D. H. SHUKLA, M. P. THAKKAR, J. ( 1 ) IN Sessions Case No. 39/77 four accused were involved on a charge that on 1/08/1976 at about 5-00 p. m. at Vaghalkhod Taluka Valia they had formed a common intention to cause the death of Shashikant Kikabhai of Vaghalkhod and that in fraternize of that common intention they caused his death. The accused were charged under sec. 302 read with sec. 34 of the Indian Penal Code and alternatively they were charged under; sec. 302 read with sec. 109 of the Indian Penal Code. It was further alleged against them that they had formed a common intention to voluntarily cause hurt to the same Shashikant with a view to obtain from him a confession and/or information which might lead to she detection of the offence of theft and in furtherance of that common intention they had voluntarily caused hurt to him. Hence these four accused were further charged under sec. 33j read with sec. 34 of the Indian Penal Code and in the alternative each one of them was charged under sec. 330 of the Indian Penal Code. Each one of them was further charged with the offence of having caused hurt to Shashikant and it was alleged that each one of them had committed an offence under sec. 323 of the Indian Penal Code. ( 2 ) THE learned Sessions Judge Broach by his judgment and order dated 9/03/1928 acquitted all the four accused from the charge under sec. 302 read with sec. 34 of the Indian Penal Code as well as from the charge under sec. 302 read with sec. 109 of the Indian Penal Code. ( 3 ) SO far as the accused No. 1 Kunversinh Raghubha Parmar P. S. I. Valia Police Station is concerned he was acquitted from all the charges levelled against him so far as accused Nos. 2 3 and 4 who were at the relevant time Police Constables at Valia Police Stationer concerned they were found guilty of the offences punishable under sec. 330 read with sec. 34 of the Indian Penal Code and so far as the charge under sec. 323 of the Indian Penal Code is concerned they were even crated of the charge. The accused Nos. 2 3 and 4 were each sentenced to suffer two years rigorous imprisonment and to pay a fine of Rs. 100. 330 read with sec. 34 of the Indian Penal Code and so far as the charge under sec. 323 of the Indian Penal Code is concerned they were even crated of the charge. The accused Nos. 2 3 and 4 were each sentenced to suffer two years rigorous imprisonment and to pay a fine of Rs. 100. 00 and in diorite of payment of fine to suffer rigorous imprisonment for a period of further one month. ( 4 ) THE accused Nos. 3 3 and 4 who were convicted as aforesaid filed an appeal against their conviction which was summarily dismissed with the result that their conviction stood confirmed. We are not in the present appeal therefore concerned with original accused Nos. 2 3 and 4 of the Sessions Case. ( 5 ) THE State of Gujarat has Sled the present appeal against the order of acquittal of accused No. 1 and the appeal was admitted only as regards the offence punishable under sec. 330 read with sec. 34 of the Indian Penal Code. The order of acquittal therefore as regards sec. 323 read simpliciter and sec. 302 read with sec 34 of the Indian Penal Code stands confirmed. ( 6 ) THE facts leading to the Sessions Case may shortly be stated as under : A theft had occurred on the night of 31-7-76 with respect to several articles in the office of Bhilod Gram Panchayat situated at Village Bhilod which is at a distance of about 7 kms. from Valia Police Station. Mahendrasinh (P. W. 3) filed a complaint (Exh 14) at Valia Police Station in the evening of 1-8-1976 in that regard and it was recorded by accused No. 1 who was at that time P. S. I. of Valia Police Station. Accused Nos. 2 3 and 4 were working under accused No. 1 as Police Constables at Valia Police Station Mahendrasinh a has expressed a suspicion against Shashikant of village Vaghalkhed and therefore accused No. 1 accompanied by accused Nos. 2 3 and 4 proceeded to go to Bhilod for investigation of the same complaint of there. After making a Panchnama at village Bhilod the party proceeded to village Vaghalkhed. They first were to the house of father in-law of Shashikant where Shashikant was reported to be residing and searched the house. Some stolen articles were found in the search. 