IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 385386 OF 2008
YASHWANT ETC. …APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA …
RESPONDENT(S)
With
CRIMINAL APPEAL NO(S). 299 OF 2008
CRIMINAL APPEAL NO(S). 387388 OF 2008
CRIMINAL APPEAL NO(S). 182187 OF 2009
J U D G M E N T
N. V. RAMANA, J.
“With great power comes greater responsibility”
1. At the outset it is important to note that our police force need
to develop and recognize the concept of ‘democratic policing’,
wherein crime control is not the only end, but the means to
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REPORTABLE
achieve this order is also equally important. Further the turn
of events in this case obligates us to reiterate herein that ‘be
you ever so high, the law is always above you!’
2. These criminal appeals are filed against the impugned
common order and judgment, dated 13.12.2007, passed by
the High Court of Judicature at Bombay, Nagpur Bench, in
Criminal Appeal Nos. 393, 394, 395, 397, 419 and 420 of
1995. As the incident is same and contentions canvassed
individually, being similar, we proposed to deal with the
judgment through this common order.
3. The prosecution’s case in brief are that on 23.06.1993, Police
Inspector (P.I) Narule (A1) was on duty, when one head
constable Telgudiya (PW48), working at the concerned Police
Station, Deolapar came to P.I Narule (A1) accompanied by
three persons namely Ganeshprasad, Arunkumar and
Kashiram. They informed P.I Narule (A1) that they were
staying at India Sun Hotel and were looted eight days before.
It may be relevant that they informed P.I Narule (A1) that
they had not lodged any complaint concerning the incident.
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4. On that night , the accused patrolling party which included
P.I Narule (A1), Assistant Police Inspector Yashwant Mukaji
Karade (A2), SubInspector Rambhau Vitthalrao Kadu (A3),
Police constables Jahiruddin Bashirmiya Deshmukh (A4),
Nilkanth Pandurang Chaurpagar (A5), Namdeo Nathuji
Ganeshkar (A6), Ramesh Tukaram Bhoyar (A7), Ashok
Bhawani Gulam Shukla (A8), Sudhakar Marotrao Thakre (A9)
and Raghunath Barkuji Bhakte (A10), along with
Ganeshprasad, Arunkumar and Kashiram, went to the house
of H.C.P Telgudiya (PW48) at Police Lines, Ajni. In the
meanwhile, H.C.P Telgudiya (PW48) is supposed to have
found out that a Christian male by the name of ‘Anthony’ was
responsible for the looting. Although, the H.C.P Telgudiya
(PW48) confirmed that there was no ‘Anthony’, but he is
supposed to have revealed that one Joinus (deceased) lives
nearby, who was a known suspect from earlier robbery case.
H.C.P. Telgudiya, took the police party to the residential
quarters of Joinus (deceased), who had already slept after
having his dinner and consuming some alcohol.
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5. It was around 1:00 AM in the night, the police party reached
the house of Joinus (deceased). He was taken into custody
and his residential quarters were searched. It is alleged that
during this process, some of the police men are supposed to
have molested Zarina (PW1), wife of Joinus (deceased).
Thereafter, the police party tied Joinus (deceased) to an
electric pole outside and was beaten by the police personnel
with sticks. Later Joinus (deceased) and his other family
members were taken to various locations including Rani
Kothi, Hill Top restaurant wherein he was given beatings
intermittently. At about 3:55 AM he was brought back to the
police Station, wherein he was lockedup with two other cell
mates.
6. In the morning of 24.06.1993 at 7:30 AM, on duty police
constables found Joinus (deceased) to be motionless and on
examination he was found to be not breathing. Meanwhile,
Magistrate was requested to conduct an inquest and
chemical analysis. The case was handed over to the State CID
for investigation into the matter. A complaint came to be
registered against one Anthony, being Crime No. 238/1993
under Section 420 of IPC at 10:20 PM on 24.06.1993 after
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the death of Joinus. Thereafter, postmortem was conducted,
and investigation was conducted by P.I. Oza. After requisite
sanction was granted by the Government for prosecuting the
accused, the investigating officer laid charges against ten
erring officers in the following manner1.)
That you all the accused on 23.06.1993 at about
23.00 hours made an entry in the Movement Register of
Crime Branch at Sr. No. 26 that you left the Crime Branch
Office for Night Patrolling and thereafter along with
Ganeshprasad Thakur, Arunkumar Gupta, Kashiram
Barethia, Head Constable Madhorao Tenguriya drove in the
police van Bearing No. MH12/9887 and forcibly entered
the house of the deceased Joinus Adam Yelamati at about
00.45 hours on 24.06.1993. The deceased was wearing his
underwear and banian and was sleeping in his house. You
all the accused in furtherance of your common intention
pulled the deceased out of his house and took him on the
road and tied him to the electric pole with a rope and he
was given merciless beating with the stick. The deceased
was made to sit in the said Crime Branch Vehicle and he
was brought to the office of Crime Branch. You made him
naked and also gave a heavy beating to the deceased with
the stick in the Crime Branch office. At that time you all
were aware that such merciless beating would cause the
death of the deceased. You kept him in the lock up at about
3.55 a.m. without registering any offence in the Crime
Branch. In the morning, the deceased found dead. You did
commit murder of Joinus Adam Yellamati and thereby you
all committed an offence punishable u/s. 302 r/w. Sec. 34
of the Indian Penal Code and within my cognizance.
2.) Secondly, that you all the accused in furtherance of
your common intention entered the house of deceased
Joinus Adam Yellamati at about 00.45 hours on 24.06.1993
and pretended to take the personal search of the wife of the
deceased namely Zarina and under the pretext of taking
search, touched the breasts of Zarina. Thereafter, you made
her to sit in your police van and also took pinches on her
body with an intention to outrage her modesty. Thereafter,
she was brought to your Crime branch office and you
inserted your hand in the petticoat of Zarina with an
intention to outrage her modesty and by such assault you
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all thereby committed an offence punishable u/s 354 r/w
Sec. 34 of the Indian Penal Code and within my Cognizance.
3.) Thirdly, that you all the accused in furtherance of
your common intention, wrongfully confined two children of
the deceased namely Kumari Stenlos aged 10 years and boy
Jorge aged 8 years and the brother of Zarina by name
Richard Abraham, aged 19 years and another cousin
brother by name Stenly Patrik, aged 19 years and thereby
committed an offence punishable u/s. 342 of the Indian
Penal Code, and within my cognizance.
4.) Fourthly, that you all the accused in furtherance of
your common intention, on the aforesaid day, date, time
and place, voluntarily caused hurt to Joinus Adam
Yellamati, aged 42 years and Zarina w/o Joinus Yellamati
for the purpose of extorting from the said Joinus Yellamati
and Zarina w/o Joinus Yellamati certain information which
might lead to detection of offence of cheating committed at
Hotel “India Sun”, Nagpur, in respect of one Ganeshprasad
Babulal Thakur and one Arunkumar Gupta and thereby
committed an offence punishable u/s. 330 r/w Sec 34 of
the Indian Penal Code and within my cognizance.
