Supreme Court of India
SUNIL MAHADEO JADHAVversusTHE STATE OF MAHARASHTRA
- Citation
- 2013 INSC 763
- Decided
- 19 November 2013
- Disposal
- Disposed off
- Bench
- A K PATNAIK
Holding
The Court set aside the convictions under sections 193, 218 and 342 IPC, acquitted Accused Nos.2 and 3, and convicted Accused No.1 of culpable homicide not amounting to murder (section 304 IPC) with a reduced sentence.
Summary
The Supreme Court examined the custodial death of a kidnapping suspect who was arrested by three police officers and found dead in the lock‑up. The trial court had acquitted all accused, but the High Court convicted them under sections 302, 342, 218 and 193 IPC. The Court held that the arrest panchnama and register were genuine, so the accused could not be convicted under sections 193, 218 or 342. The post‑mortem injuries were not recorded in the panchnama, indicating they were inflicted after arrest; only the officer who kept the deceased in custody (Accused No.1) could be said to have caused them. However, the circumstantial evidence did not establish the intention required for murder, so he was convicted of culpable homicide not amounting to murder (section 304 IPC) and sentenced to seven years’ rigorous imprisonment with a fine. Accused Nos.2 and 3 were acquitted of all charges.
Issues considered
- Whether the arrest panchnama and arrest register are reliable documents for convicting the police officers under sections 193 and 218 IPC.
- Whether the accused can be held guilty of wrongful confinement under section 342 IPC as a co‑accused in the kidnapping case.
- Whether the injuries causing death were inflicted by Accused No.1 and, if so, whether the offence is murder (section 302 IPC) or culpable homicide not amounting to murder (section 304 IPC).
- Whether Accused Nos.2 and 3 can be held responsible for the custodial death.
- Whether the circumstantial evidence satisfies the five golden principles laid down in Sharad Birdhichand Sarda v. State of Maharashtra.
- Whether the burden of proof under Section 106 of the Indian Evidence Act lies on Accused No.1 to explain the injuries.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Evidence Act, 1872s. 106
- Indian Penal Code, 1860s. 193, s. 218, s. 302, s. 304, s. 326, s. 331, s. 34, s. 342, s. 365, s. 366
Subjects
custodial deathcircumstantial evidencepolice accountabilityculpable homicidemurderSection 106 burdenarrest panchnamapost mortem injurieslock‑up
Judgment
[2013] 16 S.C.R. 910
A SUNIL MAHADEO JADHAV
V.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 1004 of 2007)
NOVEMBER 19, 2013
B
[A. K. PATNAIK AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
Penal Code, 1860 - ss. 302, 342, 218, 193 rlw. s. 34 -
C Custodial death - Prosecution of police officials -
Circumstantial evidence - Acquittal by trial court - Conviction
by High Court - On appeal, held: Since the arrest
Panchnama and Arrest Register have been duly proved by
PWs 21 and 22 and there is no evidence to show that they
o were fabricated, the accused cannot be held guilty u/ss. 218
because the deceased was a co-accused in a kidnapping
--
and 193 - The accused also cannot be convicted uls. 342
-----
case - The injuries on the deceased noticed in the post
mortem, which were the cause of death, were not described
E in Arrest Panchnama - Therefore, it would be inferred that
those injuries were caused to the deceased while in police
custody - It is established that the deceased was last in the
custody of accused No. 1 in the police lock-up - The burden
to prove the injuries was on accused No. 1, which he failed -
F Therefore, aqcused No. 1 would be held responsible for the
injuries - The circumstances of the case established that
accused No. 1 did not intend to cause death, he can be held
guilty of culpable homicide not amounting to murder uls. 304
- His conviction altered to one uls. 304 from 302 - Hence,
.G his sentence reduced to seven years RI with fine of Rs. 30001
- - Since accused Nos. 2 and 3 left the Police Station soon
after the arrest, the deceased cannot be p said to be in their
custody - Hence, they cannot be held responsible for the fatal
injuries on the deceased - Therefore, their conviction set
aside - Evidence Act, 1872 .- s. 106.
H 910
SUNIL MAHADEO JADHAV v. THE STATE OF 911
MAHARASHTRA
The appellants-accused, the police officials, were A
prosecuted for custodial death of one person. The
prosecution case was that the deceased was suspect in
a kidnapping case. He was arrested from his house in the
midnight intervening 16.12.1985 and 17.12.1985 and then
lodged in police lock-up. In the morning of 17.12.1985, the B
deceased was found dead. The three appellants-accused
were prosecuted u/ss. 342/ 34, 331/34, 326/34, 302/34, 218/
34 and 193/34 IPC. Other eight police officials in the police
station were also prosecuted u/ss. 218 a.nd 193 r/w. s. 34
IPC. c
The defence of the accused persons was that the
deceased person was not picked up from his house, but
from a Chowk. At the time of preparation of Arrest
Panchnama, a number of injuries on the body of the
deceased were noticed and recorded and, therefore, the D
accused persons were not responsible for the injuries.
Trial court acquitted all the accused of all the
charges. High Court convicted the appellants-accused
(accused Nos. 1, 2 and 3) u/ss. 302, 342, 218 and 193 r/w. E
s. 34 IPC. The acquittal order, in respect of other accused
was maintained by the High Court. Hence the present
appeals by accused Nos. 1, 2 and 3.
Allowing the appeals filed by accused Nos. 2 and 3
and partly allowing the appeal of accused No. 1, the Court F
HELD: 1.1. In the present case, there is no direct
evidence of an eye-witness on how the deceased
suffered the injuries which has caused his death and
therefore the High Court has relied on circumstantial G
evidence to convict the appellants for the offences under
Section 302 read with Section 34, IPC. In a prosecution
based on circumstantial evidence a case against accused
can be said to be fully established if the following
conditions are fulfilled: (1) The circumstances from which H
912 SUPREME COURT REPORTS [2013] 16 S.C.R.
A the conclusion of guilt is to be drawn should be fully
established; (2) The facts so established sh.ould be
consistent only with the hypothesis of the guilt of the
accused; (3) The circumstances should be of a
conclusive nature and tendency;(4) They should exclude
B every possible hypothesis except the one to be proved,
and (5) There must be a chain of evidence so complete
as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability, the act must have
c been done by the accused. [Para 20] [928-E-H; 929-A]
Sharad Birdhichand Sarda vs. State of Maharashtra
(1984) 4 sec 116 : 1985 (1) SCR 88 - relied on.
1.2. The first circumstance on which the High Court
D has relied on to hold the appellants guilty is that the
deceased was actually picked up from his house on the
night of 16.12.1985 by the appellants and he had no
injuries on his body when he was picked up from his
house. As proof of this circumstance, the High Court has
E relied on the evidence of PW-1, PW-5, PW-6 and PW-7.
