Madras High Court
M.B. Uthappa, P. Krishnan Kutty Nair, M. ... vs State Represented By Inspector, Scb - ... on 1 July, 2002
Author: N. Dhinakar
Bench: N. Dhinakar
JUDGMENT Malai Subramanian, J.
1. The appellant in C.A.No.766/90 is accused No.2 in S.C.No.71/89 disposed of by the Principal Sessions Judge, Salem. The appellant in C.A.No.779/90 is accused No.11 in the same case. The appellants in C.A.No.771/90 are A3 to A7 in the same case. All these appellants are police officers. They filed these three appeals against their conviction and sentence passed by the learned Principal Sessions Judge, Salem, whereby the accused were sentenced as follows:
A2 was sentenced to undergo R.I. for five years for an offence under Section 120B I.P.C., life imprisonment for an offence under Section 302 r/w 120B I.P.C., R.I. for 18 months for an offence under Section 365 r/w 120B, one year R.I for an offence under Section 342 I.P.C. and another R.I. for one year for an offence under Section 201 r/w 120B, three years R.I. for an offence under Section 302 r/w 120-B I.P.C., two years R.I. for an offence under Section 201 I.P.C. and another two years R.I for an offence under Section 218 I.P.C.
A3 was sentenced to undergo R.I. for two years for an offence under Section 120B I.P.C. and one year R.I. for an offence under Section 342 I.P.C.
A4 was sentenced to undergo R.I. for five years for an offence under Section 120B I.P.C., 18 months R.I. for an offence under Section 365 I.P.C., one year R.I. each count for an offence under Section 342(2 counts) I.P.C., life imprisonment for an offence under Section 302 r/w 34 I.P.C. and 2 years R.I. for an offence under Section 201 I.P.C.
A5 was sentenced to undergo R.I. for five years for an offence under Section 120B I.P.C., one year R.I. on each count for an offence under Section 342 (2 counts), life imprisonment for an offence under Section 302 r/w 34 I.P.C. and two years R.I. for an offence under Section 201 I.P.C.
A6 was sentenced to undergo R.I. for two years for an offence under Section 120B I.P.C., 18 months R.I. for an offence under Section 365 I.P.C. and one year R.I. for an offence under Section 342 I.P.C.
A7 was sentenced to undergo R.I. for two years for an offence under Section 120B and 18 months R.I. for an offence under Section 365 I.P.C. and one year R.I. for an offence under Section 342 r/w 120B I.P.C.
A11 was sentenced to undergo R.I. for two years for an offence under Section 201 I.P.C. and another two years for an offence under Section 218 I.P.C.
The sentences imposed on the accused were ordered to run concurrently.
2. The accused No.1,8,9,10,12,13,17 and 18 were acquitted by the learned Sessions Judge and as against their acquittal and also as against the acquittal of A3, A6, A7 and A11 for certain specific charges, the State has preferred an appeal in C.A.No.375/91. Insofar as the other acquitted accused namely, A14, 15 and 16 are concerned, no appeal has been preferred by the State. Since the state appeal as well as the three appeals by the accused relate to a single judgment of the trial Court, the following common judgment is passed in all the appeals and the appellants in all the three appeals against conviction will be described only as accused in their respective numbers.
3. The case of the prosecution is this:
P.W.35, Sadasivam, a native of Quilon in Kerala State was running a Tutorial College in Quilon. He used to secure admission for students in the professional colleges at Bangalore. During that course, he had contact with S.Y. Mariyappa, K.R. Srinivasan, Mrs. Saradambal Rao W/o. Seetharaman Rao and Cherian, who were the co-opted members of a Trust. Ex.P.201 is the Trust Deed. This Trust started running a college by name "Sanjay Gandhi College of Education at No.45, Millers Road, Vasanth Nagar, Bangalore from 1980 onwards. On 2.10.1980, S.Y. Mariappa was removed from the Trust by a resolution and another Trustee K.R. Srinivasan submitted his resignation on 14.07.1981. During 1982, S.Y. Mariappa and K.R. Srinivasan brought some Goondas to the college and started interfering with the administration and therefore, P.W.35 lodged a criminal complaint against them and filed a Civil Suit in O.S.No.10543/82 on the file of the Additional City Civil Judge, Bangalore. He also obtained an interim injunction against them with a direction that, if those persons continued to be the Trustees, they could go and supervise the administration of the college, but should not harass the students. Another suit for injunction was also came to be filed by P.W.35 to conduct the examination in the college peacefully.
In the meantime, P.W.35, with a view to start another educational trust by name "Sir Visweswarayya Educational Trust" consisting of himself, his wife and some others as members of the Trust, purchased lands in Kolar and also deposited Rs.20 lakhs for starting the Medical College and submitted the application to the Bangalore University on 30.10.1983 seeking permission. The Inspection Committee of the University found the existing building not suitable and the University also increased the deposit to Rs.30 lakhs. Therefore, P.W.35 secured buildings with an area of 25,000 sq.ft. and submitted a fresh report regarding the infrastructure. In June 1985, A12, Mr. Jalappa, the then Minister of Co-operation also tried to start a Medical College by forming an educational trust by name, Devaraj Urs Educational Trust. Ex.P.29 is the cabinet note regarding the grant of affiliation to new Medical Colleges in the State of Karnataka and the Government of Karnataka decided to sanction two medical colleges for rural areas and Ex.P.31 is the minute dated 9.6.1985. On 23.9.1985, the council of Ministers decided under Ex.P.30 to sanction Sir Visweswarayya Educational Trust to start a Medical College at Kolar District and another college in Mandya District to be run by Swinchinagare Educational Trust and on 7.10.1985, under Ex.P.34 decided to sanction the Medical College at Kolar to be run by Sri Devaraj Urs Educational Trust cancelling the sanction given already to Sir Visweswarayya Educational Trust on the ground that the earlier sanction to the latter Trust was a typographical error. P.W.35 therefore, challenged the orders of the Karnataka Government. Ex.P.35 is the certified copy of the order of the High Court of Karnataka in writ petition No.15793/85 quashing the order of the Government and giving a direction to consider the application of Sri Visweswarayya Educational Trust for starting a medical college for the academic year 1986-87. Pursuant to the order of the High Court, the Karnataka Government constituted a committee to scrutinise the applications for starting medical colleges and for submitting the recommendations.
P.W.4, Mr. Barath was the Educational Secretary and Chairman of the Committee. This Committee recommended in favour of Sri Devaraj Urs Educational Trust for starting the medical college at Kolar by Ex.P.36, report. The cabinet granted sanction through Ex.P.38 for the same. On the application of A.12, the Government of Karnataka alloted 10 acres of land in Survey No.159 in Tamaka Village, Kolar Taluk to Sri Devaraj Urs Educatinal Trust by its order Ex.P.44. Ex.P.42 is the rent certificate issued by the Executive Officer. P.W.5 the Deputy Commissioner of Kolar, forwarded the rent certificate. In the meantime, the land purchased by P.W.35 was forfeited to the Government by the Assistant Commissioner, Land Reforms, Kolar on the instigation of A.12. P.W.35 challenged the forfeiture order of the Assistant Commissioner in the High Court of Karnataka in W.P.No.15163/86 and the same was quashed and Ex.P.204 is the order of the High Court. P.W.35 also filed a writ petition challenging the sanction granted to Sri Devaraj Urs Educational Trust, but the same was dismissed by the High Court on 14.8.1987, the order being Ex.P.205. A12 at that time was the Home Minister of Karnataka.
On 14.7.1987, P.W.35, had been to his native town, Quilon, where he received a message that K.R. Srinivasan and S.Y. Mariappa with Goondas instigated by A.12 entered into Sanjay Gandhi College of Education and took away the files relating to the Medical College and other files with cash Rs.1,65,667/-. At that time, one Smt. Rathna was the Principal of the College. On the direction given by P.W.35, Smt. Rathna filed a complaint, Ex.P.195 on 15.7.1987 in the High Grounds Police Station. On 16.7.1987, P.W.35 returned to Bangalore and found the police spreading a propaganda that he was a smuggler, by issuing pamphlets and distributing them. So, P.W.35 sent a complaint, Ex.P.188 to the Commissioner of Police, Bangalore and another complaint Ex.P.189 to the Sub Inspector of Police, High Grounds, but they were not registered by the police. On the other hand, on a complaint received from S.Y. Mariappa and K.R. Srinivasan, the High Grounds Police registered a case for an offence under Section 406 I.P.C. against P.W.35 and the first information report is Ex.P.187. P.W.35 was granted Anticipatory Bail. He then filed a suit for injunction in the City Civil Court against S.Y. Mariappa and others in O.S.No.3203/87 and the Court also granted interim injunction, Ex.P.55. Even afterwards, S.Y.Mariappa and others continued to interfere in the affairs of the Trust. Therefore, P.W.8 Mr. Muthanna, Advocate for P.W.35 went to the High Grounds Police Station and gave Ex.P.56, complaint on 28.7.87 against S.Y. Mariappa and K.R. Srinivasan by enclosing the injunction order of the Civil Court to the Assistant Sub Inspector. On 28.7.1987, Smt. Saradambal Rao gave a complaint against P.W.35 and his Assistants Joseph and Rajan in the High Grounds Police Station. It was registered and Ex.P.194 is the first information report prepared by the Sub Inspector of Police, A2. P.W.35, obtained Anticipatory Bail in this case also.