5.) Fifthly, that you all the accused in furtherance of
your common intention on the aforesaid day, date, time and
place, assaulted Joinus Adam Yellamati and Zarina w/o
Joinus Yellamati, intending by such assault to dishonor
said Joinus Adam Yellamati and Zarina w/o Joinus
Yellamati and thereby committed an offence punishable
u/s. 355 r/w Sec. 34 of the Indian Penal Code and within
my cognizance.
7. All the accused pleaded not guilty and claimed trial. The
Sessions Court in Sessions Case No. 416 of 1993, by order
dated 22.09.1995, passed following orderACCUSED
SECTION PUNISHMENT/ACQUITTAL
Accused
No. 110
302 of IPC Acquitted
Accused
No. 110
330 r/w. 34
of IPC
Each of them was convicted to suffer
rigorous imprisonment for three years and
to pay a fine of Rs. 500/, in default three
months further rigorous imprisonment.
Accused 354 r/w. 34 Each of them was convicted to suffer
6
No. 110 of IPC rigorous imprisonment for six months and
to pay a fine of Rs. 300/, in default three
months further rigorous imprisonment.
Accused
No. 110
355 r/w. 34
of IPC
Each of them was convicted to suffer
rigorous imprisonment for three years and
to pay a fine of Rs. 300/, in default one
month further rigorous imprisonment.
Accused
No. 110
342 r/w. 34
of IPC
Each of them was convicted to suffer
rigorous imprisonment for three years and
to pay a fine of Rs. 300/, in default one
month further rigorous imprisonment.
The sentence was ordered to run concurrently.
8. The reasons provided by the trial court for the
acquittal/conviction in short, are as followsi.
That reliance is placed on the evidence of Dr.
Kewalia/PW49 (Ex. 296), to conclude that there was
a possibility of death of the deceased, may have been
due to asphyxiation.
ii. That the post mortem report or the medical evidence
clearly indicates that the injuries in the Column No.
17 did not correlate with the asphyxial death.
iii. That the injuries sustained simple injuries and were
not sufficient to cause death of an individual.
iv. That the presence of the accusedofficers are
admitted and the same cannot be dislodged as the
same is proved by the movement register.
v. From the conspectus of other evidence it was clear
that injuries were caused by the police officer to
extract information, which would squarely fall under
the four corners of Section 330 of IPC.
9. Aggrieved by the order of the trial court, accusedBhaskar [A1],
Yashwant [A2], Raghunath [A10]) filed Criminal Appeal
No. 393 of 1995, Jahiruddin [A4], Nilkanth [A5] and
Namdeo [A6] filed Criminal Appeal No. 394 of 1995, Ramesh
7
[A7], Ashok Bhavani Gulam Shukla [A8], Sudhakar [A9]
filed Criminal Appeal No. 395 of 1995, Rambhau [A3] filed
Criminal Appeal No. 397 of 1995, before the High Court. On
the other hand, State of Maharashtra also filed Criminal
Appeal being Criminal Appeal No. 419 of 1995 against the
judgment of acquittal and Criminal Appeal No. 420 of 1995
for enhancement of sentence.
10. By order dated 13.12.2007, the High Court dismissed the
appeal preferred by the State being Criminal Appeal No (s).
419 and 420 of 1995, but partly allowed the appeals
preferred by the accused officer by acquitting accused no. 1
to 9 of the offences punishable under Sections 354, 355, 342
read with 34 of IPC, however, upheld the conviction under
Section 330 of IPC. Moreover, Raghunath Barkuji Bhakte (A10)
was acquitted of all the offences. The High Court passed
the aforesaid order on the following groundsi.
That the injuries to the deceased are established by
the Postmortem report, corroborated by the
photographs taken during the investigation.
ii. That the benefit of doubt as to the cause of death
was not result of the injuries sustained by the
accused, should enure to the accused appellants
herein.
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iii. Even though there are many discrepancies in the
evidence of PW1 [Zarina], the court separated the
falsehood from the truth.
iv. That offence under Section 355 of IPC is not proved
beyond reasonable doubt as there are stark
discrepancies in this regard.
v. That the accused A10’s presence is not proved and
the benefit of doubt needs to be given to him,
thereby mandating his acquittal.
11. Still aggrieved by the High Court order, accusedYashwant
[A2] and Bhaskar [A1] filed Criminal Appeal No. 385 of
2008, Rambhau [A3] filed Criminal Appeal No. 386 of 2008,
Jahiruddin [A4], Nilkanth [A5] and Namdeo [A6] filed
Criminal Appeal No. 387 of 2008, Ramesh [A7] and Ashok
Bhavani Gulam Shukla [A8] filed Criminal Appeal No. 388 of
2008, Sudhakar [A9] filed a Criminal Appeal No. 299 of
2008, State of Maharashtra filed Criminal Appeals No. 182
187 of 2009. This Court by order dated 22.02.2008, while
issuing notice in these cases, the appellantaccused were also
issued show cause notice for enhancement of sentence. It
may not be out of context to note that accused A1 is said to
have passed away after filing of these appeals, accordingly,
the name of accused A1 was struck off and the conviction
against him stands abated.
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12. When the matter was argued, learned senior counsel, Mr. R.
Basant and Mr. S. Nagamuthu, together contended thata.
That the concurrent opinion of the court below, w.r.t
non applicability of Section 302 of IPC, need not be
disturbed.
b. The defence of superior orders were applicable for the
other accused subordinate officers.
c. That in any case the charge under Section 330 of IPC
could have been attracted in this case.
d. In alternative, he pleads that only Section 323 of IPC
may be maintainable which would suffice a punishment
of the period already undergone.
e. In any case they plead that acquittal of Accused A10
should not be interfered with.
13. On the other hand, Mr. Nishant Ramakantrao
Katneshwarkar, leaned counsel for the State of Maharashtra
has brought to our notice that the evidence of PW49, who
has categorically stated that the effect of death was the
cumulative effect of the injuries caused. Further, it is
contended that the number of injuries are sufficient to prove
the causal connection. In the end, the State has argued that
the custodial torture needs to be taken seriously and
punished appropriately. Alternatively, State seeks to press for
charges under Section 304 Part II of IPC, in case Section 302
of IPC is not made out.
14. Having heard learned counsels for both the parties and
perusing the documents on record, we are of the opinion that
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we need to address only four questions herein, as the High
Court has sufficiently considered other questions, which we
need not interfere with. The first question is whether the
incident narrated above amounted to murder so as to attract
Section 302 of IPC?
15. A brief narration of background facts may be necessary to
understand the circumstances in which this contention
arose. That it has been established by PW21 (Kishan
Khadode), that the lockup in which Joinus (deceased) was
found was suffocating, dirty and bottle guard seeds were
found vomited in the place where the body of the deceased
was found. PW49 (Dr. Kewaliya), the doctor who conducted
postmortem, opines that the cause of death was due to
asphyxia, as there were indications for the same such as
defecation, urethra discharge etc. Even though PW49 was
not subjected to detailed crossexamination on the aspect of
choking due to vomiting, However, the doctor does accept the
possibility of asphyxiation due to such choking from the
contents of vomit. The other circumstance was that the
deceased was found to be in an inebriated condition, which
as per the medical evidence decreases the resistance to
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stress. Moreover, it is on record that the deceased was earlier
suffering from Tuberculosis.
