Ramdhani Pande vs State of M.P.

T.P. Naik, J.—The accused appellant Ramdhani Pandey has been convicted by the Third Additional Sessions Judge, Jabalpur, u/s 330 of the Indian Penal Code and sentenced to rigorous imprisonment for a period of three years together With a fine of Rs. 100 or, in default of payment of the fine further rigorous imprisonment for a period of one month. He has also been competed in the same trial u/s 348 of the Indian Penal Code and sentenced to rigorous imprisonment for a period of one year together with a fine of Rs. 100 or, in default of the payment of the fine, further rigorous imprisonment for a period of one month. The substantive terms of imprisonment have been ordered to run concurrently.

The prosecution case, in short, is as follows. The accused appellant, who was a Sub-Inspector of Police, was posted as station Officer, police-station Shahnagar, district Panna, in November and December 1966. A corpse was found near a place called ''Dana Baba ki Bhatia in the forest near village. Kurena. The identity of the corpse could not be established as it had decomposed only bones being left. Near the dead body, amongst other things an empty paper packet of sweets bearing the name ''Khanna Stores, Jabalpur'' was round. The accused-appellant, who was in charge of the investigation in respect of the aforesaid death, believed it to be the case of a suspected murder and, presumably because an empty paper bag of sweets bearing the name Khanna Stores, Jabalpur'' had been found near the dead body, came to Jabalpur for further investigation. At Jabalpur he learnt that on 1-11-1966 two reports had been lodged one (Ex. P-61) by Mst. Harchhatia (P.W. 23), mother or one Phoolchand, at police station Khamaria complaining that her son Phoolchand was missing since 26-10-1966 and that the last she had heard of him was that he had been taken by one Sukku to Panagar, and the other (Ex. P. 60) by Sukku (P.W. 1) at Police station Ranjhi stating that while he and Phoolchand were going to Bombay by train, Phoolchand got down at Bhusaval and did not enter the train again and had not been heard of since. On the basis of the aforesaid reports and other material, the accused-appellant conjectured that the dead body found in the forest of village Kurena was that of the missing Phoolchand and that his murder had been committed by Sukku (P.W. 1).

The prosecution alleges that on 22-11-1966 the accused appellant went to village Piparia and took into custody Sukku (P.W. 1) and between the period 23-11-1966 to 3-12-1966 kept him under wrongful confinement at police station Jabalpur Cantt where he beat him and tortured him to confess to the commission of the murder of Phoolchand. In the result, on or about 28-11-1966 Sukku (P.W. 1) confessed that he had murdered Phoolchand with the help of Chandansingh (P.W. 28) and Dumari (P.W. 27).

The accused-appellant thereafter took Sukku (P.W. 1) along with Chandansingh (P.W. 28) to Panna where they were formally arrested on 5-12-1966 and produced before the Additional District Magistrate (Judicial), for remand. Sukku (P.W. 1) was in jail on remand from 7-12-1966 to 27-12-1966. However, before a challan could be filed, Phoolchand (P.W. 24) returned home. Consequently, on 27-12-1966 Sukku (P.W. 1) was ordered to be released by the Additional District Magistrate (Judicial), Panna.

The first information report (Ex. P-1) dated 13-1-1967 was drafted by Dutta, Advocate. Jabalpur, and signed by the complainant Sukku (P.W. 1). On its basis an investigation was conducted which resulted in the prosecution of the accused-appellant for offences under sections 330 and 348 of the Indian Penal Code in the Court of the Third Additional Sessions Judge, Jabalpur.

The accused-appellant abjured his guilt and pleaded that he had been falsely implicated. He denied having beaten or tortured Sukku (P.W. 1) during investigation. According to him, the confession made by Sukku (P.W. 1) that he had committed the murder of Phoolchand (P.W. 24) was voluntary and not the result of any beating torture.

The learned Additional Sessions Judge, relying on the evidence of Sukku (P.W. 1) which, according to him, was amply corroborated by the other evidence on record, convicted the accused-appellant as stated above. The accused-appellant has, therefore, come up in appeal against his convictions and sentences aforesaid.

