Sunita W/O. Kalyan Kute vs The State Of Maharashtra And ...
2023 Latest Caselaw 638 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


               CRIMINAL WRIT PETITION NO.1647 OF 2019


                    Sunita w/o Kalyan Kute,
                    Age 46 yrs., Occ. Labour and Household,
                    R/o Songiri, Tq. Bhoom,
                    Dist. Osmanabad.

                                                              ... Petitioner

                                  ... Versus ...

           1        The State of Maharashtra
                    Through it's Principal Secretary,
                    Department of Home Affair,
                    Mantralaya, Mumbai - 32.

           2        The Superintendent of Police,
                    Solapur, Dist. Solapur.

           3        The Police Inspector,
                    Police Station, Madha,
                    Tq. Madha, Dist. Solapur.

           4        Dashrath Vishwanath Kumbhar,
                    Age 49 yrs., Occ. Service,
                    R/o Jagdale Nagar, Bhosre,
                    Tq. Madha, Dist. Solapur.

           5        Deepak Raman Kshirsagar,
                    Age 57 yrs., Occ. Service,
                    R/o Shukrawar Peth, Madha,
                    Tq. Madha, Dist. Solapur.

                                                              ... Respondents

                                        ...

                     Mr. S.R. Kedar, Advocate for petitioner



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                   Mr. A.M. Phule, APP for respondent Nos.1 to 3
             Mr. M.S. Bhosale, Advocate for respondent Nos.4 and 5
                                        ...

                                   CORAM :    SMT. VIBHA KANKANWADI AND
                                              ABHAY S. WAGHWASE, JJ.

RESERVED ON : 06th DECEMBER, 2022 PRONOUNCED ON : 18th JANUARY, 2023

JUDGMENT : (PER : SMT. VIBHA KANKANWADI, J.)

1 The petitioner is the unfortunate mother of a 23 years old young

person, who died for alleged police atrocities, more particularly present

respondent Nos.4 and 5. Hence, she has filed the present writ petition for

the directions to respondent Nos.1 to 3 and more particularly respondent

Nos.4 and 5 to pay amount of compensation of Rs.40,00,000/- to her jointly

and severally and also seeks further directions to recover the said amount

from respondent Nos.4 and 5. She has also prayed for the disciplinary action

against respondent Nos.4 and 5.

2 It will not be out of place to mention here itself that deceased

Pradip Kalyan Kute was married to one Sunanda, however, from the death

certificate issued by Songiri Grampanchayat, Tq. Bhoom, Dist. Osmanabad, of

which true copy has been produced at Exh.'A', Sunanda expired on

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21.06.2020.

3 The factual matrix giving rise to the present petition are that the

petitioner, her son Pradip and his wife Sunita were the sugarcane harvesters

and labours. For the crushing season of 2018-2019 they had gone to

Babanraoji Shinde Sugar and Allied Industries, Turk Pimpri, Tq. Barshi, Dist.

Solapur. Pradip was the owner of Tractor and Trolley, so also, he was the

driver. In pursuant to agreement executed with the Sugar Industries,

deceased Pradip was transporting sugarcane from his tractor on 04.11.2018.

He was along with petitioner, wife Sunanda and cousin brother Bhimrao

Kute. When their tractor was proceeding from Narkhed area, they were

proceeding from Police Station Out Post of village Manegaon, Tq. Madha,

Dist. Solapur. It was around 3.30 p.m. and their tractor was intercepted by

Police Head Constable Mr. Kumbhar and Mr. Kshirsagar i.e. respondent Nos.4

and 5 and two other persons and they started assaulting Pradip on the count

that as to why he has played tape recorder in the tractor. He was severely

beaten though the other persons tried to rescue, as a result of which Pradip

expired on the spot. His marriage with Sunanda was performed about 4

months prior to the said date. Police had taken Pradip in vehicle to Madha

Hospital, where he was declared dead.

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4               The petitioner further contends that the incident has been

witnessed by Sunanda, one Abhijeet Nagnath Parde, Chandrakant Mane, the

petitioner herself and Bhimrao Manik Kute. The petitioner has then lodged

report against respondent Nos.4 and 5 on 05.11.2018, as a result of which

the said offence was registered under Section 302 read with Section 34 of the

Indian Penal Code vide Crime No.218/2018 with Madha Police Station, Dist.