16. It is a matter of record that both the courts below have taken
a concurrent view that the crime narrated above did not
amount to culpable homicide as the cause of death was
asphyxiation and there was nothing on record to prove that
the injuries were the cause of the death. It is well settled that
in order to be called a murder, it needs to be culpable
homicide in the first place, that is to say all murders are
culpable homicides, but the vice versa may not true in all
cases. Therefore, we need to ascertain whether a case of
culpable homicide is made out herein in the first place. In
this context, we need to observe Section 299 of IPC at the
outset299.
Culpable homicide.— Whoever causes
death by doing an act with the intention of causing
death, or with the intention of causing such bodily
injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause
death, commits the offence of culpable homicide.
(emphasis supplied)
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17. As noted above, causation is an important ingredient to
determine as to whether a person commits culpable homicide
in the first place. Causation simply means “causal
relationship between conduct and result”. In this respect we
need to assess whether the contentions of the parties could
stand the scrutiny of the law of the land. Section 299 of IPC
indicates two types of causations, one the factual causation
and the second the legal causation. Coming to the factual
causation, it is a matter of fact as to whether the action of the
accused caused death of the person. But the second aspect
concerns itself, whether the death can be sufficiently imputed
to the accused’s action as being responsible legally. In our
considered opinion this case turns on the second leg of
causal relationship wherein, could the injuries caused by the
police officers be sufficiently imputed to be the cause of death
of Joinus herein?
18. It is settled under common law wherein the principle of ‘take
their victim as they find them’ is followed,1
meaning ‘A person
who does any act/omission which hastens the death of
another person who, when the act is done or the omission is
1 R v Blaue, [1975] 3 All ER 446 (CA)
13
made, is labouring under some disorder or disease arising
from another cause, is deemed to have killed that other
person.’ This principle has been expressly ingrained under
the Explanation 1 to the Section 299 of IPC. Without going
into details on this aspect as this is not a case of multiple
causation requiring us to consider the same, rather it is a
case wherein the deceased died of asphyxiation due to
contents of his vomit, hours later from the time when the
injury was inflicted, which is an independent reason for
cause of death herein.
19. As elucidated above, various other circumstances which disassociate
the cause of death to the actions of the appellant
officers are available. It is on record that the injuries noted in
the postmortem report clearly indicate that the nature of
these injuries were not grievous. The head injury noted does
not show any internal fracture to the skull bone. Therefore,
when, on facts, it is concurrently inferred by the courts below
that the cause of death was due to asphyxiation, we do not
see any reasons for accepting a different factual inference
herein, as the same is not perverse.
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20. Further, we agree with the reasoning of the High Court on the
aspect that the PW1 (Zarina) has not been completely honest
in her statements. She has at times deposed overzealously,
thereby mandating us to be cautious in accepting her
evidence. Further no witness has clearly deposed on the
aspect of injuries and how they happened to be, except for
blank statements that ‘beatings were given to the deceased
Joinus’. Further we may note that the surrounding
circumstances also strengthen our conclusions such as
firstly, the condition of the deceased was said to be good as
per the statements of PW21 (cellinmate) and PW42 (head
constable) although he was suffering from tuberculosis, when
he was admitted in the lockup. Secondly, Joinus (deceased)
was heavily inebriated when he was arrested and thirdly, the
aspect of asphyxiation which is a significant cause to break
the chain of causal link between the death of Joinus and the
injuries inflicted by the appellants herein.
21. As discussed above, the causal link between the injuries
caused to the deceased by the erring officers and the death is
not connected, therefore, Section 299 of IPC is not attracted.
15
Accordingly, there is no question of attracting Section 302 or
304 of IPC.
22. In any case this Court in catena of cases has taken a view
that, as regards the inference of facts, when two Courts have
acquitted the accusedappellant of charges under Section 302
of IPC, then it would not be appropriate upon this Court to
overturn the factual finding, unless the view taken by the
lower courts is shown to be highly unlikely or unreasonable
or perverse. Although the learned counsel for the State has
tried to argue that the cumulative effect of the injuries was
responsible for the death, but the medical evidence itself, on
the other hand affirms the high possibility of death due to
asphyxiation. Further there is no material brought before us
to portray that the courts below had taken a perverse view. In
this light, when two reasonable views are possible, then
reversal of concurrent acquittal would not be appropriate
herein [refer Chandrappa v. State of Karnataka, (2007) 4
SCC 415; Mahtab Singh v. State of U.P, (2009) 13 SCC
670].
23. It may not be out of context to note that it is generally
difficult to prosecute the custodial torture cases as the
16
evidence available on record may not sufficient. It is in this
context that Law Commission in its 113th Report published in
1985 had recommended inclusion of Section 114B to the
Evidence Act, but the same was never materialized into a
statutory law. Further this Court in State of M.P. v.
Shyamsunder Trivedi, 1995 (4) SCC 262, appealed to the
Parliament for considering such amendment.
24. The Second question is with respect to the defence of
superior order or infamously known as ‘Nuremburg defence’
pleaded by the accusedappellants (subordinate officers). The
earliest known example, wherein such defence was pleaded
was before an international ad hoc tribunal, can be traced to
the trial of Peter Von Hagenbach for occupation of Breisach
on the orders of Duke of Burgundy in the year 1474.2
We are
aware of the fact that IPC allows such a defence if conditions
provided under Section 76 of IPC are fulfilled. A threeJudge
Bench of this Court in State of West Bengal v. Shew
Mangal Singh and Ors., AIR 1981 SC 1917, observed as
under2
Y. Dinstein, “The Defence of Obedience to Superior Orders in International Law”, Leyden,
1965.
17
Section 76 of the Penal Code provides that nothing
is an offence which is done by a person who is, or
who by reason of a mistake of fact and not by
reason of a mistake of law in good faith believes
himself to be, bound by law, to do it. The
illustration to that section says that if a soldier
fires on a mob by the order of his superior officer,
in conformity with the commands of the law, he
commits no offence. The occasion to apply the
provisions of the section does not arise in the
instant case since the question as to whether the
accused believed in good faith on account of a
mistake of fact that he was bound by law to do the
act which is alleged to constitute an offence, would
arise only if, to the extent relevant in this case, the
order or command of the superior officer is not
justified or is otherwise unlawful.
25. It is a matter of record that accused A1 has passed away and
the matter against him stands abated. The other accusedappellants,
with a view to take advantage of this situation, as
an afterthought have pleaded herein the defence that they
were merely executing the orders of accused A1. At the
outset we may indicate that it is not merely that the accusedappellants
have to prove that they have followed the order of
the superior officer (accused A1), rather they need to also
prove to the Court that the aforesaid appellants bonafidely
believed that the orders issued by accused A1 were legal.
