Allowed

S.Srinivasa Rao v. Mykala Sabamma and 5 Ors.

Telangana HC31 Jan 2011WA/250/2003

Case brief

AI extract

What is this about?

The High Court allowed two writ appeals against a lower court order directing registration of a homicide case and awarding compensation. The court held that since the enquiry report found the deceased committed suicide by jumping from an electric tower, a Section 302 IPC case was not warranted. It further ruled that no additional compensation could be paid as the family had already received substa

What did the court decide?

Allowed appeals; set aside order directing Section 302 IPC registration and Rs. 50,000 compensation; directed police to register case under appropriate law and submit report.

S.Srinivasa Rao Vs Mykala Sabamma and 5 Ors. — Writ and Judicial Review | Telangana HC (2011)

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HON’BLE SRI JUSTICE A.GOPAL REDDY

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AND HON’BLE SRI JUSTICE C.V.RAMULU

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W.A.Nos.250 and 299 of 2003

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DT. 31-1-2011 WA.No.250/2003: Mykala Sabamma …Appellant V.

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1.Mr. S. Srinivasa Rao, Station House Officer, Mekthal Police Station, Mahabubnagar and others. ..Respondents

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The Court made the following:

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HON’BLE SRI JUSTICE A.GOPAL REDDY

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AND

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HON’BLE SRI JUSTICE C.V.RAMULU

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W.A.Nos.250 and 299 of 2003

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Common Judgment:

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(Per the Hon’ble Sri Justice A. Gopal Reddy)

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These two writ appeals under Cl.15 of the Letters Patent are directed against one and the same order passed by the learned single Judge of this Court dt. 29-1-2003 in WP No.13964/2002, whereby and whereunder learned Judge directed the Superintendent of Police, Mahabubnagar, to register a case under Sec. 302 IPC against the police officials and also to initiate departmental action against the appellant herein (first respondent in the writ petition) and other Police Constables under A.P. Civil Services (Classification, Conduct & Appeal) Rules, 1991 (for short “the CCCA Rules” and pass appropriate orders and further directed the fifth respondent, namely, Home Secretary, Department of Home, Secretariat Buildings, Hyderabad to pay an amount of Rs.50,000/to the writ petitioner as compensation for the constitutional tort suffered by the husband of the writ petitioner.

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The writ petitioner, who is the wife of late Mahadev, filed the above writ petition alleging that the then Sub-Inspector of Police, Makthal, S.Srinivasa Rao, and other policemen picked up Mahadev (hereinafter referred to as “the deceased”) on 9-5-2001 at about 3 PM at Karne village in connection with Cr.No.31/2001 of Makthal in the presence of Sarpanch of the village, relatives, neighbours and the writ petitioner. He was taken to the police station with handcuffs. Immediately after arrest, the writ petitioner and the Sarpanch of the Village rushed to the police station and requested the Sub-Inspector to release the deceased. The SubInspector of Police told them that the deceased would be produced before

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the Court. On the next day, when the writ petitioner visited the police station, she was allowed to see the deceased, who was in cell without dress and was severely tortured by the police. She provided meals to the deceased. At that time, the deceased cried by saying that the police severely beaten up and ill-treated for whole day. Then, she requested the police not to torture the deceased and produce him before the Court. But the S.I. of Police informed her that if she pays money her husband will not be tortured and he will be set free. On the next day, the Sarpanch and the brother of the deceased went to the police Station and found the deceased with handcuffs chained to the window. He told his brother that he was subjected to severe torture and that he will be killed if money is not paid to the Sub-Inspector and other policemen. The deceased requested his brother to sell away the land and pay money to the Sub-Inspector. While so, on 14-5-2011, the police informed the writ petitioner that the deceased is absconding from the police station. She went to the house of Sarpanch, who told her that the dead body of the deceased was lying at the outskirts of Makthal village. She rushed to the spot and found the dead body of the deceased lying in the topes. She found torture marks on the body of the deceased. Dalit organizations, Sarpanch of the Village, brother and mother of the deceased and villagers resisted the police shifting the dead body from the scene. The Mandal Revenue Officer, Makthal who conducted a Magisterial enquiry on 16-5-2001 opined that it is intriguing to know how the deceased Mahadev has escaped from the police station, for which the police is answerable. On the writ petitioner lodging oral complaint before the police to register a criminal case against the Sub-Inspector of Police and other policemen, the police have not registered any case. Therefore, she filed the above writ petition seeking a writ of Mandamus directing the second respondent, namely, the Superintendent of Police, Mahabubnagar, to register a criminal case under Sec. 343 and 302 IPC; to investigate the said offence by the Crime Branch, Criminal Investigation Department (CBCID); to initiate disciplinary action

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against the first respondent and other policemen who are responsible for allegedly causing the death of her husband and award appropriate compensation to the family of the deceased.