Solapur. Prior to that the postmortem, inquest panchnama, spot panchnama

were executed. In all 43 injury marks were noted in the Postmortem Report

and the cause of death is "head injury with compression of neck with injury

to both lungs". After the completion of the investigation charge sheet is also

filed.

5 The petitioner further contends that Pradip died due to

unnatural death and it happened due to illegal detention by respondent

Nos.4 and 5 and they had assaulted him which has to be categorized under

custodial death. The petitioner being the mother and also the wife had

suffered mental agony. There is huge loss to the family. It has affected their

human rights as well as the human rights of the deceased and, therefore, the

petitioner deserves to be compensated.

6               Learned Advocate appearing for the petitioner has taken us





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through the First Information Report lodged by the petitioner and the

statements of the witnesses, spot panchnama, inquest panchnama and the

postmortem report, which shows about 43 surface wounds in column No.17

and it also shows internal corresponding injuries, which has led to the

conclusion regarding probable cause of death, as aforesaid. He has also

taken us through the statements of witnesses under Section 161 of the Code

of Criminal Procedure. Not only the relatives have supported but the police

staff at the Police Station. The statements would also disclose the immediate

reaction on the part of the petitioner and the family members. Statement of

witness Chandrakant Mane who is resident of village Manegaon, Tq. Madha,

Dist. Solapur would show that he was standing near Manegaon Out Post

when he found that a tractor filled with sugarcane was going towards sugar

factory. In the tractor, songs were played on tape recorder by keeping the

sound at the maximum level i.e. on speaker. He found that respondent Nos.4

and 5 came from the Out Post. The tractor driver stopped the tractor and

also the tape. PHC Mr. Kumbhar was holding a stick which was 3-4 feet long.

When the driver was still at the steering, PHC Mr. Kumbhar started assaulting

him with the stick on his legs, back and neck. PHC Mr. Kshirsagar was

assaulting him with hand. The two ladies sitting in the trolley were asking

the Police persons as to what offence has been committed by the driver and

why they are assaulting him. At that time, both the Head Constables dragged

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tractor driver from the tractor. He had fainted by that time. The mother and

wife of the driver got down from tractor trolley. Both the police officers took

the tractor driver in Police Out Post room towards western side. The driver

was not able to walk on his own. The ladies were raising voice. However,

afterwards the two police officers with the other persons made the tractor

driver sit in a Swift car and took him to hospital in Manegaon. Similar

statement under Section 161 of the Code of Criminal Procedure has also been

given by witness Madan Bharat Parde, Abhijeet Nagnath Parde, Dnyandeo

Jadhav, Rama Limba Mane, Ankush Chandrasen Darade. All these persons

are resident of village Manegaon. Learned Advocate for the petitioner has

then pointed out report of the learned Judicial Magistrate First Class, Madha

as per Section 176(1)(a) of the Code of Criminal Procedure. He has

conducted a thorough inquiry and has concluded that the death of deceased

Pradip occurred when he was in the custody of constables and the death is

homicidal. The said report is dated 17.04.2019. On the basis of the said

evidence learned Advocate appearing for the petitioner prayed that the

petitioner being the mother, who was solely depending on deceased Pradip,

needs to be compensated.

7 Learned APP has taken us through the affidavit-in-reply by

Siddharth Dagdu Kadam, Police Inspector, C.I.D., Solapur, who had

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conducted the investigation and in fact he has produced the copy of the

report under Section 176(1)(a) of the Code of Criminal Procedure given by

learned Judicial Magistrate First Class, Madha, Dist. Solapur. He has

categorically stated that in the investigation it has been revealed that

respondent Nos.4 and 5 are responsible for the death of deceased Pradip.

8 Learned Advocate appearing for respondent Nos.4 and 5 has

taken us through the affidavit-in-reply on behalf of them filed by respondent

No.4 Dashrath Vishwanath Kumbhar. It has been admitted that Pradip was

transporting sugarcane on 04.11.2018. He was stopped by respondent Nos.4

and 5 and he was asked as to why he has tuned tape in high volume.

