IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 612 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE G.B.SHAH =========================================
========================================= JYOTSNABEN MACHHI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance :
Hardik Soni for Mr Ashish Shah for Applicant(s) :
Mr K L Pandya, APP for the Respondent(s) :
========================================= CORAM : HONOURABLE MR.JUSTICE G.B.SHAH Date : 29/2/2012 CAV JUDGMENT
1. This Special Criminal Application under Article 226 of the Constitution of India has been filed by the petitioner seeking compensation to the petitioner on account of custodial death of the petitioner's son Prakashbhai Dhansukhbhai Machhi who expired on 13.8.2005 in police custody.
2. The petitioner's son, Prakashbhai Dhansukhbhai Machhi came to be arrested by the police of Kevadia police station for committing offence under sections 66 (1)(b) and 85 (1)(i)(b) of the Bombay Prohibition Act on the basis of a written complaint given by the petitioner. A case being CR No.III 146 of 2005 was registered on 13.8.2005. Investigation of the said case was carried out by one Shankerbhai Bhimabhai, Assistant Sub Inspector of Kevadia police station. It is alleged that deceased Prakashbhai was put in police lock-up after medical check-up at about 1.30 a.m. and at about 2.15 am on 13.8.2005 when the Assistant Sub-Inspector went to enquire whether the deceased needed water, he found Prakashbhai dead by hanging himself with his shirt. Shankerbhai Bhimabhai immediately made a report and took statement of one Zinabhai Jesingbhai who was on duty at that time. Inquest panchnama was drawn and post mortem was also carried out. According to the petitioner, the deceased was subjected to mental and physical torture which led to the alleged incident of custodial death. That the deceased had died in police custody in mysterious circumstances and the responsibility of the death is prima facie, traceable to the act of mental harassment and torture by the police. Therefore, it is prayed that suitable compensation be paid to the petitioner and the investigation be entrusted to the Central Bureau of Investigation.
3. Heard the learned Advocate for the petitioner and the learned APP for the State.
3.1. Learned Advocate for the petitioner has submitted that during the inquest panchnama, it was found that the mouth of the deceased was half open, eyes were closed and body was stiff, some liquid fell from the mouth of the deceased and tongue of the deceased had come out. He has further submitted that in column No. 17 of the post mortem report, injuries were shown and the observations made therein show that apart from ligature marks, right side skin of the neck was reddish brown and there was contusion and on left side of the neck multiple abrasions were found. The final cause of the death shown was asphyxia following hanging. Thus, it is apparent that the death of the deceased had occurred while in police custody after he was picked up for minor prohibition offence. He has further submitted that there was no reason for the deceased to commit suicide. He has further submitted that the deceased had no criminal background and it can very well be inferred that the deceased was subjected to mental and physical torture. He has further submitted that the manner in which the police have behaved after the incident is clear enough to suggest that it is a custodial death and not a suicide. The learned Advocate has further submitted that custodial death is one of the worst crimes in a civilized society governed by the rule of law. The rights under Articles 21 and 22 of the Constitution of India are required to be scrupulously protected by the police and therefore, appropriate order or direction be issued directing the respondent No.1 to award an amount of Rs.5 lakh as compensation to the petitioner and the investigation of the case be transferred to the Central Bureau of Investigation.
3.2. In support of his submissions, learned Advocate for the petitioner has placed reliance on a decision of the Apex Court in Nilabati Behera v. State of Orissa & Others (1993) 2 SCC 746. In the said case, the deceased was taken in police custody and next day his dead body with multiple injuries found on railway track. The State's plea that the deceased had escaped from police custody by chewing off the rope with which he was tied and was run over by a train was not substantiated by the evidence of the doctor who conducted post mortem examination and the report of the Forensic Science Laboratory. Here in this case, the dead body was found in the police custody.
3.3. Reliance was also placed on a decision in the case of State of M.P. v. Shyamsunder Trivedi & Others (1995) 4 SCC 262 wherein Nathu Banjara was brought for interrogation in a police station as a suspect in a murder case. Due to beating and torturing Nathu died in police custody. The dead body of the deceased was removed in a jeep belonging to the Fisheries Department to the hospital as an unclaimed body. But for the vigilance of some members of the Bar of Rampura and the strong protest of some of the residents of the village the crime could have gone unnoticed and unpunished.
4. On the other hand, the learned APP has submitted that the death of the deceased has occurred due to suicide and immediately after the death, mother of the deceased was informed and subsequently inquest panchnama was drawn in presence of Executive Magistrate, Nandod. The dead body was sent for post mortem and the cause given for the death was Asphyxia following hanging and the FSL report also confirmed the cause of death. In the affidavit-in-reply filed on behalf of respondent No.2 it is stated that since the deceased was found in drunken condition, he was sent for medical examination to the Narmada Project Hospital, Kevadia Colony. It is further stated that in the FSL report, it was found that the consumption of ethyl was found in blood 0.0887. It is stated that on completion of medical examination, the deceased was brought back to the police station and was put in the lockup at 1.30 midnight and thereafter it was found that the deceased committed suicide by hanging himself with his shirt and therefore, a case of accidental death was registered under section 174 of the Criminal Procedure Code. It is further stated in the affidavit-in-reply that a fullfledged inquiry was held by Sub-Divisional Magistrate, Rajpipla and the report was sent to the District Magistrate which shows that there was no negligence on the part of the police officer. In the post mortem report, no other injury was found except ligature mark and the cause of the death was shown as Asphyxia following hanging and hence the petition is required to be dismissed.
