The State Of Maharashtra vs Sanvlo Naik

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.(S) 1610-1611 OF 2007

STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, SPECIAL CRIME BRANCH, MUMBAI, MAHARASHTRA ...APPELLANT(S)

VERSUS

SANVLO NAIK & ANR. ...RESPONDENT(S)

J U D G M E N T

1. Seven accused were charged for the

offence under Section 302 read with Section

34 of the Indian Penal Code, 1860 (“IPC”

for short). 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 the present

appeals, were, however, convicted for the

offence punishable under Section 304 Part

Signature Not Verified II read with Section 34 IPC and sentenced Digitally signed by VINOD LAKHINA

to suffer simple imprisonment of three Date: 2017.09.11 18:44:59 IST Reason:

2

years and two years respectively along with

fine. Aggrieved, the convicted accused

respondents filed separate appeals before

the High Court of Bombay. The High Court

by the impugned judgment has allowed the

said appeals; set aside the conviction and

sentence imposed and acquitted the accused

respondents (Accused No.2 and Accused

No.5). Aggrieved, the State through

Central Bureau of Investigation (“CBI” for

short) is in appeal before this Court.

2. At the very outset, we would like

to deal with the issues enumerated in our

previous order dated 5th September, 2017

passed in the present matters. The said

order reads as follows:

“ Heard in part.

At the end of the hearing today we are of the tentative view that if the respondent Accused No.2 is to be held responsible for the injuries found on the person of the deceased which, according to the report of the postmortem, was 3

responsible for his death what should be the extent of liability of the said accused.

The further question to be dealt with is whether the offence committed would amount to one punishable under Section 302 IPC and, if so, whether this Court would be empowered in law to pass such an order in the present appeals. Alternatively, if the conviction under Section 304 Part II IPC is to be maintained whether the sentence should be enhanced to a period of ten (10) years.

Learned counsel for the respondent – Accused No.2 prays for time until Thursday next (i.e. 7th September, 2017). Time as prayed is granted.

List the matter on Thursday i.e. 7th September, 2017 as part-heard.”

3. Shri Ranjit Kumar, learned

Solicitor General of India, who appeared at

the request of the Court, on the strength

of several decided cases of this Court has

submitted that the power of this Court

under Article 136 of the Constitution of

India under which the present appeals have 4

been entertained is plenary and of wide

amplitude and discretionary in nature.

Learned Solicitor General, in particular,

has referred to the two decisions of this

Court in the cases of Arunachalam vs P. S.

R. Sadhanantham and another1 and P.S.R.

Sadhanantham vs. Arunachalam and another2 to

suggest that in an appropriate case and to

meet the ends of justice, this Court is

empowered and would be justified to go into

the merits of an order of acquittal though

the same may not be under challenge so long

the same raises an issue in the appeal

before the Court. In this regard, the

learned Solicitor General has pointed out

that this Court's appellate power under

Article 136 of the Constitution of India is

far wider than an appellate Court's power

under Section 386 of the Code of Criminal

Procedure, 1973.

1 (1979) 2 SCC 297 2 (1980) 3 SCC 141 5

4. We have considered the matter. We

have taken note of the fact that against

the acquittal of the present accused

respondents insofar as the offence under

Section 302 IPC is concerned no appeal has

been filed/preferred by the State before

the High Court. The present are appeals

against the acquittal of the accused

respondents under Section 304 Part II read

with Section 34 IPC. The order of

acquittal of the accused respondent under

Section 302 IPC is of the year 2002. We

have also perused the record in-original

produced before us by the learned Solicitor

General to show the reasons that had led

the present appellant – State (Through CBI)

not to prefer any appeal against the

acquittal of the accused respondents under

Section 302 IPC. The said decision is

based on legal opinion tendered. Taking

into account the totality of the facts 6

stated above we are of the view that we

should not address, in the present

proceedings, the power of this Court to

look into the correctness of the acquittal

of the accused respondents insofar as the

offence under Section 302 IPC is concerned.