However, our attention was not drawn to any argument
before the courts or evidence on record to this effect that the
18
accusedappellants were merely acting on the orders of their
superiors on a bonafide belief that such orders were legal. It
was not even their case from the beginning that the accusedappellants
were not aware of facts and circumstances, rather
all of them started out as a investigation party with full
knowledge and participation. On the perusal of the record, we
may note that this argument is only taken before this court,
to seek a retrial and such attempt cannot be taken into
consideration herein.
26. The third question concerns about the acquittal of Accused
A10 (Raghunath Bhakte). It would be necessary to deal with
the individual liability of accused A10, as he states that he
was not present with the investigation party. Although some
evidence points to his presence with the investigation party,
but the fact remains that all the other accused have
unanimously stated that A10 did not accompany them as he
fell sick during the investigation and accordingly, went home.
We need to examine the liability of accused A10, with the
above premise in mind.
27. It is wrought in our criminal law tradition that the Courts
have the responsibility to separate chaff from the husk and
19
dredge out truth. It may not be out of context to note that the
legal maxim ‘falsus in uno, falsus in omnibus’ is not
applicable in India, thereby the courts are mandated to
separate truth from falsehood. [refer Kulwinder Singh v.
State of Punjab, (2007) 10 SCC 455; Ganesh v. State of
Karnataka, (2008) 17 SCC 152; Jayaseelan v. State of
Tamil Nadu, (2009) 12 SCC 275] It is not uncommon that in
some cases witnesses in the jealousness to see all the
accused get conviction, may stretch the facts or twist them.
In those instances, it is necessary for the Courts to be
cautious enough to not ‘rush to convict’ rather uphold
justice. It is clear from the statements of all the accused as
well as the evidence of PW41 (Driver Vijay Thengde), PW48
(HC Telgudiya) and PW66 (I.O Dy. SP. Godbole) that there
exists a reasonable doubt as to the presence of A10, during
the patrolling party and thereafter. Therefore, we are not
inclined to disturb the findings of the High Court on this
aspect as well.
28. The fourth question, which we need to consider, concerns the
punishment under Section 330 of IPC. At the outset, we need
20
to state that we do not find any material on record to interfere
with the conviction of the accused under the aforesaid
Section, except for the quantum of punishment, which we
need to determine.
29. Recently, this Bench in State of Rajasthan v. Mohan Lal
and Anr3
, following Soman v. State of Kerala, (2013) 11
SCC 382 and Alister Anthony Pareira v. State of
Maharashtra, (2012) 2 SCC 648 observed as underFrom
the aforementioned observations, it is clear
that the principle governing the imposition of
punishment will depend upon the facts and
circumstances of each case. However, the sentence
should be appropriate, adequate, just,
proportionate and commensurate with the nature
and gravity of the crime and the manner in which
the crime is committed. The gravity of the crime,
motive for the crime, nature of the crime and all
other attending circumstances have to be borne in
mind while imposing the sentence. The Court
cannot afford to be casual while imposing the
sentence, inasmuch as both the crime and the
criminal are equally important in the sentencing
process. The Courts must see that the public does
not lose confidence in the judicial system.
Imposing inadequate sentences will do more harm
to the justice system and may lead to a state where
the victim loses confidence in the judicial system
and resorts to private vengeance.
3 Criminal Appeal No. 959 of 2018
21
30. From the facts portrayed it is clear that the police knew the
identity of the deceased was different from the person, they
wanted to investigate initially. The manner in which the
deceased and his family members were taken into custody
reflects pure act of lawlessness and does not befit the
conduct of the Police. The High Court of Lahore in Lal
Mohammad v. Emperor, AIR 1936 Lah 471, had observed
that there was a requirement to treat the crime under Section
330 with stringent punishments in order to have deterrent
effect, in the following mannerIn
my opinion, however, conduct of this sort by
responsible police officers engaged in the
investigation of a crime, is one of the most serious
offences known to the law. The result of third
degree methods or of actual torture or beating such
as in this case must be that innocent persons
might well be convicted, confession being forced
from them which are false. In almost every case in
which a confession is recorded, in criminal Courts,
it is alleged by the defence that the police have
resorted to methods such as these. It is seldom,
however, that an offence of this nature is or can be
proved. It clearly is the duty of the Courts when a
case of this kind is proved to pass sentences which
may have a deterrent effect.
22
31. In Ratanlal and Dhirajlal’s Law of Crimes (27th Ed.), the
author while discussing the sentencing under Section 330 of
IPC notes as underThe
causing of hurt by a responsible police
officer engaged in investigation of a crime is
one of the most serious offences known to law
and deterrent punishment should be inflicted
on the offender.
(emphasis supplied)
32. The factual narration of the events portrayed herein narrate a
spiteful events of police excessiveness. The motive to falsely
implicate Joinus for a crime he was alien to was not befitting
the police officers investigating crimes. The manner in which
Joinus was taken during late night from his house for
investigation ignores the basic rights this country has
guaranteed its citizen. It is on record that injuries caused to
the individual were in furtherance of extracting a confession.
The mala fide intention of the officersaccused to undertake
such action are writ large from the above narration, which
does not require further elaboration.
33. As the police in this case are the violators of law, who had the
primary responsibility to protect and uphold law, thereby
mandating the punishment for such violation to be
23
proportionately stringent so as to have effective deterrent
effect and instill confidence in the society. It may not be out
of context to remind that the motto of Maharashtra State
Police is "Sadrakshnāya Khalanīghrahanāya" (Sanskrit: "To
protect good and to Punish evil"), which needs to be
respected. Those, who are called upon to administer the
criminal law, must bear, in mind, that they have a duty not
merely to the individual accused before them, but also to the
State and to the community at large. Such incidents involving
police usually tend to deplete the confidence in our criminal
justice system much more than those incidents involving
private individuals. We must additionally factor this aspect
while imposing an appropriate punishment to the accused
herein.
34. In the facts and circumstances of this case, the punishment
of threeyear imprisonment imposed by the Trial Court under
Section 330 of IPC, would be grossly insufficient and disproportional.
We deem it appropriate to increase the term of
sentence to maximum imposable period under Section 330 of
IPC i.e., seven years of rigorous imprisonment, while
24
maintaining the fine imposed by the Trial Court. Accordingly,
we modify the sentence to this limited extent.
35. In light of the aforesaid discussion, we partly allow the
Criminal Appeal Nos. 182187 of 2009 in the aforestated
terms. Further Criminal Appeal Nos. 385386 of 2008,
Criminal Appeal Nos. 387388 of 2008, Criminal Appeal No.
299 of 2008 stand dismissed.
36. The appellantsaccused are directed to surrender before the
authorities for serving out the rest of the sentence forthwith.
........................J.
(N.V. RAMANA)
........................J.