The deceased Rasheed who was a practising advocate at Quilon came to Bangalore in connection with some other matter and P.W.35 and his Assistant one Joseph who knows Rasheed already took Rasheed to Hotel Air Lines on 11.8.1987. He met P.W.35, who narrated the problems faced by him and Rasheed agreed to offer his services in solving the problems. On 12.8.1987, P.W.35 gave Ex.P.195, petition to Rasheed, who along with P.W.34, Seetharam Iyengar, Principal of Sanjay Gandhi College and Joseph, who signed that petition went to the High Grounds Police Station to present the petition to A2, Uthappa, the Sub Inspector of Police. A2, Uthappa required identity of Rasheed and Seetharama Iyengar. Thereafter, Rasheed got an authorisation letter from P.W.45, Mayilsami, former Inspector of Railway Police, Jolarpet stating that Rasheed was an Advocate. Rasheed then went to the Police Station and presented the complaint. When Rasheed met P.W.35 in Hotel Sarkar at about 9.30 p.m., he requested Rasheed to go to the Lady's hostel and convince the students to continue their studies without any fear by showing the order of injunction obtained in his favour. Thereafter, P.W.8, Muthanna, another advocate was introduced to Rasheed by P.W.35 to jointly render the professional service. Since P.W.35 was apprehending arrest in various cases, he could not enter the college and on his behalf the newly appointed Principal, P.W.34 and Rasheed went to Sanjay Gandhi College of Education.
On 14.8.1987, Smt. Ratna claiming to be the Principal of Sanjay Gandhi College, lodged a complaint Ex.105, against Rasheed in the High Grounds Police Station alleging that Rasheed trespassed into the college premises. He was handed over to the police, who registered a case in Ex.P.104 (F.I.R) for offences under Sections 452 & 506(ii) I.P.C. and was kept in the lock up. Rasheed was then produced before II Metropolitan Magistrate, P.W.22. When P.W.22 questioned Rasheed about any ill-treatment by the police, he denied, but later stated that he was harassed by the police and his signatures were obtained by the police under threat, but no visible injuries were seen on Rasheed by P.W.22. On representation of Rasheed that he was a member of the Bar, after receiving a bail application, Ex.P.107, P.W.22 released him on bail on his own bond and on condition that he should produce two sureties on 17.8.1987. Rasheed wanted to go to the house of P.W.8, Muthanna, Advocate. P.W.23, Venkatappa helped him and Rasheed met Muthanna and told him that he was detained by High Grounds Police and showed his upper teeth that were shaking and his shirt was also torn. Rasheed also told P.W.8 that he was beaten by some persons and he was taken in an auto to High Grounds Police Station. He also alleged that he was beaten at the police station as he refused to reveal the hiding place of P.W.35. P.W.8 then gave Rs.500/- to P.W.23 to help Rasheed, to give a complaint to the Bar Association and also to inform the press about the ill-treatment meted out to him. Rasheed then gave three telegrams; one to the Home Minister, Government of India, another to the Chief Minister, Karnataka and the third to the Chief Justice of India. They are Exs.128,129 and 130. P.W.23 and Rasheed went to the office of the Indian Express and met P.W.52, Reporter and narrated him the ill-treatment and assault by the High Grounds Police. At the instance of P.W.52, Rasheed gave a complaint Ex.P.66 to P.W.9, the President of the Bar Association, Bangalore on 15.8.1987 and went to P.W.52 and gave a copy of the said complaint and the contents were published in the "Indian Express" dated 16.8.1987 - Ex.P.263. On the same day at about 5.30 p.m. Rasheed spoke to his wife P.W.38 as it happened to be their wedding day and he also informed about the police harassment. At about 7.30 p.m., he spoke to P.W.8 over phone from Sandhya Lodge and informed him that he was surrounded by police and he was not in a position to talk. On 16.8.1987 at about 9.30 a.m., when P.W.12, Receptionist of Sandya Lodge came to the lodge, she saw Rasheed standing with few others and after informing P.W.12, Rasheed vacated the room. Ex.P.73 is the checking out bill. Rasheed also met P.W.36, Hyder Ali, a student staying in the same lodge and informed him about what had happened. P.W.36 informed the same to his friend P.W.37, Mathew Philip.
In the meantime, on 14.8.1987, Rasheed left his suitcase with the Manager of Haritha Finance, Mr. Balasubramanian stating that he would take back later. On 16.8.1987, Rasheed with Mr. Nair of High Grounds Police Station and another went to Haritha Finance to take back his suitcase, but after ascertaining that Balasubramanian left the suitcase with TVS Electronics, a sister concern of Haritha Finance, he went there and enquired. Though it was a Sunday, P.W.74, the Manager TVS Electronics, Bangalore was in his office to do some urgent work, while Rasheed and two or three others went and asked for a briefcase. After ascertaining the identity of Rasheed through Mr. Nair, P.W.74 gave the same. On receiving the briefcase, Rasheed gave Ex.P.213, acknowledgment. At about noon, Rasheed was at the High Grounds Police Station (as per Exs.P.151 to 154 pocket note books of the police officers) and at about 5.30 p.m., Rasheed checked into Sathyaprakasah Hotel along with two others. Ex.P.11 is the arrival register and Ex.P.11-A is the signature of Rasheed. Thereafter, he left the hotel at 8.30 p.m. on the same day, but did not come back.
On 18.8.1987, when P.W.31, Arjunan, a gang maistry was working in the Railway Track at about 3.00 p.m., on information given by a boy, went and saw a dead body lying between Lokur and Danishpet Stations and gave information to the Assistant Station Master. The Assistant Station Master P.W.32 later informed the Deputy Superintendent, P.W.33, since police did not come to the scene. He also informed the Salem police only on 19.8.1987. Ex.P.199, information was sent to the Salem Railway Police. Thereafter, P.W.42, the Sub Inspector of Salem Railway Station came there, registered a case based on Ex.P.199 given by P.W.33 in R.P.Crime No.417/87 under section 174 Cr.P.C. The first information report is Ex.P.225. P.W.42 caused the scene to be photographed. He drew a sketch, Ex.P.226 and also observation mahazar Ex.P.227 and held inquest and prepared Ex.P.228, inquest report. He sent a requisition Ex.P.229 to conduct post-mortem. P.W.48, Dr.T.A. Srinivasan, Civil Assistant Surgeon attached to Omalur Government Hospital came to the spot and conducted autopsy and issued post-mortem certificate, Ex.P.248. During post-mortem, the doctor found the body highly decomposed, Meggots were found all over the body, Abdomen was bloated, scrotum and penis were circumcised, eye balls protruded out. There was a fracture in the maxillay bone. Tongue protruded between the teeth, lips well swollen. The distal 1/3 of right little finger and ring finger were missing. Meggots were seen at the spot. On dissection of the face, subcutaneous Ecchymosis was seen and fracture of maxillary bones and nasal bones were also seen. Stomach contained 1 mg. Of brownish liquid. All other internal organs were decomposed. He preserved the viscera and sent the same for chemical analysis. He did not give any final opinion. Thereafter, P.W.49, Dr. Neela Govindaraj, Professor of Forensic Medicines and the Police Surgeon was invited to conduct autopsy again after exhuming the body. P.W.49 held the second post mortem on 15.9.1987 and she gave final opinion Ex.P.260 stating that the deceased could appear to have died of sudden unnatural cause of death most probably due to asphyxiation as well smothering. Ex.P.26 is her final opinion.
On 22.8.1987, when P.W.42 made a search around the bushes nearby the place where the dead body was found, he picked up M.O.3, the diary belonging to the deceased Rasheed under Mahazar Ex.P.23. Thereafter, P.W.42 came to know about the identity of the deceased and informed his relatives about the death of Rasheed over phone and they came and identified the deceased with the help of photographs and wearing apparels. P.W.45, the younger brother of Abdul Rasheed sent a petition Ex.P.138 dated 25.8.1987 to the Director General of Police. On 30.9.1987, the files were handed over to Mr. Subesan, Deputy Superintendent of Police, CB CID, Vellore, who took up investigation with the assistance of P.W.56, the Sub Inspector of Police.
In the meantime, P.W.25, the Commissioner of Police, Bangalore after seeing the press reports that Rasheed was assaulted by High Grounds Police, enquired and came to know about the proceedings pending before the Magistrate and directed A2 and A11 to give a detailed report. A2's report is Ex.P.159 and A11's report is Ex.P.160.
Meanwhile, on 17.8.1987, though P.W.22 issued non bailable warrant, Rasheed did not appear before court. The next day P.W.23, Mr. T. Venkatappa, Advocate filed a petition under Section 97 Cr.P.C to search and produce Rasheed and to call for a report from the High Grounds Police. A copy of the warrant, Ex.P.112-A was marked to the Sub Inspector, Cuppon Park. P.W.29 gave a report that the person namely, Rasheed was neither arrested nor detained as alleged. Ex.P.16 is the report. On 20.8.19987, P.W.22, Magistrate issued another search warrant to D.C.P. Ex.P.117 is the office copy. Since there was no report, a fresh search warrant, Ex.P.118 was issued on 21.8.1987 to the Commissioner of Police, P.W.25 and the case was adjourned to 22.8.1987 on which date at about 2.00 p.m., P.W.28 gave a report, Ex.P.119 stating that Rasheed had left Sandhya Lodge on 16.8.1987 morning and his whereabouts were not known. On 22.8.1987, Ex.P.118 was reissued to P.W.25. Since there was no report till 24.8.1987, P.W.22 issued Ex.P.120, reminder and on 25.8.1987 charge sheet was filed against Rasheed by A2. P.W.8 filed a Habeas Corpus petition in the High Court for production of Rasheed. But on 24.8.1987, the brother and brother-in-law of Rasheed informed P.W.8 that the body of Rasheed was found near Salem and therefore, an additional affidavit was filed and the writ petition was dismissed. P.W.22, the II Metropolitan Magistrate issued warrant to the Assistant Commissioner of Police, Seshadripuram and thereafter, to the Deputy Commissioner of Police, Bangalore. A fresh warrant was issued to the Commissioner of Police under Ex.P.118. Only on 7.12.1987, A2 Uthappa, the Sub Inspector of Police filed a signed statement that Rasheed was dead.