The salient facts as stated by the complainant Sukku (P.W. 1) are as follows :--

That he was an employee of the Ordinance Factory Khamaria and lived at Piparia, that Phoolchand also lived at Piparia and was doing the business of shoe-repairing and polishing ; that on the suggestion of Phoolchand that they should improve their lot by going to Bombay and earning more money there, he pawned his bicycle for Rs. 110 that Phoolchand sew Rs. 50 in the Sole of the shoes of Sukku and the rest of the amount of Rs. 60 was utilized then for their journey to Bombay ; that they left Jabalpur by train without informing their people except sending a letter to his (Sukku''s) wife through one boy Ramcharan; that at Bhusaval railway station he saw that Phoolchand was brushing his teeth on the platform and was wearing his (Sukku''s) shoes containing the money, that when the train started, he shouted to Phoolchand to sit in any compartment at the back but, on reaching Bombay, he found that Phoolchand was not in the train that after searching Phoolchand for a couple of days, he returned to Jabalpur where he learnt that Phoolchand had not come back home; and that on or about 28-10-1966 he reported the matter of the missing of Phoolchand from Bhusaval at police-station Khamaria.

That on 22-11-1966 he was taken to the accused appellant at the house of Kapoorchand (D.W. 3) where the accused-appellant charged him with to murder of Phoolchand (P.W. 24) and beat him with a danda which he carried, because he would not confess to a murder which he had not committed.

That the next morning the accused appellant took him to police station Ranjhi where he was further assaulted with kicks because he would not agree to confessing to the murder of Phoolchand (P.W. 24).

That at about 3-30 p.m., the accused-appellant took him to police-station Jabalpur Cantonment where he tortured by being applied electric current from a mechanical machine ; that on being so tortured, he confessed that he had killed Phoolchand. (P.W. 24); and that thereafter he was handcuffed and confined in the lock-up of the police-station.

That he was confined in the lock-up at police-station Jabalpur Cantt. for about seven days and further tortured till he agreed to confess that Chandan Singh (P.W. 28) and Dumari (P.W. 27) were his associates in the killing and that thereafter he confessed that he had killed Phoolchand (P.W. 24) with the assistance of Chandansing (P.W. 28) and Dumari (P.W. 27).

That the accused-appellant then took him to police-station Shahnagar where he was kept for about three days ; and that he was then produced before a Magistrate and remanded to jail custody.

That he was released from jail as Phoolchand (P.W. 24) had, in the meanwhile, returned home.

The evidence of Sukku (P.W. 1) is amply corroborated from the evidence on record as found by the learned Additional Sessions Judge. The corroborative pieces of evidence are:

(a) Ex. P-60 corroborates him as to the circumstances in which he started for Bombay by train in the company, of Phoolchand (P.W. 24) and the circumstances under which Phoolchand, (P.W. 24) was left behind at Bhusaval.

(b) Nirasia (P.W. 6) Basantihai (P.W. 7) and Benibai (P.W. 15) corroborate Sukku (P.W. 1) in regard to his assault by the accused-appellant at the house of Kapoorchand (D.W. 3) on 22-1-1966; and they as also Basori (P.W. 17) corroborate him as regards the beating and torture to him at police-station,, Jabalpur Cantt. They saw Sukku (P.W. 1) confined behind bars. Benibai (P.W. 15) saw her husband (Sukku) being beaten by the accused-appellant, and at night they also heard the cries of, Sukku due to agonies caused by torture.

(c). Jhunnilal (P.W. 2), who was the head-constable moharrir at police-station Jabalpur Cantt. corroborates him as to his statement that he was taken to the police-station Jabalpur Cantt. on, 23-11-1966 the fact is also corroborated by Ex. P-21 dated 23-11-1966, the report admittedly sent by the accused-appellant from Jabalpur to his Circle Inspector at Pabai. The report was scribed by Birsingh (P.W. 11) on the dictation of the accused-appellant and the statement of the accused appellant, that he was not aware of its contents was rightly not believed

(d) Ex. P-1, the first information report sent by the complainant (P.W. 1) to the police also corroborates him as to the assault, and) torture to him at police-station Jabalpur Cantt. and also as to the circumstances in which he confessed to the commission of the murder of Phoolchand (P.W. 24), and also as to the complicity of Chandansingh (P.W. 28), and Dumari (P.W. 21) in it.

(e) Chandansingh (P.W. 28) states that he was also beaten and tortured by the accused-appellant at police-station Jabalpur Cantt. and that he and Sukku (P.W. 1) were beaten by the police by turns. He also says that he heard the cries of Sukku (P.W. 1), uttered by him due to the beating and torture he was receiving.