(MOHAN M. SHANTANAGOUDAR)
New Delhi,
September 04, 2018
25
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 385386 OF 2008
YASHWANT ETC. …APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA …
RESPONDENT(S)
With
CRIMINAL APPEAL NO(S). 299 OF 2008
CRIMINAL APPEAL NO(S). 387388 OF 2008
CRIMINAL APPEAL NO(S). 182187 OF 2009
J U D G M E N T
N. V. RAMANA, J.
“With great power comes greater responsibility”
1. At the outset it is important to note that our police force need
to develop and recognize the concept of ‘democratic policing’,
wherein crime control is not the only end, but the means to
1
REPORTABLE
achieve this order is also equally important. Further the turn
of events in this case obligates us to reiterate herein that ‘be
you ever so high, the law is always above you!’
2. These criminal appeals are filed against the impugned
common order and judgment, dated 13.12.2007, passed by
the High Court of Judicature at Bombay, Nagpur Bench, in
Criminal Appeal Nos. 393, 394, 395, 397, 419 and 420 of
1995. As the incident is same and contentions canvassed
individually, being similar, we proposed to deal with the
judgment through this common order.
3. The prosecution’s case in brief are that on 23.06.1993, Police
Inspector (P.I) Narule (A1) was on duty, when one head
constable Telgudiya (PW48), working at the concerned Police
Station, Deolapar came to P.I Narule (A1) accompanied by
three persons namely Ganeshprasad, Arunkumar and
Kashiram. They informed P.I Narule (A1) that they were
staying at India Sun Hotel and were looted eight days before.
It may be relevant that they informed P.I Narule (A1) that
they had not lodged any complaint concerning the incident.
2
4. On that night , the accused patrolling party which included
P.I Narule (A1), Assistant Police Inspector Yashwant Mukaji
Karade (A2), SubInspector Rambhau Vitthalrao Kadu (A3),
Police constables Jahiruddin Bashirmiya Deshmukh (A4),
Nilkanth Pandurang Chaurpagar (A5), Namdeo Nathuji
Ganeshkar (A6), Ramesh Tukaram Bhoyar (A7), Ashok
Bhawani Gulam Shukla (A8), Sudhakar Marotrao Thakre (A9)
and Raghunath Barkuji Bhakte (A10), along with
Ganeshprasad, Arunkumar and Kashiram, went to the house
of H.C.P Telgudiya (PW48) at Police Lines, Ajni. In the
meanwhile, H.C.P Telgudiya (PW48) is supposed to have
found out that a Christian male by the name of ‘Anthony’ was
responsible for the looting. Although, the H.C.P Telgudiya
(PW48) confirmed that there was no ‘Anthony’, but he is
supposed to have revealed that one Joinus (deceased) lives
nearby, who was a known suspect from earlier robbery case.
H.C.P. Telgudiya, took the police party to the residential
quarters of Joinus (deceased), who had already slept after
having his dinner and consuming some alcohol.
3
5. It was around 1:00 AM in the night, the police party reached
the house of Joinus (deceased). He was taken into custody
and his residential quarters were searched. It is alleged that
during this process, some of the police men are supposed to
have molested Zarina (PW1), wife of Joinus (deceased).
Thereafter, the police party tied Joinus (deceased) to an
electric pole outside and was beaten by the police personnel
with sticks. Later Joinus (deceased) and his other family
members were taken to various locations including Rani
Kothi, Hill Top restaurant wherein he was given beatings
intermittently. At about 3:55 AM he was brought back to the
police Station, wherein he was lockedup with two other cell
mates.
6. In the morning of 24.06.1993 at 7:30 AM, on duty police
constables found Joinus (deceased) to be motionless and on
examination he was found to be not breathing. Meanwhile,
Magistrate was requested to conduct an inquest and
chemical analysis. The case was handed over to the State CID
for investigation into the matter. A complaint came to be
registered against one Anthony, being Crime No. 238/1993
under Section 420 of IPC at 10:20 PM on 24.06.1993 after
4
the death of Joinus. Thereafter, postmortem was conducted,
and investigation was conducted by P.I. Oza. After requisite
sanction was granted by the Government for prosecuting the
accused, the investigating officer laid charges against ten
erring officers in the following manner1.)
That you all the accused on 23.06.1993 at about
23.00 hours made an entry in the Movement Register of
Crime Branch at Sr. No. 26 that you left the Crime Branch
Office for Night Patrolling and thereafter along with
Ganeshprasad Thakur, Arunkumar Gupta, Kashiram
Barethia, Head Constable Madhorao Tenguriya drove in the
police van Bearing No. MH12/9887 and forcibly entered
the house of the deceased Joinus Adam Yelamati at about
00.45 hours on 24.06.1993. The deceased was wearing his
underwear and banian and was sleeping in his house. You
all the accused in furtherance of your common intention
pulled the deceased out of his house and took him on the
road and tied him to the electric pole with a rope and he
was given merciless beating with the stick. The deceased
was made to sit in the said Crime Branch Vehicle and he
was brought to the office of Crime Branch. You made him
naked and also gave a heavy beating to the deceased with
the stick in the Crime Branch office. At that time you all
were aware that such merciless beating would cause the
death of the deceased. You kept him in the lock up at about
3.55 a.m. without registering any offence in the Crime
Branch. In the morning, the deceased found dead. You did
commit murder of Joinus Adam Yellamati and thereby you
all committed an offence punishable u/s. 302 r/w. Sec. 34
of the Indian Penal Code and within my cognizance.
2.) Secondly, that you all the accused in furtherance of
your common intention entered the house of deceased
Joinus Adam Yellamati at about 00.45 hours on 24.06.1993
and pretended to take the personal search of the wife of the
deceased namely Zarina and under the pretext of taking
search, touched the breasts of Zarina. Thereafter, you made
her to sit in your police van and also took pinches on her
body with an intention to outrage her modesty. Thereafter,
she was brought to your Crime branch office and you
inserted your hand in the petticoat of Zarina with an
intention to outrage her modesty and by such assault you
5
all thereby committed an offence punishable u/s 354 r/w
Sec. 34 of the Indian Penal Code and within my Cognizance.
3.) Thirdly, that you all the accused in furtherance of
your common intention, wrongfully confined two children of
the deceased namely Kumari Stenlos aged 10 years and boy
Jorge aged 8 years and the brother of Zarina by name
Richard Abraham, aged 19 years and another cousin
brother by name Stenly Patrik, aged 19 years and thereby
committed an offence punishable u/s. 342 of the Indian
Penal Code, and within my cognizance.
4.) Fourthly, that you all the accused in furtherance of
your common intention, on the aforesaid day, date, time
and place, voluntarily caused hurt to Joinus Adam
Yellamati, aged 42 years and Zarina w/o Joinus Yellamati
for the purpose of extorting from the said Joinus Yellamati
and Zarina w/o Joinus Yellamati certain information which
might lead to detection of offence of cheating committed at
Hotel “India Sun”, Nagpur, in respect of one Ganeshprasad
Babulal Thakur and one Arunkumar Gupta and thereby
committed an offence punishable u/s. 330 r/w Sec 34 of
the Indian Penal Code and within my cognizance.