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Pending writ petition, this court passed an order on 1-8-2002 directing the Chief Judicial Magistrate-cum-I Additional District Judge, Mahabubnagar to conduct enquiry in camera and submit a confidential report within a period of four weeks.

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Before the Enquiry Officer-cum-I Additional District Judge, Mahabubnagar, on behalf of the writ petitioner-Sabamma, P.Ws.1 to 8 were examined and Exs.A-1 to A-6 were marked. On behalf of the SubInspector of Police, S.Srinivasa Rao, R.Ws.1 to 11 were examined and Exs.B-1 to B-33 were marked. The Mandal Revenue Officer, who conducted magisterial enquiry into the matter and the Medical Officer who conducted autopsy over the dead body of the deceased were examined as C.Ws.1 and 2 respectively and Ex.C-1 was marked.

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The Sarpanch of Karni village who was examined as P.W.1 in his cross-examination stated that Bheemamma, who was the mother of Mahadev, was admitted in hospital with injuries as inpatient prior to the death of Mahadev on 13-5-2001. He saw Mahadev in the hospital on that day. Due to the threat in the hands of the parents and relatives of Yellamma, he kept Mahadev in his house. He added that only thereafter the police took Mahadev from his house. When he was in the hospital near Bheemamma, he advised Mahadev to go back to the police station as the people from his second wife Yellamma pursue him. In the hospital, Mahadev had not complained to him about his ill-treatment by the police. To a specific question by the Enquiry Officer, he stated that when he was passing through he saw Mahadev taking Bheemamma to the Government hospital and on his enquiry, Mahadev told him that the people from his first wife Yallamma’s side beat Bheemma and therefore, he was taking her to the Government Hospital, but he cannot say whether it was one day or two days prior to the death of Mahadev.

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The writ petitioner, who was examined as P.W.2, stated that she has not given any representation to anybody alleging that her husband was killed by the police. She further stated that she has not received any money from the Government for the death of Mahadev and police took her husband suspecting his role in the death of Yellamma.

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P.W.3, a villager of Karni village, stated that on Monday morning at about 3 AM, a constable came to the hospital and enquired about the person from Karni. The said constable told them that Mahadev was missing from the police station. On coming to know that Mahadev died near an electric pole at 10 AM, he went to the place and found no external injuries on the dead body. The police might have beat and killed him and throw the dead body near the electric pole.

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The Enquiry Officer-cum- Additional District Judge, Mahabubnagar, who conducted an enquiry, after scrutinizing the evidence adduced by the parties and submitted his report dt. 11-9-2002 to this court. In his report, he observed that on the complaint of one K.Purushotham Rao alleging that Yellamma, the first wife of the deceased, committed suicide by consuming pesticide poison, whereas the writ petitioner is the second wife of the deceased, a case in crime No.31/2001 on 9-5-2001 was registered. On registering crime, inquest was held by the Mandal Revenue Officer, Makthal on the dead body of the first wife of the deceased. The Medical Officer who conducted autopsy over the dead body of Yellamma gave his report covered under Ex.B-11 finding the cause of death as asphyxia from throttling and soon after knowing about the cause of death, the first respondent altered the section of law in Cr.No.31/2001 from Sec.174 Cr.P.C., to Sec. 302 IPC and took up investigation. Mahadev might have been picked up for questioning by the police on 9-5-2001 and he was kept in the police station till morning hours of 14-5-2001, and Mahadev was allowed to attend calls of nature, for eating, talking with others, for shifting his mother to hospital etc., but his presence in the police station is not recorded in the General Diary covered