2 3 and 4 proceeded to go to Bhilod for investigation of the same complaint of there. After making a Panchnama at village Bhilod the party proceeded to village Vaghalkhed. They first were to the house of father in-law of Shashikant where Shashikant was reported to be residing and searched the house. Some stolen articles were found in the search. Shashikant was at that point of limit allegedly beaten and he and his brother-in-law Gemal Bhanga (P. W. 14 Exh. 47) were taken by the Police party to a village school which was almost opposite to the house of Shashikants father-in-law Bhanga Barsang. It is alleged that Shashikant and Gemal were further beaten by the accused Nos. 2 3 and 4 to obtain information with respect to the stole articles which were yet not recovered. After Shashikant was beaten at the school it is alleged he took the party to village Bhiled and one Shovel and Trikam which formed part of the stolen articles were recovered at Bhilod. The police party then again took Shashikant to his father-in-laws because at Vaghalkhod and he produced other stolen articles from the house. All the stock articles thus collected were put in a Gunny bag and Shashikant and Genial were then taken in a Police Jeep to Bhilod it was found that Shashikant had deteriorated in health and in order to stimulate him alcohol was forcibly administered to him. Ultimately the Police Party took Shashikant and Gemal to Valia Police Station. It was 11-30 P. M. by that time. Shashikant had lost consciousness and Accused No. 1 called Dr. Vashishtha (P. W. 8 Exh. 23) on the pretext that Shashikant was in a heavily drunken condition and it was necessary that Dr. Vashishtha should examine him at the Police Station Dr. Vashishtha found Shashikant in a serious condition and despite immediate treatment he succumbed at about 0-40 a. m. on 2 1976 ( 7 ) IN the moving of 2-8-1976 accused No. 1 called the Executive Magistrate Punamchand Sheth (P. W. 5) for holding an inquest. The inquest Panchnama is at Exh. 20. Thereafter the dead body was sent to Dr. Vashishtha for post-mortem examination with a report. Dr. Vashishtha took blood of Shashikant to ascertain whether he had consumed alcohol and he issued a certificate in thai regard which is at Exh. 26. Dr. The inquest Panchnama is at Exh. 20. Thereafter the dead body was sent to Dr. Vashishtha for post-mortem examination with a report. Dr. Vashishtha took blood of Shashikant to ascertain whether he had consumed alcohol and he issued a certificate in thai regard which is at Exh. 26. Dr. Vashishtha opined that the death was on account of asphyxia. When the death of Shashikant was known by his father he sent a telegram to the District Superintendent of Police Broach. The contents of that telegram are not brought on record. but the D. S. P. informed Dy. S. P. Shri Chinubhai Shah (P. W. 7) to immediately rush and make inquiry in regard to that complain. Shri Shah proceeded to Valia Police Station on the night of 2-8-1976 and he received the information that one person had died in the police custody. During the course of the inquiries carried out by him Shantilal (P. W. 2) brother or the deceased Shashikant gave him complaint (Exh. 12) against the accused on 3-8-1976 Shri Shah registered the complaint at the Valia Police Station and directed Mr. Naik Circle Police Inspector to envies ate into the offence. It appears that some allegations were made against these Investigating Officers and the investigation was therefore transferred to Ranchhodlal Bhatt (P. W. 21) who carried out the further investigation and after it was complete submitted a charge sheet in the Court of the Judicial Magistrate First Class Jhagadia on 30-4-1977. The learned Judicial Magistrate Jhagadia committed the case against all the four accused to the Sessions Court at Broach. ( 8 ) THE learned Sessions Judge after the prosecution case was over recorded the statement of the accused and the defence of the accused was of total denial and their case was that deceased Shashikant was in a drunken state at the time when he was apprehended and that he died on account consumption of excessive alcohol. It was further submitted by them that all the articles were seized from the house of Shashikant at the time of he first search and there was therefore no reason to beat Shashikant to export any information or confession from him. The accused submitted their written statements which are to be found at Exhs. 66 to 69. They did not lead any evidence. The accused submitted their written statements which are to be found at Exhs. 66 to 69. They did not lead any evidence. ( 9 ) THE question with which we are concerned in the present appeal is as to whether accused No. 1 was involved in beating given to Shashikant in order to obtain confession or information which might lead to the detection of the offence of theft from him either personally or by being associated with accused Nos. 2 3 and 4. We are therefore required to consider he evidence on the record of the case from this limited point of view. . . . . . . . . . . . (His Lordship after discussing the evidence further observed:) ( 10 ) THUS the factor which emerges from the aforesaid discussion is that Shashikant was taken inside the school by accused Nos. 2 3 and 4 in the presence of accused No. 1. Now in this connection a further point is also required to be noted if evidence of Thakorebhai Patel (P. W. I) is perused along with Panchnama (Exh. 46) we