P.W.25, the Commissioner then directed A2 and A11 to give a detailed report about all the matters relating to Rasheed. They gave their reports. He also directed P.W.26, the Assistant Commissioner of Police, Seshadripuram, Bangalore to find out what happened in Sathyaprakash Lodge where the deceased last checked in. P.W.26 examined P.W.14 and P.W.15, recorded their statements and also perused the registers and later submitted report stating that A4 and another constable of High Grounds Police Station accompanied Rasheed to Sathyaprakash Lodge and made enquiries. By his report Ex.P.143, he recommended for statutory investigation and registration of a regular case in the High Grounds Police Station under Section 323, 302 and 201 I.P.C. against unknown police officers of the High Grounds Police Station and other unknown persons. P.W.24, gave a complaint Ex.P.126, which was registered in Cr.No.405/87, the first information report being Ex.P.125 against the High Grounds Police Officers. But after discussion, Ex.P.145, report was submitted by P.W.24 to alter the FIR against unknown persons who are said to be responsible for the murder of Rasheed. Thereafter, FIR was altered and witnesses were examined. The Government of Karnataka requested CBI, Delhi to investigate the case and therefore a case was registered in R.C.No.2 of 87of SIU II/SIC I New Delhi by P.W.75.
On 31.1.1988, search was conducted in the residence of P.W.35 Sadhasivam and certain documents were seized. On 2.5.1988, P.W.70 searched the residence of A2 and seized certain documents and currency to the value of Rs.10,000/-. P.W.73, Mr. Sivaji, Inspector of Police, CBI Special Crime Branch took up investigation in R.C.No.5/1988 and also assisted P.W.78, Mr. Regothaman, Deputy Superintendent of Police. The latter collected documents from the offices of the Commissioner, Advocate General , Bangalore and also the Deputy Secretary to Law, Government of Karnataka. On 2.4.1988, P.W.78, father of A1 in Omalur and the brother of A1 produced Ex.P.325 series and the passport of A1. P.W.78 came to know that P.W.1 was in his native place, Devakottai and he arranged to bring him to Madras on 9.4.1988. On enquiry from P.W.1, P.W.78 came to know the involvement of the other accused. He arrested P.W.1 on 9.4.1989 at 6.00 p.m. and produced him before XII Metropolitan Magistrate, and got police custody. On 11.4.1988, A2 to A9 were brought to enquiry. They were arrested and produced before the I Additional Chief Metropolitan Magistrate, Bangalore and they were interrogated by taking police custody till 21.4.1988. A1 was arrested on 11.4.1988 at Madras by the Superintendent of Police, Anti Corruption Wing, Madras. A1's handwriting and signature were obtained in the presence of P.W.77, G. Ramakrishnan for comparison. On 14.4.1988, when P.W.3 was questioned, he gave statement Ex.P.335, on which information, P.W.78 proceeded to Sathya Prakash Lodge on 14.4.1988 and recovered bed sheets, M.Os.84 and 85, Pillow covers, M.Os.86 to 90, pillows M.Os.91 and 92, mattress M.O.93, mattress covers M.Os.94 to 97 and yellow carpet M.O.98 under Ex.P.27. Observation Mahazar, Ex.P.28 was prepared at Room No.11. Search was also conducted at the office room of the hotel and certain documents and a trucker vehicle were seized and were sent to Forensic Lab, Madras. Statements from P.Ws.2 & 3 were recorded by the Chief Metropolitan Magistrate, Bangalore. P.W.2's statement was also recorded by the III Additional CMM, Bangalore. P.W.3's statement was recorded on 25.4.1988. A10 was arrested in the CBI Office; A2 to A6 were sent for lie detection test. P.W.78 arranged to conduct a search in the residence of A2 to A6. He himself conducted search at the residence of A.11 on 2.5.1988 in the presence of P.W.59 and one Yogeswaran and prepared Ex.P.272, search list. P.W.78 seized the diary Ex.P.272 and other documents from the residence of A11 and thereafter, P.W.78, visited the office of A11. A11 produced a briefcase containing Exs.P.275 to 277 and they were seized under Ex.P.274. P.W.78 arrested A11 on 2.5.1988 and police custody was obtained for him from the Court. A11 was also subjected to lie detection test at New Delhi. On 12.5.1988, A.12 got Anticipatory Bail in the High Court of Karnataka. A14 to A16 were arrested on 3.7.1988 and produced before the Chief Judicial Magistrate, Coimbatore. R.C.5/88 was clubbed with R.C.2/88 for investigation by P.W.78, Mr. Ragothaman.
On requisition, the handwriting expert, P.W.69, Mr. K. Ramakrishnan compared the handwriting in MO3 diary of the deceased with the admitted handwriting of Rasheed Exs.P.279, 283 to 285 and submitted the report Ex.P.288 confirming that the writing in MO3 and in Exs.P.279,283 to 285 were by the same hand. On the request by the Superintendent of Police, CBI, Madras, the writings in the other documents were also compared and P.W.72 gave an opinion that the disputed documents were also written by the deceased. After completing investigation, P.W.78, Deputy Superintendent of Police, CBI, SCB laid the final report against A1 to A18 and P.Ws.1 to 3 before the Chief Judicial Magistrate and the same was taken on file as P.R.C.1 of 1988.
4.After the evidence of prosecution was over, the trial judge questioned the accused under Section 313 Cr.P.C. regarding the incriminating circumstances appearing in evidence against them and their explanations were recorded. No witnesses were examined on the side of the accused, but Exs.D.1 to D.17 were marked during the course of cross examination of the prosecution witnesses.
5.This is an unfortunate incident where an advocate from Kerala, who came to Bangalore on his professional work had to meet his unnatural death. Though 18 accused were tried in this case, the learned trial judge acquitted accused 1,8,9,10 and 12 to 18, but convicted accused 2,3,4,5,6,7 & 11 only. The convicted accused have preferred three appeals and the State has come on appeal against acquittal as against the acquitted accused, except A14,15 & 16 and also as against acquittal of A3, A6, & A7 for certain specific charges. Since all these appeals including the appeal against acquittal were heard together, we have to decide whether the prosecution has proved its case against all or any of the accused.
6.The learned Additional Public Prosecutor appearing for the CBI contends that the prosecution was able to prove that the deceased was in company of A4 & A5 on 16.8.1987 at about 5.30 or 6.00 p.m.; that even prior to this the deceased was kept at the High Grounds Police Station; but the dead body of the deceased was seen near a railway track near Salem Railway Police Station and therefore, the accused, who are police officers attached to the High Grounds Police Station and A.11, the Deputy Commissioner of Police are alone responsible for the death of Rasheed. It is the further contention of the learned Public Prosecutor that P.Ws.8, 35, 36 and 37 speak about the animosity or motive for these accused to attack the deceased and the confession of A.17 lends corroboration. According to the learned Public Prosecutor, the motive for the accused to cause death of Advocate Rasheed was due to a publication in the "Indian Express" about the harassment meted out to the deceased at the hands of the High Grounds Police Officers. He also took us to the various portions of the evidence of the prosecution witnesses, which we will consider at appropriate stage.
7. As against the argument of the learned Public Prosecutor, the defence took a stand that the prosecution failed to prove that the death of Rasheed was homicidal and that the prosecution failed to prove that death of Rasheed occurred in the manner alleged by the prosecution and it is highly improbable that the body of the deceased should have been transported from Bangalore to the Railway Track about 200 kms. away, since according to the evidence of the doctors and other witnesses, the place where the body was found cannot be reached with any vehicle. According to the learned Senior Counsel appearing for A2, death could have occurred, by the deceased falling down from the running train and that is why the diary which was said to have been in possession of the deceased was thrown away at a distance from the place where the body was found. He also contended that the names of A3 and A5 came to be implicated for the first time by the prosecution only in Ex.P.66, which is said to be a petition given by the deceased to the President of Bar Association, Bangalore, while their names do not find place in the telegrams, Ex.P.128, 129 & 130. which were said to have been given on 14.8.1987. According to the learned Senior Counsel, there is no admissible evidence to hold any of the accused guilty, especially when P.Ws.1 to 3 do not speak about the involvement of any of the accused.
8. The learned Senior Counsel, Mr. V. Gopinath appearing for A3 to A7 contends that the conviction of A2 and A.11 for offences under Sections 201 & 218 I.P.C. and also the conviction of A4 and A5 for the offence under Section 201 I.P.C., is totally unwarranted and it cannot be said that any of them caused disappearance of any evidence with a view to screen the offenders or framed any incorrect record with intend to save anybody from punishment.
9. Besides hearing both sides, we also gave an anxious reading to the trial Court judgment since it is a case where unfortunately an advocate from Kerala had to meet his death under suspicious circumstance.