5.) Fifthly, that you all the accused in furtherance of
your common intention on the aforesaid day, date, time and
place, assaulted Joinus Adam Yellamati and Zarina w/o
Joinus Yellamati, intending by such assault to dishonor
said Joinus Adam Yellamati and Zarina w/o Joinus
Yellamati and thereby committed an offence punishable
u/s. 355 r/w Sec. 34 of the Indian Penal Code and within
my cognizance.
7. All the accused pleaded not guilty and claimed trial. The
Sessions Court in Sessions Case No. 416 of 1993, by order
dated 22.09.1995, passed following orderACCUSED
SECTION PUNISHMENT/ACQUITTAL
Accused
No. 110
302 of IPC Acquitted
Accused
No. 110
330 r/w. 34
of IPC
Each of them was convicted to suffer
rigorous imprisonment for three years and
to pay a fine of Rs. 500/, in default three
months further rigorous imprisonment.
Accused 354 r/w. 34 Each of them was convicted to suffer
6
No. 110 of IPC rigorous imprisonment for six months and
to pay a fine of Rs. 300/, in default three
months further rigorous imprisonment.
Accused
No. 110
355 r/w. 34
of IPC
Each of them was convicted to suffer
rigorous imprisonment for three years and
to pay a fine of Rs. 300/, in default one
month further rigorous imprisonment.
Accused
No. 110
342 r/w. 34
of IPC
Each of them was convicted to suffer
rigorous imprisonment for three years and
to pay a fine of Rs. 300/, in default one
month further rigorous imprisonment.
The sentence was ordered to run concurrently.
8. The reasons provided by the trial court for the
acquittal/conviction in short, are as followsi.
That reliance is placed on the evidence of Dr.
Kewalia/PW49 (Ex. 296), to conclude that there was
a possibility of death of the deceased, may have been
due to asphyxiation.
ii. That the post mortem report or the medical evidence
clearly indicates that the injuries in the Column No.
17 did not correlate with the asphyxial death.
iii. That the injuries sustained simple injuries and were
not sufficient to cause death of an individual.
iv. That the presence of the accusedofficers are
admitted and the same cannot be dislodged as the
same is proved by the movement register.
v. From the conspectus of other evidence it was clear
that injuries were caused by the police officer to
extract information, which would squarely fall under
the four corners of Section 330 of IPC.
9. Aggrieved by the order of the trial court, accusedBhaskar [A1],
Yashwant [A2], Raghunath [A10]) filed Criminal Appeal
No. 393 of 1995, Jahiruddin [A4], Nilkanth [A5] and
Namdeo [A6] filed Criminal Appeal No. 394 of 1995, Ramesh
7
[A7], Ashok Bhavani Gulam Shukla [A8], Sudhakar [A9]
filed Criminal Appeal No. 395 of 1995, Rambhau [A3] filed
Criminal Appeal No. 397 of 1995, before the High Court. On
the other hand, State of Maharashtra also filed Criminal
Appeal being Criminal Appeal No. 419 of 1995 against the
judgment of acquittal and Criminal Appeal No. 420 of 1995
for enhancement of sentence.
10. By order dated 13.12.2007, the High Court dismissed the
appeal preferred by the State being Criminal Appeal No (s).
419 and 420 of 1995, but partly allowed the appeals
preferred by the accused officer by acquitting accused no. 1
to 9 of the offences punishable under Sections 354, 355, 342
read with 34 of IPC, however, upheld the conviction under
Section 330 of IPC. Moreover, Raghunath Barkuji Bhakte (A10)
was acquitted of all the offences. The High Court passed
the aforesaid order on the following groundsi.
That the injuries to the deceased are established by
the Postmortem report, corroborated by the
photographs taken during the investigation.
ii. That the benefit of doubt as to the cause of death
was not result of the injuries sustained by the
accused, should enure to the accused appellants
herein.
8
iii. Even though there are many discrepancies in the
evidence of PW1 [Zarina], the court separated the
falsehood from the truth.
iv. That offence under Section 355 of IPC is not proved
beyond reasonable doubt as there are stark
discrepancies in this regard.
v. That the accused A10’s presence is not proved and
the benefit of doubt needs to be given to him,
thereby mandating his acquittal.
11. Still aggrieved by the High Court order, accusedYashwant
[A2] and Bhaskar [A1] filed Criminal Appeal No. 385 of
2008, Rambhau [A3] filed Criminal Appeal No. 386 of 2008,
Jahiruddin [A4], Nilkanth [A5] and Namdeo [A6] filed
Criminal Appeal No. 387 of 2008, Ramesh [A7] and Ashok
Bhavani Gulam Shukla [A8] filed Criminal Appeal No. 388 of
2008, Sudhakar [A9] filed a Criminal Appeal No. 299 of
2008, State of Maharashtra filed Criminal Appeals No. 182
187 of 2009. This Court by order dated 22.02.2008, while
issuing notice in these cases, the appellantaccused were also
issued show cause notice for enhancement of sentence. It
may not be out of context to note that accused A1 is said to
have passed away after filing of these appeals, accordingly,
the name of accused A1 was struck off and the conviction
against him stands abated.
9
12. When the matter was argued, learned senior counsel, Mr. R.
Basant and Mr. S. Nagamuthu, together contended thata.
That the concurrent opinion of the court below, w.r.t
non applicability of Section 302 of IPC, need not be
disturbed.
b. The defence of superior orders were applicable for the
other accused subordinate officers.
c. That in any case the charge under Section 330 of IPC
could have been attracted in this case.
d. In alternative, he pleads that only Section 323 of IPC
may be maintainable which would suffice a punishment
of the period already undergone.
e. In any case they plead that acquittal of Accused A10
should not be interfered with.
13. On the other hand, Mr. Nishant Ramakantrao
Katneshwarkar, leaned counsel for the State of Maharashtra
has brought to our notice that the evidence of PW49, who
has categorically stated that the effect of death was the
cumulative effect of the injuries caused. Further, it is
contended that the number of injuries are sufficient to prove
the causal connection. In the end, the State has argued that
the custodial torture needs to be taken seriously and
punished appropriately. Alternatively, State seeks to press for
charges under Section 304 Part II of IPC, in case Section 302
of IPC is not made out.
14. Having heard learned counsels for both the parties and
perusing the documents on record, we are of the opinion that
10
we need to address only four questions herein, as the High
Court has sufficiently considered other questions, which we
need not interfere with. The first question is whether the
incident narrated above amounted to murder so as to attract
Section 302 of IPC?
15. A brief narration of background facts may be necessary to
understand the circumstances in which this contention
arose. That it has been established by PW21 (Kishan
Khadode), that the lockup in which Joinus (deceased) was
found was suffocating, dirty and bottle guard seeds were
found vomited in the place where the body of the deceased
was found. PW49 (Dr. Kewaliya), the doctor who conducted
postmortem, opines that the cause of death was due to
asphyxia, as there were indications for the same such as
defecation, urethra discharge etc. Even though PW49 was
not subjected to detailed crossexamination on the aspect of
choking due to vomiting, However, the doctor does accept the
possibility of asphyxiation due to such choking from the
contents of vomit. The other circumstance was that the
deceased was found to be in an inebriated condition, which
as per the medical evidence decreases the resistance to
11
stress. Moreover, it is on record that the deceased was earlier
suffering from Tuberculosis.