However, they have denied that they had taken him in custody and beaten

him, as a result of which he expired. There was no motive for them to kill

Pradip. Deceased had some brain disease and as a result of which he has

expired. Deceased had become dizzy and, therefore, he was taken to hospital

where he was declared dead. No external injury was found on the person of

deceased as the panchnama was done in presence of Judicial Magistrate First

Class, Madha. Statement of Medical Officer Dr. Arti Bhandari would clarify

that deceased was having brain disease and she had not noted any external

injury. So also, the Deputy District Medical Officer, Pandharpur has also

stated that there was no external injury. Statement of API Mr. Dattatraya

8 Cri.WP_1647_2019_Jd

Nikam would show that relatives of the deceased forcibly taken the dead

body in their custody and on the stretcher they had taken the body from Civil

Hospital to Police Station. Therefore, possibility of getting those injuries at

that point of time cannot be ruled out. The death was natural or not is a

disputed fact but since there was no external injury but the Postmortem

Report says that there were 43 external injuries is a doubtful circumstance.

Now, the trial is in progress and they would face the trial. It cannot be held

that they are responsible for the death. First Information Report lodged by

ASI Mr. Maruti Nivrutti Londhe of Madha Police Station against one Sitaram

Manve and others vide Crime No.222/2018 with Madha Police Station,

Solapur (Rural) under Section 143, 297 of the Indian Penal Code is also

pointed out, in view of the fact that the accused persons named therein had

obstructed the official work by making unlawful assembly. Learned Advocate

for respondent Nos.4 and 5 has therefore pointed out that as it cannot be

concluded that death of Pradip occurred in the custody of respondent Nos.4

and 5 and they are responsible for the said death, they cannot be asked to

compensate the petitioner.

9 The first and the foremost fact that is required to be considered

in the light of the objection taken by respondent Nos.4 and 5 that their trial is

still pending and their guilt is yet to be established. We would like to rely on

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Deputy Commissioner, Dharwad District, Dharwad and others vs. Shivakka

(2) and others [(2011) 12 SCC 419, wherein it was held that though the

departmental proceedings having been initiated against erring police officers

involved in beating deceased in custody, the fact is that deceased died in

custody and criminal case pending. The High Court entertaining writ to

award compensation was held to be maintainable. In this case as well as in

D.K. Basu vs. State of West Bengal [(1997) 1 SCC 416] and Ajab Singh and

another vs. State of Uttar Pradesh and others [(2000) 3 SCC 521] it was held

that the High Court under its writ jurisdiction under Section 226 of the

Constitution of India can entertain such petitions, rather they are to protect

the rights inherent in Article 21 of the Constitution of India. In D.K. Basu

(supra) it has been observed that -

"Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law- enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including

10 Cri.WP_1647_2019_Jd

whether monetary compensation should be awarded for established infringement of the fundamental rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental."

It is further observed that the custodial death is perhaps one of

the worst crimes in a civilized society governed by the rule of law. Though

police have powers to control the actions of the people and the crime; yet, it

is not unfettered under the guise of exercise of the said power they cannot

torture or deal with a citizen in inhuman manner. The State is the protector

of the life of its citizens if it's employee undertakes torturous act under the

guise of power, then it has to compensate such citizen or legal representative

of such citizen. Hon'ble Supreme Court in D.K. Basu (supra) went on to issue

guidelines/requirements to be followed in all the cases of arrest and

detention and in fact now most of those guidelines are forming part of the

Code of Criminal Procedure after its amendments. Therefore, it is now

required to be seen as to whether death of Pradip in the present case

amounted to custodial death or not.

