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2019 DIGILAW 1357 (BOM)

Pushpa v. State of Maharashtra

2019-06-10

K.K.SONAWANE, T.V.NALAWADE

body2019
JUDGMENT : T.V. Nalwade, J. Rule. Rule made returnable forthwith. By consent, heard both the sides for final disposal. 2. The proceeding is filed for direction to register crime against the police officers of the Newasa Police Station as the son of the petitioner died in the custody of these police officers. She has already given report in that regard, but no crime is registered. 3. The deceased Amol Pimple was the son of the petitioner. He was married and was having two issues from the first wife. He had married second wife and second wife was pregnant at the relevant time. On 18.08.2017, the deceased was arrested by Newasa Police Station in Crime No. 273 of 2017 which was registered for the offences punishable under Sections 457 and 380 of the Indian Penal Code. This crime was registered on 30.05.2017. The deceased was arrested on suspicion. On 19.08.2017, the deceased was produced first time before the Judicial Magistrate First Class Newasa for police custody and police custody was granted against him till 22.08.2017. On 22.08.2017, the deceased was again produced before the learned Judicial Magistrate First Class for extension of PCR and PCR came to be extended till 24.08.2017. 4. Amol died in the police lock up of Newasa Police Station on 23.08.2017. It is contention of the petitioner that the deceased died due to the torture given by the police officers of the Newasa police and that was done in the police station. 5. A.D. No. 87/2017 was registered on the basis of report given by police officer and after registration of the A.D, information was supplied to the relatives of the deceased including the mother. It is contention of the petitioner that she was not called for the enquiry of the A.D. It is contention that on 24.08.2017, she expressed suspicion that her son had died due to torture and she had requested for making investigation but no cognizance of that complaint is taken. It is contended that action needs to be taken against the concerned officers as deceased died while he was in their custody. She approached this Court by filing present Writ Petition on 21.06.2018. The deceased was a labourer and he was only earning member of the family. There are at lest five persons in the family. 6. It is contended that action needs to be taken against the concerned officers as deceased died while he was in their custody. She approached this Court by filing present Writ Petition on 21.06.2018. The deceased was a labourer and he was only earning member of the family. There are at lest five persons in the family. 6. In reply-affidavit of respondent No.2, police officers, it is contended that he was entrusted with enquiry of the A.D. and after completing enquiry he has submitted report to the Superintendent of C.R.D. Nashik. It is contended that learned J.M.F.C has also completed the enquiry and that report is considered by him. It is contended that the enquiry report prepared by him will be considered by the officers of the rank of Inspector General and further steps will be taken. 7. It is contention of the police officers of said police station that at 5.30 a.m of 23.08.2017, the deceased committed suicide by hanging himself in the police lock up and for that two towels supplied in the lock up were used by him. In enquiry report, there is reproduction of the contents of the post mortem including cause of death and it is as under :- Department of Forensic Medicine And Toxicology GOVT. MEDICAL COLLEGE AND HOSPITAL, AURANGABAD PROVISIONAL POSTMORTEM REPORT CUM MEDICAL CERTIFICATE OF CAUSE OF DEATH Hereby certify that, the deceased whose particulars are given below has been died (As per police inquest) on dated 23August/ 17 at 04.00 hours at place Body was declared brought dead by Rural Hospital, Nevasa Dist Ahmednagar, and body was sent for Postmortem examination to GMCH Auragnabad. Post mortem examination conducted on body of deceased person as Name of deceased : Amol @ Santosh Ishwar Pimpale (B) EXTERNAL INJURIES : (1) Ligature mark in the form of faint pressure abrasion over the neck running obliquely upward and backwards, extending from right lateral part of neck to left mastoid level, at and above the level of thyroid cartilage, it is faint brownsh in colour which is shallow and well marked over left lateral part. Total length of ligature mark23 cm. Ligature mark is situated 10cm