10.Insofar as the identification of the dead body is concerned, there is no dispute because P.W.39, the co-brother of Rasheed, P.W.40, the brother-in-law of Rasheed came to Salem after coming to know from advocates at Quilon, who received information from advocates at Bangalore and identified the deceased by the articles recovered from the body and the photographs, M.O.75 series. M.O.3, diary was identified by P.W.11, Mr. Gopal Gowda, Advocate, Bangalore, since he had already seen the deceased keeping the diary on 14.8.1987, when he was produced before the II Metropolitan Magistrate. M.O.2, visiting card of Mr. Muthanna, Advocate, Bangalore, which was given to Rasheed and Ex.P.12, cash receipt of Sathyaprakash lodge given to Rasheed for occupying Room No.11 on 16.8.1987 and Ex.P.73, cash receipt of Sandhya Lodge issued to Rasheed at Bangalore that were found in the body of the deceased were helpful to identify the deceased Rasheed. It seems that Exs.P.132, 133 & 134, the receipts issued to him for sending telegrams on 14.8.1987 to the Chief Justice of Supreme Court, Chief Minister of Karnataka and the Home Minister of Union Government and Ex.P.141, cash receipt for purchase of books in the name of Rasheed were also found near the dead body of Rasheed. This would unflinchingly prove that the dead body was that of Rasheed. The body of Rasheed was found lying near the railway track in between Lokur and Danishpet stations in Salem District in Tamil Nadu. Only on 18.8.1987 by P.W.31, Arjunan, who was a gang maistry, was informed about the presence of a dead body by a boy. The dead body was lying about 7 meters away in a slope within the bushes near the railway track. On noticing the body, P.W.31 gave a report to the Station Master, under Ex.P.198 and the same was passed on to P.W.33, the Deputy Superintendent, Salem, who in turn conveyed the same to the Sub Inspector of Railway Police, P.W.42.
11.P.W.42, Udayasuriyakumar, the Sub Inspector of Police, Railways, Salem, on receiving this message went to the place where the body was lying, on 19.8.1987 at about 9.00 p.m.; he halted there and on the next day, he caused the photographs of the body to be taken through P.W.47 and also recovered M.O.4-pant, M.O.5-shirt, M.O.6-socks, M.O.7-Belt, M.O.8-Buckles, M.O.9-Wrist Watch, M.O.10-pair of shoes and M.O.11-Black cover of pocket diary under Ex.P.230. He also prepared Ex.227, observation Mahazar. He conducted inquest, but since at that time, the identity of the deceased was not known, the inquest report speaks about an unidentifiable dead body, though subsequently identity was fixed. Therefore, the prosecution was able to establish that the dead body found lying in between Lokur and Danishpet Railway stations was that of Rasheed.
12.The learned trial Judge has extensively considered various aspects to hold that Rasheed met with a homicidal death and he could not have committed suicide. P.W.38, Mr.T.A. Srinivasan attached to Omalur Government Hospital, who conducted autopsy over the body of Rasheed found as per Ex.245, post-mortem certificate issued by him that there is no other external injury on the body of the deceased except on the face and the surrounding area which was compressed and he also found subcutaneous echymosis on the face and fracture on the maxillary and nasal bones. The body was highly decomposed and therefore, he could not give any final opinion as to the cause of death. But he was of the opinion that the injuries on the maxillary and nasal bones were ante-mortem in nature and they could have been cased by a violent pressure in the facial area. He is also of the opinion that a pressure with a pillow over the face could have caused asphyxia by smothering. A violent pressure according to him is also likely to cause fracture of the maxillary and nasal bones. He is of the view that the bleeding that escapes by fracture of the bones would rush to the air passage resulting in asphyxia. According to him bleeding passing through the air passage may collect in the lungs and the bleeding through the oesophegous may reach the stomach also, if the bleeding was more, but he could not find any collection of blood in the air passage or in the digestive track, since the body was highly decomposed and putrefied. Further, in the cross examination, he has admitted that lacerations were not seen in the mouth area and therefore, the theory of exerting pressure can be ruled out. But according to him smothering may be by mere blocking of the nostrils and mouth, but fracture should have been by a violent pressure. Though P.W.48 would say that a fall from a running train would cause the injury, the learned trial Judge rightly disagreed with that opinion on various grounds with which we also agree.
13.Postmortem of the body of Rasheed was conducted on the spot on 18.8.1987. Subsequently, P.W.49, Dr. Neela Govindarajan, Police Surgeon and Professor of Forensic Medicine was requested to conduct a second post-mortem after the body was exhumed. P.W.49, Dr. Neela Govindarajan is of the opinion that injury on the left cheek was ante-mortem in nature and the death would have occurred due to sudden unnatural cause, most probably due to asphyxia as a result of smothering. According to her, the body should have been thrown from the stationery position and the deceased could not have fallen down from a moving train, because the body was lying perpendicular to the railway track. That alone is not the criterion, but the fact remains, except the fracture of nasal and maxillary bones, there was absolutely no other injury on the body of the deceased. If anybody jumps or is pushed down from a running train, the injuries on the body should have been extensive and the person could not escape fracture of the head and limbs. According to P.W.49, the police surgeon, if the deceased was held with his face upwards and the pillow is placed on his face and pressure was exerted on the face especially in the area of nose, the blunt force applied on the nose might have caused fracture on the maxillary and nasal bones and also asphyxia leading to the death of the person. Moreover, as rightly pointed out by the learned trial Judge, the deceased was produced for remand before P.W.22 by the High Grounds Police in connection with a case registered against him on the complaint of one Rathna claiming to be the Principal of Sanjay Gandhi College of Education run by P.W.35 and others and P.W.22, the Magistrate released Rasheed on bail on his own bond, since Rasheed represented that he was an advocate and directed him to appear before Court on 17.8.1997 to produce sureties and Rasheed being a lawyer should have been aware about the consequences in case of his non appearance on the scheduled date before the court and therefore, he could not have decided to go back to his native place. Moreover, Rasheed was only helping P.W.35, who was having his own men to assist Rasheed. Therefore, it would not have been difficult for Rasheed to get sureties as ordered by P.W.22. Further, P.W.8-Mr. Muthanna, P.W.11-Gopal Gowda, P.W.23-T. Venkatappa, Advocates were all helping Rasheed and therefore, there could not have been any difficulty for Rasheed to arrange for sureties to produce before the Court on 17.8.1987. Even if he wanted any help from Quilon, he could have rang up to his relatives and friends and especially when he talked to his wife over phone even on 15.8.1987, he could have made arrangements through her. When he was seen till the evening of 16.8.1987 at Bangalore, he could not have ventured to go to his native place. Therefore, it was not all necessary for Rasheed to go to his native place. Further, the investigation done by P.W.24, the Superintendent of Police Mr. B. Mahadevappa reveals there was no railway ticket in the body of Rasheed. According to P.W.50, the Station Master of Danispet Railway Station, Train Nos.26 & 36 used to run at a speed of 80 k.m. per hour in the down line. Under the circumstances, if a man falls down from a moving train, he should have sustained very serious injuries including head injuries and injuries to both the limbs. Therefore, we agree with the learned trial Judge that Raheed did not travel in the train nor was he thrown out or jumped from a moving train.
14.The contention of the learned Senior Counsel appearing for A2 that in case of placing the body near by the Railway Track by somebody else, the pocket note book would not have been found at some distance, alone cannot be a valid circumstance to indicate that Rasheed should have fallen down from the running train. May be the perpetrators of the crime could have spread over the articles to make it appear that it was a death due to fall from a moving train. Therefore, we have no hesitation to hold that the death of Rasheed was only due to homicidal violence.
15.A2 to A7 are officials of the police department and A.11 is the Deputy Commissioner of Police. The motive alleged against them to cause the death of Rasheed is that he lodged a complaint against the High Grounds Police with the President of the Bar Association, Bangalore, P.W.9 and a copy of the complaint was also published in the Indian Express, Ex.P.263 dated 16.8.1987. The evidence of P.W.52, a reporter in the Indian Express, Bangalore is that on 14.8.1987, Rasheed came with some persons including an advocate with a request to publish a news item that he was manhandled only by the High Grounds Police, and he advised Rasheed to complain to the Bar Association and give a copy to him so that it can be reported. He also found Rasheed agitated. Thereafter, a complaint was presented by Rasheed to P.W.9, the President of Bar Association, Bangalore and on the strength of Ex.P.66, complaint, a resolution was passed on 29.8.1987, but a copy of the said report was given to P.W.52, who published the same in the Indian Express dated 16.8.1987. If this act of Rasheed would have annoyed the High Grounds Police, they would not have resorted to extinct the life of an advocate. As a matter of fact, they would only try to escape from the allegation of harassment. The evidence adduced in this case discloses enmity between P.W.35 and A12. The trial Judge has elaborately discussed this portion of the evidence. But Rasheed was only a professionalist, who was engaged by P.W.35 in his legal battle against A.12, the then Home Minister of Karnataka. Therefore, the alleged motive for the commission of the offence as against the few picked up police officers of the High Grounds Police Station is not adequate to implicate them in the commission of the offence. The learned trial Judge extensively dealt with the enmity between P.W.35 and A.12. But the conclusion arrived at by the learned trial Judge that as P.W.35, Sadhasivam was not available to the police, the deceased Advocate, M.A. Rasheed who was representing P.W.35 was harassed to find out the place of hideout of P.W.35, does not afford a motive for the police to do away with Rasheed.