Their evidence is not convincing. The trial court rightly
disbelieved the evidence of PW-1, PW-5, PW-6 and PW-7
and has correctly held that the deceased was picked up
from a Chowk and that he had injuries on his body when
F he was picked up by the appellants, relying on the
evidence of PW-21 and PW-22 who were witnesses to the
arrest panchnama (Ext.76) as well as the contents of the
arrest panchnama (Ext.76) and the entry in the Arrest
Register (Ext.134). As the contents of Ext.76 and Ext.134
have been proved by PW-21 and PW-22 and there is no
G evidence to show that Ext.76 and Ext.134 are fabricated,
the appellants cannot be held guilty of the offences under
Sections 193 and 218, IPC. Moreover, as the deceased
was a co-accused with his brother in a case of kidnapping
and was arrested in connection with that case, the
H
SUNIL MAHADEO JADHAV v. THE STATE OF 913
MAHARASHTRA
appellants cannot also be held guilty of the offence A
under Section 342, IPC. [Para 21] [929-C-G]
1.3. The injuries which have beeh noticed in the post
mortem certificate (Ext.58) and which have ultimately
caused the death of the deceased are not the same as are
B
described in arrest panchnama (Ext:76) and as deposed
by PW-21 and PW-22. It, thus, appears from the description
of the injuries in Ext.76 that the injuries on the body of the
deceased comprised some reddish injury spots and marks
and were said to have been caused about 10.30 p.m. on C
"16.12.1985 by three unknown persons and as the
deceased himself did not wish to have a medical treatment
for those injuries, the injuries were not of a serious nature.
When the deceased was found dead in the lock up of
police station at 7.05 am and was taken to Hospital, PW-
13 carried out the post mortem during 5.45 p.m. to 7.45 p.m. D
on 17.12.1985 and noticed the external injuries on the body
of the deceased. Many of these external injuries on the
body of the deceased notic~d during post mortem by PW-
13 have ·not been described in the arrest panchnama
(Ext.76). The obvious inference would be that after the E
arrest of the deceased as recorded in j:he arrest
panchnama (Ext.76), someone in the Police Station has
caused the injuries on the body of deceased which have
not been mentioned in the arrest panchnama (Ext. 76). [Para
22] [929-G-H; 930-E-F; 932-C-D] F
1.4. Entries 108 to 120 in Police Station Diary of the
Police Station for 17.12.1985 have been exhibited and
proved in trial court by the Inspector of the Police Station
(PW-29) and the entry made at 7.05 a:m. on 17.12.1985 G
marked as Ex.113 in Police Station E>iary of the Police
Station. The extract from the Police/Station Diary would
clearly show that the deceased who was arrested by
accused No.1 was personally kept in police lock up in
th~ night at 00.45 a.m. and at 7.00 a.m. in the morning
when th_e Police Constable No.1'276, 1672, 1627 were H
914 SUPREME COURT REPOF-- l ~ [2013] 16 S.C.R.
A asked to bring the deceased out, for nature calls and
mouth wash, the deceased did not get up and his body
had become cold and his breathing had stopped and he
had died. Thus, Ext.113 read with the evidence of PW-29
clearly establishes that the deceased was last in the
B custody of accused No.1 in the police lock-up about
00.45 a.m. of 17 .12.1985 and thereafter the deceased was
in the lock-up in no one's custody. [Para 23] (932-E-F;
933-E-F; 934-C]
c when1.5.anySection 106 of the Indian Evidence Act states that
fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
Since it was accused No.1 who had arrested the
deceased at 00.45 a.m. on 17.12.1985 and kept the
deceased in police lock up after his arrest was complete,
D it was for the accused No.1 to explain the injuries on the
body of the deceased other than those which were
noticed in Ex.76. Accused No.1 has not stated anything
in this regard in his statement under Section 313 of the
Code of Criminal Procedure, 1973 nor adduced any
E evidence in defence to explain these injuries. In the
absence of any explanation by accused No.1 or any
evidence adduced on behalf of accused No.1 to explain
on these injuries on the body of the deceased, there can
be no escape from the conclusion that these injuries
F have been caused on the body of the deceased by
accused No.1 and no one else. [Para 24] [934-0-G]
1.6. The chain of circumstances proved against
accused No.1 are that (i) he had arrested the deceased
G on the night of 17.12.1985 between 00.45 a.m. to 1.00 a.m.
as per the arrest panchnama (Ex.-76), (ii) the injuries
noticed by PW-13 as per the post mortem report are
different from and more serious than the injuries recorded
in the arrest panchnama (Ext.76) and (iii) no one else had
the custody of the deceased between the time of his
H
SUNIL MAHADEO JADHAV v: THE STATE OF 915
MAHARASHTRA
arrest at 0.45 a.m. on 17.12.1985 till 7.00 a.m. of 17.12.1985. A
Thus, the only hypothesis before the High Court is that
it is accused No.1 who is responsible for injuries on the
body of the deceased-found at the time of his death. [Para
25] [934-G, H; 935-E-F]
B
1.7. The circumstantial evidence established against
accused No.1 does not show that accused No.1 intended
to cause the death of the deceased or intended to cause
bodily injuries as he knew is likely to cause the death of
the deceased or intended to cause such bodily injuries C
which were sufficient in the ordinary course of nature to
cause the death of the deceased. The circumstantial
evidence established against accused No.1 do not also
estab.lish that he knew that the injuries caused on the
body of the deceased must in all probability cause his
death or likely to cause his death. Thus, the ingredients D
of the offence of murder as defined in Section 300, IPC,
have not been established against the accused No.1.
Accused No.1 was guilty of culpable homicide not
amounting to murder under Section 304, IPC, and
considering the fact that accused No.1 had no intention E
to either cause the death of the deceased or cause such
bodily injury as is likely to cause death of the deceased, it
will be sufficient to impose on accused No.1 a sentence
of seven years rigorous imprisonment and to impose on
him a fine of Rs.3,000/- and in default of payment of fine, a F
further imprisonment of six months. [Para 28] [937-D-H]
1.8. In Criminal Appeal filed by accused No.1, the
conviction of the accused No.1 under Sections 193, 218
and 342, IPC is set aside, but he is held guilty of the G
offence under Section 304, IPC, instead of the offence
under Section 302, IPC. [Para 30] [938-B-C]
2. The prosecution, however, has not been able to
establish beyond reasonable doubt that accused Nos. 2
and 3 were responsible for causing the injuries on the H
916 SUPREME COURT REPORTS [2013] 16 S.C.R.
A deceased which have resulted in his death. Accused Nos.
