have given opinion that injury is unnatural and non accidental, but injury
was not sufficient to cause death in ordinary course of nature. This
opinion also shows the manner in which the investigation was done. In
case of poisoning, the poison will be detected at least in nail cuttings and
hair.
19. In ordinary course, the Court is expected to give more
importance to the opinion of Chemical Analyzer. It is more concrete
science and more conclusive than medical opinion. The Court can discard
medical opinion if there is direct evidence and circumstance like above. If
medical evidence is not convincing in the case like present one, the Court
needs to trade very cautiously.
20. On the other hand, on 11-09-2007 three doctors of Government
Hospital, Aurangabad, gave following opinion about cause of death:
"Shock due to multiple injuries on the different parts of
body including head with poison."
In view of the opinion of Chemical Analyzer, if we delete
possibility of the poisoning from the opinion of Doctors at Aurangabad, it
can be said that it become a case of homicidal death. Homicide was
committed by making assault. When there will be clear evidence that
18 CriWP-363-08-J.odt
deceased had sustained head injury of aforesaid nature, then the Court
will be in a position to use aforesaid circumstances, if they appear to be
convincing to the Court against accused persons.
21. The material collected can be used against both Police
Officers and Doctor to prove that it is homicidal death, as it is the
contention of accused that Suman died in the Hospital. If the deceased
was in the custody of Police and then in the custody of Police and Doctors,
some inference can be drawn by using Sections 106 and 114 of the
Evidence Act against both of them.
22. So far as the defence of the accused and also the case of
Investigating Agency of poisoning is considered, it can be said that in
ordinary course as per procedure prescribed, the Police must have done
frisking, personal search, which needs to be done at the time of arrest.
The poison described would be ordinarily in liquid form insecticide and so
it does not look probable that Police had kept bottle of poison in custody
of the deceased. It does not probable that Police had allowed others to
see the deceased and so there is no question of handing over of bottle of
poison to the deceased by outsider. It was in powder form, it was not
possible to consume it as it is. These circumstance create other
probabilities also and that will be against accused persons. Some
inference can be drawn from record created that entire treatment was
given for poisoning case in Deepak Hospital. In ordinary course,
Investigating Agency would have attempted to search for bottle of poison
insecticide, which was used in the incident, but there is no such record for
treatment purpose also the knowledge about nature of poison used is
important. For all these reasons, case of poisoning, suicide does not
19 CriWP-363-08-J.odt
appear to be probable and the case of homicidal death appears to be
more probable.
23. It is already observed that when it is the case of custodial
death, the person, who had custody of the deceased, needs to explain
things in view of provisions of Sections 106 and 114 of the evidence Act.
When death took place in the custody, like, in the present matter, there is
ordinarily no possibility of sustaining injuries accidentally. The Court can
infer that injuries were caused to the deceased when she was in custody
and it is case of homicide.
24. When there is a case of creation of false record for screening
offences and offenders and when there will be charge for offence under
Section 201 of IPC, the possibility of using offence of conspiracy
punishable under Section 120-B increases and that can be used for
homicide. Due to all these circumstances, this Court holds that in the case
like present one, it is always desirable to frame charge of homicide,
murder and in alternative charge for abetment of suicide. If such charge
is there, it becomes easy for the Court to consider and appreciate the
evidence of aforesaid nature. On this aspect, the cases reported in AIR
1993 SC 2119 (Dalip Singh and others Versus State of Haryana), AIR
2005 SC 402 (Munshi Singh Gautam (Dead) and others S. Versus State of
MP) can be referred. In the first case, conviction for the offence under
Section 304 part I and in second case conviction for the offence
punishable under Section 304 Part II of IPC was held possible. In these
cases, there is also discussion as to how knowledge and common
intention can be inferred.
20 CriWP-363-08-J.odt
25. The provisions of Sections 220 and 221 of Code of Criminal
Procedure give discretionary power to trial Court to charge accused
alternatively for two or more offences, if it is doubtful as to which of the
several offences are committed. The power to frame charge under these
sections is discretionary power and due to that this Court holds that it
needs to left to the trial Court to take decision on this point. The trial
Court needs to keep in mind that when in such a case, role played by
accused is not certain due to circumstances, like, record was not created,
but, there is evidence of other nature, each separate act of the accused
can be considered as part of conspiracy. The huge quantity of gold was to
be recovered and by conduct of avoiding to create record, possibility is
created and room is made for drawing inference under various provisions
of Evidence Act. In such a case, Sections 10 and 11 of the Evidence Act
also become important. This Court hopes that trial Court will consider all
these provisions. As there is right to the accused to make submissions
before framing of charge, for that reason also, this Court is avoiding to
give specific directions for framing the charge for offence punishable
under Section 302 of IPC. On this point, learned counsel for petitioners
placed reliance on some observations made at Principal Seat of this Court,
in the case reported in 2019 SCC On-Line Bombay, 5806 (Leonard Xavier
Valdaris and others Versus Officer-in-charge and others ). In that case, a
direction was given to frame charge for the offence of murder. For the
reasons already given by this Court, this Court is avoiding to give such
direction.