16.On 14.8.1987, a case in F.I.R., Ex.P.104 was registered against Rasheed for offences under Sections 452 and 506(ii) I.P.C. and Rasheed was produced before II Metropolitan Magistrate, P.W.22, who questioned the deceased Rasheed with regard to any ill-treatment by the police and according to P.W.22, Rasheed said that he had no grievance, but he immediately changed his mind and said that he was harassed by the police and out of fear, he signed certain documents before the police. P.W.22 did not see any visible injuries on the body of the deceased and therefore, he remanded him to judicial custody. While remand order was passed, Rasheed represented that he was a practicing advocate at Pattinamthitta, Quilon District in Kerala State and also filed an application, Ex.P.107 for bail. Therefore, the Magistrate taking into consideration that the deceased was an advocate, released him on bail on his personal bond on condition that he should produce sureties on 17.8.1987. It is the further evidence of P.W.22 that Rasheed represented that he wanted some escort to meet advocate, P.W.8 Muthanna. The advocates who were present in Court offered to escort him and accordingly, they went along with him. The Magistrate found that as per his order, Rasheed did not appear before Court on 17.8.19897 and therefore, he issued non bailable warrant for his arrest.
17.The learned Additional Public Prosecutor contends that Rasheed was man handled by the High Grounds Police at the instance of A.12 and he also showed certain injuries to P.W.8. According to P.W.8, Advocate Muthanna, Rasheed had certain bruises on the chest, his shirt was torn and his two upper teeth were found shaky. But, P.W.22, the Magistrate was categoric that no visible injuries were found on Rasheed. If Rasheed would have sustained injuries at the hands of High Grounds Police, he could have informed the Magistrate himself, but only a complaint of harassment was made and that he was compelled to sign certain papers. Therefore, it cannot be held that bruises on the chest of Rasheed and shaking of his teeth would have occurred at the police station. Moreover, it is the admitted case of the prosecution that some servants of the college roughed up Rasheed and in that Course, there is every likelihood that Rasheed would have sustained such injuries and that is why he has not informed the Magistrate that he sustained injuries at the hands of the police. Therefore, in all probability, the case of the prosecution that Rasheed was beaten at the police station is totally unbelievable. Therefore, there is no motive for the High Grounds police to do away with Rasheed and they have no personal enmity against him at all.
18.The learned trial Judge discussed in extenso about the cases faced by P.W.35, Sadhasivam on whose behalf Rasheed was asked to look after the cases. There is no dispute that several complaints were lodged against P.W.35 and as a matter of fact, he went underground. It is not necessary for this Court to decide as to whether P.W.35 himself managed the educational trust or acted in a prejudicial manner to the welfare of the Trust as complained by S.Y. Mariappa in F.I.R. Ex.P.187. May be Smt. Rathna, the then Principal of Sanjay Gandhi College of Education could have given a complaint Ex.P.193 on 15.7.1987 against S.Y. Mariappa and K.R. Srinivasan for manhandling the staff and carrying away the records of the college and also for looting of Rs.90,000/- with the aid of 20 goondas. The grievance of the prosecution is that the High Grounds Police did not register any complaint and did not take any action against S.Y.Mariappa and K.R. Srinivasan, whereas on the complaint of Smt. Rathna a case was registered against Rasheed and he was also produced for remand before the II Metropolitan Magistrate, Bangalore. On the basis of the said events, the trial Judge comes to a conclusion that some big force should have been behind S.Y. Mariappa and K.R. Srinivasan and that is why the High Grounds police was partial. May be so, but we have to see how far such action or inaction on the part of the High Grounds Police helps the prosecution to prove the case against the accused in this case. Though on the evidence of P.W.35, the learned trial Judge comes to the conclusion that there was enmity between A.12 and P.W.35 and there should have been heavy pressure to the police to deal with P.W.35, it is stated in paragraph-21 of the judgment that the evidence is lacking on the question whether A.12 could have instructed the arrest of Rasheed, but at the same time he holds that the High Grounds Police was blessed with the Home Minister A.12 to act adversely against P.W.35, as the latter was challenging him repeatedly by way of writ petitions in the High Court of Karnataka. The evidence on record only discloses the enmity between P.W.35 and A.12 and also the fact that the High Grounds Police was acting against the interest of P.W.35. As already held, the assault on Rasheed has not been proved. Merely because, P.W.35 had to go underground, it cannot be said that Rasheed was aimed at by the High Grounds Police. There is no dispute that Rasheed representing P.W.35 went to the college and also associated himself with the advocates of P.W.35. But still, there is no evidence to indicate that Rasheed acted so prejudicially against the interest of A.12 or the High Grounds Police. Even after his production before P.W.22, in the presence of advocates in public court hall, he did not say that he was manhandled by the police. Therefore, we think that the police have no axe to grind against Rasheed so as to cause his death. The learned trial Judge acquitted A.12 and also A1, A8, A9, A10 and A13 to A18 holding that no evidence is available against them, but chose to convict only the police officers.
19.The learned Additional Public Prosecutor while arguing the appeal against acquittal of A1, A8, A9, A10, A11, A13, A17 & A18 and also against the acquittal of A3, A6, A11 on some other specific charges contends that they have been wrongly acquitted. According to him, though there is no eyewitnesses to the occurrence to establish how Rasheed was done to death, the evidence of P.Ws.1 to 3, approvers coupled with the evidence of P.Ws.8,9,10,11, 27, 28 & 29 would show that the convicted appellants were also involved in this crime. No doubt, P.W.8, 35, 36 and 37 speak about some animosity that the High Grounds police were nurturing against Rasheed, but it was not so grave to compel the police officers to cause the death of Rasheed. But P.W.35's evidence is crucial as against A.12, but except the proof of enmity between P.W.35 and A.12 regarding the establishment of colleges, there is absolutely no evidence against A.12 also to connect him with the crime. P.W.35 & P.W.36 do not speak about any of the accused, but they would only say that on 16.8.1987 around 9.30 a.m. while Rasheed was vacating Sandhya Lodge, they saw two constables in mufti with him.
20.The learned Additional Public Prosecutor would argue that the presence of two constables at the time when Rasheed was vacating Sandhya Lodge only shows that he was under the surveillance of the police. According to P.W.36, Rasheed at that time was grief-stricken and tears were rolling from his eyes and also told him that he would be taken by policemen and they would harass him. If that is so, he could have asked P.W.36 to inform the advocate Muthanna, P.W.8, who was defending P.W.35. Neither P.W.36 nor P.W.37 would say that Rasheed was taken by the police. P.W.36 had only said that he learnt that Rasheed was taken by the High Grounds Police, but there is no evidence that there was compulsion on the side of the police to make Rasheed accompany them. On going through the evidence of P.Ws.8,9,10 & 11 who are all practicing lawyers in Bangalore, we are unable to hold that the High Grounds Police are having so much of animosity to do away with the deceased. They have also not spoken to about the other acquitted accused. The learned trial Judge taking into consideration Exs.P.128 to 130, telegrams given by Rasheed to the Chief Justice of India, Chief Minister of Karnataka and the Home Minister of Union Government, wherein Rasheed alleged that at the instance of A.12, Jalappa, the then Home Minister of Karnataka, the High Grounds of Police, Bangalore assaulted him and his personal properties were taken by them, held that this piece of evidence is not sufficient to convict A.12. Even after looking into Ex.P.66, the complaint lodged by Rasheed, the learned trial Judge chose to hold that the instigation of Jalappa, A.12 is only the inference of Rasheed, because he had not seen A.12 before and nothing between him and A.12. Though the prosecution case is that the High Grounds Police on the direction of A.12 engaged rowdies to eliminate Rasheed in Sathyaprakash Lodge, the learned trial Judge acquitted A.12 and also A1, A8, A9, A10 and A13 to A18 as there was no evidence to connect them with the crime. Ultimately, at the end of paragraph 53 of the judgment of the trial Court, the learned trial Judge would say that there is no involvement of any of the accused viz., A1, A8, A9, A10 and A13 to A18 in the actual execution of the murder. The learned Additional Public Prosecutor also could not point out any other material to implicate these accused or A.12 in this case. Therefore, we are unable to disturb the order of acquittal of A1, A8, A9, A10 and A13 to A18 recorded by the learned trial Judge.
21.Now, we are concerned with the complicity of the convicted appellants. The convicted appellants are the officials of the High Grounds Police Station except A.11 who seems to be the Deputy Commissioner of Police. According to the prosecution, Rasheed went to Sanjay Gandhi College of Education along with P.W.34 , Seetharama Iyengar, the newly appointed Principal of the College only on 14.8.1987, where there was a scuffle and therefore, a complaint was lodged by Smt. Rathna, who was said to be holding the post of Principal of the College and Rasheed was arrested by the High Grounds Police. The learned trial Judge admits that there is no oral evidence as to what took place between Rasheed and Smt. Rathna in the college. But in the complaint, Ex.P.66 given by Rasheed to the President of Bar Association, Rasheed would state that he was beaten by policemen in mufti in the college and his suitcase was snatched away by them. This aspect was not spoken to by Rasheed before the Magistrate, P.W.22, who was about to remand him to judicial custody. Smt. Rathna in her complaint alleged that Rasheed trespassed into the premises of the college and tried to take away some original records of some students admitted in the college and also attempted to assault her. It is the evidence of P.W.22 that Rasheed informed him that he was harassed by the police and his signatures were forcibly obtained by the police, but he did not tell P.W.22 about the assault by police. As a matter of fact, after the deceased Rasheed was granted bail on his own bond, he took the protection through some advocates present there to meet P.W.8 and accordingly, he was taken by P.W.11, Gopal Gowda. According to P.W.8, Rasheed came to his office at 6.30 p.m. on 14.8.1987 along with P.W.23, Venkatappa, who is also an advocate and after some time they went away.