2 and 3 were present at the time of arrest of the deceased
and when the arrest panchnama (Ext.76) was drawn up
at the Police Station and the prosecution witnesses have
said that accused No~. 2 and 3 had left the Police Station
B soon after the arrest of the deceased. The entry in the
Police Station Diary of the Police Station (Ext.113) states
that accused No. 1 had personally kept the deceased in
the lock-up a11d there is no mention in the said entry
about the presence of accused Nos. 2 and 3 in the lock-
C up where the deceased was kept. This being the
evidence at the trial, the High Court could not have held
that the deceased died while in the custody of ~ccµsed
Nos. 2 and 3. The conviction of accused Nos. 2 and 3 is
liable to be set aside. [Para 27] [936-D-H; 937-A-C]
D State of Rajasthan vs. Kashi Ram (2006) 12 SCC 254;
2006 (8) Suppl. SCR 501 State of M.P. vs. Shyamsunder
Trivedi and Ors. (1995) 4 SCC 262: 1995 (1) Suppl. SCR
44 - referred to.
E Case Law Reference :
2006 (8) Suppl. SCR 501 referred to Para 19
1995 (1) Suppl. $CR 44 referred to Para 19
1985 (1) SCR 88 relied on Para 20
F
CRIMINAL APPl;lLATE JURISDICTION: Criminal Appeal
No. 1004 of 2007.
From the Judgment and Order dated 22.03.2007 of the
G High Court of Judicatvre at Bombay in Criminal Appeal No.
1084 of 1988 and Criminal Revision Application No. 82 of
1989.
WITH
H
SUNIL MAHADEO JADHAV v. THE STATE OF 917
MAHARASHTRA
Crl. A. Nos. 1005 & 1067 of 2007 A
R. Basant, Uday U. Lalit, Sushi! Karanjkar, K. N. Rai, Anish
R. Shah, Karthik Ashok, Brij Kishor Sah, Shivaji M. Jadhav,
Sanjay R. Hegde, Atul B. Dakh, Gaurav Agrawal, Chinmoy
Khaladkar, Preshit V. Surshe, Sanjay V. Kharde, Asha Gopalan
8
Nair for the appearing parties.
The Judgment of the Court was delivered by
A. K. PATNAIK, J. 1. These are three appeals by way of
special leave under Article 136 of the Constitution against the c
common judgment dated 22.03.2007 of the High Court of
Bombay by which a Sub-Inspector of Police and two Police
Constables, have been held guilty for having caused the
custodial death of Arun (hereinafter referred to as "the
deceased"). o
Facts of the case:
2. The facts very briefly are that a minor girl named Usha
fell in love with Chandrakant and both Usha and Chandrakant
eloped from Kolhapur where they were residing to Umbrat near E
Kankavali in Konkan area in Maharashtra. Usha's father
Madhukar lodged a complaint against Chandrakant and three
others including the deceased for kidnapping Usha, and
Subhash, a Sub-Inspector of Police, was entrusted with the
investigation into the complaint of Madhukar. On 16.12.1985 F
between 12.00 and 12.30 in the midnight, Subhash with the help
of two constables, Sunil Jadhav and Ananda Bhonsale,
arrested the deceased, who was the elder brother of
Chandrakant, on the suspicion that he had helped Chandrakant
to elope from Kankavali with Usha and lodged the deceased G
in the lock-up of Shahupuri Police Station at Kolhapur. On the
morning of 17.12.1985 at about 7.00 a.m., the deceased was
found dead in the lock-up of Shahupuri Police Station. Post
mortem on the body of the deceased was conducted by Dr.
Vilas Manade and Dr. Baburao Ghatage and in all 19 injuries H
.
918 SUPREME COURT REPORTS [2013] 16 S.C.R.
A were found on the body of the deceased besides internal
injuries. Investigation was conducted and the charge-sheet was
filed against Subhash, Ananda Bhonsale and Sunil Jadav
(hereinafter referred to as accused No.1, 2 and 3 respectively)
and the charges against accused Nos. 1, 2 and 3 were under
B Section 342 read with Section 34 of the Indian Penal Code,
1860 (for short 'I PC') for having wrongfully confined the
deceased, under Section 331 read with Section 34, IPC, for
having caused grievous hurt to deceased for extorting
information regarding the whereabouts of Chandrakant, under
c Section 326 read with Section 34, IPC for having caused
grievous hurt to deceased and under Section 302 read with
Section 34, IPC, for having murdered the deceased. Besides
accused Nos. 1, 2 and 3, there were eight other accused
persons who were police personnel of the Shahupuri Police
Station and all the eleven accused persons were charged
0
under Section 218 read with Section 34, IPC, for having forged
the records of the Shahupuri Police Station and under Section
193 read with Section 34, IPC for fabricating false evidence.
3. The prosecution case in the trial was that the deceased
E was picked up from his house in the midnight of 16.12.1985
and taken to the Shahupuri Police Station by accused Nos. 1,
2 and 3, and was beaten and put in the lock-up of the Police
Station and as a result of injuries caused by such beatings, the
deceased died in the lock-up between 5.00 am and 7.00 am.
F The defence case, on the other hand, was that the deceased
was not picked up from his house but from the Sonya Maruti
Chowk by accused Nos. 1, 2 and 3 and was brought in a police
jeep to the Shahupuri Police Station and at the time of
preparation of arrest panchnama, a number of injuries on the
G body of the deceased were noticed and recorded in the arrest
panchnama and thereafter he was put inside in the lock-up in
Shahupuri Police Station and therefore accused Nos. 1, 2 and
3 were not responsible for injuries suffered by the deceased.
4. The trial court rejected the prosecution story that the
H
SUNIL MAHADEO JADHAV v. THE STATE OF 919
MAHARASHTRA [A.K. PATNAIK, J.)
deceased was picked up from his house and held that he was A
picked up from Sonya Maruti Chowk and was taken to
Shahupuri Police Station in a police jeep driven by Shamrao
Dattatraya Patil (PW-19) and while PW-19 was waiting in the
jeep parked very close to the Police Station, he did not hear
any noise of beating or crying inside the Police Station and, s
therefore, the prosecution case that accused Nos. 1, 2 and 3
gave beatings to the deceased stands disproved by the
evidence of prosecution itself. The trial court further found from
the medical evidence on record that 1he injuries on the dead
body of the deceased were brownish in colour and could not c
have been caused on the night between 16.12.1985 and
17 .12.1985. The trial court also found that a medical report
(Ext. 71) dated 02.08.1985 was recovered from the body of the
deceased which established that the deceased got his blood
and urine examined and accordingly the trial court held that there
0
was reason to believe that the deceased had some ailment.
