MADHU DESSAI AND ORS Vs. STATE OF GOA

JUDGEMENT

(1.) These Criminal Appeals are by Accused Nos. 2 and 1, both of whom have been arrayed as Accused in Sessions Case No.29/02 and convicted for the Offences punishable under Sections 220, 342, and 302, read with Section 120-B of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a term of three years, for the offence punishable under Section 220 of the Indian Penal Code, for a period of six months under Section 342 of the Indian Penal Code and they have been sentenced to undergo Imprisonment for Life for the Offence punishable under Section 302 of the Indian Penal Code, so also fine of Rs.5,000/-. The Judgment and Order of conviction and sentence has been rendered by the Additional Sessions Judge, South Goa, Margao, in the above Sessions Case, on 24th/25th /26th November, 2008.

(2.) The case of the prosecution, in brief, is that the Accused Nos. 1 and 2 were, at the relevant time, working as Assistant Police Inspector and Police constable respectively. They along with original Accused Nos. 3 and 4, who were also Police Constables, posted at Cuncolim Police Station. At the said Police Station, they caused death of one Dattu alias Murgesh Anant Naik Dessai ( the Deceased for short). Thus, it is a case of death of the Deceased within the precincts of this Police Station. It is alleged that Accused No.1 Shripati Dessai, was Day Officer on duty at this Police Station from 08.00 hrs. of 27th June, 2001 to 08.00 hrs. of 28th June, 2001 and from 08.00 hrs. of 29th June, 2001 to 08-00 hrs. of 30th June, 2001 and had attended the duty. Accused No.2 Madhu Dessai, Head Constable, was working as a Writer Head Constable at this Police Station and had attended the duty on 27th, 28th, and 29th June, 2001. Accused No.3 Jeetendra Fal Dessai, was working as Duty Master and Beat Constable of Cuncolim Town Beat. Narendra Fal Dessai, Accused No.4 was working as Beat Constable of Cuncolim Beat. Both the Police Constables, namely Accused No.3 and Accused No.4 had attended the duty at the Cuncolim Police Station. On 27th June, 2001, at about 11.05 hours, in the morning, a phone call was received by Accused No.1 who was on Day Officer duty from one Miss Prashila Raut Dessai, Resident of Quitola, Fatorpa, Goa, informing that the Deceased was assaulting her mother and she requested that police be sent to the spot. Accordingly, Station Diary Entry vide No.28 at 11.05 hours was effected by Accused No.1 and Accused No.1 deputed PC- 3239 Nilu Shet and PC-3333 Shyam Dessai on a Government Motor Cycle to the spot at Quitola, Fatorpa. It is alleged that Accused No.1 was the Senior Most Police Officer present at the Cuncolim Police Station and was Incharge at that point of time and as such, he was Officer Incharge of the Cuncolim Police Station, as envisaged by Section 2(o) of the Code of Criminal Procedure, from 11.00 hrs. on 27th June, 2001 till arrival of Shri Lawrence D Souza, Police Inspector of the Cuncolim Police Station, at about 12.45 hours on 27th June, 2001.

(3.) It is alleged that the Two Police Constables deputed by Accused No.1 visited Quitola and brought the Deceased on a Government Motor Cycle No.GA-01, G 0847 to the Cuncolim Police Station and produced him before Accused No.1 at about 11.50 hours on 27th June, 2001. The Deceased was made to sit in the Reporting Room of Cuncolim Police Station. It is alleged that the Deceased was handicapped in his right hand. However, when the Deceased was brought to the Police Station, and made to sit thereat, there was no external visible injuries on his person. When the Deceased was sitting in the Reporting Room of Cuncolim Police Station, he started arguing with the Police for not recording his complaint against Smt. Shobhawati alias Vijay Raut Dessai, the mother of the Complainant Prasheela Dessai. The Deceased also abused with filthy words, a Lady Police Constable Mrs Swati alias Madhavi Dessai, wife of Accused No.2. This Lady Police Constable was also present in the Reporting Room and was on a day reserve duty, at Cuncolim Police Station at the relevant time. In view of this, there was exchange of words between the Deceased and Accused No.2 in the Reporting Room of the Police Station. In order to protect the honour and dignity of the Lady Police Constable, Accused No.2 and Accused No.1 assaulted the Deceased with slaps and dandas. Thereafter, the Deceased was forcibly taken towards lock-up by Accused No.1. He was placed in a Female Lock-up of the Police Station, thereby he was illegally detained by Accused No.1. The Deceased was not formally arrested, and as such, his detention in the lock-up was illegal. As per the Station Diary at that particular point of time, no Policeman was posted on lockup guard duty. The Deceased was not formally arrested and, therefore, there is no entry in the Station Diary regarding his arrest. It is alleged that the guidelines of the Hon'ble Supreme Court in the case of D.K. Basu vs. State of West Bengal were violated. It is alleged that there was no complaint on record of the Cuncolim Police Station, which would empower Accused No.1 to legally arrest the Deceased. A complaint of the complainant Shobhawati Raut Dessai was registered subsequently, being NC Complaint No.420/2001 under Section 504, 323 IPC. It is alleged that one Lucas Rebello was present in the Male Lock-up which is opposite the Female Lock-up at that very point of time. He had seen the Deceased in the Female Lock-up of Cuncolim Police Station. He had also seen the Deceased crying and the tears rolling down his eyes, so also the Deceased abusing Accused No.2. Thereafter, at about 12.25 hours, said Lucas Rebello was taken to the Primary Health Centre for his medical examination and the Deceased remained alone in the Female Lock-up. In order to teach the Deceased a lesson for abusing and insulting the honour and dignity of the Lady Police Constable Swati alias Madhavi Dessai, it is alleged that all the Accused brutally assaulted the Deceased. This assault took place after Lucas Rebello was taken for medical examination. As a result of this brutal assault, the health of the weak and handicapped Deceased worsened. It is alleged that after sometime of his assault, being inquisitive, original Accused Nos. 3 and 4 again went to the lock-up to see the Deceased and at that time, at about 12.50 hrs., they saw him in bad state of health and they also saw froth coming out from the mouth of the Deceased. Accused No.4 gave water to drink and Accused No.3 went to the Reporting Room and informed Accused No.1 about the bad state of health of the Deceased. Accused No.1 came to the Female Lock-up and observed the state of health and this was disclosed by Accused No.3 and 4 to the Police Inspector, Lawrence D'Souza and Shri Thorat, Sub-Divisional Officer, Margao in the fact finding inquiry. It was also disclosed to the Sub-Divisional Magistrate Margao, who was inquiring into the matter, about his bad state of health. The Deceased was not given any medical treatment, nor taken to any hospital for medical examination by Accused Nos. 1, 3 or Accused No.4. He continued to be illegally detained in this condition in this Female Lock-up. Thereafter, the Deceased fell unconscious. Seeing him unconscious, the Accused were perturbed and thought that he was dead. Considering the Deceased to be dead and in order to cover up their misdeeds, all the Accused hanged the Deceased to one Acacia tree which was behind the Police Station in the thick bushes and created a false scene of the Deceased having committed suicide by hanging himself. Thus, they caused the death of the Deceased.