Death In Police Custody

Source: The Hitavada      Date: 30 Oct 2017 12:07:43

The accused respondents are police personnel whose duty was to act in accordance with law. Death had occurred when the deceased was in police custody. The accused had fudged the General Diary Register of the Police Station to put up their defence and had put up a false plea of alibi.

IN THE judgement of the case – State through Central Bureau of Investigation, Special Crime Branch, Mumbai, Maharashtra v. Sanvlo Naik & Another, delivered on September 7, 2017, involving death in police custody, Justice Ranjan Gogoi and Justice Navin Sinha at the Supreme Court, have held that plea of alibi raised by two accused was not acceptable and the acquittal of the respondents as recorded by the Bombay High Court was also not sustainable.

Seven accused were charged at Margao in Goa, for the offence under Section 302 read with section 34 of the Indian Penal Code. All of them have been acquitted of the said charge. Accused No.2 – S.V. Caeiro and Accused No. 5 – Sanvlo Naik, who are respondents in these appeals, were however convicted for the offence punishable under Section 304 Part II read with Section 34 Indian Penal Code (IPC) and sentenced to suffer Simple Imprisonment for 3 years and two years respectively along with fine.

Aggrieved, the convicted accused respondents filed separate appeals before the Bombay High Court. Through its impugned judgment, the HC allowed those appeals; set aside the conviction and sentence imposed and acquitted these two accused-respondents. Aggrieved CBI moved the Supreme Court against the HC’s decision.

The Apex-Court confined itself to the question of the correctness of the conviction of the accused respondents under section 304 read with Section 34 IPC and adequacy of the sentence imposed, if the said conviction is to be upheld by the Court. These were the contours of these appeals.

The Supreme Court has stated that while considering the plea of alibi raised by the accused –respondents (No. 2 and 5), it perused the General Diary register of the concerned police station, containing the entry with regard to the departure of these two accused from the police station from home at about 1.25 am.

On a plain scrutiny of the said register, the Court found that the same was a wholly unacceptable document. Specifically, what has been found is the absence of several pages in continuity in which the register ought to have been maintained. Apart from that, the Court found several over-writings in the serial numbers of the relevant entries in the said register, particularly, with reference to the entry relating to departure of the accused No. 2 from the police station at 1.25 am.

The plea of alibi for the reasons mentioned is wholly unacceptable. It cannot be said that the mentioned facts are trivial, as found by the HC. The oral evidence of two PWs 11 and 16 who had deposed that they had seen both the accused respondents going on a scooter towards their respective homes has to be, naturally, understood in the context of the fact that both these witnesses 11 and 16 were serving police personnel. Their versions are apparently belied by the contents of the documents.

The court has stated that if it is unable to accept the plea of alibi put forward by the accused No. 2, it is unable to see how it can sustain the similar plea put forward by the accused No. 5, how it can sustain similar plea put forward by the accused No. 5 inasmuch as in his statement under Section 313 Cr.P.C., accused No. 5 has himself stated that he had gone from the police station on a scooter along with accused No. 2 and had dropped accused No. 2 at his house at the first instance.

The plea of alibi put up by the accused No. 5, therefore, necessarily has to fail. If these two accused were present at the police station at relevant point of time, incriminating circumstances have to be reasonably explained by these accused persons:

1. The deceased was hale and hearty at the time when he was brought to the police station except for some minor bruises which he may have sustained in the course of the arrest;

2. The deceased was found in the chamber/cabin of the accused No. 2, where accused No. 5 was also present;

3. Accused No. 2 and 5 took the deceased to the female lockup. Why the deceased was taken to the female lockup, when there were only 4 persons in the male lockup?

4. The deceased was apprehended by accused No. 2 and accused No.5 and at all times was in the custody of the police station of which accused No. 2 was Officer-in- Charge. The only explanation offered was the plea of alibi which the court had already rejected.

True it is that in this case, there was no eye-witness. The test, therefore, would be whether the circumstances culled out would be sufficient to enable the court to come to the conclusion that these accused respondents and nobody else who are responsible for the injuries on the deceased.

Having regard to the circumstances and the absence of any cogent explanation on the part of the accused respondents and taking into account the fact that the deceased was in police custody and death had occurred in such custody, the Court has been of the view that it is the accused –respondents who to the exclusion of any other persons, were responsible for the injuries which caused the death of the deceased Abdul Gaffar Khan.

Therefore, the court was of the view that the acquittal of these accused-respondents of the offence under Section 304 Part II read with Section 34 IPC cannot be legally sustained.

Against the backdrop of this fact-situation, the Court considered about the adequacy of the sentence imposed on the accused respondents. The maximum sentence awardable in case of offence under Section 304 Part II IPC is 10 years.

The accused respondents are police personnel whose duty was to act in accordance with law. Death had occurred when the deceased was in police custody. The accused had fudged the General Diary Register of the Police Station to put up their defence and had put up a false plea of alibi.

In view of the evidence of PW -5 that the memo for sending the deceased to the hospital was recorded by him after the deceased was already declared to be dead.

After taking note of all these circumstances, the court has been of the considered view that the accused respondents having been found guilty of commission of the offence under Section 304 Part II with Section 34 IPC should suffer
the maximum sentence awardable under the said Section.

Therefore, the apex court set aside the order passed by the HC; convicted the respondent-accused under these provisions and sentenced them to suffer RI for 10 years. The Supreme Court has allowed the appeals.