5. I have perused the statement of Jyotsnaben i.e. the present petitioner and mother of the deceased recorded on 20.9.2005 wherein she has stated that at 11 p.m. on 12.8.2005, her son Prakashbhai was doing mischief in drunken state and was threatening to kill her. She, therefore, approached the Kevadia police station and lodged complaint to that effect and so the Head Constable who was on duty in the police station sent the mobile van of Kevadia police station. Thus deceased Prakashbhai was arrested by police from his house. At 3.00 am she was informed that her son Prakash has committed suicide. Now, the mother of the deceased herself admits that the deceased did not do any job and used to wander with his friends in the market and used to sleep after meals and he was a habitual drinker. However, by preferring this Special Civil Application, she has alleged that because of the mental and physical torture of police, her son Prakash died in police custody and there was no reason for the deceased to have commited suicide and it is nothing but a custodial death.
5.1. Perusal of statement of Maheshbhai Tadvi, a GRD Member of Kevadia police station makes it clear that on account of the complaint made by the petitioner that her son Prakash was abusing at home and doing mischief in drunken state and threatening to kill her, the police arrested him for the offences under sections 66 (1)(b) and 85 (1)(i)(b) of the Bombay Prohibition Act. They have taken him for medical check up to the Government Hospital and after the medical check up the deceased was again kept in police lock-up, after carrying out the necessary formalities. But at 2.15 a.m. on 13.8.2005 when the ASI went to inquire whether the deceased needed water, he found the latter dead by hanging himself with his shirt. After informing the higher officers necessary legal procedures were completed. Dr.Manojkumar Mishra, Superintendent of Referral Hospital, Garudeshwar has stated in his statement that he along with two other Doctors carried out the post mortem. He has stated that there were injuries such as wounds on either side towards the back of neck and there were ligature marks and the right side of the neck was reddish brown contusion and on left side of the neck multiple abrasion and pale and these injuries were ante-mortem injuries and the cause of death was due to asphyxia by strangulation and the final report has not been received from FSL.
5.2. The learned Advocate for the applicant has vehemently submitted that during the post mortem the Doctor has found a scar in the middle of the right hand and two scars on left knee and a scar in the middle of left hand and also in the middle of the back and these injuries are nothing but those received from torture given by the police after arrest of deceased Prakash and they should be considered in its right perspectives and in true letter and spirit.
6. Considering the entire circumstances forthcoming on the record, it is clear that the deceased was caught by the police on the complaint being made by the mother of the deceased to the effect that Prakash was harassing her after consuming liquor and this shows that the deceased must have quarreled with his mother in drunken state to such an extent that she was forced to take help of the police officials in making complaint against her own son.
6.1. The learned APP has submitted that the deceased Prakash may have received scar injuries as he was not in a position to walk properly being in drunken state and it has nothing to do with being in police custody, more particularly when he was not possessing hardened criminal background. I find myself in agreement with the said submissions made by the learned APP for the respondent-State.
7. I have considered the complaint made by the mother of the deceased, the post mortem report and the offences registered by the police. On the basis of the complaint made by the mother of the deceased that the deceased was in drunken position and she was threatened to be killed, the police arrested him and after the medical check up he was kept in lock up for completing the necessary formalities. On 12.8.2005 at about 11 p.m. the said complaint was made by the mother of the deceased. After the medical check-up at about 1.30 am he was kept in lock up. At 2.15 am the police found him dead by hanging himself with his shirt. The theory of beating and torturing the deceased by the police is improbable as the police has not registered any case against the deceased suo motu. The deceased had no criminal background. Most of the time he has remained in drunken condition. Nothing was required to be recovered from the deceased and therefore, prima facie, the question of torturing and beating by the police cannot be believed. Similarly, no serious injuries of beating is found on the body of the deceased as per the post mortem report. Hence the ratio laid down in the two decisions referred above, in my view, is not applicable to the case on hand. It is pertinent to note that the investigation is not completed and is pending. Hence at this stage, this court cannot give either any direction to the respondent to award compensation to the petitioner or to hand over the case to the Central Bureau of Investigation.
7. In view of the aforesaid, this petition fails and is accordingly dismissed. Rule is discharged.
It is made clear that the investigation in respect of the custodial death of the petitioner's son, if any, is pending, the same shall be proceeded by the concerned authority in accordance with law, without being influenced by the prima facie observations made herein.
[G. B. SHAH, J.] msp