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under Ex.B-32 from 9-5-2001 to 14-5-2001. The claim of the police that in view of the absence of any entry regarding the presence of Mahadev in the police station, the claim to the contrary cannot be accepted. It is evident from the evidence of Sub-Inspector, R.W.10, that he picked up the deceased from Karne village on 9-5-2001 at about 4 PM and took him to the police station and kept him there till he left the police station at about 4 AM on 14-5-2001. There is material on record to show that Mahadev was found missing from 4 AM on 14-5-2001, but how he left the police station and slipped away is not known. The parents and the relatives of Yellamma suspected that Mahadev killed his wife Yellamma and in that process they also beaten up Bheemma, the mother of Mahadev. The deceased was immortal fear from the relatives and the parents of Bheemamma. All along, the parents and relatives of Yellamma were suspecting the role of Mahadev in the death of Yellamma. Therefore, Mahadev was in a disturbed condition. When he was taken to the police station, without being shown as arrested, possibly for questioning or otherwise, he must have been under pressure. This pressure increased when he found his own mother being beaten up by the parents and the relatives of Yellamma. The team of Medical Officers found ante mortem injuries on the body of the deceased. The evidence of Medical Officer– C.W.2 shows that there is no indication of beating or torture as there are no external injuries to the said effect. C.W.2 admitted that if a boulder is dropped on a person, there is likely to be fracture of ribs, but there would be corresponding external injuries and ruled out the possibility of fracture to the ribs without damage to the skin. From the medical evidence, it is clear that the dead body of Mahadev had no external injuries or marks indicating torture or violence. The medical evidence and other material suggest that the deceased climbed the electric tower upto height of more than 50 to 60 feet and jumped to his death. The Mandal Revenue Officer, Makthal, who conducted an enquiry, recorded the statements of witnesses and submitted a report covered under Ex.C-1 to the effect that the

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deceased was sighted in the police station on 9-5-2001 whether under arrest or not, and it has some substance. After scanning the evidence, filed a report concluding that S.Srinivasa Rao, S.I.of Police (appellant in WA No. 250/2003) and his staff picked up the deceased from the house of P.W.1 in connection with Cr.No.31/2001 of P.S.Makthal; he (deceased) was seen in the police station by P.W.1, the Sarpanch of the village, the writ petitioner and a resident of Karne (P.W.3); Mahadev remained in the police station from 9-5-2001, sometime after 4 PM till 4 AM on 14-5-2001; the apprehension of the deceased and keeping him in the police station for 5 days is not recorded either in the General Diary or in the case diary; there is likelihood of Mahadev to escape form the police station on the pretext of attending to calls of nature around 4 AM on 14-5-2001 with only his underwear; the deceased was being chased by the parents and relatives of his first wife Yellamma as murderer of Yellamma; they have also beaten Bheemamma, the mother of Mahadev and the Mahdev was under mortal fear from the parents and relatives of Yellamma; the deceased was also under strain because he was in the police station for a prolonged period; Mahadev was not tortured during his stay in the police station and at about 6 or 6-30 AM on 14-5-2001 Mahadev climbed an electric tower situated about 2 KMs from the police station, only with his underwear, up to a height of more than 60 feet and jumped to his death, which is a case of suicide.

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On submission of the report by the Enquiry Officer-cum-I Additional District Judge, Mahabubnagar, the first respondent in the writ petition filed objections to the enquiry report denying arrest of the deceased on 9-5-2001 apart from torturing in the police station. No counter-affidavit has been filed by the respondents except filing objections to the enquiry report by the first respondent.

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A learned single Judge of this court on receipt of the report from the I Additional District Judge, Mahabubnagar, while accepting the finding recorded by the learned Additional District Judge that the deceased

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committed suicide and there is no evidence of torture by the police in the police station and the deceased climbed an electric tower situated about 2 KMs from the police station, only with his underwear, upto a height of more than 60 feet and jumped to his death held that the evidence of the Doctor who conducted autopsy and postmortem certificate would disprove the theory of death of Mahadev due to torture in the police station and the finding recorded by the learned Additional District Judge that Mahadev died by jumping from 60 feet electric tower is prima facie justified in the facts and circumstances of the case. Having accepted the finding of the District Judge, learned single Judge directed the Superintendent of Police, Mahabubnagar, second respondent to register a case under Sec. 302 IPC and other appropriate provisions of law against the first respondent and other Constables on duty during the period from 9-5-2001 to 14-5-2001 and investigate the case and file a report before the Magistrate under Sec. 173(2) Cr.P.C., after completion of the investigation, apart from directing the second respondent to initiate departmental action against the first respondent and other police constables under the CCCA Rules, and also directed payment of compensation of Rs.50,000/- to the writ petitioner.

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Aggrieved by the direction issued for registration of a case and conduct of departmental enquiry, the first respondent in the writ petition filed WA No.250/2003. So also, aggrieved by the direction of payment of compensation of Rs.50,000/-, the State filed WA No.299/2003 taking a specific plea that the writ petitioner was already granted adequate compensation by the State providing an extent of Rs.4 acres of land and also house plot bearing No.117 apart from paying Rs.10000/-.

