2006 ALL MR (Cri) 709
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

J.N. PATEL AND R.C. CHAVAN, JJ.

State Of Maharashtra Vs. Pandurang Anandrao Mahure & Anr.

Criminal Appeal No. 40 of 1996

18th October, 2005

Petitioner Counsel: Shri. A. D. SONAK
Respondent Counsel: Shri. SUDAME

Penal Code (1860), S.302 - Constitution of India, Art.21 - Custodial death - Allegation against respondent of giving a few slaps to the victim before he was lodged in the lock up - No other evidence than this allegation against the respondent - Therefore, the custodial death of victim cannot be held to have been the result of any act of respondent. (Para 12)

JUDGMENT

R. C. CHAVAN, J.: - The State has challenged acquittal of the respondents recorded by the Additional Sessions Judge, Amravati for the offences punishable under Sections 302 and 193 read with Section 34 of the Penal Code and acquittal of original Accused No.1 of the offences punishable under Sections 302, 193, 330, 201, 221, 167, 177 of the Penal Code. During pendency of the appeal respondent No.1 P.S.I. Pandurang Mahure expired on 12-07-2005, hence, the appeal as against him has abated.

2. The facts which led to prosecution of the two accused are as under :

Victim Laxman Deshmukh was working as a contractor with Maharashtra State Electricity Board. He had been given a contract to lay lines at village Palaswada and had been provided with necessary equipment. Engineer-in-charge Shri. Pravin Deshmukh found that victim Laxman was taking more equipment than required and as the victim gave evasive replies, the Engineer-in-charge gave a report at Police Station, Benoda on 24-07-1987 for misappropriation.

3. In course of the investigation P.S.I. Mahure picked up victim Laxman Deshmukh. The respondent No.2 Balasaheb Boke before us is not in the police force but is brother-in-law of P.S.I. Mahure and was with P.S.I. Mahure during the period when the victim was in the custody of P.S.I. Mahure. It is the prosecution case that P.S.I. Mahure and Balasaheb Boke used third degree to victim Laxman Deshmukh. Eventually Laxman died in the police lock up at Benoda. The Sub-Divisional Magistrate was informed and he conducted an inquiry.

4. In the course of inquiry the learned Sub-Divisional Magistrate had conducted panchanama of the spot, inquest panchanama, caused post-mortem to be conducted on the dead body, examined witnesses after giving necessary publicity to his inquiry and then filed a complaint against the respondents P.S.I. Pandurang Mahure and Balasaheb Boke in the Court of Judicial Magistrate, First Class, Morshi. After taking necessary steps the learned Magistrate committed the case to the Court of Sessions at Amravati, where it came to be assigned to the Second Additional Sessions Judge, Amravati.

5. The learned Additional Sessions Judge, Amravati charged the accused of the offences punishable under Sections 302, 193, 339, 201, 221, 167, 177 read with Section 34 of the Penal Code. Both the accused pleaded not guilty and hence, were tried before the learned Judge. In its attempt to bring home the guilt of the accused the prosecution examined in all sixteen witnesses. Upon consideration of the evidence tendered by the prosecution, in light of the defence of denial raised by the original accused, the learned Additional Sessions Judge held that the charges were not proved and proceeded to acquit both the respondents. Aggrieved thereby the State has preferred this appeal.

6. As already enumerated, original accused No.1 P.S.I. Mahure has expired during pendency of the appeal and proceedings against him have abated.

7. With the help of Adv. Shri. Sonak the learned Additional Public Prosecutor for the State and Adv. Sudame for respondent No.2 Balasaheb Boke, we have examined the evidence tendered at the trial in order to find out whether the acquittal of respondent No.2 by the learned Additional Sessions Judge was unjustified.

8. The charge against respondent No.2 is that he caused death of Laxman Babarao Deshmukh by beating him mercilessly in the lock up at Police Station, Benoda. He is not charged of other offences like causing hurt, to extort information, causing disappearance of evidence giving false information or allowing persons apprehended to escape furnishing false information and giving false evidence. The notes of post-mortem examination at Exh.47 proved by P.W.12 Dr. Sadapure would show that the victim had ligature marks on the neck below thyroid cartilage which has led to fracture of thyroid cartilage. According to Dr. Sadapure, the cause of death is 'asphyxia due to strangulation'. The death had occurred in the lock up of Police Station, Benoda as may be seen from the panchanama of spot at Exh.42. The panchanama shows that body was hanging in the slanting position with fingers of both the hands and even the knee joints and posterior portion of the thighs touching the floor. This ruled out possibility of the victim having committed suicide.

9. The question, therefore, is whether the respondent before us, Balasaheb Boke, was involved in the death of Laxman Deshmukh. The report of Sub-Divisional Magistrate at Exh.75 would show that the accused Boke was brother-in-law of Mahure and was accompanying Mahure on motor cycle to make inquiries. It seems that there was a blister on the buttock of the victim and the victim was pleading with the Sub-Inspector not to hit the blister when accused Boke caught hold hands of the victim and asked the Sub-Inspector to break blister. At the time Boke had also given 2-3 slaps on the cheek of the victim. This incident took place on 24-07-1987. The victim was lodged in the lock up at 4.30 a.m. on 25-07-1987 and by 6.00 a.m. the victim had expired. The report of Sub-Divisional Magistrate does not show that accused Boke was present in the Police Station from 4.30 a.m. till the victim died. Even in the complaint filed by the Sub-Divisional Magistrate the role of accused Boke is restricted to giving slaps while accompanying the P.S.I. for investigation.

10. P.W.1 Rajesh, P.W.3 Wasudeo, P.W.7 Gopalrao, P.W.8 Vinod and P.W.13 Haribhau turned hostile, P.W.2 Pravin, on whose complaint investigation against the victim had commenced, did not state about any ill-treatment by the respondent Boke. P.W.4 Pundlik and P.W.6 Babarao do not state about beating by accused Boke. P.W.5 Devanandpuri states that an unknown person, identified as accused Boke, gave 2-3 slaps to the victim at village Loni. P.W.9 Kisanrao and P.W.14 Prashant stated that the victim was being beaten by accused Mahure and other police constables but he does not state about beating by Boke. P.W.10 Narendra also states about beating by P.S.I. Mahure only.

11. P.W.11 Deelip, photographer, had taken photographs of the lock up. As already stated, P.W.12 Dr. Sadapure conducted post-mortem examination, P.W.13 H. C. Bhaurao stated about the victim being brought by P.S.I. Mahure in the lock up. P.W.16 Shri. Harne is Sub-Divisional Magistrate who conducted inquiry and filed complaint before the Magistrate.

12. It may be seen from this evidence that except that allegation of giving a few slaps to the victim before he was lodged in the lock up there is no allegation against respondent Boke. Therefore, the custodial death of Laxman cannot be held to have been the result of any act of respondent Balasaheb Boke.

13. Hence, it cannot be said that the finding that, guilt of Balasaheb Boke was not proved, recorded by the learned trial Judge, was in any way incorrect. Consequently the appeal as against respondent No.2 fails and is dismissed. The appeal against respondent No.1 Pandurang Mahure has abated.

Bail Bonds, if any furnished by respondent No.2 shall stand cancelled.

Order accordingly.