(f) Ex. P-19 dated 28-11-1966, the memorandum prepared by the accused-appellant as to the alleged voluntary confession made by the complainant (P.W. 1) to him, also corroborates Sukku (P.W. 1); the alleged voluntary statement of Sukku (P.W. 1) contained in Ex. P-49 also corroborates him.

(g) The evidence of Major Pawar (P.W. 10), the Security Officer, Ordinance Factory, Khamaria, contained in Ex. P-37 about Sukku''s (P.W. O''s) absence from duty from the factory from 23-11-1966 to 31-12-1966 also lends support to the complainant''s (P.W. 1''s) testimony that from the evening of the 22nd December to the 27th of December 1966 he was with the accused-appellant in confinement on a false charge of murder.

The aforesaid evidence of Sukku (P.W. 1), as also the evidence which corroborates it, has been believed by the learned Additional Sessions Judge and, in my opinion, there are no good and cogent reasons to disbelieve it. As pointed out by the learned Additional Sessions Judge, the very fact that the complainant Sukku (P.W. 1) had confessed to the murder of Phoolchand (P.W. 24) who, to his knowledge, was last seen by him at railway-station Bhusaval and whom he had not murdered as the subsequent appearance of Phoolchand (P.W. 24) at Jabalpur amply showed, raises a suspicion that his confession could not be, and was not, voluntary and makes the story of assault and torture narrated by Sukku (P.W. 1) highly probable; and when the evidence of Sukku (P.W. 1) as to the torture and wrongful confinement is also amply corroborated on a number of important and material particulars by the other independent evidence on record, I see no reason to doubt or discard it.

It is, however, contended that the evidence of Sukku (P.W. 1) ought not to be relied on because--

(i) Ex. P-1 does not corroborate it in regard to the alleged beating given to him by the accused-appellant at the house of Kapoorchand (D.W. 3),

(ii) Phoolchand (P.W. 24) gives a different version as to the circumstances in which he and Sukku (P.W. 1) started for Bombay and in which Phoolchand (P.W. 24) was left behind at Bhusaval,

(iii) Nirasia (P.W. 6), Basantibai (P.W. 7), Benibai (P.W. 15 and Basori (P.W. 17), who are alleged to corroborate Sukku (P.W. 1), are closely related to him.

(iv) Durga (P.W. 18) and Keshav (P.W. 19) do not corroborate him as to the assault on him at the house of Kapoorchand (D.W. 3).

(v) there was no corroboration of his statement that he was kicked at police-station Ranjhi.

(vi) there were no injuries on his person to account for the alleged beating and torture.

(vii) he did not complain of the beating or torture to the Additional District Magistrate (Judicial) Panna, before whom he was produced for remand on or about 7-12-1966.

(viii) there were contradictions in the statement of Sukku (P.W. 1), which makes his evidence unnatural and unreliable.

(ix) the police officers Qureshi (P.W. 3) and Birsingh (P.W. 11) attached to police station Jabalpur Cantt do not corroborate him.

(x) the official records of police station Jabalpur Cantt also do not corroborate him,

and

(xi) the defence evidence had been wrongly discarded.

The criticism is a repetition of the criticism made in the trial Court and has been exhaustively answered by the learned Additional Sessions Judge and. I quite agree with him that the criticism had no merit and did not detract from the value to be attached to the testimony of Sukku (P.W. 1).

