JUDGMENT : This appeal is directed against the judgment and order dated 12.10.2010 passed by the learned Sessions Judge, Bongaigaon, in Sessions Case No. 13 (BGN)/1996. By the said judgment, the accused appellants were convicted under Section 304 Part-I/34 and 323/34 of IPC and sentenced to simple imprisonment for six months under Section 323 IPC and rigorous imprisonment for ten years under Section 304 (I) and fine of Rs. 5000/- with default stipulation. 2. On 31.07.1993 at about 8.30 PM, the victim Mahmud Ali along with some other persons were apprehended from the yard of New Bongaigaon Railway Station by the appellant Dilip Barua, who was accompanied by other RPF personnel, with a view to prosecute them under Section 147 of the Railway Act, and all of them were put into the lockup of the RPF post. On the next day, the victim Mahmud Ali was taken to hospital for treatment, where he was declared dead. A GD entry was made to that effect being GD Entry No. 8 dated 01.08.1993. Inquest report was prepared by the Executive Magistrate (PW-1) and the body was sent for postmortem examination. In the meantime, father of the victim lodged an FIR alleging that death of the victim Mahmud Ali was caused due to torture in the lockup of the RPF Outpost, on the basis of which, police registered Bongaigaon P.S. case No. 65/1993 under Section 325/302 IPC. 3. Dr. A. Kar conducted postmortem examination on the body of the deceased, Mahmud Ali and found the following injuries: (1) Multiple abrasions over right side of the chest and upper abdomen extending from the 10th rib to the middle of the abdomen in the mid axillary line (2) Multiple abrasions over the upper part of abdomen and chest on the left side in the mid axillary line extending from 10th rib. (3) Multiple abrasions over the lower part of right forearm and hand on the exterior surface. (4) Multiple abrasions over the lower part of left forearm and hand on the exterior surface. (5) On the back side of the body skin mostly pleled off, as a result of putrefaction process. (6) Multiple abrasion over lower part of both the legs on exterior surface and foot. Small intestine contained indigested food material and gases. Large intestine contained faecal matter and gases. (5) On the back side of the body skin mostly pleled off, as a result of putrefaction process. (6) Multiple abrasion over lower part of both the legs on exterior surface and foot. Small intestine contained indigested food material and gases. Large intestine contained faecal matter and gases. Brain and spinal cord: Subdural hemorrhage on the lateral side of the front parietal region.” In the opinion of the doctor, the cause of death was due to subdural hemorrhage, which was ante mortem in nature. The postmortem report was proved and marked as Ext.1. The Investigating officer recorded statement of various witnesses and also seized certain documents and after completion of investigation submitted charge sheet against 5 persons including the present appellants and all of them stood trial. 4. In course of trial, learned Sessions Judge framed charges under Section 304 (Pt-I) R/W Section 34 IPC and Section 323 R/W Section 34 IPC which were denied. Altogether 20 witnesses were examined by the prosecution. On completion of the prosecution evidence, the accused persons were examined under Section 313 CrPC and all the incriminating evidences were put to them. All the accused persons took the plea of innocence and examined four witnesses including the appellant No. 1 Dilip Kumar Barua, in their defence. The plea taken in the defence of the accused persons was that while the victim and other persons were apprehended, they tried to flee and when they were chased by police, there was scuffle and in course of scuffle, three persons including the deceased sustained injuries falling on the railway track. 5. Learned Sr. Counsel, Mr. A.K. Bhattacharjee, assisted by learned counsel Mr. B.M. Choudhury for the appellants and Mr. B.B. Gogoi, learned Addl. P.P., Assam for the State were heard. 6. Learned Sr. Counsel Mr. A.K. Bhattacharya vehemently arguing for acquittal of the appellants submitted that homicidal death of the victim was not proved beyond doubt. Further contention of Mr. Bhattacharya was that there was no evidence to prove beyond doubt that the present appellants caused the injuries found on the body of the victim. It was also contended that the appellants being public servant were protected under Section 197 of the CrPC, as no sanction was obtained to prosecute the appellants. 7. Further contention of Mr. Bhattacharya was that there was no evidence to prove beyond doubt that the present appellants caused the injuries found on the body of the victim. It was also contended that the appellants being public servant were protected under Section 197 of the CrPC, as no sanction was obtained to prosecute the appellants. 