22.According to P.W.23, P.W.8, Muthanna dictated to him three telegrams to be sent to the Chief Minister of Karnataka, the Supreme Court of India and to another place which he could not remember and he does not remember the matter in the telegrams also. According to him, Muthanna gave Rs.500/- to Rasheed and both of them went to Mr. Jayaprakash, P.W.52, the press reporter and it is in the evidence of P.W.52 that he advised them to lodge a complaint with the President of Bar Association and give a copy to him so that he could publish in the Indian Express. Therefore, according to P.W.23, Rasheed proceeded to Sandhya Lodge at about 9.00 p.m. on 14.8.1987. There is no further evidence as to what transpired on the night of 14.8.1987.
23.According to P.W.9, on 15.8.1987 at about 3.30 p.m., P.W.23, Venkatappa, Advocate brought Rasheed to his house and Rasheed gave a typed representation, Ex.P.66 and finding Rasheed shaken, he went through the representation and told Rasheed that he would take necessary steps. Thereafter, Rasheed left his house. That shows on 15.8.1987, Rasheed was not under the surveillance of police. There is evidence that a copy of Ex.P.66 was handed over to the Indian Express office and the same came to be published on 16.8.1987 as per the evidence of P.W.52.
24.On 16.8.1987, P.Ws.36 & 37, who were staying in Sandhya Lodge saw the deceased at about 9.30 a.m. They are also the residents of Kerala and came to Bangalore to get admission in the medical college. It is to be remembered that P.W.35 accommodated P.W.36 in Sadhya Lodge. P.W.36 would say that he saw Rasheed with two constables in mufti and one constable standing near the counter in uniform and Rasheed also told him that he would be taken by the policemen and they would harass him and requested P.W.36 to tell P.W.35 that P.W.35 and one Karthikeyan should escape. It is the further evidence of P.W.36 that Rasheed was grief stricken and tears were rolling from his eyes. The prosecution relied on Exs.P.151 and P.154 that contained the extracts of pocket note books of A5 and A4, respectively to prove that Rasheed was in the custody of the police. On 15.8.1987, as per Ex.P.151-B, Rasheed came to the police station in the morning of 15.8.1987 and wanted his briefcase and he was asked to come the next day. As per the entry dated 16.8.1987 in Ex.P.151-C at about 5.30 p.m. A4 and Rasheed were present at the police station and Rasheed asked for a cheap lodge and A4 & A5 went to Sathyaprakash Lodge and got him a room. In the meantime, with the help of the police, the briefcase of Rasheed was taken back from P.W.74, Manager of Haritha Finance, who was in the office of TVS Electronics. It remains still a mystery as to how the briefcase of Rasheed went to Haritha Finance, because two stories were forged before the Court by the prosecution. Rasheed himself in Ex.P.66, representation given to the President of the Bar Association would state that he had a briefcase with him containing many of the case files, cheque leaves, University acknowledgments, original papers, lawyer's diary and other important documents and the same has been taken away by the police. In support of his contention, the learned additional Public Prosecutor relies on Ex.P.151, which is the pocket note book of A5, wherein A5 had written that on 15.8.1987 Rasheed came to the police station and asked for the briefcase. At the same time, the prosecution let in the evidence of P.W.74, Thiru Jayaraman, Manager (Finance) TVS Electronics, Bangalore, who in his evidence would say that Balasubramaniam, a clerk working in Haritha Finance, which is a sister concern of TVS Electronics told him that on 14.8.1987 a person had left a briefcase in his office, but he did not return and therefore, he told Balasubramaniam to leave the briefcase with the security personnel and on 16.8.1987, Rasheed came with a police officer calling himself as Nair of High Ground Police Station and then after getting acknowledgment Ex.P.217, the briefcase was handed over to Rasheed. When prosecution has let in this sort of evidence also, it is highly improbable to conclude that the briefcase of Rasheed was forcibly taken by the High Grounds Police. As per Ex.P.151-C, the pocket note book of A5 , Rasheed came to the police station at 12.00 noon and left with A4 and thereafter, he saw both of them at about 5.30 p.m. at the police station. At the most, it can be inferred that the 4th accused should have accompanied Rasheed to P.W.74 and after receiving the suit case, both of them should have returned to the police station. Ex.P.151-C, revelas that Rasheed asked for a cheap lodge and therefore, A4 and A5 took Rasheed to Sathyaprakash Lodge where he got a room. A4's note book, Ex.P.154 also coincides with that entry in Ex.P.151 C that after receiving the suitcase, A4 and Rasheed came to the police station at about 5.30 p.m. According to the entry in Ex.P.154, Rasheed informed the PSI that he was having only Rs.200/- with him and wanted a cheap lodge and therefore he was taken by A4 and A5 to Sathyaprakash Lodge. Therefore, the fact proved is that A4 & A5 took Rasheed to Sathyaprakash Lodge in the evening of 16.8.1987 and the further fact is that as per the evidence of P.W.1, the Watchman of Sathyaprakash Hotel and P.W.14, the Receptionist, Rasheed was allotted a room at about 5.30 to 6.30 p.m. on 16.8.1987. P.W.1 would further say that Rasheed was having a suitcase and Room No.11 was allotted to him. That fact was proved by Ex.P.3, arrival register and P.11A entry in the arrival register of the lodge and also Ex.P.12 receipt issued by Hotel Sathyaprakash, Bangalore.
25.So far, there is no other material to implicate other convicted appellants, except A4 and A5. Even with regard to A4 and A5 it can be taken as proved that they took Rasheed to Sathyaprakash Lodge in the evening on 16.8.1987. The purpose of taking him to Sathyaprakash Lodge according to the accused as entered in Exs.P.151-C to P.154 is that he wanted a cheap lodge and hence, he was taken there. But the learned trial Judge holds that the deceased was taken to Sathyaprakash Lodge only with a view to facilitate the perpetrators of the crime to murder Rasheed and according to him, Rasheed was done to death around 11.00 p.m. on the night of 16.8.1987 in Room No.11 of Sathyaprakash Lodge. The learned trial Judge comes to this conclusion on the retracted statements of P.Ws.1 to 3 and the statements of P.W.14, 15 and 16 recorded by the IX Metropolitan Magistrate under Section 164 Cr.P.C. The learned trial Judge writes like this:
"They have stated in their statements before the Judicial Magistrate under Section 164 Cr.P.C. that Rasheed was murdered in Room No.11 of Sathyaprakash Lodge at about 11.00 p.m. on 16.8.1987. Ex.P.1 is the confession statement of P.W.1, Srinivasan before the III Additional Chief Metropolitan Magistrate, Bangalore. Exs.P.80, 81 & 82 are the statements of P.Ws.14, 15 and 16 before the IX Metropolitan Magistrate, Madras. These witnesses have stated that Rasheed was murdered around 11.00 p.m. on 16.8.1987 in Room No.11 of Sathyaprakash Lodge. P.Ws.2 & 3 are the father and son and owners of Sathyaprakash Lodge. They also in their confession statements, Exs.P.5 and 20 before the III Additional Chief Metropolitan Magistrate, Bangalore have stated that they had learnt from the employees namely, P.Ws.14 and 15 that Rasheed was murdered at 11 P.M. on the night of 16.8.1987 in Room No.11, Sathyaprakash Lodgde. No doubt, all these witnesses have retracted their statements before the Magistrates and we are now left with the medical evidence of P.W.48, Dr. T.A. Srinivasan of Government Hospital, Omalur and the circumstantial evidence"
26.The learned trial Judge looked into the statements recorded from P.Ws.1 to 3, approvers and records and held that their statements are confession statements. By no stretch of imagination, the statements of P.Ws.1 to 3 can be treated as confession statements; because they are not the accused at all facing trial. They cannot even be treated as co-accused so as to attract Section 30 of the Indian Evidence Act, since they are not facing trial along with the appellants. Therefore, their statements recorded under Section 164 Cr.P.C. cannot be based to give a finding. Even the statements of P.Ws.14, 15 and 16 are only prior statements recorded under Section 164 Cr.P.C. and their statements can be used either to corroborate or to contradict them and those statements also cannot be stated to be substantive pieces of evidence. If we eschew the statements from these witnesses recorded under Section 164 Cr.P.C., there is absolutely no evidence to hold that Rasheed was done to death at Room No.11, Sathyaprakash Lodge at 11.00 p.m. on 16.8.1987.
27.The learned trial Judge relies on the evidence of P.W.48, the doctor who did the first postmortem on the body of Rasheed to hold that the death should have occurred 3 to 5 days prior to the postmortem and according to him, the probable time of death would be between 16.8.1987 and 18.8.1987. But the learned trial Judge holds that since there is no evidence to show that anybody had seen Rasheed alive after 16.8.1987 night, it is certain that Rasheed should have met with his death on 16.8.1987 night. The body was found admittedly on 18.8.1987. In the absence of any other admissible and acceptable evidence, we are afraid that the learned trial Judge may not be correct in coming to a conclusion that the death of Rasheed occurred in the night of 16.8.1987 at Sathyaprakash Lodge.
28.The learned trial Judge further says as follows:
"In the statement of P.W.3, he has stated that the mattress, bed sheet and pillow were removed to room No.34 and they were kept there. This statement of P.W.3 leads to the recovery of the blood stained pillow cover mattress and mattress cover, by P.W.78. These articles were seized by P.W.78 under the mahazar Ex.P.27 and were sent to the Forensic Lab for chemical examination. Ex.P.305 is the report of the Chemical Examiner and it is stated that the items namely, two pillow covers, a mattress, mattress cover contained blood stains. Ex.P.306 is the serologist report which reads that the blood stains referred to in the pillow cover, mattress and mattress cover was human blood. But I am unable to believe that the blood stained bed used by Rasheed was kept in Room No.34 for more than six months without washing them, when admittedly, they were hurriedly shifted to Room No.34 to screen blood stain cloth in Room No.11."