above the supra sternal notch and 5 Cm below the chin. It is 4 cm below left angle of mandible and 5 Cm below level of right angle of mandible. Total length of ligature mark23 cm. Ligature mark is situated 10cm above the supra sternal notch and 5 Cm below the chin. It is 4 cm below left angle of mandible and 5 Cm below level of right angle of mandible. It is 3 cm below left mastoid process and 4 cm below right mastoid process. Absent posteriorly for 12 cm. Maximum breadth of ligature mark4 cm. On neck dissection : underlying tissue is pale and whitish, glistening. Hyoid bone, thyroid cartilage and trachea were intact. No evidence of any hemorrhage in underlying tisssue or muscles of neck (2) Abrasion present over right scapular region, situated 1 cm from midline of size 4 x 0.5 cm, reddish. On incision, no hemorrhage in underlying tissue. (3) Abrasion present over right side of chest, in 7th intercostal space at midaxillary line, of size 0.5 x 0.2 cm, reddish. On incision, no hemorrhage in underlying tissue. INTERNAL EXAMINATION 1. HEAD a. Scalp findings : underscalp contusion of size 1 cm x 1 cm present over right parietal region. Petechial hemorrhages present over underscalp tissue. b. Skull ( Describe fractures here and show them on body diagram enclosed) Skull vault and base intact, no fracture. c. Meninges, meningeal spaces and cerebral vessels (Hemmorrhages and its location, abnormal smell etc be noted) Intact, congested. d. Brain findings and Wt: 1525 gms, Brain intact, congested and odematous. e. Orbital, nasal and aural cavities findings : Intact. 2. NECK Mouth, tongue and pharynx: Intact, no foreign body, mucosa congested. Evidence of petechiae over epiglottis. Teeth16/ 16, intact, no injury to tooth sockets. Larynx and vocal cords : Intact, no foreign body, mucosa congested. -Condition of neck tissue : Intact. No any hemorrhage in neck tissue. -Thyroid and other cartilages conditions Intact, no fracture -Trachea : Intact, no foreign body, mucosa congested. 3. CHEST 4. Ribs and chest wall Intact no evidence of contusion or thoracic wall muscle. Oesophagus:_ Intact, no foreign body, mucosa congested. Trachea and Bronchial Tree : Intact, congested. Pleural Cavities Intact, no fluid collection Lungs finding and Weight Right 660 gms and Left 550 gms Right lung Petechial hemorrhages over interlobar fissure, on cut section dark blood oozes out. Left lung Petechial hemorrhages over interlobar fissure, on cut section dark blood oozes out Pericardial Sac : about 30cc faint yellowish in pericardial cavity present. Heart findings and weight intact congested weighing 310 grams. Left lung Petechial hemorrhages over interlobar fissure, on cut section dark blood oozes out Pericardial Sac : about 30cc faint yellowish in pericardial cavity present. Heart findings and weight intact congested weighing 310 grams. No valvular pathology. Both coronariesintact and patent. Dark fluid blood present heart chambers. Large blood vessels_ Intact, contains dark fluid blood. 4. ABDOMEN Condition of abdominal wall Intact. No injury Peritoneum , Peritoneal cavity": Intact, congested Stomach (wall condition, congents and smell) Intact, weight170 gm. About 10 ml mucoid grayish fluid present. No abnormal smell perceived, mucosa congested. Small intestine including appendixintact contains gases and fecal matter. Large intestine and Ascending and transvers colon adherent to inferior surface liver and gall bladder. Intestinal mucosa congested Mscenteric vessels Intact, no abnormality detected. Liver including gall bladder No injury. Spleen No injury. Pancreas : Intact. Congested Kidneys finding, Wt. Right 115 Gms and Left 120 Gms. Right and left kidney Intact, No injury, congested Bladder and Urethra Intact, No injury, congested Pelvic cavity tissues Intact. No injury Pelvic Bones Intact. No injury 5. SPINAL COLUMN AND SPINAL CORD : Intact, not opened. CAUSE OF DEATH I. Immediate cause (a) Asphyxia due to hanging. State the disease, injury or complication which caused death not the mode of dying such as heart failure, asthenia etc. Due to (or as a consequences of) Antecedent cause Morbid conditions, if any, giving rise to the above Cause, stating underlying condition last (a) Due to (or as a consequences of) II. Other significant conditions contributing to the death but not related to the disease or conditions causing it (c) ......................... ....................... Sd/ Dr. Sanjay N. Jadhav (Resident Doctor) Sd/ Dr. Ashok S. Jiwane (Resident Doctor Sd/ Dr.Santosh