7. The doctor, who conducted the postmortem examination was cross examined at length and during cross examination, the doctor (PW-6) stated that the injury No. 5 was caused after death due to putrefaction. The doctor also stated that subdural hemorrhage is internal and may be caused by hitting against hard object, which may come from any direction and in such a case superficial injury may not be there. The doctor further stated that injury No. 1, 2, 3, 4 and 6 as described in the postmortem report (Ext.2) were abrasion, and all the injuries on the body were below the neck, and were not fatal to cause death. The doctor explained that subdural hemorrhage occurres in between two layers that is – (1) Brain covering duramatter and (2) Arachnoidmatter in the brain within the skull, which is called subdural space between the two layers. Any hemorrhage in the above mentioned space is called subdural hemorrhage. According to doctor, subdural hemorrhage may be caused due to different causes, such as sudden stroke of the veins, rupture of large cortical vain or some other diseases or infections may also cause sub-dural hemorrhage. It can also be caused by sudden jerk or jolt, landing from a height on foot or jump. The doctor also stated that subdural hemorrhage may be caused instantly or at a later time, within a period of a week or a month. According to doctor, during post-mortem examination it can be ascertained as to whether the subdural hemorrhage was caused due to disease, infection, accident, homicidal or suicidal acts etc. The doctor also stated that in the postmortem report marked as Ext.1, he did not mention the cause of subdural hemorrhage. 8. Referring to the cross examination of the doctor, learned Sr. Counsel strenuously argued, that though it was mentioned in the postmortem report that death was caused due to subdural hemorrhage, it was not mentioned in the postmortem report (Ext.2) by doctor, that the cause of subdural hemorrhage was the injuries found on the body of the deceased. 8. Referring to the cross examination of the doctor, learned Sr. Counsel strenuously argued, that though it was mentioned in the postmortem report that death was caused due to subdural hemorrhage, it was not mentioned in the postmortem report (Ext.2) by doctor, that the cause of subdural hemorrhage was the injuries found on the body of the deceased. From the oral testimony of the doctor (PW-6) as well as PW-1, the Executive Magistrate, who prepared the inquest report, it was apparent that though there were multiple injuries on the body of the deceased, all the injuries were below the neck and simple in nature. 9. Learned Sr. Counsel contended that the injuries inflicted below neck, which were evidently simple in nature could not cause subdural hemorrhage, and there was also no indication in the medical evidence, even remotely, that subdural hemorrhage was caused because of the injuries sustained by the deceased. Though medical evidence suggested that death was due to subdural hemorrhage, medical evidence was silent as to the cause of subdural hemorrhage in the brain of the deceased. In absence of evidence as to the cause of subdural hemorrhage, and the positive evidence of the doctor that subdural hemorrhage may occur within a week or a month for multiple reasons, including disease, as well as, the nature of injuries found on the body of the deceased, it is difficult to hold that the subdural hemorrhage was caused due to the injuries sustained by the deceased. In view of above, the vital question as to the cause of subdural hemorrhage remained shrouded. In absence of evidence regarding the cause of subdural hemorrhage, prosecution cannot be held to have discharged its burden to prove beyond doubt that the death of the deceased was homicidal. Therefore, prosecution is found to have failed to prove beyond doubt that the death of the deceased was homicidal. 10. The medical evidence, however, shows that there were multiple injuries (abration) though simple in nature, on the body of the deceased. The defence sought to explain, that the injuries found on the body of the deceased were caused at the time when the deceased was being apprehended, as he tried to flee and there was scuffle on the railway track and the deceased sustained injuries by falling on railway track. The defence sought to explain, that the injuries found on the body of the deceased were caused at the time when the deceased was being apprehended, as he tried to flee and there was scuffle on the railway track and the deceased sustained injuries by falling on railway track. Ext.B, the crime register proved by the defence witness demonstrated, that though the victim and nine others were arrested on 31.07.1993 (Ext.B1), they were forwarded to Magistrate on 02.08.1993 at 9.30 AM, meaning thereby, that the other accused persons, who were arrested along with the victim were also kept confined in custody for more than 24 hours, without producing them before Magistrate. Appellant Dilip Barua examining himself as DW-1, admitted that after arrest, he did not send the deceased for medical examination, though such medical examination was a mandatory requirement of law. No reliable evidence could be adduced to support the plea that the injuries were sustained by the deceased at the time of arrest, due to scuffle or by falling on the railway track. Non-examination of the victim and other accused by doctor as per requirement of law also tend to belie the defence plea, that the victim sustained injury at the time of apprehension. Therefore, the defence plea that the injuries on the body of the victim were caused prior to arrest or at the time of arrest is hardly convincing. 