find that the school in which Shashikant was beaten by accused No. 1 consists of one large room. Necessarily therefore it follows that accused No. 1 was present when accused Nos. 2 3 and 4 beat Shashikant. From the evidence which we have discussed above we also find it satisfactorily proved that after Shashikant was taken to school he was then taken to Bhilod from where certain articles were seized and from there again he was taken to his father-in-laws house wherefrom also certain other articles were found These two subsequent movements of the police party with Shashikant are to be noted as they reflect upon what was done at the school premises. I obviously follows that the subsequent seizures were on account of the forced disclosures made by Shashikant. This part of the evidence also lends support to Gemals deposition that Shashikant was beaten in the school. The learned trial Judge has elaborately discussed she conduct of accused No. 1 which evinces an effort to conceal something In that connection Panchnama (Exh. 15) is also required to be perused. This part of the evidence also lends support to Gemals deposition that Shashikant was beaten in the school. The learned trial Judge has elaborately discussed she conduct of accused No. 1 which evinces an effort to conceal something In that connection Panchnama (Exh. 15) is also required to be perused. An attempt is made therein to show as if all the articles were seized at one lime and from one place namely from the house of the father-in-law of Shashikant when police party went there the first time. Now the others evidence clearly indicates that these articles were not found at one time and at one case but Shashikant was taken from place to place and it was from different places that the stolen articles were recovered. The learned trial Judge has also criticised the conduct of accused No. 1 in his endeavour to show that Shashikant died of consumption of alcohol in large quantity but we do not enter into the details thereof because we are at present concerned only with the culpability of accused No. 1 for the belongs inside the school in his presence. ( 11 ) THE learned trial Judge has accepted the deposition of Gemal with reference to the material particulars of his evidence from his evidence he also drew a conclusion that accused Nos. 2 to 4 had batten the deceased. He also accepted that the medical evidence supports that aspect of the matter. He also accepted that accused No. 1 had through out remained in the school and that Shashikant was in charge of accused Nos. 2 to 4. He observed that it was certain that accused No. 1 had not taken part in beating the accused and so far as that conclusion is concerned he is right. Where the learned trial Judge has erred however is where he slates But it cannot be said with any certainty if any dealing was given by the accused Nos. 2 to 4 in the presence of accused No. 1 or he himself tools part in bailing the decease. He further observed His conduct subsequently was to conceal the criminal act of accused Nos. 2 to 4 and that conduct is barely reprehensible as stated in the earlier part of the judgment. 2 to 4 in the presence of accused No. 1 or he himself tools part in bailing the decease. He further observed His conduct subsequently was to conceal the criminal act of accused Nos. 2 to 4 and that conduct is barely reprehensible as stated in the earlier part of the judgment. He further observed and it is he that he fetters But them it is difficult to say that accused No. 1 omission to take necessary action to prevent accused Nos. 2 to 4 from giving any beating to the deceased for the reason that since he was in the school throughout and that the evidence is not very clear or satisfactory to positively conclude that any beating has given to the deceased in his presence in the school by accused Nos. 2 to 4 he could not be said to have aided or abetted accused Nos. 2 to 4 in voluntarily causing hurt to the deceased. When he made this observation he did not refer to the evidence of Gemal who is natural and forth right in his evidence in that regard. The learned trial Judge has not disbelieved Gemal. That being the position the conclusion which he term that it was not clear or satisfactory to positively conclude that any beating was given to the deceased in presence of accused No. 1 in the school by accused Nos. 2 3 and 4 is clearly erroneous. We do rely tarpon testimony of Gemal. When we further correlate the circumstances noted above that accused No. 1 was present in the one-room school building throughout it is reasonable to infer end chunked than the beatings were given to the deceased in his presence. ( 12 ) IT is at this juncture that a question arises whether accused No. I can be made liable to under sec. 330 read with sec. 34 of the Indian Penal Code. Several authorities were cited to show