The trial court further found that at the time of arrest of the
deceased on the intervening night of 16.12.1985 and
17.12.1985, a panchnama (Ext. 76) was prepared to which
Gundu Satavekar (PW-21) and Tanaji Jadhav (PW-22) were
witnesses and both these witnesses have deposed that when E
the deceased took off his clothes at the time of arrest
panchnama, there were 2-3 abrasions on his back and a black
spot on the waist portion and when the accused No.1 asked
the deceased how these injuries were received, the deceased
told him that while he was coming from Kavala Naka he was F
beaten by 2-3 persons with fist blows and kicks and a,.ccordingly
the panchnama (Ext.- 76) was prepared. The trial court,
therefore, acquitted the accused persons of all the charges
including the charge under Section 302 read with Section 34
against accused Nos.1, 2 and 3 by judgment dated 02.09.1988. G
5. Aggrieved, the State of Maharashtra filed Criminal
Appeal No.1084 of 1988 against all the eleven accused
persons and the complainant Balasaheb Namdeo Pandav,
brother of the deceased, filed Crimin~ Rev_ision Application H
920 SUPREME COURT REPORTS (2013] 16 S.C.R.
A No.82 of 1989. After hearing the parties, the High Court held
in the impugned judgment relying on the evidence of PW-1,
PW-5, PW-6 and PW-7 that the deceased was actually picked
up from his house on the night of 16.12.1985 and had no
injuries on his body when he was picked up and the story of
B the defence of the accused that the deceased was picked up
from Sonya Maruti Chowk and that he had injuries on his
person given by some unknown persons was false and this
story was invented by the accused to escape criminal liability.
The High Court further held that all the injuries found on the body
c of the deceased must have been caused after the deceased
was picked up from his house by accused Nos. 1, 2 and 3 and
they were, therefore, guilty of the offences under Sections 302,
342, 218 and 193 read with Section 34, IPC. The High Court,
however, maintained the judgment of the trial court acquitting
accused Nos. 4 to 11 from all the charges. Aggrieved, accused
0
Nos. 1, 2 and 3 have filed these appeals.
Contentions of the learned counsel for the parties:
6. Learned counsel for the appellants submitted that
E before the trial court, the Special Public Prosecutor specifically
conceded that there is no evidence to prove the charge of
murder under Section 302, IPC, against accused Nos.1, 2 and
3 and it was only necessary to decide as to whether the
deceased died of homicidal death and yet the High Court
F recorded the conviction of murder under Section 302, IPC,
against the appellants. They further submitted that though the
State Government had not granted sanction for prosecution of
the appellants under Section 193, IPC, the High Court has
convicted the appellants under Section 193, IPC. They further
G submitted that in the absence of proof that any document was
prepared by accused persons, the High Court acquitted the
remaining eight accused persons of the charge under Section
218, IPC, but has erroneously held the appellants guilty of the
offence under Section 218, IPC.
H
SUNIL MAHADEO JADHAV v. THE STATE OF 921
MAHARASHTRA [A.K. PATNAIK, J.]
7. Learned counsel for the appellants next submitted that A
there was no direct evidence of any witness to support the
finding that the accused Nos.1 to 3 had beaten the deceased
before or after his arrest anctihe finding of the High Court that
accused Nos.1 to 3 had-caused the injuries on the body of the
deceased was based solely on circumstantial evidence. B
Learned counsel for the appellants submitted that the
circumstances which weighed with the High Court to convict
accused Nos.1 to 3 of the offence of murder under Section 302,
IPC, are that (i) the deceased was picked up from his house
by accused Nos.1 to 3 on the night of 16.12.1985; (ii) there C
were no injuries on his person at the time when he was taken
into custody; (iii) the arrest panchnama (Ext. 76) was falsely
created to make it appear that the deceased was arrested from
a place other than his house with injuries; (iv) the deceased was
found dead in the lock-up of Shahupuri Police Station next
0
morning: (v) the deceased died of injuries mentioned in the post
mortem report (Ext.58) and (vi) no explanation has been offered
by accused Nos.1 to 3 to discharge their burden of proof under
Section 106 of the Indian Evidence Act, 1872.
8. They submitted that this Court has laid down in Sharad E
Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC
116] the five golden principles which constitute the panchsheel
of the proof of a case based on circumstantial evidence.
According to the learned counsel for the appellants, these five
golden principles are not satisfied in this case so as to make F
out the case for conviction of the appellants under Section 302,
IPC. They submitted that the first golden principle is that the
circumstances from which the conclusion of guiltis to be drawn
should be fully established and even this golden principle is not
satisfied in this case as none of the circumstances have been G
fully established.
9. Learned counsel for the appellants submitted that the
first circumstance that the deceased was picked up from his
house has not been fully established. They submitted that to
-record a findinq that the deceased was picked up from his H
•
922 SUPREME COURT REPORTS (2013] 16 S.C.R.
A house by accused Nos.1, 2 and 3, the High Court has relied
on the evidence of PW-5, the brother of the deceased, but the
evidence of PW-5 is such, as cannot be believed by any prudent
person. PW-5 has said that on the night of 16.12.1985 he woke
up for the first time on hearing the sound of opening the latch
B of the door and he saw that the deceased was being taken
away by the police from the gallery and thereafter he slept and
did not feel it necessary to go down. Learned counsel for the
appellants submitted that it is not believable that PW-5, who
was the brother of the deceased, would not go down after he
c saw that tl;e deceased was taken away by the police and that
he would sleep even after witnessing the police picking up the
deceased. They argued that the High Court has also relied on
the evidence of PW-1, another brother of the deceased, who
has said in his evidence that at about 2.00 a.m. in the morning
0 of 17.12.1985, his mother woke him up and told him that about
two hours back the deceased was taken by the police to
Shahupuri Police Station ;;md thereafter he went to Shahupuri
Police Station and returned to his house and slept. They
submitted that PW-1 had not seen the deceased being taken
E away by the police and his source of information was his
mother, but his mother has not been examined as a witness.
Learned counsel for the appellants submitted that the finding
of the High Court, therefore, that the deceased was picked up
from his house in the night of 16.12.1985 is not established by
cogent evidence.
F
10. Learned counsel for the appellants next submitted that
the second circumstance recorded by the High Court for holding
the appellants guilty of murder under Section 302, IPC, is that
there were no injuries on the body of the deceased at the time
G he was taken into custody. They submitted that the arrest
panchnama (Ext.76) which has been signed by PW-21 and
PW-22 as witnesses clearly states that the deceased had
certain injuries which were minor and not significant. They
submitted that the High Court, however, has held that the arrest
H panchnama (Ext. 76) is a false document and has been created
•
SUNIL MAHADEO JADHAV v. THE STATE OF 923
MAHARASHTRA [A.K. PATNAIK, J.]