29.This finding of the learned trial Judge disapproving and disbelieving the above said evidence only indicates that the presence of blood stained mattresses and pillows were not relied on by the learned trial Judge to hold that Rasheed met his death at Room No.11, Sathyaprakash Lodge. Barring the above piece of evidence, which is disbelieved, there is absolutely nothing to hold that Rasheed was done to death at Sathyaprakash Lodge. The positive evidence available is that of the medical evidence that the death could have occurred to Rasheed between 16.8.1987 and 18.8.1987. The learned trial Judge just relied on the 164 Cr.P.C. statements of P.Ws.1 to 3 and 14 to 16 coupled with the medical evidence and the circumstance that no one had seen Rasheed alive after 16.8.1987 night to hold that the occurrence took place inside the lodge. As we have already said, the 164 Cr.P.C. statements of P.Ws.1 to 3 and 14 to 16 are not substantive pieces of evidence and therefore, they have to be eschewed from consideration. If these statements are eschewed, what remains is the medical evidence suggesting the probable time of death between 16.8.1987 and 18.8.1987 and the circumstance that nobody saw Rasheed alive after the night of 16.8.1987. The medical evidence gives a gap of two days and it is not precise and succinct. Even with regard to the circumstance that nobody saw Rasheed alive after the night of 16.8.1987, the evidence of P.W.14 alone was relied. The learned trial Judge says that P.Ws.14 has stated that at about 8.30 p.m. Rasheed left the hotel along with a person whom he called Karthikeyan and no other evidence is available. If that is so, the said Karthikeyan should have been examined by the prosecution to find out as to what happened to Rasheed. The said Karthikeyan neither figures as an accused nor was examined as a witness. In the absence of interrogating the said Karthikeyan, it cannot be held that Rasheed, who left the hotel at about 8.30 p.m. came back and slept in Room No.11 of Sathyaprakash Lodge. The facts that A4 and A5 brought Rasheed to Sathyaprakash Lodge and Rasheed checked in and occupied Room No.11 have been proved. But thereafter, there is no admissible evidence to prove that either A4 or A5 continued to be with Rasheed. Further, as per the evidence of P.W.14 as noted by the learned trial Judge, Rasheed had left the hotel at about 8.30 p.m. with a person called Karthikeyan. Besides there is the evidence of P.W.36, who would say that on 16.8.1987 at about 9.30 a.m., he saw Rasheed with two constables in mufti and another constable in uniform and Rasheed was in tears and requested him to convey a message to Sadhasivam that Sadhasivam and Karthikeyan should escape from the police. That shows a person by name Karthikeyan was associated with Sadhasivam and he was also acquainted to Rasheed.
30.Therefore, in the absence of any evidence to show that Rasheed returned back to the lodge to stay in Room No.11 and in the absence of examining the said Karthikeyan, we are unable to appreciate as to how the learned Judge was able to hold that Rasheed met with his death at Room No.11, Sathyaprakash Lodge on the night of 16.8.1987 at 11.00 p.m. Therefore, the prosecution could not fix the exact time of death and place of death in this case and merely because A4 and A5 accompanied the deceased to the lodge, they cannot be held to be the murderers.
31.It is true that after 16.8.1987 night, there is no evidence as to Rasheed was seen alive by anybody. Merely because there was police surveillance on Rasheed from 14.8.1987 till 16.8.1987, it cannot be said that the police officers have committed the murder of Rasheed. The evidence of P.Ws.35 and 36 only indicate that Rasheed was in a disturbed mind rather grief stricken also, but still there is no other evidence to hold that any of the convicted appellants are responsible for the death of Rasheed. The learned trial Judge says that Sathyaprakash Lodge is an ill-reputed lodge associated with antisocial elements and Rasheed was taken from Sandhya Lodge to Sathyaprakash Lodge only for the purpose of silencing him permanently. We are at a loss to understand as to which witness speaks about the above fact.
32.Of course, the learned trial Judge took pains to disprove the defence version that the men of P.W.35 could have attacked Rasheed. Even for this purpose, he relied on the statements of one Ramanuja and Dasappa viz., Exs.P.235 and 236 and holds that the version spoken therein also is highly improbable. Exs.P.235 & 236 are the copies of the statements of Ramanuja and Dasappa respectively recorded by P.W.44, the Assistant Sub Inspector of Police, High Grounds Police Station. Even these statements are totally inadmissible in evidence, since neither Ramanuja nor Dasappa was examined in Court as witnesses and even then their prior statements can be used only for contradicting them. Any how, we are not on the point of supporting the defence version in this case, especially because Rasheed was all along helping P.W.35. But the point is whether the prosecution has proved the case against the convicted appellants beyond reasonable doubts.
33.P.W.14, Receptionist of Sathyaprakash Lodge was no doubt treated hostile by the prosecution. In his cross examination, he made a statement that Rasheed talked to High Grounds Police over phone by about 8.15 p.m. and thereafter, handed over key to him and left the lodge with two persons who were standing in the portion and while leaving the lodge, he called a person by name, Karthikeyan. In view of the fact that the said witness told the CBI Investigating Officer that Rasheed was in his Room No.11 till he was murdered around 11.30 p.m., the learned trial Judge disbelieved that portion of evidence of P.W.14. But what about the evidence of P.W.36, who would say that Rasheed requested him to convey to Sadhasivam that Sadhasivam, P.W.35 and Karthikeyan should escape. There is absolutely no discussion as to who is that Karthikeyan and why he was not examined by the police.
34.The learned trial Judge gives a finding that Rasheed would not have thought of leaving Bangalore on the night of 16.8.1987, when especially he has to appear before the Court, the next day. He also relied on the fact that in case Rasheed would have decided to go to his native place, he would have vacated the room and would have taken all his articles and according to him presence of all the articles in Room No.11 occupied by Rasheed would prove that he could not have left Bangalore on 16.8.1987 night. In Ex.P.177, parawise remarks sent to P.W.25, A2 has narrated that he received a phone call from Rasheed around 8.15 p.m. on 16.8.1987 saying that he was going to his native place to see his children by Island Express and he would be back in two days and then when A2 asked him about the case, Rasheed replied in a confused manner that he was going home and he told him to do whatever he wanted, since he did not provide any security. Only to controvert this parawise remarks, the learned trial Judge went on to hold that Rasheed would not have left Bangalore on the night on 16.8.1987 and therefore, since A2 has given a false statement to P.W.25, the Commissioner of Police, Bangalore, he should have been guilty. This statement of A2 in Ex.P.177 alone in our view is not sufficient to hold that A2 was responsible for the murder of Rasheed. Of course Rasheed was under police surveillance at some time and as the evidence goes, he also needed the help of police at some point of time.
35.The learned trial Judge disapproved the argument of the learned Senior Counsel arguing for A2 that the investigating officer has not chosen to examine Dasappa and Ramanuja, the author of Exs.P.235 and 236 and P.W.78 had not recorded their statements and there is a specific admission of P.W.78 that his investigation revealed that Rasheed was chased by the men of Sadhasivam on 16.8.1987 morning, on the ground that P.W.24, Enquiry Officer, Corps of Detective, would state that Exs.235 and 236 were found in his file and there is no other statement by any other person to show that Rasheed was chased by the men of P.W.35. Even assuming that there was no necessity for P.W.35 to send his men to assault Rasheed, in the absence of examining Dasappa and Ramunuja, the truth of their statements could not see the light of the day. As a matter of fact, Exs.P.235 and 236 are not substantive pieces of evidence and could not be used in the absence of examination of Dasappa and Ramanuja. P.W.78 who admitted in his cross examination that his investigation revealed that Rasheed was chased by the men of Sadhasivam on the morning of 16.8.1987 was not treated hostile. Even otherwise, we are not concerned to find out as to whether P.W.35, Sadhasivam's men would have developed any grudge against Rasheed; but our endeavour is only to find out whether the evidence on record proves the guilt of the convicted appellants beyond reasonable doubt.