It is true that Ex. P-1 does not contain any reference as to the beating of the complainant (P.W. 1) by the accused appellant at the house of Kapoorchand (D.W. 3) nor at police station Ranjhi ; but the report deals specifically with what happened at police station Jabalpur Cantt where he was beaten and tortured and where he, as a result, confessed to the commission of a crime he had not committed. The alleged omission does not, therefore, necessarily falsify the evidence of Sukku (P.W. 1) on the point. It has also to be remembered that a witness does not need corroboration on all material points. If he is corroborated on some important and material particulars, that is enough to justify the acceptance of his testimony. As regards the version of the story given by Phoolchand (P.W. 24) as to the circumstances in which he and Sukku (P.W. 1) started for Bombay, the learned Additional Sessions Judge in paragraph 20 of his judgment has correctly held that Sukku''s version was more probable and acceptable under the circumstances established in the case. Nirasia (P.W. 6), Basantibai (P.W. 7), Benibai (P.W. 15) and Basori (P.W. 17) are no doubt, related to the complainant; but that by itself would not make their evidence suspect. There is evidence to show that they were at the house of Kapoorchand (D.W. 3) as also at the Jabalpur Cantt police station and I see no reason to reject their testimony. Durga (P.W. 18) and Keshav (P.W. 19) were both declared hostile and their evidence was held by the learned Additional Sessions Judge as unnatural and unreliable. The absence of a complaint to the Additional District Magistrate (Judicial) is, no doubt, an important circumstance but when his complaints to the Police Officers at police station Jabalpur Cantt had gone unheeded and he was being tortured in their presence or at least in their knowledge, I cannot much blame the complainant, a village rustic whom the learned Additional Sessions Judge has characterised as a simpleton, when he did not complain to the Magistrate who remanded him to jail custody. In any case, in view of the overwhelming evidence on record, this circumstance alone cannot falsify the testimony of Sukku (P.W. 1), especially when it was amply corroborated by the other evidence on record. The alleged contradictions in the testimony of Sukku (P.W. 1) have been considered by the learned Additional Sessions Judge in paragraph 36 of his judgment and I agree with him that they were not substantial enough to warrant the rejection of his testimony The defence evidence also, in my opinion, does not help the accused appellant and was rightly rejected. Much was made of the fact that the Police Officers attached to police station Jabalpur Cantt and official records of that police station do not support the prosecution case. As observed by the learned Additional Sessions Judge,--

......it is a matter of regret that officers holding such responsible posts deposed false things just to save another officer. Admittedly they were aware of the accused''s application Ex. D. 4 dated 3.12. 1966 and they made endorsements A to A and B to B on it. After their permission hand-cuffs and chains were supplied and motor warrants were given. When Sukku, Chandansingh and Dumari were not officially arrested these officers should have refused to supply the handcuffs, the motor warrants and a constable for help. However they did go out of their way and flouted the rules as they were expected to give whatever help the accused needed. I find it difficult to rely on their testimony.

It is a sad comment that the police officer witnesses so far forgot their duty and their oaths as to keep back the truth from the Court and were party, directly or indirectly, to the atrocities committed in their police station. Their conduct calls for the severest censure. If the guardians of law and order themselves become participants in criminal activities, the very fabric of society would collapse, and it is time we took serious note of it.

The defence of the accused appellant was that he did not take the complainant into custody on the 22nd but on the 28th of November 1966, that he formally arrested him on 5-12-1966, and that the confession was free and voluntary. In my opinion, the evidence on record completely falsifies the aforesaid defence. The evidence of Sukku (P.W. 1) read with the evidence of Jhunnilal (P.W. 2), which I see no reason to doubt, fully establishes that Sukku (P.W. 1) was kept behind bars in the police station lock-up right from the day he was brought there, i.e., from the afternoon of the 23rd of November 1966 to the 3rd of December 1966 when he was removed from there under hand-cuffs to police station Shahnagar. Exhibits P-7, P-8 and P 9, the rojnamcha entries, were consistent only with such a state of affairs, even though there was no specific rojnamcha entry with regard to Sukku (P.W. 1) being brought to the police station on the afternoon of the 23rd of November 1966. The accused appellant says that the complainant was formally arrested on 5-12-1966. It may be that formal arrest was shown on 5-12-1966; but again it is a matter of concern that the police in their misplaced zeal falsifies the record by not showing a man under arrest when for all practical purposes his movements are controlled and he is under complete restraint on the orders of the investigating Officer. It is also a matter of concern that even after 21 years of the inauguration of the Constitution, Police Officers so flagrantly violate the salutary provisions of Article 22 of the Constitution. The Constitution makers did not envisage that the provisions should be made nugatory by keeping a person under complete restraint and calling it police surveillance and not arrest. In my opinion, whenever a Police Officer detains a person against his will and restricts his movements, he arrests him within the meaning of Article 22 of the Constitution and if he fails to produce him before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, he shall be guilty of illegally detaining him, punishable under the provisions of the Indian Penal Code, and it shall be no answer to say that he had kept him under surveillance only. As for the defence that the confession was free and voluntary, the circumstances of the case completely belie it.

In my opinion, the convictions of the accused appellant are quite justified and are hereby affirmed. The sentence also calls for no interference.

The appeal is dismissed.