10 We would definitely like to straight away rely on the report of

the inquiry made by learned Judicial Magistrate First Class under Section

176(1)(a) of the Code of Criminal Procedure. The said provision has been

made to make inquiry in respect of custodial deaths. From the report it can

11 Cri.WP_1647_2019_Jd

be seen that during the inquiry into the cause of death of Pradip evidence has

been recorded and the said evidence has been assessed. The Postmortem

Report after noting down the injuries in clear manner suggests the probable

cause of death as - "head injury with compression of neck with injury to both

lungs", therefore, the medical officer has categorized the death as 'homicidal

in nature'. In all 43 injuries were noted as surface wounds and there were

corresponding internal injuries to the scalp in the form of hemorrhage. Here,

the entire charge sheet is also produced which contains statements of those

eye witnesses, which were recorded under Section 161 of the Code of

Criminal Procedure. All of them are consistent enough in saying that Pradip

was driving tractor, in which the petitioner, Pradip's wife and Bhimrao - his

cousin brother were travelling. The vehicle was intercepted by respondent

Nos.4 and 5 on the ground that he was playing song in tape recorder through

speaker, it's voice was loud. Petitioner is also the eye witness and in their say

respondent Nos.4 and 5 have admitted that they had intercepted the tractor

driven by Pradip. The eye witnesses have stated that Pradip was assaulted by

respondent Nos.4 and 5 and this fact is supported by the Postmortem Report.

No doubt, in the First Information Report the informant has not stated that

Pradip was taken inside the Out Post, but other eye witnesses have

specifically stated about the same. Those eye witnesses not only in their

statement under Section 161 of the Code of Criminal Procedure were saying

12 Cri.WP_1647_2019_Jd

so but even before the Magistrate in the inquiry that was conducted under

Section 176(1)(a) of the Code of Criminal Procedure have stated the same

fact. Important point to be noted is that the petitioner, her deceased son or

other persons travelling from the tractor were not even knowing respondent

Nos.4 and 5, therefore, question of implicating them does not arise. The

witnesses are consistent enough in saying that the assault was by kicks and

fist blows as well as stick. They have also stated that Pradip felt giddiness

and still he was dragged to Police Station. The other witnesses appears to

have not gone inside the Police Station Out Post to see what is happening but

they had heard the loud voice of the ladies. Respondent Nos.4 and 5 now

want to rely on the statement of Medical Officer Dr. Priti Bhandari, which

was recorded under Section 161 of the Code of Criminal Procedure that after

death of Pradip when she made inquiry with his mother as to whether there

was any disease to the deceased, she told that he suffers from some disease of

brain and the documents are at her village. She has then stated that she had

not find any injury or marks of assault on the deceased. Similar observation

is also made by Dr. Nandkumar Gholve, who was the Medical Officer to Sub

District Hospital, Pandharpur and was posted at Rural Hospital, Madha. It is

to be noted that since beginning when Pradip was taken to hospital, others

had accompanied the family and under such circumstance, there was no

question of infliction of injuries at a later point of time as the Postmortem

13 Cri.WP_1647_2019_Jd

Report suggests 43 external injuries. Even it is specifically stated in the

Postmortem Report that those injuries are ante-mortem, age of all injuries is

same, they were fresh and within 24 hours. Therefore, that evidence is

sufficient to arrive at a conclusion that those injuries were inflicted by

respondent Nos.4 and 5. Those injuries were inflicted when Pradip was

sitting on tractor, then he was taken inside the Out Post and, therefore, it

amounts to custodial death. For custodial death it need not be the injuries

which are inflicted in a Police Station or an Out Post. In custodial death the

injuries should have been inflicted when the person was in any way in the

custody of the police officer and, therefore, we take the inquiry report given

by learned Magistrate as the strong piece of evidence to support the

contention of the petitioner that death of Pradip was a custodial death, which

is one of the heinous crimes. We would also like to say that there was no

reason for respondent Nos.4 and 5 to intercept the tractor driven by Pradip,

even if they were having some objection regarding the sound they could have

told the same to Pradip in a dignified manner. When there was no reason for

interception and then no reason for police atrocities, there is violation of

fundamental rights of the deceased. Therefore, grant of compensation in a

proceedings under Article 226 of the Constitution of India for the established

violation of the fundamental rights guaranteed under Article 21 of the

Constitution of India is an exercise of the Courts under the public law

14 Cri.WP_1647_2019_Jd

jurisdiction for penalizing the wrong doer and fixing the liability for the

public wrong on the State which failed in the discharge of its public duty to

protect the fundamental rights of the citizen. These are the observations

from D.K. Basu (supra).

