RAMAKRISHNA PANICKER Vs. STATE OF KERALA

JUDGEMENT

(1.) This Criminal Appeal arises out of the judgment and order of the learned Additional Sessions Judge of Kottayam in Sessions Case No. 87 of 1957 on the file of the Kottayam Sessions Court. There were two accused persons in the case. Accused 1 stands convicted under S.304(2) and under S.323, I.P.C. He has been sentenced to undergo rigorous imprisonment for 4 years for the first mentioned offence and like imprisonment for 6 months for the other. The two sentences are however to run concurrently. Accused 2, who stood charged with abetment of the offence under S.304(2) alleged to have been committed by accused 1 has been acquitted of that charge, but he has been convicted on a further charge under S.323, I.P.C. for which also he was tried. For that offence he has been sentenced to undergo rigorous imprisonment for 6 months. Accused 1 and accused 2 have preferred this joint appeal against their convictions and sentences.

(2.) On the date of the occurrence forming the subject of the case, that is, 29-1-1957, accused l and accused 2 were both head-constables of police attached to the Kottayam East Police Station. At about 3 p. m. on that date accused 1 found one Antony Devassia alias Pappayi drunk and behaving in a disorderly and riotous manner on the public road in front of the cycle shop of Pw. 13 on the Kottayam-Kumali road, not far away from the District Court buildings at Kottayam. Devassia had taken a cycle from the shop of Pw. 13 on hire while the latter was absent from his shop and brought it back with its break damaged. Over that an altercation took place between Pw. 13 and Devassia and it was at that time accused 1 arrived there. Finding that Devassia was fully drunk and unable to take care of himself, accused 1 took him into custody and directed a police constable (Pw. 3) who was then there to take him to the East Police Station. Pw. 3 acted accordingly and produced Devassia before the station with his report Ext. P2. That was at 3-40 p. m. The Sub-Inspector of Police (Pw. 17) received the report and made an entry in the general diary about it at 4 p. m., vide Ext. P-4, the general diary entry. Pw. 4, a police constable to whom the Sub-Inspector then handed over the station charge and Pw. 2, the constable on sentry duty, were asked to keep Devassia under surveillance until after he recovered from the effects of the drink or until the Sub-Inspector returned to the station. The Sub-Inspector returned to the station only at 6-30 p. m. vide Ext. P17 the general diary entry. According to the prosecution soon after the Sub-Inspector left the station, accused 1 and accused 2 went there and they both belaboured Devassia. It would appear that accused 1 first gave two blows on Devassias cheeks and then bending his head down gave him five or six hits with his elbows on Devassias back. Afterwards it is alleged that accused 1 raised Devassias head by pulling his heir and fisted him twice in the region of his abdomen. While accused 1 was inflicting injuries on Devassia accused 2 was standing by the side of accused 1. Immediately afterwards he (accused 2) caught hold of Devassia and putting his head between his legs gave a few hits with the elbows on Devassias back. Devassia got rather exhausted by the belabouring and at the instance of accused 1, two constables, Pw. 1 and Pw. 5 took him out into the courtyard so that fresh air might improve his condition. He was also given some water to drink and later when his son, Pw. 11 came there, at the instance of Pw. 3 some soda water was brought for him to drink. All these ministrations did him no good and accused 1 tried to make him get up by beating him with a stick (police lathi) on his feet. Accused 1 and accused 2 then told others that Devassia was merely pretending that he felt very bad. Later he was taken from the courtyard into one of the rooms of the station. At about 6-30 p. m. the Sub-Inspector returned to the station and he found that Devassias condition was rather precarious. Accused 1 and accused 2 were directed to take Devassia to the hospital and they did that in a car requisitioned by accused 1. On being taken to the hospital (District Hospital, Kottayam) Pw. 10, Assistant Surgeon, who examined Devassia found that he was dead and that death must have occurred not less than half an hour before, but within two hours. Pw. 10 gave due intimation about Devassias death both to the police and the Magistrate and after some hurried consultations and exchange of letters between the District Magistrate (Judicial) and the District Collector (Additional District Magistrate) the Executive First Class Magistrate (Pw. 8) was asked to hold the inquest enquiry. The report of the inquest held by him is Ext. P-II. According to the Panchayatdars which took part in the inquest enquiry Devassia had died while he was in the police station in the custody of the police and as the result of the injuries inflicted upon him by the police. On receipt of that report the District Superintendent of Police, directed the Deputy Superintendent of Police, Pw. 18, to register a case against the members of the police force who were responsible for the death of Devassia.

(3.) Apart from the blows accused 1 is alleged to have inflicted on Devassia while the latter was in the police station, the prosecution had a further case that when he was taken into custody from the public road in front of the cycle shop of P. W. 13, accused 1 had given a blow to Devassias cheek asking him whether he was going about abusing anybody and everybody whom he met. Both P. W. 3 and P. W. 13 spoke about that fact. It would also appear that earlier in the day, that is, in the forenoon of 29-1-1957, accused 1 happened to meet Devassia on the public road a few furlongs to the west of the District Court buildings and when accused 1 called him by name, taking offence at the authoritarian tone in which he was called, Devassia abused accused 1. The public road they met was close to the tailoring shop of P.W, 14 and the bakery run by P.W. 15. Both those witnesses have given evidence about that incident and also that Devassia even complained then that accused 1 had once beat him with the police baton. It was during the interval between this earlier incident and that at the shop of P.W. 13 at about 33. P. M. that Devassia hired a cycle from the shop of P. W. 13 and used it for a jolly ride as it were. During the course of that ride one of his sandals fell down and when attempting to pick that up without getting down from the cycle, he fell down and sustained some minor injuries. It was then that one of the breaks of the cycle got damaged. P. W. 16 saw the attempt to pick up the lost sandal and the consequent fall of Devasia from the cycle. That occurred on the public road in front of the Holy Family School near the District Court and P. W. 16 was at that time a student of that school.