that in order to attract liability under sec. 34 of the Indian Penal Code the participation must be proved. It was submitted by Mr. Thakore that no participation by accused No. 1 is proved and that for the purpose of participation were terseness is not enough. This indeed appears to be a correct position but the question that follows is whether the liability of accused No. I is attracted under sec. 109 read with sec. It was submitted by Mr. Thakore that no participation by accused No. 1 is proved and that for the purpose of participation were terseness is not enough. This indeed appears to be a correct position but the question that follows is whether the liability of accused No. I is attracted under sec. 109 read with sec. 107 sub-clause (3) of the Indian Penal Code. A person abets the doing of a thing. . intentionally aids. try any act or illegal omission the doing of that thing bate is no evidence of accused No. 1 having played any active role but his loblolly is required to be considered in the light of his silence or omission or inaction under the circumstances and the pertinent question is whether this amounts to aiding or abating the other offenders. The learned trial Judge has observed that accused No. 1 could not be said to have aided or latest to since no positive act is attributed to him. This does not appear to us to be a correct approach. We must remember that accused No. 1 was a P. S. I. and accused Nos. 2 3 and 4 were acting under him in the in litigation of the case. If illegal beating was administered to the deceased by accused Nos. 2 3 and 4 in land presence it was his paramount illegal dirty to desist them from so doing. His falter to do so makes name liable for illegal omission and his case is covered under sec. 107 (third cause) of the I. P. C. In the view which was are taking we find support from the case of QUEEN EMPRESS V. LATIFKHAN REPORTED IN I. L. R. 20 BOMBAY 394 The facts of the case have been narrated as under : the accused No 1 (Chunilal Police constable was charged with voluntarily causing hurt to extort a confession under sec 330 of the Indian Penal Code. Latifkhan (accused No. 2) who was also a police constable was charged with abutment of the offence. One Chandra reported to the police patil and to the two constables (the accused in the present case) that her neighbour Mahadu had committed theft of her property during her absence from her house Mahadu was thereupon arrested and remained in close custody. Latifkhan (accused No. 2) who was also a police constable was charged with abutment of the offence. One Chandra reported to the police patil and to the two constables (the accused in the present case) that her neighbour Mahadu had committed theft of her property during her absence from her house Mahadu was thereupon arrested and remained in close custody. His house was searched after 11 p. m. but no part of the stolen properly was found then ashes were spread on the ground and he was made to walk or stand on them. Accused No. 1 (Chunilal) beat him with his fist and kicked him with his booted foot for the purpose of extorting a confession. But no confession could be extracted from him. Accused No. 2 (Latifkhan) who was at the beating did not remonstrate with accused No. 1 or prevent him from offering violence to Mahadu. Mahadu remained a prisoner on his varandah guarded by accused No. 2. Within a short time after the beating Mahadu died. The Sessions Judge differing from the assessors found both the accused guilty of the offences charged and sentenced accused No. 1 to rigorous imprisonment for two years. On an appeal having been filed Jardine J. speaking for the Division Bench observed as under :a policeman who stands by acquiescing in an assault on a prisoner committed by another policeman for the purpose of extorting a confession is guilty of abetment of an offence under sec. 330 of the Indian Penal Code. NOTHING but fear of instant death is a defence for a policeman who tortures my one by order of a superior. The maxim respondent superior has no application in such a case. Under the Bombay police Act (IV of 1890) every police officer is bound to shelter a person in custody and to arrest persons committing assaults likely to cause grievous bodily injury. If he omits to perform his duty he is guilty of abutment. WHEN the law imposes a duty to act on a person his illegal omission to act renders him liable to punishment. THE present case stands on a still firmer ground inasmuch as accused No. 1 was a P. S. I. under whom accused Nos. If he omits to perform his duty he is guilty of abutment. WHEN the law imposes a duty to act on a person his illegal omission to act renders him liable to punishment. THE present case stands on a still firmer ground inasmuch as accused No. 1 was a P. S. I. under whom accused Nos. 253 and 4 were working The learned trial