5. We will, therefore, stay confined

to the question of the correctness of the

conviction of the accused respondents under

Section 304 Part II read with Section 34

IPC and adequacy of the sentence imposed,

if the said conviction is to be upheld by

the Court. These are the contours of the

present appeals.

6. The facts which are not in dispute

may be noticed at the outset.

It appears that on a telephonic

information received in the midnight of 16th

May, 1994, accused No.2 and accused No.5

(respondents herein) who were serving as

Inspector In-charge and Police Constable of 7

the Margao Town Police Station respectively

had gone to apprehend the deceased who was

an accused in another case, namely, Crime

No.141/1994 registered by the Margao Town

Police Station. P.W. 11 (Keshav Komarpant,

Police Constable) along with Michael

Fernandes, Home Guard who were already on

patrol duty in the vicinity of the place

where the deceased was informed to be

present, assisted accused No.2 and Accused

5 in apprehending the deceased. There

appears to have been a small scuffle in the

course of the arrest of the deceased in

which the deceased had suffered some

superficial injuries. Thereafter, he was

brought to the Police Station and an entry

in the General Diary of the Police Station

to the said effect i.e. of the factum of

the arrest of the deceased was

made/recorded at 00.20 hours on 17th May,

1994. The deceased was in a good physical 8

condition when he was brought to the Police

Station. This has been testified by P.W. 11

(Keshav Komarpant, Police Constable). P.W.

11 (Keshav Komarpant, Police Constable) and

P.W. 16 (Ulhas Saluke, Head Constable) in

their depositions have categorically stated

that after the arrest of the deceased he

was brought to the cabin of Accused No.2

where Accused No.5 was also present. P.W.17

(Abdul H.K. Khan, Head Constable) has also

deposed similarly. P.W. 16 has further

deposed that at about 1.30 a.m. the

deceased, brought by accused Nos.2 and 5,

was put in the female lockup. The evidence

of P.W. 20 (Balkrishna Mogha, Head

Constable), who was on SHO duty on that day

is to the same effect. In his deposition,

P.W. 20 has specifically stated that he saw

the deceased in the cabin of the accused

No.2 and at that time accused No.5 was also

present. He has further deposed that both 9

accused No.2 and accused No.5 had brought

the deceased to the lockup. Thereafter it

appears that there is a General Diary entry

recorded at 02.00 a.m. to the effect that

the deceased was required to be moved to

the hospital. Apparently, the deceased, as

per the doctor's certificate, was brought

dead to the hospital. This was around 2.40

a.m. on 17th May, 1994.

7. Both Accused No.2 and Accused No.5

(respondents herein) took up the plea of

alibi. According to the accused No.2 he

had left the Police Station for his

home/residence at about 1.25 a.m. and this

fact is recorded in the General Diary of

the Police Station as Entry No.6. Insofar

as accused No.5 is concerned, it is claimed

that he had also left the Police Station at

around the same time. Both accused No.2

and accused No.5 claimed that they left the

Police Station in a scooter and accused 10

No.5 after dropping accused No.2 at his

home had gone to his own home.

8. Though the prosecution examined as

many as 25 witnesses, the material

witnesses in the case are P.W.11 (Keshav

Komarpant, Head Constable), P.W.16 (Ulhas

Saluke, Head Constable), P.W.17 (Abdul H.K.

Khan, Head Constable), P.W.18 (Anil Kerkar,

Police Constable), P.W. 19 (Nynashwar

Kalangutkar (Head Constable), and P.W.20

(Balkrishna Mogha, Head Constable). The

evidence of Dr. Silvano Dias Sapeco

(P.W.10) who had performed the post-mortem

of the deceased would also be worth

mentioning, particularly, the fact that he

had found as many as 14 injuries on the

body of the deceased. It is the opinion of

the doctor (P.W.10) that the said injuries

cannot be self-inflicted and are otherwise

sufficient in the ordinary course to cause

death.