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Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellant in WA No.250/2003 and also respondent No.2 in WA No.299/2003 contended that once the learned single Judge accepted the finding of the learned Additional District Judge that the deceased committed suicide, issuing direction to register a case under Sec. 302 IPC

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is contrary to the findings recorded. When no restriction for movement of the deceased was imposed by the police and he went along with his mother to the hospital itself shows that the deceased was not in arrest. In the absence of arrest and keeping the deceased in illegal custody, police are to follow directions issued in D.K.BASU V. STATE OF W.B^[1] does not arise, as there was a threat from the relatives of the first wife of the deceased, he took shelter in the police station to prevent from attack. On the complaint made by the writ petitioner, a crime was registered under Sec. 174 Cr.P.C., in which a report has also been filed.

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Learned Government Pleader would contend that since the writ petitioner was assigned four acres of land and was paid Rs.10,000/- apart from a house plot, the State cannot be further mulcted with the compensation.

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Sri V. Raghunath, learned counsel for the writ petitioner contends that when the writ petitioner made a complaint that the deceased died due to torture, the police ought to have registered a case under Sec. 302 but not under Sec.174 Cr.P.C., But, he fairly conceded that issuing a direction to register a case under Section 302 IPC by the learned single Judge is not at all warranted, at the most case may be registered under Sec. 306 IPC, therefore learned single Judge ought to have directed the police to register case for appropriate offences and the respondent cannot go unpunished. He also has not denied the fact of assignment of four acres of land and payment of Rs.10,000/- to the writ petitioner and while disposing of the writ petition, which fact was not taken note by the learned single Judge and directed the State to pay compensation at Rs.50,000/-.

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In the light of the above submissions, the question that falls for consideration is whether the direction issued by the learned single Judge to register a case under Sec. 302 IPC; to initiate a departmental enquiry and pay compensation at Rs.50,000/- is justified or not?

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Once the report submitted by the learned Additional District Judge shows that the deceased was not died in the police station nor any injuries

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were found on him to show that he was tortured and he committed suicide, directing the Superintendent of Police, Mahabubnagar to register a case under Sec. 302 IPC against the respondent No.1 does not arise. Even assuming, if the deceased was kept in the police station for five days without arrest, which led to his committing suicide, at most the officers responsible for his detention might have abetted commission of suicide by the deceased but not homicide to charge under Sec. 302 IPC. Therefore, direction issued by the learned single judge to register a case under section 302 IPC, on accepting the report, is not at all warranted.

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Admittedly, the claim for compensation for the death of the deceased has already been redressed by the Government by assigning four acres of land in S.No. 535/4, and issuing a patta certificate in Patta No.D/166/2002 dt. 3-4-2002 by Mandal Revenue Officer, Makthal and property has been delivered to the petitioner under a panchanama dt. 8-122010. She was also provided with a house plot in S.Nos.67,68 and 69 admeasuring 100 sq.yards (plot No.117) at Indiramma House Colony, Karni village by patta certificate No.B/5163/2006 dt. 7-12-2010 by Tahsildar, Makthal, after disposal of the writ petition, apart from payment of compensation at Rs.10,000/- during the pendency of the writ petition, which was also brought to the notice of the learned single judge. Therefore, no further compensation can be granted to the writ petitioner. In view of the same, direction issued by the learned single Judge directing the fifth respondent to pay a further sum of Rs.50,000/- to the writ petitioner cannot be upheld and is accordingly set-aside.

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It is brought to our notice that on the complaint lodged by the writ petitioner, a case under Sec. 174 Cr.P.C., has been registered, in which report has already been filed.

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We accordingly dispose of the writ petition directing the Superintendent of Police, Mahabubnagar to register a case under appropriate provision of law and submit a report and if crime is already registered and report has already been submitted before the concerned

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jurisdictional court, furnish a copy of the report to the writ petitioner under proper acknowledgment forthwith, and if there are any administrative lapses on the part of the police officials for confining the deceased in the police station without showing his arrest, it is always open for the Department to take appropriate action against them, as directed by the learned single Judge. It is always open for the writ petitioner to file a protest petition before the concerned court, and proceed against the police officials, within one month from the date of supplying such a copy of the report.

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Both the writ appeals are accordingly allowed modifying the impugned order to the extent indicated above. There shall be no order as to costs.

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_______________ A. GOPAL REDDY, J

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____________ C.V.RAMULU,J

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Date: 31-1-2011 kmr

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[1] AIR 1977 SC 610

S.Srinivasa Rao v. Mykala Sabamma and 5 Ors.

Case brief

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S.Srinivasa Rao v. Mykala Sabamma and 5 Ors.

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