11. PW-12, a co-accused, who was also in custody along with the victim stated on oath that on 31.07.1993, he along with the victim and others were arrested by RPF and they were put into the lockup. He further stated that RPF officer Dilip Barua and Sanjay Saha assaulted him and also the victim Mahmud Ali and Khairul by tying their hands and legs in the lockup. He also stated that at about 12.30 at night, accused Sanjay and another RPF person took away the victim Mahmud Ali from lockup to a nearby room and thereafter he heard the scream of Mahmud Ali as a result of torture perpetrated on him. After about one hour, Mahmud Ali was brought back to the lockup and since then Mahmud Ali was lying and at about 9 AM next day, the body of the victim Mahmud Ali was taken away from the lockup. 12. After about one hour, Mahmud Ali was brought back to the lockup and since then Mahmud Ali was lying and at about 9 AM next day, the body of the victim Mahmud Ali was taken away from the lockup. 12. PW-14, who was also in the lockup as an accused alongwith the victim, deposed that Mahmud Ali and two other accused were taken away from the lockup at night at about 11 O’clock to another room and they were tortured there. Thus, the evidence of PW-12, that accused Dilip Barua and Sanjay Saha assaulted the victim in the lockup at night and thereafter the victim was taken to another room and he heard the scream of the victim, finds support from the oral testimony of PW-14, who also testified that the victim was taken out of the lockup late at night and after bringing the victim back to the lockup, he was unable to move. The oral testimony of PW-12 & PW-14 coupled with the medical evidence clearly established that the deceased was assaulted in the lockup. 13. DW-1, the accused Dilip Baruah admitted in his evidence that though his usual working hour is from morning 8 AM to 10 PM, in emergent situation, he is to attend the police station round the clock. He also stated in his evidence that on the night of 31.07.1993, he was present in the RPF outpost on duty. He further deposed that after arresting the accused persons including the victim, he handed them over to the lockup in-charge, Sankar Majumdar and they were put in lockup. He also stated to have left the police outpost at 12 midnight. Therefore, from the admission of DW-1, it is evident that he was present at the outpost, when the victim was tortured in the lockup. Thus, the medical evidence of PW-6, postmortem report, Ext.1 together with evidence of PW-12 & PW-14 and the admission of the DW-1 that he was present in the police station till 12 O’clock at night after putting the accused person including the victim in the lockup, leaves no room for doubt, that the victim was assaulted and tortured in the custody, by the present appellants causing multiple injuries on his body. Though, defense sought to advance an explanation that the injuries on the body of the deceased were caused due to scuffle at the time of arrest as the accused tried to flee and sustained injuries by falling on the railway track, no evidence could be brought on record to support such explanation. Non examination of the victim immediately after the arrest, also further diluted the defense version that victim sustained injuries at the time of arrest. 14. Prosecution evidence, more particularly, the medical evidence adduced by PW-6 coupled with the oral testimony of PW-12, PW-14 and the admitted fact that the accused was put up in hajot and in absence of evidence that injuries were caused prior to arrest, speaks loud and clear that the victim was assaulted in the lockup. Therefore, though the evidence brought on record was not adequate to prove a charge of homicidal death beyond reasonable doubt, the evidence on record clearly established that the injuries though simple, found on the body of the deceased, were caused by the accused appellant, while the victim was in the lockup. 15. The contention of the learned Sr. Counsel was that the appellants were protected under Section 197 CrPC, as no sanction was obtained for prosecuting the appellants. In order to get protection under Section 197 CrPC, the accused must be a public servant within the definition of Section 21 of the IPC, and the act complained of, must have been done in discharge of official duty or under the colour of official duty. Learned Sr. Counsel Mr. A.K. Bhattacharya, referring to the provisions of Section 3, 10 and 18 of the Railways Protection Force Act, 1957, and also relying on a Division Bench decision of this court in Chandra Kamal Bhagwati Vs. Union of India reported in 1988 LABIC 1076 contended, that the appellants were public servant within the meaning of Section 21 of the IPC, and as such, they were entitled to protection under Section 197, sub-section (1) of CrPC, from being prosecuted without previous sanction, inasmuch as, at the relevant time, the appellants were on official duty. Admittedly, in the present case, sanction as mandated by Section 197 CrPC was not obtained for prosecuting the appellants. 