Bhosle (Associate professor) 8. The aforesaid description given in post mortem report shows that there was injury to the head and no explanation whatsoever is there at present in respect of such injury. There were other injuries also. The spot panchnama ought to have been properly drawn and the probabilities of such suicide ought to have been carefully considered. There was one more accused in the lock up at the relevant time but he has shown ignorance as to when the deceased took such step. That circumstance also creates doubt about the case that it is suicide. If the towel was supplied in lock up, the rules in that regard need to be seen. There was one more accused in the lock up at the relevant time but he has shown ignorance as to when the deceased took such step. That circumstance also creates doubt about the case that it is suicide. If the towel was supplied in lock up, the rules in that regard need to be seen. Ordinarily, the bath towel cannot be used as a rope for committing suicide by hanging. Further this possibility must have been considered, if in the lock up there was any fixture at which the material could have been tied. The eqnuiry report does not show consideration of such probabilities. The enquiry report does not show that there was C.C.T.V camera and that record is considered by the officer who made enquiry into the A.D. These are all suspicious circumstances and create suspicion against the police officers in whose custody the death took place. 9. Some record like statements of the relatives of the deceased are with the report but at present, that record also cannot be considered and further, that record does not appear to be probable in nature. Attempt is made to show that the relatives were sitting on a tree and from that tree, the relatives, including the second wife of the deceased and father-in-law of the deceased, were having talk with the deceased and due to that talk, the deceased was frustrated. A picture is tried to be created by producing the statements that it was impressed on the deceased that it was not possible to get bail and huge amount like amount of Rs. 5 to 6 Lakh was required for defending him. It was also expressed that the second wife would undergo abortion as it was question of her future and she would marry again with other person. 10. The nature of the material available against the accused in C.R. No. 273 of 2017, in which he was arrested, needs to be seen and that ought to have been considered by respondent No.2. If there was no material, in ordinary course, there was no reason even to file charge sheet against him. In ordinary course, the J.M.F.C was expected to give legal aid and appoint some Advocate for the accused when he was produced for police custody remand. In that case there was no question of consideration of expenses for defending the accused. If there was no material, in ordinary course, there was no reason even to file charge sheet against him. In ordinary course, the J.M.F.C was expected to give legal aid and appoint some Advocate for the accused when he was produced for police custody remand. In that case there was no question of consideration of expenses for defending the accused. Entire record needs to be considered from that angle, but apparently, such step is not taken. All these circumstances and particularly the injury found on the dead body and absence of its probability, which could have been shown by the demonstration of hanging himself by using such towels and that too in lock up, need to be properly considered and that would happen only if any investigation is made by independent officer of the higher rank. The petitioner is poor lady and is facing aforesaid circumstances. The direction is given in the reported case Shri. D. K. Basu Ashok K. Johir Vs. State of West Bengal, State of Uttar Pradesh Hon'ble Apex Court decided on 18th December 1996 were not followed. In view of this circumstances, this Court holds that it is desirable to give direction to the police as prayed. In the result, following order :- ORDER I. The petition is allowed. II. Crime is to be registered on the basis of report given by Pushpa W/o Santosh @ Ishwar Pimple, mother of the deceased. IIII. A direction is also hereby given to the District Superintendent of Police, Ahmednagar to see that the investigation of this FIR is made by experienced police officer of the rank of Deputy Superintendent of Police. IV. In aforesaid terms the petition is allowed. V. Rule is made absolute in those terms.