16. It is a matter of record that both the courts below have taken
a concurrent view that the crime narrated above did not
amount to culpable homicide as the cause of death was
asphyxiation and there was nothing on record to prove that
the injuries were the cause of the death. It is well settled that
in order to be called a murder, it needs to be culpable
homicide in the first place, that is to say all murders are
culpable homicides, but the vice versa may not true in all
cases. Therefore, we need to ascertain whether a case of
culpable homicide is made out herein in the first place. In
this context, we need to observe Section 299 of IPC at the
outset299.
Culpable homicide.— Whoever causes
death by doing an act with the intention of causing
death, or with the intention of causing such bodily
injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause
death, commits the offence of culpable homicide.
(emphasis supplied)
12
17. As noted above, causation is an important ingredient to
determine as to whether a person commits culpable homicide
in the first place. Causation simply means “causal
relationship between conduct and result”. In this respect we
need to assess whether the contentions of the parties could
stand the scrutiny of the law of the land. Section 299 of IPC
indicates two types of causations, one the factual causation
and the second the legal causation. Coming to the factual
causation, it is a matter of fact as to whether the action of the
accused caused death of the person. But the second aspect
concerns itself, whether the death can be sufficiently imputed
to the accused’s action as being responsible legally. In our
considered opinion this case turns on the second leg of
causal relationship wherein, could the injuries caused by the
police officers be sufficiently imputed to be the cause of death
of Joinus herein?
18. It is settled under common law wherein the principle of ‘take
their victim as they find them’ is followed,1
meaning ‘A person
who does any act/omission which hastens the death of
another person who, when the act is done or the omission is
1 R v Blaue, [1975] 3 All ER 446 (CA)
13
made, is labouring under some disorder or disease arising
from another cause, is deemed to have killed that other
person.’ This principle has been expressly ingrained under
the Explanation 1 to the Section 299 of IPC. Without going
into details on this aspect as this is not a case of multiple
causation requiring us to consider the same, rather it is a
case wherein the deceased died of asphyxiation due to
contents of his vomit, hours later from the time when the
injury was inflicted, which is an independent reason for
cause of death herein.
19. As elucidated above, various other circumstances which disassociate
the cause of death to the actions of the appellant
officers are available. It is on record that the injuries noted in
the postmortem report clearly indicate that the nature of
these injuries were not grievous. The head injury noted does
not show any internal fracture to the skull bone. Therefore,
when, on facts, it is concurrently inferred by the courts below
that the cause of death was due to asphyxiation, we do not
see any reasons for accepting a different factual inference
herein, as the same is not perverse.
14
20. Further, we agree with the reasoning of the High Court on the
aspect that the PW1 (Zarina) has not been completely honest
in her statements. She has at times deposed overzealously,
thereby mandating us to be cautious in accepting her
evidence. Further no witness has clearly deposed on the
aspect of injuries and how they happened to be, except for
blank statements that ‘beatings were given to the deceased
Joinus’. Further we may note that the surrounding
circumstances also strengthen our conclusions such as
firstly, the condition of the deceased was said to be good as
per the statements of PW21 (cellinmate) and PW42 (head
constable) although he was suffering from tuberculosis, when
he was admitted in the lockup. Secondly, Joinus (deceased)
was heavily inebriated when he was arrested and thirdly, the
aspect of asphyxiation which is a significant cause to break
the chain of causal link between the death of Joinus and the
injuries inflicted by the appellants herein.
21. As discussed above, the causal link between the injuries
caused to the deceased by the erring officers and the death is
not connected, therefore, Section 299 of IPC is not attracted.
15
Accordingly, there is no question of attracting Section 302 or
304 of IPC.
22. In any case this Court in catena of cases has taken a view
that, as regards the inference of facts, when two Courts have
acquitted the accusedappellant of charges under Section 302
of IPC, then it would not be appropriate upon this Court to
overturn the factual finding, unless the view taken by the
lower courts is shown to be highly unlikely or unreasonable
or perverse. Although the learned counsel for the State has
tried to argue that the cumulative effect of the injuries was
responsible for the death, but the medical evidence itself, on
the other hand affirms the high possibility of death due to
asphyxiation. Further there is no material brought before us
to portray that the courts below had taken a perverse view. In
this light, when two reasonable views are possible, then
reversal of concurrent acquittal would not be appropriate
herein [refer Chandrappa v. State of Karnataka, (2007) 4
SCC 415; Mahtab Singh v. State of U.P, (2009) 13 SCC
670].
23. It may not be out of context to note that it is generally
difficult to prosecute the custodial torture cases as the
16
evidence available on record may not sufficient. It is in this
context that Law Commission in its 113th Report published in
1985 had recommended inclusion of Section 114B to the
Evidence Act, but the same was never materialized into a
statutory law. Further this Court in State of M.P. v.
Shyamsunder Trivedi, 1995 (4) SCC 262, appealed to the
Parliament for considering such amendment.
24. The Second question is with respect to the defence of
superior order or infamously known as ‘Nuremburg defence’
pleaded by the accusedappellants (subordinate officers). The
earliest known example, wherein such defence was pleaded
was before an international ad hoc tribunal, can be traced to
the trial of Peter Von Hagenbach for occupation of Breisach
on the orders of Duke of Burgundy in the year 1474.2
We are
aware of the fact that IPC allows such a defence if conditions
provided under Section 76 of IPC are fulfilled. A threeJudge
Bench of this Court in State of West Bengal v. Shew
Mangal Singh and Ors., AIR 1981 SC 1917, observed as
under2
Y. Dinstein, “The Defence of Obedience to Superior Orders in International Law”, Leyden,
1965.
17
Section 76 of the Penal Code provides that nothing
is an offence which is done by a person who is, or
who by reason of a mistake of fact and not by
reason of a mistake of law in good faith believes
himself to be, bound by law, to do it. The
illustration to that section says that if a soldier
fires on a mob by the order of his superior officer,
in conformity with the commands of the law, he
commits no offence. The occasion to apply the
provisions of the section does not arise in the
instant case since the question as to whether the
accused believed in good faith on account of a
mistake of fact that he was bound by law to do the
act which is alleged to constitute an offence, would
arise only if, to the extent relevant in this case, the
order or command of the superior officer is not
justified or is otherwise unlawful.
25. It is a matter of record that accused A1 has passed away and
the matter against him stands abated. The other accusedappellants,
with a view to take advantage of this situation, as
an afterthought have pleaded herein the defence that they
were merely executing the orders of accused A1. At the
outset we may indicate that it is not merely that the accusedappellants
have to prove that they have followed the order of
the superior officer (accused A1), rather they need to also
prove to the Court that the aforesaid appellants bonafidely
believed that the orders issued by accused A1 were legal.