Judge was therefore quite in the wrong when he did not hold accused No. 1 guilty of abetment only on the ground that although he was present he had not actively participated in beating Shashikant ( 13 ) AT page 242 of the Law of Crimes by Ratanlal (22nd Edition) there is a reference to the following case :a village Magistrate who was present while certain police constables were wrongfully confining and causing hurt to a resident of the village to extort a confession and who did not interfere with nor stop the criminal acts committed in his presence nor report them to a Magistrate was held guilty of abutment of offences under secs. 330 and 348 of the Indian Penal Code. WE are therefore supported by a ruling of the Bombay High Court on all fours when we take the view that accused No. 1 is guilty under sec. 330 read with sec. 109 sec. 113 and sec. 107 of the Indian Penal Code. ( 14 ) MR. H. K. Thakore submitted an application praying that as there was no specific charge against accused No. 1 under sec. 330 read with sec 1099 of the Indian Penal Code the accused would be prejudiced if he was held guilty for the offence punishable under sec. 330 read with sec. 109 of the Indian Penal code. He therefore sought an opportunity to cross-examine witness Gemal Bhanga. The application was rejected for reasons which are now being stated in our judgment. We have carefully considered the statements made in the application but we are of the view that no prejudice has been caused to the accused No. 1 inasmuch as the charge (Exh. 1) is very exhaustive and it has elaborately placed all the circumstances under which the accused No. 1 came to be tried. As a matter of fact he is specifically charged with sec. 330 read with sec. 34 of the Indian Penal Code. 1) is very exhaustive and it has elaborately placed all the circumstances under which the accused No. 1 came to be tried. As a matter of fact he is specifically charged with sec. 330 read with sec. 34 of the Indian Penal Code. Sec. 34 is found not applicable only because his active participation is not proved. However his liability under sec. 330 read with secs. 109 114 and sec. 107 clause (3) of the Indian Penal Code is clearly established and there is no room at all for accused No. 1 to contend that he was prejudiced by the omissions in the charge. ( 15 ) IT may be stated that counsel for defence with his usual fair ness conceded that in view of the case of WILLIE (WILLIAM) SLANEY V. STATE OF MADHYA PRADESH AIR 1956 SUPREME COURT 116 and the case of KANTILAL CHANDULAL MEHTA V. STATE OF MAHARASHTRA AND ANOTHER AIR 1974) SUPREME COURT 359 the charge could be amended even at the appellate stage - unless some prejudice was shown. We called upon him to satisfy what prejudice would be occasioned by altering the charge from one under sec. 330 read with sec. 34 to sec. 330 read with secs. 109 107 and 114 of the Indian Penal Code. He was not able to show how the preju- dice would arise. Accused was charged with common intention originally. Now he is charged with abetment. He was not and to show what questions in cross-examination he should have been able to put if it was abetment instead of common intention. We therefore see no merit in the application. We therefore reject it. ( 16 ) BEFORE we part with the judgment we must discharge our duty albeit painful to confirm the observations made by the learned trial Judge with regard to the part played b) the Executive Magistrate Valia Shri Punamchand Sheth (P. W. 6 Exh. 18) and Shri Chinubhai A. Shah (P. W. 7 Exh. 21) in failing to carry out the investigation against the accused in an efficient and independent manner. They positively appear to have endeavoured by acts of commission and omission to shield him. Both these officers have behaved in a manner unbefitting to their respective offices. Their conduct calls for an inquiry against them. 21) in failing to carry out the investigation against the accused in an efficient and independent manner. They positively appear to have endeavoured by acts of commission and omission to shield him. Both these officers have behaved in a manner unbefitting to their respective offices. Their conduct calls for an inquiry against them. Since the learned trial Judge has pointed out at relevant places in his judgment the specific flaws in their respective conduct and rattles we do not traverse the same ground again for brevity sake but we desire to express the opinion that we approve of the condemnation made of them by him. ( 17 ) IN view of the above discussion even when we confirm the acquittal of accused No 1 from the charge under sec. 330 read with sec. 34 of the Indian Penal Code we hold him guilty for the offence under sec. 330 read with secs. 107 109 and 114 of the Indian Penal Code. The order of acquittal under sec. 323 and under the rest of the provisions is not disturbed. .