to make it appear that the deceased was arrested at a place A
other than his house and had injuries at the time of arrest. They
submitted that the deceased along with Chandrakant was
arrayed as accused in the case of kidnapping of Usha and
accused No.1 was entrusted with the investigation of the
aforesaid case of kidnapping and accused No.1, therefore, B
arrested the deceased and prepared the arrest panchnama
(Ext.76) and also made entry regarding his arrest (Ext.134) in
the arrest register of the Police Station and the arrest of the
deceased was witnessed by PW-21 and PW-22, Gundu
Satavekar and Tanaji Jadhav. They submitted that PW-21 and c
PW-22 were not police personnel but were independent
witnesses called to the Police Station to witness the arrest of
the deceased and their evidence would show that when the
deceased took off his clothes in the Police Station, there were
2-3 abrasions on his back and a black spot on the waist portion 0
. and when accused No.1 asked the deceased how these injuries
were received, the deceased said that while he was coming
from Kavala Naka he was beaten by 2-3 persons with fist blows
and kicks by asking where Chandya (Chandrakant) was and
thereafter accused No.1 asked him whether he would like to
E
go to the dispensary but the deceased did not desire to go to
dispensary as the injuries were minor in nature and accordingly
panchanama was prepared and PW-21 and PW-22 signed the
panchnama. They submitted that a reading of the arrest
panchnama (Ext.76) would show that the evidence of PW-21
and PW-22 are fully corroborated by Ext.76. They submitted that F
the finding of the High Court, therefore, that there were no
injuries on the body of the deceased when he was arrested as
also the finding of the High Court that the arrest panchnama
(Ext. 76) was falsely created to show the injuries on the body of
the deceased are contrary to the evidence on record. G
11. Learned counsel for the appellants next submitted that
the remaining three circumstances found by the High Court to
hold the appellants guilty of murder under Section 302, IPC, are
that the deceased was found dead in the lock-up on the H
924 SUPREME COURT REPORTS [2013] 16 S.C.R.
A morning of 17.12.1985 and he died of injuries mentioned in the
post mortem report (Ext.58), but there is absolutely no evidence
to establish that the appellants had caused these injuries on the
deceased. Rather the arrest panchnama (Ext.76) established
that these injuries on the body of the deceased were caused
B before his arrest. They submitted that there may be some
differences in the description of the injuries in the arrest
panchnama (Ext.76) and the post mortem report (Ext.58) but
merely because the injuries on the body of the deceased have
not been described with meticulous details by accused No.1
c while preparing the arrest panchnama (Ext. 76), the appellants
cannot be held guilty for having committed the murder of the
deceased. They further submitted that the evidence of Doctor
(PW-13) who has prepared the post mortem report (Ext.58)
would show that the contusions and swelling in other injuries
were with brownish or black discolouration. They submitted that
0
PW-13 has admitted in his cross-examination that considering
the brownish colour of the injuries, they could have been caused
two to three days before the death.
12. They further submitted that the evidence of PW-13
E suggests that the broken ribs of the deceased might have
penetrated the diaphragm and the peritoneal cavity, the pleura
of the liver and, thus, caused penetrating injury to the liver and
this injury to the liver must have caused bleeding in the liver
which, in turn, must have led to death of the deceased. They
F vehemently argued that there is actually no evidence to show
that the fractured ribs could have caused the injuries to the liver
and, thus, it cannot be held that on account of the injuries caused
to the ribs, there were injuries to the liver of the deceased and
consequently the deceased died. Learned counsel for the
G appellants next submitted that at the time of inquest panchnama
(Ext. 71) a pathology report was available in the pocket of the
deceased and this pathology report shows that the deceased
had gone to a pathology laboratory and had obtained his blood
report and urine report. They submitted that this indicated that
H the deceased had been suffering from some ailment and if
SUNIL MAHADEO JADHAV v. THE STATE OF 925
MAHARASHTRA [A.K. PATNAIK, J.]
investigation was directed to find out what particular ailment he A
was suffering, the exact cause of the death of the deceased
would have come to light.
13. Mr. U.U. Lalit, learned counsel for appellant No.1
(accused No.1), referred to the evidence of PW-19, driver of
8
the Jeep, who was from M.T. Section of the police. He
submitted that PW-19 was an independent witness and his
evidence would show that accused No.1 brought the deceased
to the Police Station at 12.40 a.m. in the night and he left the
Police Station at 1.1 O a.m. in the Jeep for a night round duty
and came back to the Police Station at 5.00 a.m. and again C
left for his residence at 5.15 a.m. He submitted that this being
the evidence of PW-19, the deceased was not in the custody
of accused No.1 between 12.40 a.m. on the night of
16.12.1985 when the arrest panchnama (Ext.76) was recorded
and 7.00 a.m. in the morning when the deceased was found D
dead in the police lock-up and, therefore, accused .No.1 could
not be asked to explain the injuries leading to the death of the
deceased under Section 106 of the Indian Evidence Act, 1872.
14. Similarly, Mr. Basant R., learned counsel appearing for E
appellant No.2 (accused No.2), and Mr. V. Giri, learned counsel
appearing for appellant No.3 (accused no.3), submitted that
accused No.2 and accused No.3 left the Police Station soon
after the deceased was brought to the Police Station and this
will be clear from the evidence of PW-23 (a scooterist) PW-28
F
(the Magistrate) and PW-29 (Inspector of Police of Shahupuri
Police Station). They further submitted that the deceased was
never in the custody of accused No.2 and accused No.3 and it
was accused No.1 who had arrested the deceased and had
directed accused No.2 and accused No.3 to go with him for
the arrest of the deceased. They argued that the deceased was G
brought to the Police Station and handed over to the officials,
accused· No.2 and accused No.3 left the Police Station and
have not been shown to be present in the Police Station in the
records of the Police Station. They submitted that as the
H
926 SUPREME COURT REPORTS [2013] 16 S.C.R.
A deceased was not in the custody of accused No.2 and accused
No.3, no burden was cast on them under Section 106 of the
Indian Evidence Act, 1872 to explain the injuries which caused
the death of the deceased.
15. In reply, learned counsel for the State of Maharashtra
8 submitted that the prosecution has been able to establish three
circumstances and these three circumstances are (i) the
deceased was arrested on the night of 16.12.1985 by accused
Nos.1 to 3 from his house which is at Sonya Maruti Chowk,
Kohlapur; (ii) the deceased was taken into police custody_; and
C (iii) the deceased was found dead in police custody at 7.05
a.m. of 17.12.1985 and the death was an unnatural death. He
submitted that all these three circumstances would prove
beyond reasonable doubt that it was only the accused Nos.1
to 3 who are responsible for the custodial death of the
D deceased.
16. To establish the first circumstance that the deceased
was arrested by accused Nos.1 to 3 from his house, learned
counsel for the State relied on not only the evidepce of PWs-1
E to 5 but also the evidence of PW-7 (Narayan) who was working
in the house of the deceased. He submitted that the a·rrest
panchnama (Ext.76) showing that the deceased was picked
up from Sonya Maruti Chowk and also showing there were
black and redish injury spots and some abrasion marks on the
F body of the deceased, was a fabricated document and there
is no corresponding entry of the arrest of the deceased at the
relevant time in the Police Station Diary (Exts.108 to 120). He
submitted that entry in the arrest register (Ext.134) is also a
fabricated entry as the perusal of the entries in the arrest
register would show that the entries are in ink and handwriting
G different from the ink and handwriting in the other entries of the
arrest register.
