2006 Supreme(SC) 1200

2006(9) Supreme 1
SUPREME COURT OF INDIA
(From Bombay High Court)
G.P. Mathur and A.K. Mathur, JJ.
Sadashio Mundaji Bhalerao - Appellant
versus
State of Maharashtra - Respondent
Criminal Appeal No. 478 of 2005
With
Criminal Appeal Nos. 479 & 480 of 2005
Decided on 28-11-2006
Counsel for the Parties :
For the Appellant : Uday Umesh Lalit, R. Sundaravardhan, Sr. Advocates, A.K. Sanghi, Aditya Kumar, Shivaji M. Jadhav, Himanshu Gupta, Brij Kishor Sah and Rahul Joshi, Advocates.
For the Respondent : Shekhar Naphade, Sr. Advocate, S.S. Shinde, Chinmoy Khaladker, V.N. Raghupathy and Aniruddha P. Mayee, Advocates.

Headnote:Indian Penal Code, 1860 - Sections 302/34, 201/34 - Death in police custody - Deceased with six other persons were arrested in connection with a dacoity case and all accused were taken on police remand for purposes of recovery of weapon of offence and stolen property - Deceased with all other accused were interrogated by some of accused-appellants and deceased was given beating by kicks and fist blows and deceased died - Dead body of deceased was found lying in jurisdiction of police station of adjoining State and body was in decomposed condition and was cremated - Seventeen police officials were charge-sheeted - PW2, 3 and 4, co-accused of deceased in dacoity case, were examined as eye witnesses - Trial Court gave benefit of doubt to all accused and acquitted all of them - High Court in State appeal reversed the acquittal and convicted all accused for offences - Appeal - Police prepared a defence that deceased-accused escaped from police custody and a case u/s 224 IPC was registered - PW2 and PW3 eye witnesses had 30 to 35 criminal cases against them and they made improvements during trial - PW5, brother of deceased, had not been able to identify body as that of deceased - As regards presumption that deceased was last seen alive in police custody, whole police-station cannot be condemned just on basis of only circumstantial evidence of deceased last seen in custody of police - No satisfactory evidence to connect the dead body with that of deceased - View taken by trial Court appeared to be just and proper - Reasons given by High Court in reversing order of acquittal were not cogent to justify conviction of appellants - Conviction was liable to be set aside.

       Held : Now, a review of the ocular evidence produced by the prosecution keeping in view the submission made by learned counsel for the parties, we are of opinion that the statements of the witnesses cannot be accepted on their face. It is true that the deceased was not found alive but his dead body was found within the jurisdiction of Police-station, Adilabad in Andhra Pradesh. Keeping in view that the investigation has been done by the police personnel against the police personnel and also keeping in view the previous antecedents of the prosecution witnesses and the way they have described the beating, it is very difficult to rope in all the 17 accused persons for commission of the crime. In fact, the Police should have properly scrutinized the evidence and they could have pinpointed the person who was responsible for beating. But unfortunately, the police has not taken enough care to produce material evidence and pinpoint the person who was alleged to have been involved in beating the deceased. It is true that the deceased was last seen in the custody of the Police and thereafter he was not found alive. Though the police has made an attempt to cover up the story by registering a case under section 224, I.P.C. but that was closed shortly thereafter. Therefore, in this background to draw inference from these circumstances, the guilt of the accused is very difficult.(Para 10)

       Learned senior counsel for the State, Mr. Shekhar Naphade very fairly submitted that despite the strong loopholes in the prosecution case the strongest circumstance which stand against the appellants is that the deceased was in the custody of the police and that he was last seen alive in the custody of the Police. Thereafter, he was not seen alive. Therefore, presumption should be drawn of the guilt of the accused. Commission of crime with reference to this type of presumption is perverse. It is true that the accused involved are police personnel but we cannot stand to condemn the whole police-station just on the basis of only circumstantial evidence of the deceased last seen in the custody of the police and thereafter he was not reported alive. Apart from this direct shaky evidence, it is very difficult to accept the evidence to connect the dead body with that of the deceased Dilip which came to the light after two years i.e. 1989.(Para 11)

       Therefore, under these circumstances, the prosecution has failed to establish that the dead body was that of the deceased, Dilip. As such, this circumstantial evidence is also not of worth that it can connect the accused persons with the commission of the crime. As a result of our above discussion we are of opinion that the view taken by the Division Bench of the High Court in reversing the judgment of Second Additional Sessions Judge, does not appear to be well founded. Normally, the appellate court is very slow in interfering with the order of acquittal unless there are compelling circumstances to do so. After going through the judgment of the trial court, we are of opinion that the view taken by the trial court appears to be just and proper in the given facts and circumstances of the case and it was not proper for the Division Bench of the High Court to reverse the finding. We are satisfied that the reasons given by the High Court in reversing the order of acquittal of the accused persons are not cogent and does not appeal to the reason so as to justify the conviction of the appellants. Hence, we allow the appeals filed by the appellants and set aside the impugned judgment of the High Court and affirm the judgment of the trial court and acquit all accused-appellants from the charges.(Paras 11 and 12)