IMPORTANT POINTS
" The Court has the power u/s 389 of Cr.P.C to suspend the conviction of an accused, such an order could be passed only in exceptional cases wherein the accused is able to indicate that no material had been relied upon by the Court below for arriving at the guilt of the accused
" As a Sub Inspector of a Police station, which is a responsible post in Police Service, it was his duty to ensure that the records are properly kept. May be, he would not have involved in making the correction or manipulation of documents, but, at least having known about it, he should have brought it to the notice of the competent authorities. Being a silent spectator for such acts itself have very serious consequences and repercussion to the rule of law and rights of citizens.

A.M. Shaffique, J.

This is an application filed by the petitioner/4th accused under Section 389 of Cr.P.C seeking suspension of conviction. It is submitted that there is absolutely no evidence or material against the petitioner to find him guilty. Even the court below had found him guilty only under Sections 167 and 201 of the Indian Penal Code. At the relevant time, when the offence is alleged to have been committed, the petitioner was working as the Principal Sub Inspector of Fort Police Station. At present, he is working as Deputy Superintendent of Police and if the conviction is not suspended, he may be removed from service.

2. The case involves the custodial death of one Udayakumar. Initially the case was tried by the local police and the trial commenced. At the instance of the mother of the deceased Udayakumar, this Court had directed the CBI to conduct investigation, pursuant to which final report had been filed and after trial, the accused in the case had been convicted for separate offences including 302 of the Indian Penal Code and death penalty had been given to accused 1 and 2.

3. As far as the petitioner is concerned, the prosecution allegation was that he was instrumental in correcting the documents namely the First Information Report, remand application, arrest memo, inspection memo, custody memo, GD of Fort Police Station, PSR (Register of Property found in search of Prisoners) and other related documents. Those documents were corrected to indicate the time of arrest of the said Udayakumar. According to the prosecution, all the corrections were made after the death of Udayakumar in order to make it appear that he was arrested much later. The prosecution alleges that the direction to correct the records had been given by accused 4, 5 and 6. The fifth accused is the Circle Inspector of Police who was the Station House Officer and the 6th accused was the Assistant Commissioner of Police.

4. To prove the aforesaid allegation of manipulation/correction of records, prosecution relied upon the oral testimony of approvers who were constables of Fort Police Station during the relevant time who had actually made the corrections in the respective documents. The main approver is PW15, who had stated that they have corrected the documents as instructed by some of the accused including the petitioner. The court below convicted the accused placing reliance upon the evidence of approvers as well as the other circumstances involved in the case. The petitioner/accused is sentenced to undergo imprisonment for three years and to pay a fine of `5000/-. By a separate order, we have already suspended the sentence of the petitioner.

5. In the present petition, the request is for suspending the conviction inter alia contending that there is absolutely no material to corroborate the evidence given by the approvers. Further, it is submitted that the petitioner is working as Dy.S.P and is about to be promoted as the Assistant Commissioner of Police. If the conviction is not stayed, there is every chance that the Government will take action for dismissing him from service. He has no other employment and in the absence of any evidence to implicate him to the offence, the conviction may be stayed is the request.

6. The learned counsel for the petitioner submitted that the approvers' evidence requires corroboration and there is absolutely no material to corroborate the said evidence as far as the 4th accused is concerned. PW21 is one witness who makes reference to the presence of the petitioner at the relevant time. PW21 is not an approver and PW21 only deposed that the petitioner had given directions in the manner in which the evidence has to be given before the trial court. However it is pointed out that the said statement is an omission, which amounts to contradiction, as such a statement was not given by PW21 at the time when she gave statement under Section 164 Cr.P.C. before the learned Magistrate. It is therefore contended that there