17. Learned counsel for the State relied on the evidence
of PW-32 (Investigating Officer) who has stated in his evidence
H that when a police officer on night duty comes back for bona
SUNIL MAHADEO JADHAV v. THE STATE OF 927
MAHARASHTRA [A.K. PATNAIK, J.]
fide work, an entry has to be made in the Police Station Diary. A
He submitted that the station diary entry (Ext.108) shows that
at 00.10 a.m. in the night the accused No.1 went to .n_ight round
checking in the area and the station diary entry (Ext.11-1) shows
that at 5.00 a.m. the accused No.1 came back from night round
checking in the area under the Police Station and these two B
entries (Ext.108 and Ext.111) are in the handwriting of the
accused No.1. He· argued that there was, thus, evidence to
establish that accused Nos.1, 2 and 3 were carrying on rounds
irom the midnight of 16.12.1985 till the morning of 17.12.1985
and during this entire period, the deceased was in the custody c
of accused Nos.1, 2 and 3.
18. Learned counsel for the State submitted that in any
case the post mortem report (Ext.58) reveals the actual injuries
on the body of the deceased and several of these injuries are
not reflected either in the arrest panchnama (Ext.76) or in the D
arrest register (Ext.134). He submitted that PW-13 Dr. Vilas,
who conducted the post mortem, has deposed about the
injuries which were noticed on the body of the deceased and
it will be clear from his deposition that external injuries Nos.7,
12, 13 to 16 shown in the post mortem report were extensive E
and were not reflected in the arrest panchnama (Ext. 76) or in
the arrest register (Ext.134). He also relied on the evidence of
Dr. Baburao (PW-20) who has deposed that the injuries might
have been caused 12 to 15 hours before the post mortem
examination and submitted that the injuries were, therefore, F
caused between the night of 16.12.1985 and morning of
17.12.1985.
19. Learned counsel f<ilr the State vehemently submitted
that burden under Section 106 of the Indian Evidence Act, 1872 G
was, therefore, on accused
./
Nos.1, 2 and 3 to explain these
injuries which resulted in the death of the deceased and since
the accused Nos.1, 2 and 3 have not been able to explain the
injuries on the body of the deceased, they are criminally liable
for_the offence of murder under Section 302, !PC. In support of H
928 '·SUPREME COURT REPORTS [2013] 16 S.C.R.
A this submission, he relied on the decision of this Court in State
of Rajasthan v. Kashi Ram [(2006) 12 SCC 254]. He also
cited the decision of this Court in State of M. P. v. Shyamsunder
Trivedi & Ors. [(1995) 4 SCC 262] in which this Court has held
that in cases of death in the police custody the ground realities,
B if ignored by courts, may result in miscarriage of justice and
the Courts must, therefore, deal with such cases in a realistic
manner and with the sensitivity which they deserve, otherwise
the common man may loose faith in the judiciary itself. He
submitted that considering the facts of this case, the High Court
c was right in convicting the appellants for the offence under
Section 302, IPC.
Findings of the Court
20. In this case, there is no direct evidence of an eye
D witness on how the deceased suffered the injuries which has
caused his death and therefore the High Court has relied on
circumstantial evidence to convict the appellants for the offences
under Section 302 read with Section 34, IPC. A three-Judge
Bench has held in Sharad Birdhichand Sarda v. State of
E Maharashtra (supra) that in a prosecution based on
circumstantial evidence a case against accused can be said
to be fully established if the following conditions are fulfilled:
1. The circumstances from which the conclusion of
guilt is to be drawn should be fully established;
F
2. The facts so established should be consistent only
with the hypothesis of the guilt of the accused;
3. The circumstances should be of a conclusive nature
G and tendency;
4. They should exclude every possible hypothesis
except the one to be proved, and
5. There must be a chain of evidence so complete as
H not to leave any reasonable ground for the
SUNIL MAHADEO JADHAV v. THE STATE OF 929
MAHARASHTRA [A.K. PATNAIK, J.]
conclusion consistent with the innocence of the A
accused and must show that in all human probability
the act must have been done by the accused.
These five golden principles relating to a case based on
circumstantial evidence will have to be therefore borne in mind
B
while analyzing the evidence in this case.
21. The first circumstance on which the High Court has
·elied on to hold the appellants guilty is that the deceased was
actually picked up from his house on the night of 16.12.1985
by the appellants and he had no injuries on his body when he C
was picked up from his house. As proof of this circumstance,
the High Court has relied on the evidence of PW-1, PW-5, PW-
6 and PW-7. We have carefully gone through the evidence of
PW-1, PW-5, PW-6 and PW-7 and we do not find their
evidence to be convincing. We are of the considered opinion D
that the trial court rightly disbelieved the evidence of PW-1, PW-
5, PW-6 and PW-7 and has correctly held that the deceased
was picked up from Sonya Maruti Chowk and that he had
injuries on his body when he was picked up by the appellants
relying on the evidence of PW-21 and PW-22 who were E
witnesses to the arrest panchnama (Ext.76) as well as the
contents of the arrest panchnama (Ext. 76) and the entry in the
Arrest Register (Ext.134). As the contents of Ext.76 and Ext.134
have been proved by PW-21 and PW-22 and there is no
evidence to show that Ext. 76 and Ext.134 are fabricated, the F
appellants cannot be held guilty of the offences under Sections
193 and 218, IPC. Moreover, as the deceased was a co-
accused with Chandrakant in a case of kidnapping and was
arrested in connection with that case, the appellants cannot also
be held guilty of the offence under Section 342, IPC.
- G
22. We, however, find that the injuries which have been
noticed in the post mortem certificate (Ext.58) and which have
ultimately caused the death of the deceased are not the same
as are described in arrest panchri.ama (Ext.76) and as
deposed by PW-21 and PW-22. In the arrest panchnama H
930 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (Ext. 76) this is what has been stated with regard to the injuries
on the body of the deceased:
"His body was inspected and found that on his back some
black and reddish injury sports had been seen also
abrasion marks on his back and shoulder. Upon asking
B
him how these injuries occurred, he said while he was at
Kavalanaka about 10.30 p.m. three unknown persons beat
him up by making him fall down by kicks and blows and
asking him where is Chandu. Upon being asked whether
he wishes to have medical treatment for those injuries he
c refused to go to a clinic. He did not wish to make any
complaint against police. He was arrested, taken in
custody in the said crime and was informed about that.
This panchnama has been recorded as told by us in our
presence, was started at 00.45 and completed at 01.00
D hours."