21 CriWP-363-08-J.odt
26. So far as point of sanction is concerned, this Court has no
hesitation to hold that there is no necessity of sanction under section 197
of Cr.P.C. The circumstances mentioned show that the deceased Suman
was not involved in any crime as accused. No summons was given for
asking her to appear before the Police. No record of her arrest was
created and no attempt was made to get authorization of her detention.
In defence, these accused persons have denied everything about it by
contending that the deceased was not picked-up and detained by them.
The deceased was police informant and social worker. Many photographs
are produced by the Police, accused, to show that in many police
functions, she was invited and she was offered seat on dais. Thus, the
police are admitted that they knew the deceased. The record already
mentioned like visit of accused to residential place of the deceased to
bring her to Police Station and then direct evidence of witnesses can be
used to show that every act of the accused was unauthorized and illegal.
It is not the defence of the accused in the say that they were discharging
their duties. Further, when there will be charge for offences punishable
under Sections, like, Sections 302, 201 and 120-B of IPC, it cannot be
said that these acts were done during discharge or purported discharge of
the official duty. The State Government, authority has given findings that
in such a case there is no need to accord sanction under Section 197 of
Cr.P.C. Due to all these circumstances, this Court holds that there is no
need to interfere in the decision taken by the Government that sanction is
not necessary and so this Court is not giving direction to reconsider its
decision to accord sanction.
22 CriWP-363-08-J.odt
27. So far as relief of compensation claimed by legal
representatives of deceased is concerned, aforesaid material is more than
sufficient to prove that Suman died in the custody of Police. In the case
reported in (1997) 1 SCC 416 (D.K. Basu Versus State of West Bengal ),
the Apex Court has laid down that in such cases compensation can be
granted under public law by the High Court and this remedy is available
as remedy in addition to remedy for tortious action and punishment to
wrongdoer under criminal law. Reliance was placed by learned counsel for
the petitioners on the decision given by the Division Bench of this Court in
Writ Petition No. 1548 of 2016 (Ashok Kondaji Rokade Versus The State of
Maharashtra and others), dated 26-11-2020. In this case the deceased
was about 16 years and compensation of Rs.5,00,000/- (Rs. Five Lakh
only) was awarded.
28. In the present matter, the deceased was aged about 50
years. In such case, the multiplier can be applied higher than '10'.
Rs.3,000/- (Rs. Three Thousand Only) per month can be presumed as
income of the deceased. Thus, amount of compensation only in respect
of loss of income and dependency can be around Rs.2,50,000/- (Rs. Two
Lakhs Fifty Thousands Only). The deceased was tortured and relatives of
the deceased were required to face all kinds of harassment and they were
required to spend money and time for filing the proceedings in this Court
and for agitating their grievances before the different authorities in many
ways. Due to all these circumstances, this Court holds that successors of
the deceased are entitled to get at least Rs.5,00,000/- (Rs. Five Lakhs
only) as compensation. Even if less compensation is claimed, it is the
duty of the Court to give appropriate compensation.
23 CriWP-363-08-J.odt
Hence, we proceed to pass following order -
ORDER
I. Criminal Writ Petition No. 363 of 2008 and Criminal
Writ Petition No. 1658 of 2015 are partly allowed.
II. This Court has made some observations regarding
the evidence, which is available for consideration of
framing of charge for the offences punishable under
Sections 302, 201 read with 120B of the Indian Penal
Code and it is open to the Trial Court to consider that
evidence at the time of framing of the charge.
III. The compensation of Rs.5,00,000/- (Rupees Five
Lakh only) is granted in respect of the death of
Suman, and that amount will be disbursed among
the L.Rs. of Suman. The son of Suman, who is
petitioner, is to give the names of all the L.Rs. of
Suman so that disbursement order can be made in
their favour.
IV. Initially, the amount is to be deposited by the State
within 45 days from the date of this Judgment in the
Court. If amount is not deposited within 45 days, the
amount shall carry interest at the rate of 8% per
annum.
V. It will be open to the State to recover this amount
from the respondents-Police Officers of the
proceedings, who are mentioned as the persons
responsible for the death of Suman after making
necessary inquiry into it for that.
VI. The stay granted to the trial of the Sessions case is
hereby vacated.
24 CriWP-363-08-J.odt
VII. The trial Court is expected to decide the case within
six months from the date of receipt of this Judgment.
VIII. Criminal Writ Petition No. 900 of 2011 is disposed of
as withdrawn.
IX. Criminal Writ Petition No. 139 of 2009 is dismissed.
X. Rule is made absolute in aforesaid terms.
Sd/- Sd/-
[ M.G. SEWLIKAR ] [ T. V. NALAWADE ]
JUDGE JUDGE
MTK