16. Learned Addl. P.P., Assam, Mr. Admittedly, in the present case, sanction as mandated by Section 197 CrPC was not obtained for prosecuting the appellants. 16. Learned Addl. P.P., Assam, Mr. B.B. Gogoi, strongly resisting the argument of protection under Section 197 (1) CrPC contended, that the offence committed by the accused appellants were neither done in discharge of their official duties nor in purported discharge of their official duties. The act, for which the accused appellants were prosecuted, had no nexus with their official duty and therefore, the appellants were not entitled to get protection under Section 197 CrPC, submits learned Addl. P.P. 17. Learned Sr. Counsel Mr. A.K. Bhattacharya submits that the expression ‘acting’ or ‘purporting to act’ in discharge of official duty cannot be construed so narrowly, so as to negate the very purpose of statutory provision engrafted in Section 197(1), to protect the public servant. Mr. Bhattacharya, contended that if a reasonable nexus or relation between the duty of the public servant and the act alleged is established, the same is sufficient to get the protection under Section 197(1). To buttress his submission, Mr. Bhattacharjee placed reliance on a decision of the Apex Court in State of Maharashtra Vs. Dr. Budhikota Subharao reported in (1993) 3 SCC 339 . 18. In order to get protective cover of Section 197(1) CrPC, from being prosecuted without sanction, twin conditions are required to be satisfied. Firstly, the person concerned has to be a public servant, as defined under Section 21 IPC, and secondly, the act, for which, the public servant is sought to be prosecuted must have been done in discharge of his official duty as a public servant or purported discharge of his official duty. 19. The provision of Section 197 makes it amply clear that every act done by the public servant in course of duty does not come within the protective cover of Section 197 CrPC. The provision of Section 197 extends its protective cover only to those acts or omission, which are done by public servant in discharge of his official duty or in purported discharge of his official duty or under colour of his official duty. What is therefore utmost important is that there must be reasonable nexus or relation between the act complained of against the accused and the official duty. The act must be such that it cannot be separated from his official duty. What is therefore utmost important is that there must be reasonable nexus or relation between the act complained of against the accused and the official duty. The act must be such that it cannot be separated from his official duty. If the act complaint of does not have any nexus or relation with the official duty, such act would not entitle the public servant to the immunity from prosecution without sanction under Section 197 CrPC. In the present case, admittedly, the victim was arrested by the accused appellants in order to prosecute under Section 147 Railway Act in the evening and he was put into lockup and at night the victim was tortured inside the lockup. When the victim was already apprehended and was kept in the lockup, there was no evidence on record to show that the victim made any attempt to escape from custody, there was no reason for perpetrating torture on the deceased inside the lockup. The evidence on record shows, that the deceased was initially beaten by the appellants inside the lockup at night by fastening his hands and legs and thereafter he was taken away from the lockup to a different room, where also he was tortured. When the victim was already in custody, there was no reason or necessity in connection with the duties of the appellants to assault and torture the victim inside the lockup, and as such, the act of the appellants in the facts and circumstances of the case, can only be attributed to abuse of the official position having no reasonable connection or nexus with the official duty of the appellants. Therefore, the act complained of, having no nexus or reasonable connection with the official duty of the appellants, in my considered view, the appellants in the present case were not entitled to the immunity from prosecution without sanction under Section 197(1) CrPC. 20. Be that as it may, the evidence brought on record having found grossly inadequate to bring home the charge of culpable homicide beyond reasonable doubt, conviction and sentence of the appellants under Section 304 Part-I IPC is not sustainable. Accordingly, conviction and sentence under Section 304 Part-I are set aside. However, charge under Section 323 against the appellants is found fully established and therefore conviction awarded and sentence imposed on the appellants under Section 323 IPC by the trial court are affirmed. Accordingly, conviction and sentence under Section 304 Part-I are set aside. However, charge under Section 323 against the appellants is found fully established and therefore conviction awarded and sentence imposed on the appellants under Section 323 IPC by the trial court are affirmed. The appeal is partly allowed and stands disposed of accordingly. 21. Send down the LCR.