It, thus, appears from the description of the injuries in
Ext.76 that the injuries on the body of the deceased comprised
some reddish injury spots and marks and were said to have
E been caused at Kavalanaka about 10.30 p.m. on 16.12.1985
by three unknown persons and as the deceased himself did not
wish to have a medical treatment for those injuries, the injuries
were not of a serious nature. When the deceased was found
dead in the lock up of police station at 7.05 am and was taken
F to C.P.R. Hospital, Kolhapur, PW-13 carried out the post
mortem during 5.45 p.m. to 7.45 p.m. on 17.12.1985 and
noticed the following external injuries on the body of the
deceased:
"1. Contusion on top of right shoulder circular 1" in
G diameter with brown discoloration
2. Abrasion on right shoulder just posterior to injury
No.1.
3. Contusion on left shoulder ovel 2" x W' brown
H
SUNIL MAHADEO JADHAV v. THE STATE OF 931
MAHARASHTRA [A.K. PATNAIK, J.]
discoloration. A
4. Multiple minor abrasions on left shoulder posterior
to injury No.3.
5. Contusion with brown dis-colouration on left wrist
radial aspect circular 1" in diameter. B
6. Minor abrasion on left forearm radial aspect 2"
above the wrist.
7 There was swelling of left foot on dorsal aspect with
brownish black discolouration, incisions black taken
c
on dorsal left foot. There was marked haematoma
on dorsum extending on medial and lateral aspect
of ankle.
8. Contusion of thin of right tibia, vertical, measuring D
3":1" extending from "above the ankle.
9. Contusion on left elbow posterior aspect ovel 1"x
'h'' brownish discolouration.
10. Contusion on right elbow medical aspect 1"x 'h''. E
11. Contusion on right elbow lateral aspect 1"x 'h''.
12. Weal mark, on back extending from medial angle
of right scapula to inferior angle of right scapula F
6"x1" brown discolouration.
13. Weal mark just on right side of throusic spine
extending from T1 to T7, 7"x1" brownish.
14. Weal mark on back left side horizontal extending G
from posterior auxiliary line to middle (spine) 7"x1"
brown.,
15. Weal mark oblique extending from inferior angle of
left scapula to right renal angle 6"x1 ".
H
932 SUPREME cour; 1 REPORTS [2013] 16 S.C.R.
A 16. Weal m:.rK horizontal at the leval of L.4 measuring
abo1~1 2"x1" brown discolouration.
17. Contusion on right penel angle circular 2" in
diameter brownish.
B 18. Contusion on right parietal region circular Yi" in
diameter.
19. Contusion on left parietal region circular Yi" in
diameter."
c Many of these external injuries on the body of the deceased
noticed during post mortem by PW-13 have not been described
in the arrest panchnama (Ext.76). The obvious inference would
be that after the arrest of the deceased as recorded in ttie
arrest panchnama (Ext.76), someone in the Shahupuri Police
D Station has caused the injuries on the body of deceased which
have not been mentioned in the arrest panchnama (Ext.76).
23. The next question which we have to decide is who
could be this someone who caused injuries on the body of the
E deceased after the arrest of the deceased. Entries 108 to· 120
in Police Station Diary of Shahupuri Police Station for
17 .12.1985 have been exhibited and proved in trial court by the
Inspector of Shahupuri Police Station (PW-29) and the entry
made at 7.05 a.m. on 17.12.1985 marked as Ex.113 in Police
F Station Diary of Shahupuri Police Station is extracted
hereinbelow:
"8. 07.05 Ex.113 Entry At this time, Police Inspector
Shahpuri is informed on telephone
at his residence bearing phone
G No.26013 that oolice arrestee
accused Arun Namdeo Pandav
aae 22 vears resident of 2643. C-
Ward Shaniwaroeth. Chambha
Galli. Kolhaour. who was arrestee
H bv PSI Panhale and oersonall1
SUNIL MAHADEO JADHAV v. THE STATE OF 933
MAHARASHTRA [A.K. PATNAIK, J.]
kept in police lock up in the night A
at 00.45 a.m. in CR No.321/1985.
u/Sec.365, 366 r/w 34 of IPC
registered with our police station.
When by giving locker key, Police
Constable No.1276, 1672, 1627 B
are asked at about 7.00 a.m. in the
morning to bring him out for
nature's call and mouth wash, then
they informed that in lock up room,
the said accused does not get up~ C
his body has become cold; then I
personally went to the lock up
room and saw that his breathing is
stopped and his body has
become cold and I am sure that he D
has died, therefore, you should
come immediately. Then he said
he is coming, Accordingly entry is
taken."
E
1
The aforesaid extract from the Police Station Diary would
clearly show that the deceased Arun Namdeo P,andav who was
arrested by accused No.1 was personally kept in police lock
up in the night at 00.45 a.m. and at 7.00 a.m. in the morning
when the Police Constable No.1276, 1672, 1627 were asked
to bring the deceased out for nature calls and mouth wash, the F
deceased did not get up and his body had become cold and
his breathing had stopped and he had died. With regard to the
aforesaid entry Ex.113 in the Police Station Diary, PW-29 has
also stated in cross examination:
G
"7. On 17,12,1985 at 7.05 a.m. I got the phone message
from the Station House Officer that the accused in the
Police lock-up room had died. He informed me that the
said accusd was involved in C.R. No.321/85, was arrested
at 00.45 a.m. and was kept in the police lock-up. I went to H
934 SUPREME COURT REPORTS [2013] 16 S.C.R.
A the Police Station at 7.20 a.m. Panhale also came to the
Police Station as per my order. I orally inquired with the
staff members about the arrest and death of that accused
person. I got the information on night round after arresting
that accused person at 0.45 a.m. and keeping him in the
B lock-up room. I got the information that the accused 2 and
3 left the police station on the bicycles and still that time
they had not returned to the police station."
Thus, Ext.113 read with the evidence of PW-29 clearly
C establishes that the deceased was last in the custody of
accused No.1 in the police lock-up about 00.45 a.m. of
17.12.1985 and thereafter the deceased was in the lock-up in
no one's custody.
24. Section 106 of the ·Indian Evidence Act states that
D when any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him. Since it was accused
No.1 who had arrested the deceased at 00.45 a.m. on
17.12.1985 and kept the deceased in police lock up after his
arrest was complete, it was for the accused No.1 to explain the
E injuries on the body of the deceased other than those which
were noticed in Ex. 76. Accused No.1 has not stated anything
in this regard in his statement under Section 313 of the Code
of Criminal Procedure, 1973 (for short 'Cr.P.C.') nor adduced
any evidence in defence to explain these injuries. In the absence
F of any explanation by accused No.1 or any evidence adduced
on behalf of accused No.1 to explain on these injuries on the
body of the deceased, there can be no escape from the
conclusion that these injuries have been caused on the body
of the deceased by accused No.1 and no one else.