11 Having considered the fact of establishment of custodial death of

Pradip at the hands of respondent No.4 and 5 we would proceed to

determine the compensation.

12 In the present matter deceased Pradip was aged 23. He was

married about four months only prior to his death. In many cases we have

found that some lump sum amount has been fixed by Hon'ble Supreme

Court, however, the best mode to quantify the amount of compensation

would be equivalent to the procedure for arriving at an amount of

compensation to be paid in motor vehicle accident cases. We would be

guided by the decision in Magma General Insurance Company Limited vs.

Nanu Ram Alias Chuhru Ram and others, (2018) 18 SCC 130. Herein also no

documentary evidence/proof has been adduced regarding the earning of

deceased Pradip and, therefore, in absence of any evidence and taking into

consideration the minimum wages amount of Rs.6,000/- is taken as his

income per month. Further, in view of Magma General Insurance Co. Ltd.

15 Cri.WP_1647_2019_Jd

(supra) amount of Rs.2,400/- per month i.e. 40% of the income is added

towards future prospectus. Taking into consideration the two persons would

be depending on his income i.e. mother and his wife and he himself, the

deduction towards personal expenditure would be 1/3 rd i.e. Rs.2,800/- per

month. Therefore, the dependency on the deceased of his wife and mother

would be Rs.5,600/- per month (i.e. 2/3rd of Rs.8,400/- per month). Further,

in view of Smt. Sarla Verma and others vs. Delhi Transport Corporation and

another, (2009) 6 SCC 121, just multiplier would be 18 and, therefore, the

loss of future income would be Rs.12,09,600/- (Rs.5,600/- per month x 12 x

18). Here, it is to be noted that in view of the death certificate of wife of

Pradip showing that she expired on 21.06.2020, we cannot allow more

amounts and towards loss of love and affection amount of Rs.50,000/- can be

allowed. Further, amount of Rs.15,000/- would be added towards funeral

expenses, Rs.15,000/- towards loss of estate and Rs.40,000/- towards loss of

filial consortium can be awarded. However, we would also like to add

amount of Rs.2,00,000/- towards the police atrocities i.e. violation of

fundamental rights. Though the basic amount is also for the police atrocities;

yet, we would like to say that the said amount of Rs.13,29,600/- was only

towards loss of income and dependency. The additional amount is towards

harassment and the atrocities plus violation of fundamental rights of not only

the deceased but also that of the petitioner and the wife of the deceased.

16 Cri.WP_1647_2019_Jd

Thus, the petitioner would be entitled to get compensation of Rs.15,29,600/-

(Rupees Fifteen Lac Twenty Nine Thousand and Six Hundred only). Though

the petitioner has claimed amount of Rs.40,00,000/-, it is on higher side.

13 For the aforesaid reasons, we proceed to pass following order.

                                       ORDER


1               Writ petition stands partly allowed.


2               Respondent Nos.1 to 5 should pay amount of Rs.15,29,600/-

(Rupees Fifteen Lac Twenty Nine Thousand and Six Hundred only) in respect

of death of Pradip to the petitioner.

3 Initially the amount is to be deposited by the State within a

period of two months from the date of this Judgment. If the said amount is

not deposited within the said period, that amount to carry interest @ 6% per

annum from the date of the order till actual realisation of the entire amount.

4 It will be open to the State to recover the amount, so paid to the

petitioner from respondent Nos.4 and 5, as they have been revealed to be the

persons responsible for the death of Pradip.

5               After the amount is deposited, out of the said amount, amount of




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Rs.10,00,000/- (Rupees Ten Lacs only) be invested in the name of petitioner,

in any Nationalized Bank of her choice, for a period of five years.

6 Liberty is given to petitioner to withdraw the quarterly interest.

7 After the period of maturity the concerned Bank to make

payment of the entire matured amount directly to the petitioner without

reference to this Court.

8 We make it clear that some observations regarding the evidence

made by this Court may not be binding on the Trial Court, as the trial has to

go and be decided on the merits.

( Abhay S. Waghwase, J. )                        ( Smt. Vibha Kankanwadi, J. )




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