Bombay High Court: In a bunch of appeals challenging judgment and order passed by the Trial Court on 12-07-2013 convicting and sentencing the accused persons (Police Personnel and others) with varied imprisonment and fine, and acquitting another Police Personnel for offences under Sections 364, 365, 368, 302, 120-B r/w 364, 143, 144, 147, 148, 149 r/w. 364, 149 r/w 365, 364 r/w 149, 365 r/w 149, 368, 364 r/w 109 r/w 120-B and 365 r/w 109 r/w 120-B, 368 r/w. 109 r/w 120-B, 344 r/w. 34, 344 r/w. 109 r/w 120-B, 302 r/w 34, 302 r/w 109 r/w 120-B, 201 r/w 34, 201 r/w 109 r/w 120-B, 201, 201 r/w 109 r/w 120-B, 174(A) of the Penal Code, 1860 (‘IPC’), the Division Bench of Revati Mohite Dere* and Gauri Godse, JJ. upheld conviction, dismissed enhancement of sentence and reversed the acquittal of police personnel concerned.
Factual Background
The prosecution case reflected abduction of two friends on 11-11-2006 by the Police in a Qualis, took them at one place and then to Police Station, and then took one person to a park and threw his body, fired again and showed that the person was killed in a genuine encounter, while the same was fake. The dead person’s friend was wrongfully confined by police and others to keep him from disclosing details.
The accused persons version reflected that the person was never abducted but a trap was laid after receiving secret information, that he was killed when he fired at the police party in retaliation, showing the same to be genuine encounter.
Court’s Analysis
The Court looked at the sequence of events in detail, filing of writ petition, Court’s order dated 13-02-2008 directing conduct of inquiry regarding police firing under Section 176(1-A) of CrPC, and the Magistrate’s report reflecting a fake encounter, the High Court’s order dated 13-08-2009, constitution of SIT, statement of the friend who accompanied the person killed in fake encounter who later went missing, whose burnt dead body was found.
While hinting towards prosecution case entirely resting upon circumstantial evidence, the Court cited law on circumstantial evidence and importance of chain through Hanumant v. State of M.P., (1952) 2 SCC 71; Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. The Court further perused the evidence of all 100+ witnesses and other evidence and even pointed towards the map of said park falsifying the case of genuine encounter.
The Court referred to Leela Ram v. State of Haryana, (1999) 9 SCC 525; Sukhwant Singh v. State of Punjab, (1995) 3 SCC 367 and Ravi Sharma v. State (NCT of Delhi), (2022) 8 SCC 536 to clarify that “ballistic evidence cannot be lightly brushed aside, nor can it be termed as a weak piece of evidence.” After going through the evidence in detail, the Court was satisfied to hold that prosecution had proved beyond a reasonable doubt regarding wrongful confinement of the friend of person deceased.
The Court referred to a catena of cases to depict that “an omission under Section 313 does not necessarily vitiate the trial, unless the accused is successful in showing that the omission has resulted in serious prejudice, resulting in failure of justice.” The Court also discussed fatality of absence of motive through Vivek Kalra v. State of Rajasthan, (2014) 12 SCC 439; Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 and other cases.
Coming to custodial death and evidence, the Court cited Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631 and Prithipal Singh v. State of Punjab, (2012) 1 SCC 10. The Court observed that once the prosecution proved abduction of the said two friends, the onus was shifted upon Police Personnel accused, to show what happened to them. It further confirmed that the evidence of witnesses i.e. on abduction, murder and wrongful confinement was duly corroborated by CDRs.
The Court clarified that “Death in police custody must be curbed with a heavy hand and must be viewed seriously. There can be no room for leniency as the persons involved i.e. the police, are the arm of the State, whose duty is to protect the citizens and not to take law into their hands and commit gruesome offences against them. The protectors/guardians of law cannot be permitted to act as criminals in uniform. If this is permitted, it would lead to anarchy”.
Therefore, the Court upheld the conviction of persons convicted and sentenced by the Trial Court, appeals against two deceased stood abated, quashed and set aside judgment and order of conviction and sentence of 5 accused persons while acquitting them. The Court also eyed at pendency of CID investigation of the murder of the friend who was abducted along with the deceased and whose dead body was found later in burnt condition. Thereafter, the Court pointed towards the acquittal of Police personnel who evidently shot the deceased at the park with service revolver and discussed the law regarding interference by appellate court in case of acquittal by Trial Court through Sheo Swarup v. King-Emperor, 1934 SCC OnLine PC 42; Chandrappa v. State of Karnataka, (2007) 4 SCC 415.
The Court hinted towards the evidence on record and therefore quashed and set aside acquittal of the said police personnel and found him guilty of offences purported and sentenced him for life imprisonment while imposing other punishments in the form of sentence and fine for varied offences.
Regarding the appeal seeking enhancement of sentences awarded to police personnel — from life imprisonment to death penalty, the Court dismissed the same.
[Dilip Sitaram Palande v. State of Maharashtra, Criminal Appeal No. 1242 of 2018, decided on 19-03-2024]
Judgment by: Justice Revati Mohite Dere
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