11

9. On the basis of the proved facts,

the gist of which has been stated above,

the following circumstances can be culled

out and taken to have been proved and

established by the prosecution against the

accused:

(i) At the time of the arrest, the

deceased was hale and hearty and he was

brought to the Police Station in a fit

condition (P.W.11);

(ii) The deceased was brought to the

Police Station by the respondents and

others. He was interrogated in the room of

respondent No.2 (accused No.2) and

thereafter put in female lockup at about

1.30 a.m. by Accused No. 2 and 5 (P.W.11,

P.W.16). There is no General Diary entry

as to why he was put in female lockup.

(iii) The condition of the deceased was

serious, he was sinking and taken to the

hospital;

12

(iv) As per doctor (P.W. 5 – Dr. Anand

Sawant), the deceased was brought dead at

2.40 a.m. and the memo prepared by the

Police was received by him after he had

examined the deceased and found him brought

dead;

(v) The medical board conducted autopsy

and found more than 14 injuries on the

person of the deceased which were

ante-mortem and fresh in nature;

(vi) As per the opinion of Medical

Board, injuries were fatal in the ordinary

course of nature, could not be

self-inflicted and could be caused by

baton/danda or a patta;

(vii) The respondents took the plea of

alibi and stated in their statements under

Section 313 Cr. P.C. that they were not at

the Police Station;

(viii) The station diary, lockup register

and arrest register were fudged to cover up 13

the death in the police custody. The

learned trial Court extensively dealt these

records and concluded that they were

fudged;

(ix) It is a custodial death and the

respondents failed to discharge the burden

of how the deceased died in their custody.

10. The first question that has to be

addressed is whether the plea of alibi set

up by the accused respondents are tenable

in law. The learned trial Court did not

accept the same. The High Court, however,

reversed the said finding and in this

regard took the view that though the

entries in the General Diary showing that

the accused No.2 had left the Police

Station at about 1.25 a.m. has been

overwritten and manipulated, the same are

trivial in nature and has to be considered

in the light of the oral evidence tendered

by P.W.11 and P.W.16 who had testified that 14

they had seen the accused No.2 and accused

No.5 going home in a scooter.

11. We have considered the plea of

alibi raised by the accused respondents

(accused Nos.2 and 5). We have perused the

General Diary register of the concerned

Police Station containing the entry with

regard to the departure of the accused

Nos.2 and 5 from the Police Station for

home at about 1.25 a.m. On a plain scrutiny

of the aforesaid register we find that the

same is 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. That apart, we find several

over-writings in the serial numbers of the

relevant entries in the said register,

particularly, with reference to the entry

relating to the departure of the accused 15

No.2 from the Police Station at 1.25 a.m.

We have also noticed that there is an entry

No.7 in the General Diary of the Police

Station recorded at 2.00 a.m. which records

the memo claimed to have been prepared by

accused No.2 sending the deceased to the

hospital. The apparent inconsistency

between the two entries in the General

Diary Register i.e. entry No.6

(interpolated) and entry No.7 has been

sought to be answered by the learned

counsel for the accused No.2 by contending

that the said memo sending the deceased to

the hospital was prepared by the accused

No.2 earlier i.e. before leaving the police

station at 1.25 A.M. which fact is stated

in his statement recorded under Section 313

Cr.P.C. To appreciate the said argument,

we have specifically looked into the

original of the entry No.6 of the General

Diary as well as the memo prepared by the 16

accused No.2 sending the deceased to the

hospital which was marked as Exhibit 68.

Not only Entry No. 6 of the General Diary

Register contains an overwriting, Exhibit

68 does not mention the time when it was

written. Neither do we find any reference

to the said memo in the General Diary which

would have been but a natural part of the

conduct of the accused No.2 who had

specifically mentioned against Entry No.6

that he had left the Police Station at 1.25

a.m. The plea of alibi for the reasons

mentioned is wholly unacceptable. It

cannot be said that the aforementioned

facts are trivial, as found by the High

Court. The oral evidence of P.W.11 and

P.W. 16 who had deposed that they had seen

both the accused respondents in a scooter

going towards their respective homes has to

be, naturally, understood in the context of

the fact that both P.W. 11 and P.W.16 were 17

serving Police personnel. Their versions

are apparently belied by the contents of

the documents referred to above. If we are

unable to accept the plea of alibi put

forward by the accused No.2, we do not see

how we can sustain the 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 in a scooter

along with accused No.2 and had dropped

accused No.2 in his house at the first

instance. The plea of alibi put up by the

accused No.5, therefore, necessarily has to

fail. If accused No.2 and accused No.5

were present in the Police Station at the

relevant point of time, incriminating

circumstances stated below have to be

reasonably explained by the said accused

respondents:

(i) The deceased was hale and hearty at 18

the time he was brought to the Police

Station except for some minor bruises which

he may have sustained in the course of the

arrest;

(ii) The deceased was found in the

chamber/cabin of the accused No.2 in which

cabin accused No.5 was also present;

(iii) Accused No.2 and accused No.5 took

the deceased to the female lockup. Why the

deceased was taken to the female lockup

when there was only four persons in the

male lockup?

(iv) The deceased was apprehended by

accused No.2 and accused No.5 and at all

times was in custody in the Police Station

of which the accused No.2 was the

Officer-in-Charge.

The only explanation offered was the

plea of alibi which we have already

rejected.

19

12. True it is that in the present case

there is no eye-witness. The test,

therefore, would be whether the

circumstances culled out above would be

sufficient to enable the Court to come to

the conclusion that it is the 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, we are of the view that it is the

accused respondents (accused Nos.2 and 5)

who, to the exclusion of any other persons,

were responsible for the injuries that

caused the death of the deceased Abdul

Gaffar Khan. We, therefore, take the view

that the acquittal of the accused 20

respondents of the offence under Section

304 Part II read with Section 34 IPC cannot

be legally sustained.

13. This will bring the Court to a

consideration of the adequacy of the

sentence imposed on the accused

respondents. The maximum punishment that is

awardable in case of offence under Section

304 Part II IPC is ten 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 P.W.5 that the memo sending the

deceased to the hospital was recorded by

him after the deceased was already declared

to be dead would indicate that Accused No.2 21

had prepared a false memo sending the

deceased to the hospital when he was

already dead. Taking into account all the

above, it is our considered view that the

accused respondents having been found

guilty of commission of the offence under

Section 304 Part II read with Section 34

IPC should suffer the maximum sentence

awardable under the said Section. We,

therefore, set aside the order of the High

Court; convict the accused respondents of

the offence under Section 304 Part II read

with Section 34 IPC and sentence them to

suffer rigorous imprisonment for a period

of ten years. The accused respondents

shall forthwith surrender and serve out the

sentence failing which they will be taken

into custody for being dealt with in

accordance with law.

22

14. The appeals consequently are

allowed in the above terms.

....................,J.

(RANJAN GOGOI)

...................,J.

(NAVIN SINHA) NEW DELHI SEPTEMBER 07, 2017 23

ITEM NO.101 COURT NO.3 SECTION II-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO(S). 1610-1611/2007

THE STATE OF MAHARASHTRA APPELLANT(S) VERSUS

SANVLO NAIK & ANR. RESPONDENT(S)

Date : 07-09-2017 These appeals were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE NAVIN SINHA

For Appellant(s) Mr. Ranjit Kumar, SG Ms. Pinky Anand, ASG Mr. P.K. Dey, Adv.

Ms. Arunima Dwivedi, Adv.

Ms. Saudamini Sharma, Adv.

Ms. Kriti Dua, Adv.

Mr. Mukesh Kumar Maroria, AOR

For Respondent(s) Mr. Aniruddha P. Mayee, AOR Mr. Charudatta Mahindrakar, Adv.

Mr. V.V.S. Rao, Sr. Adv.

Mr. Avnish Oza, Adv.

Mr. Chirag Jain, Adv.

Mr. K. Subba Rao, Adv.

Mr. Sanjay Kumar Visen, AOR

UPON hearing the counsel the Court made the following O R D E R

The appeals are allowed in terms of the signed

reportable judgment.

[VINOD LAKHINA] [ASHA SONI] AR-cum-PS BRANCH OFFICER

[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]