However, our attention was not drawn to any argument
before the courts or evidence on record to this effect that the
18
accusedappellants were merely acting on the orders of their
superiors on a bonafide belief that such orders were legal. It
was not even their case from the beginning that the accusedappellants
were not aware of facts and circumstances, rather
all of them started out as a investigation party with full
knowledge and participation. On the perusal of the record, we
may note that this argument is only taken before this court,
to seek a retrial and such attempt cannot be taken into
consideration herein.
26. The third question concerns about the acquittal of Accused
A10 (Raghunath Bhakte). It would be necessary to deal with
the individual liability of accused A10, as he states that he
was not present with the investigation party. Although some
evidence points to his presence with the investigation party,
but the fact remains that all the other accused have
unanimously stated that A10 did not accompany them as he
fell sick during the investigation and accordingly, went home.
We need to examine the liability of accused A10, with the
above premise in mind.
27. It is wrought in our criminal law tradition that the Courts
have the responsibility to separate chaff from the husk and
19
dredge out truth. It may not be out of context to note that the
legal maxim ‘falsus in uno, falsus in omnibus’ is not
applicable in India, thereby the courts are mandated to
separate truth from falsehood. [refer Kulwinder Singh v.
State of Punjab, (2007) 10 SCC 455; Ganesh v. State of
Karnataka, (2008) 17 SCC 152; Jayaseelan v. State of
Tamil Nadu, (2009) 12 SCC 275] It is not uncommon that in
some cases witnesses in the jealousness to see all the
accused get conviction, may stretch the facts or twist them.
In those instances, it is necessary for the Courts to be
cautious enough to not ‘rush to convict’ rather uphold
justice. It is clear from the statements of all the accused as
well as the evidence of PW41 (Driver Vijay Thengde), PW48
(HC Telgudiya) and PW66 (I.O Dy. SP. Godbole) that there
exists a reasonable doubt as to the presence of A10, during
the patrolling party and thereafter. Therefore, we are not
inclined to disturb the findings of the High Court on this
aspect as well.
28. The fourth question, which we need to consider, concerns the
punishment under Section 330 of IPC. At the outset, we need
20
to state that we do not find any material on record to interfere
with the conviction of the accused under the aforesaid
Section, except for the quantum of punishment, which we
need to determine.
29. Recently, this Bench in State of Rajasthan v. Mohan Lal
and Anr3
, following Soman v. State of Kerala, (2013) 11
SCC 382 and Alister Anthony Pareira v. State of
Maharashtra, (2012) 2 SCC 648 observed as underFrom
the aforementioned observations, it is clear
that the principle governing the imposition of
punishment will depend upon the facts and
circumstances of each case. However, the sentence
should be appropriate, adequate, just,
proportionate and commensurate with the nature
and gravity of the crime and the manner in which
the crime is committed. The gravity of the crime,
motive for the crime, nature of the crime and all
other attending circumstances have to be borne in
mind while imposing the sentence. The Court
cannot afford to be casual while imposing the
sentence, inasmuch as both the crime and the
criminal are equally important in the sentencing
process. The Courts must see that the public does
not lose confidence in the judicial system.
Imposing inadequate sentences will do more harm
to the justice system and may lead to a state where
the victim loses confidence in the judicial system
and resorts to private vengeance.
3 Criminal Appeal No. 959 of 2018
21
30. From the facts portrayed it is clear that the police knew the
identity of the deceased was different from the person, they
wanted to investigate initially. The manner in which the
deceased and his family members were taken into custody
reflects pure act of lawlessness and does not befit the
conduct of the Police. The High Court of Lahore in Lal
Mohammad v. Emperor, AIR 1936 Lah 471, had observed
that there was a requirement to treat the crime under Section
330 with stringent punishments in order to have deterrent
effect, in the following mannerIn
my opinion, however, conduct of this sort by
responsible police officers engaged in the
investigation of a crime, is one of the most serious
offences known to the law. The result of third
degree methods or of actual torture or beating such
as in this case must be that innocent persons
might well be convicted, confession being forced
from them which are false. In almost every case in
which a confession is recorded, in criminal Courts,
it is alleged by the defence that the police have
resorted to methods such as these. It is seldom,
however, that an offence of this nature is or can be
proved. It clearly is the duty of the Courts when a
case of this kind is proved to pass sentences which
may have a deterrent effect.
22
31. In Ratanlal and Dhirajlal’s Law of Crimes (27th Ed.), the
author while discussing the sentencing under Section 330 of
IPC notes as underThe
causing of hurt by a responsible police
officer engaged in investigation of a crime is
one of the most serious offences known to law
and deterrent punishment should be inflicted
on the offender.
(emphasis supplied)
32. The factual narration of the events portrayed herein narrate a
spiteful events of police excessiveness. The motive to falsely
implicate Joinus for a crime he was alien to was not befitting
the police officers investigating crimes. The manner in which
Joinus was taken during late night from his house for
investigation ignores the basic rights this country has
guaranteed its citizen. It is on record that injuries caused to
the individual were in furtherance of extracting a confession.
The mala fide intention of the officersaccused to undertake
such action are writ large from the above narration, which
does not require further elaboration.
33. As the police in this case are the violators of law, who had the
primary responsibility to protect and uphold law, thereby
mandating the punishment for such violation to be
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proportionately stringent so as to have effective deterrent
effect and instill confidence in the society. It may not be out
of context to remind that the motto of Maharashtra State
Police is "Sadrakshnāya Khalanīghrahanāya" (Sanskrit: "To
protect good and to Punish evil"), which needs to be
respected. Those, who are called upon to administer the
criminal law, must bear, in mind, that they have a duty not
merely to the individual accused before them, but also to the
State and to the community at large. Such incidents involving
police usually tend to deplete the confidence in our criminal
justice system much more than those incidents involving
private individuals. We must additionally factor this aspect
while imposing an appropriate punishment to the accused
herein.
34. In the facts and circumstances of this case, the punishment
of threeyear imprisonment imposed by the Trial Court under
Section 330 of IPC, would be grossly insufficient and disproportional.
We deem it appropriate to increase the term of
sentence to maximum imposable period under Section 330 of
IPC i.e., seven years of rigorous imprisonment, while
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maintaining the fine imposed by the Trial Court. Accordingly,
we modify the sentence to this limited extent.
35. In light of the aforesaid discussion, we partly allow the
Criminal Appeal Nos. 182187 of 2009 in the aforestated
terms. Further Criminal Appeal Nos. 385386 of 2008,
Criminal Appeal Nos. 387388 of 2008, Criminal Appeal No.
299 of 2008 stand dismissed.
36. The appellantsaccused are directed to surrender before the
authorities for serving out the rest of the sentence forthwith.
........................J.
(N.V. RAMANA)
........................J.
(MOHAN M. SHANTANAGOUDAR)
New Delhi,
September 04, 2018
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