G 25. The chain of circumstances proved against accused
No.1 are that (i) he had arrested the deceased on the night of
17.12.1985 between 00.45 a.m. to 1.00 a.m. as per the arrest
panchnama (Ex.-76), (ii) the injuries noticed by PW-13 as per
the post mortem report are different from and more serious than
H the injuries recorded in the arrest panchnama (Ext.76) and (iii)
SUNIL MAHADEO JADHAV v. THE STATE OF 935
MAHARASHTRA [A.K. PATNAIK, J.]
no one else had the custody of the deceased between the time A
of his arrest at 0.45 a.m. on 17.12.1985 till 7.00 a.m. of
17.12.1985. Thus, the only hypothesis before the High Court
is that it is accused No.1 who is responsible for injuries on the
body of the deceased found at the time of his death.
B
26. PW-13 has further stated in the evidence that on
internal examination on the body of the deceased, he had
noticed the following injuries:
"1. Haematoma on right parietal region circular 2" in
diameter. C
2. Haematoma on left parietal region circular 2" in
diameter.
3. Coverings of brain normal, brain congested weight
0
1200 grams.
4. Fractured ribs 7th, 8th on right side posterorily 2" from
spine. Pheura normal Traches food particles, right lung, left
lung were conjested. Feil cardian was normal. Heard I
weight 400 grams, lung vessels empty. E
5. The walls of abdomen were normal, Peritonjern normal
except tear on posterior surface. Cavity-about 2 liters of
blood, buckle cavity all teeth were present. Oesophabes
no abnormality detected. Stomach and its contents:- about
F
half WATI brownish fluid containing rice small intestine and
its contents:- Semi digested food, large instatine and its
contents:- faecal matter. Liver: ~Wt. 1.5, laceration postero
superior surface of right lobe of liver 2"x1" X 1" bleeding
plus, laceration on posterior surface ofright lobe of the liver G
just above inferior border 3"x%" X %" bleeding plus."
PW-13 has further stated in evidence that according to his
opinion the cause of death was shock QUe to hemorrhage due
to laceration of liver, due to fracture of ribs with multiple injuries.
PW-20, a medical officer of C.P.R. Hospital, who hac:t also . H
936 SUPREME COURT REPORTS [2013] 16 S.C.R.
A carried out the post mortem on the body of the deceased along
with PW-13 has deposed before the Court that the death of the
deceased was mainly on account of breaking of the ribs of the
deceased and the ribs penetrated through peritoneum,
diaphragm and pleura and affected the liver. PW-20 has also
B deposed that the injuries were caused between 12 to 15 hours
before post mortem. The post mortem was conducted between
5.45 p.m. and 7.45 'p.m. and 15 hours from 5.45 p.m. would
be around midnight of 16.12.1985. It is thus established beyond
reasonable doubt that the injuries caused on the body of the
c deceased and in particular the injuries to ribs were the cause
of the death of the deceased and accused No.1 was
responsible for causing these injuries on the deceased.
27. The prosecution, however, has not been able to
establish beyond reasonable doubt that accused Nos.2 and 3
D were responsible for causing the injuries on the deceased
which have resulted in his death. As we have found, accused
· Nos.2 and 3 were present at the time 6f arrest of the deceased
and when the arrest panchnama (Ext. 76) was drawn up at the
Shahupuri Police Station and the prosecution witnesses have
E said that accused Nos.2 and 3 had left the Police Station soon
after the arrest of the deceased. PW-23 has stated that between
00.30 a.m. and 1.00 a.m. of 17.12.1985 the light of the scooter
went off near the Gokul Hotel and accused No.1 asked him to
come to the Police Station and he went to the Police Station
F and some time was required for making the receipts of fine
which he paid and thereafter he left the Police Station and in
his cross-examination he admitted that after the jeep went away,
two policemen in ordinary dress also left the Police Station
before him. The Additional District Magistrate, Kolhapur, who
G conducted the inquiry into the death of the deceased under
Section 176, Cr.P.C., has stated that it appears from the
statements of various police constables recorded during the
inquiry that accused Nos.2 and 3 left the police station after the
arrest of the deceased at about 1.00 a.m. on 17.12.1985. PW-
H 29, the Inspector of Police of Shahupuri Police Station, has
SUNIL MAHADEO JADHAV v. THE STATE OF 937
MAHARASHTRA [A.K. PATNAIK, J.]
also stated that he got information that the accused Nos.2 and A
3 left the police station on bicycles and till 7 .20 a.m. of
17 .12.1985 they had not returned to the police station. The entry
in the Police Station Diary of Shahupuri Police Station
(Ext.113) states tn~t Panhale (accused No.1) had personally
kept the deceased in the lock-up and there is no mention in B
the said entry about the presence of accused Nos.2 and 3 in
the lock-up where the deceased was kept. This being the
. evidence at the trial, the High Court could not have held that
the deceased died while in the custody of accused Nos.2 and
3. We are of the opinion that the conviction of aci..:used Nos. 2 c
1
and 3 is liable to be set aside.
28. The only other question that we have to ae'crj(je is as
to the nature of offence that the accused No.1 has committed.
The circumstantial evidence established against accused No.1
does not show that accused No.1 intended to cause the death D
of the deceased or intended to cause bodily injuries as he knew
is likt;!ly to cause the death of the deceased or intended to
cause such bodily injuries which were sufficient in the ordinary
course of nature to cause the death of the deceased. The
circumstantial evidence established against acct1sed No.1 do E
not also establish that he knew that the injuries caused on the
body of the deceased must in all probability cause his death
or likely to cause his death. Thus, the ingredients of the offen9e
of murder as defined iri Section 300, IPC, have not been
established against the accused No.1. In our considered F.
opinion, the accused No.1 was guilty of culpable homicide not
amounting to murder under Section 304, IPC, and considering
the fact that accused No.1 had no intention to either cause the
death of the deceased or cause such bodily injury as is likely
to cause death of the deceased, it will be sufficient to impose G
on accused No.1 a sentence of seven years rigorous
imprisonment and to impose on him a fine of Rs.3,000/- and
in default of payment of fine, a further imprisonment of six
months.
H
938 SUPREME COURT REPORTS (2013] 16 S.C.R.
A 29. We, therefore, allow Criminal Appeal Nos.1004 of
2007 and 1005 of 2007 of accused Nos.2 and 3 and set aside
their conviction under Sections 193, 218, 342 and 302, IPC and
direct that the bail bonds of accused Nos. 2 and 3 shall stand
discharged.
B
30. In Criminal Appeal No.1067 of 2007 filed by accused
No.1, we set aside the conviction of the accused No.1 under
Sections 193, 218 and 342, IPC, but hold him guilty of the
offence under Section 304, IPC, instead of the offence under
Section 302, IPC, and sentence him to seven years rigorous
C imprisonment and a fine of Rs.3,000/- and in default of payment
of the fine amount, a further imprisonment of six months. The
accused No.1 who is on bail will be forthwith taken into custody
for undergoing the remaining period of sentence. Criminal
Appeal No. 1067 of 2007 stands disposed of.
D
Kalpana K. Tripathy Appeals disposed of.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "custodial death"Sign in to search