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2011 (2) Supreme 609
SUPREME COURT OF INDIA
Markandey Katju and Gyan Sudha Misra, JJ.
Mehboob Batcha & Ors. — Appellant(s)
versus
State Rep. by Supdt. of Police — Respondent
Criminal Appeal No. 1511 of 2003
Decided on : 29-3-2011
Facts of the Case :
Appellants policemen were prosecuted herein in the instant case for wrongfully confining deceased in police custody in Police Station on suspicion of theft and beating him to death there with lathis, and also gang raping his wife in a barbaric manner. Prosecution case that accused also confined several other persons and beat them in the police station with lathis. Both trial Court and High Court convicted accused persons.
2. Present appeal has been preferred against orders of Courts below.
Findings of the Court :
Evidence of PW1 in great detail disclosing inhuman and savage manner in which accused, police personnel, treated her and her deceased husband. No reason to disbelieve the same. Ordinarily no self respecting woman would come forward in Court to falsely make such a humiliating statement against her honour. No major discrepancy in the prosecution case, which was supported by evidence of a large number of witnesses, including injured witnesses, apart from the testimony of wife of deceased , who identified the accused in the identification parade .Medical Officer who examined wife of deceased found multiple nail scratches on her breasts. She complained of severe pain in her private parts. There were multiple abrasions on her vagina and cervix with discharge of foul smelling fluids. The chemical analysis of her vaginal smear showed plenty of pus cells and epithetical cells. Post-mortem certificate of deceased showed that deceased died on asphyxial death due to atypical hanging .Evidence of wife of deceased that Four policemen beated her husband with sticks. Even when she was being raped by the policemen deceased was beaten. Accused were not charged under Section 302 IPC and instead the Courts below treated the death of deceased as suicide. In fact they ought to have been charged under that provision and awarded death sentence, as murder by policemen in police custody is in the category of rarest of rare cases deserving death sentence, but surprisingly no charge under Section 302 IPC was framed against any of the accused. Both the trial Court and High Court failed in their duty in this connection. The entire incident took place within the premises of police station and the accused deserve no mercy\. Appellant no.1 had been given the sentence of 3 years rigorous imprisonment and a fine, while the other appellants had been given sentence of 10 years rigorous imprisonment with a fine. Normal course, would have been issue of notice of enhancement of sentence. However since no charge under Section 302 IPC was framed, straightaway conviction under that provision could not be recorded and punishment could not be enhanced. Appeal was dismissed.
Result : Appeal dismissed.
JUDGMENT
Markandey Katju, J. —
“Bane hain ahal-e-hawas muddai bhi munsif bhi Kise vakeel karein kisse munsifi chaahen”
— Faiz Ahmed Faiz
1. If ever there was a case which cried out for death penalty it is this one, but it is deeply regrettable that not only was no such penalty imposed but not even a charge under Section 302 IPC was framed against the accused by the Courts below.
2. Heard learned counsel for the parties.
3. The facts in detail have been stated in the impugned judgment of the High Court as well as of the trial court and hence we are not repeating the same here, except where necessary.
4. The appellants are policemen who wrongfully confined one Nandagopal in police custody in Police Station Annamalai Nagar on suspicion of theft from 30.5.1992 till 2.6.1992 and beat him to death there with lathis, and also gang raped his wife Padmini in a barbaric manner. The accused also confined several other persons (who were witnesses) and beat them in the police station with lathis.
5. Both the trial Court and the High Court have found the appellants guilty and we see no reason to disagree with their verdict. To prove the charges the prosecution examined as many as 37 witnesses, and they have proved the guilt of the accused beyond reasonable doubt.
6. PW1 Padmini has given her evidence in great detail and we see no reason to disbelieve the same. We have read her evidence which discloses the inhuman and savage manner in which the accused, who were police personnel, treated Nandagopal and Padmini. We may quote just parts of her testimony which are as follows :
.......”on Sunday at about 1.00 p.m. two policemen came in an auto to my house. They are A3, A6 and A8. All of them beat me by lathis on my buttocks. A3 caught hold of my leg and pulled me saying get into the auto. I ran outside. Two autos came and in one auto Subramaniam and Nandagopal were sitting with handcuffs jointly. Unable to bear pain I sat by their side. The auto went to Annamalai Nagar police station and they asked me to go inside and I went inside. A6 beat me up. I was surrounded by 4, 5 persons who were beating me. At that time my jacket (blouse) was torn. Some one tore off my jacket and I do not remember as to who tore off that jacket. They said ‘you will not bear any more and go and sit’ I sat in the corner where the Head constable was sitting earlier. Some time afterwards two women police came there. Thinking that I would be let off, I stated to them that I took oleander seeds, for that the women police gave me water mixed with tamarind and soap and asked me to drink it. That night myself and the women police were lying down in the room where the Sub Inspector of Police was sitting and in the early morning the women police went out. My husband’s sister’s daughter by name Priya gave coffee. I could talk anything. I ate idly. My husband told me why you are coming here, I am being tortured by them. I told him that they would not do anything and they would let you free. At that time a policeman came and told ‘what are you talking to her’, and saying so he kicked him and pushed him down. A6, beat my husband and kept him in the lock up. Subramani, Kolanchi and Subramaniam were also in the lock up. Then I was given good meals and my husband was given waste food. Therefore I gave my food to Nandagopal. For that A1 said you should take that food and be good and why did you give it him, by saying so he beat me by lathi. In the evening all of them jointly discussed with themselves saying that each one of them should give Rs.50/- for giving a party. One police man asked for what purpose you are giving a party and one police man whispered some thing in his ear. On hearing that, he asked were you not born with your sisters, and saying so he left that place. On Monday at about 8.00 pm night, Nandagopal was brought out from the lock up. A6 told that he should see some one has to remove my saree. He called the accused Kolanchi from the lock up and asked him to remove my s
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