36.The learned trial Judge again relies on Exs.P.1 and P.80 the statements recorded under Section 164 Cr.P.C. from P.Ws.1 and 14 before the Magistrate to hold that on 16.8.1987 at about 6.00 p.m. A4 and A5 came with Rasheed and room No.11 was allotted at Sathyaprakash Lodge and A4 asked P.W.14 to look after Rasheed as he had come to take rest in the room for half an hour and A4 returned from the upstairs after leaving Rasheed in the room and told P.W.14 to ring up the High Grounds Police Station, if anything was urgent and he also gave the telephone number of the Sub Inspector of Police, A2, Uthappa and accordingly, P.W.14 wrote the telephone number in the last page of arrival register. This again is an inadmissible evidence. Even on the basis of the inadmissible evidence, the prosecution cannot claim to have proved a case of murder against A4 and A5, because in case they had the intention to kill Rasheed, they would not have come to the lodge identifying themselves and then give the telephone number of A2, the Sub Inspector of Police. In no way, the above said evidence is helpful to the prosecution. According to the learned Judge, the act of Rasheed making allegations against the High Grounds Police as published in the "Indian Express", Ex.P.263, should have infuriated the High Grounds Police as this would tarnish the image of police in Bangalore. May be so, but once such a publication was made in a daily, no police officer will be dare enough to do away with the person, who made the publication, especially because as police officers they know how far Ex.P.263 could go against them. They would not further do any act so as to tarnish their image much less the act of murdering an advocate. All along it was argued before the learned Judge by the Public Prosecutor that the High Grounds Police executed their objects of eliminating Rasheed by hired men. But the so called hired men were let free by the learned trial Judge for want of evidence and though the evidence is wanting as against the convicted appellants also, merely because of the surveillance of the police on Rasheed from 14.8.1987 to 16.8.1987 and since the entries in pocket note books of A4 and A5 and the report of A2 to P.W.25 were disbelieved, the trial Judge chose to convict the appellants. The prosecution case is that the High Grounds Police on the direction of A.12 engaged A1,A8 to A10, A13, A17 and A18 to murder Rasheed in Sathyaprakash Lodge at about 11.00 p.m. on 16.8.1987. The learned trial Judge admits that there is no oral evidence to prove the commission of the offence. But when the prosecution argued before the trial Court that even though P.Ws.1 to 3, approvers have retracted their statements as they have been tampered with by the accused, their confession can be acated upon, when especially there is a corroboration in general, the learned trial Judge held that there is no evidence of any sort to involve any of the accused viz., A1, A8 to A10, A13, A17 and A18 in the actual execution of the murder by their hands, though P.W.1 mentioned their names in Ex.P.1 and the occupation of room No.28 on 16.8.1987 in the same lodge was also proved through Ex.P.3 and the address given in Ex.P.325 series letters. He also does not agree with the prosecution that the confession of A.17, can be used against A1, A8 to 10, A13, A17 and A.18 to convict them. Ultimately, the learned trial Judge gave a finding acquitting those accused A1, A8 to A10, A13, A17 and A.18.
37.As a matter of fact, P.Ws.1 to 3 though turned as approvers, their statements cannot be termed as confession statements, insofar as the trial against all the accused in the present case. These statements become confession statements only where P.Ws.1 to 3 stand accused of any offence. For the purpose of this trial, P.Ws.1 to 3 are only witnesses and the statements recorded under Section 164 Cr.P.C. from them cannot assume the position of substantive pieces of evidence so as to base a conviction on those statements. Even the statements recorded from P.Ws.14 to 16 under Section 164 Cr.P.C. before the Magistrate cannot be held to be substantive pieces of evidence to base a conviction. The learned trial Judge held that the evidence in this case for the execution of the murder by the hands or with the connivance of A1, A8 to A10 and A12 to A18 is wanting as the confession of P.Ws.1 to 3 without any corroboration and the statements of P.Ws.14 to 16 before the Magistrate are not substantial pieces of evidence against those accused, but at the same time, he picks up and chooses certain portions of those statements to convict the appellants herein.
38.The first circumstance against the convicted appellants according to the learned trial Judge is, Rasheed was purposely put in another lodge by the police personally just to restrain him from going away. Another circumstance seems to be that Rasheed was beaten severely in the High Grounds Police Station on 16.8.1987, though it is not the case of any witness that on 16.8.1987, the High Grounds Police beat Rasheed. To substantiate the above points, the learned trail Judge relies on the statement of P.W.14 made before CBI, wherein P.W.14 would state that Rasheed was brought by the High Grounds Policemen, his face was swollen and when P.W.14 asked the police as to why his face was swollen, they said that he was injured and therefore, he required rest. He also relies on Ex.P.143, the report of P.W.24 to hold that Rasheed should have been assaulted, though the said report is merely a hearsay piece of evidence about an incident that was narrated in the report, in the absence of any evidence from the witness, who have seen that incident. The very fact that the phone number of A2 was given to the Receptionist, P.W.14 would show that A4 and A5, who were said to have accompanied Rasheed to Sathyaprakash Lodge would have no intention to harm Rasheed, but at the same time, they wanted to safely place Rasheed in the lodge by telling P.W.14 that in case of any necessity, A2 can be contacted over phone. The phone number and the name of A2 found written in Ex.P.11, Register according to the learned trial Judge clinches the issue that the police was keeping watch over Rasheed through the employees of Sathyaprakash Lodge. But according to our view, it is otherwise as stated above.
39.The other circumstance relied on by the learned trial Judge to convict the appellants is that there is no reason for any other person to murder Rasheed, when especially he was having no cash in his hands except a paltry sum of Rs.200/- given by P.W.8. According to the trial Judge, Rasheed earned the enmity of the High Grounds Police, who turned to be the bitter enemies of P.W.35 and retracted confession statement of P.Ws.14,15 & 16 in Exs.P.5, 8 and 20 can be relied upon as they are corroborating the circumstances appearing against the High Grounds Police. He also relies on Ex.P.1 to prove the fact that A4 was standing at Room No.11. He further uses Ex.P.1 to establish the fact that P.Ws.1, 14 and 15, on hearing some voice from Room No.11 ran towards Room No.11 and as the door was kept closed, P.W.1 kicked the door and thereafter, Shantha, A.13 opened the door and he saw Rasheed found dead lying on the bed. According to the learned trial Judge, the statements further prove that A4 and A5 were with Rasheed witnessing the process of elimination of Rasheed.
40.As we have already stated, though statements are totally inadmissible in evidence and even a single line in those statements cannot be relied upon to convict the accused and especially when P.Ws.1 to 3 are not facing trial before this Court, they cannot be termed as accused at all and their statements cannot be termed as confession statements, there is no admissible evidence in this case to hold any of the appellants guilty of the offence of murder or conspiracy to commit murder of Rasheed. The trial Judge himself has stated that the actual transporting of the body in the car is not proved by any evidence. But according to him, there was a prearrangement for the disposal of the body. On these surmises and conjectures, the accused cannot be convicted. Of course, the evidence discloses some strained relationship between the High Grounds Police and Rasheed and A4 and A5 took him to Sathyaprakash Lodge. Except this piece of evidence, there is no other evidence to prove the conspiracy angle of the case or the commission of the actual offence as against the convicted appellants. When investigation reveals that one Karthikeyan was associated with Rasheed and P.W.35, failure on the part of the investigating agency to interrogate Karthikeyan has led to miscarriage of justice. When P.W.36 says that Rasheed requested him to convey to Sadhasivam that Sadhasivam and Karthikeyan should escape and when this part of the evidence of P.W.36 was relied on by the prosecution, we do not find any reason as to how the evidence adduced in the cross examination by P.W.14 that at about 8.30 p.m., Rasheed left the lodge along with a person whom he called Karthikeyan, was disbelieved. Therefore, according to us, if Karthikeyan would have been interrogated, the real truth would have seen the light of the day. Therefore, we hold that none of the convicted appellants can be held to be responsible for the death of Rasheed.
41.The learned Public Prosecutor for CBI contends that there is the confession of A.17 to prove the crime against the accused. The confession statement said to have been recorded by the Judicial Magistrate No.III, Coimbatore has been marked as Ex.P.317 in this case. The confession of the co-accused can be used only to lend assurance to the material evidence available already. In the absence of any other material evidence, the confession of the co-accused alone cannot be used to convict the accused. That is why the learned trial Judge also acquitted some of the accused including A17 who gave that confession, who were said to have taken part in the actual commission of the offence. Therefore, this confession cannot be used as against the convicted appellants also.
42.Coming to the conviction of A2, A4, A5 and A11 for an offence under Section 201 I.P.C., the learned trial Judge relying on the report sent by A2 viz., Ex.P.177 in which he has stated that Rasheed was assaulted by the men of P.W.35 and the statement of A2 that at 8.15 p.m., Rasheed left for his place by Island Express, convicted A2 holding that he misled the public and concealed the murder of Rasheed to screen the offence of murder by him and his men. It is unfortunate that there is absolutely no evidence to indicate that A2 was having any knowledge about the commission of the offence of murder. To establish an offence under Section 201 I.P.C., the prosecution is expected to prove knowledge or belief on the part of the offender that an offence has been committed and thereafter, he caused any evidence of that offence to disappear with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence, which he knows or believes to be false. The knowledge of the commission of the offence on the part of A2 has not been proved by any evidence. Even with regard to A4 and A5, they have only made entries in their pocket note books regarding the events that took place on 14.8.1987, 15.8.1987 and 16.8.1987. They also cannot be held to have knowledge about the commission of the offence so as to screen the real offenders from legal punishment by submitting false information. Moreover, insofar as the disposal of the body, there is absolutely no evidence to hold that any of the accused brought the dead body of Rasheed from Bangalore to Railway Track nearby Salem. The learned trial Judge rightly rejected the statements of P.Ws.1,14,15 and 16. Further, the learned trial Judge also holds that even though it is the case of prosecution that A4, A5, A7, A8, A10, A13, A17 and A18 transported the dead body from Bangalore in a car and it was thrown with the help of A14, A15 and A16 near the railway track in Salem District, actual transport of the dead body has not been proved by any evidence. Having said so, the learned trial Judge infers that the person who arranged for the murder of Rasheed should have arranged for the disposal of the body also, because the dead body cannot be kept in the lodge. Therefore, he holds that as A2,A4 and A5 were the persons behind the murder, certainly they would have prearranged for the disposal of the body and this circumstance is corroborated by the statement of P.W.1 in Ex.P.1 and P.Ws.14 and 15 in Exs.P.80 and 81 against A4 and A5. Having held that the statements of P.Ws.1, 14,15 and 16 are inadmissible, the learned trial Judge chose to rely on them only to convict A4 and A5. As we have already held that the offence of murder has not been proved against A2, A4 and 15, even accepting the reasoning of the learned trial Judge, they cannot be held guilty for disposal of the body. Likewise, A.11 also cannot be held to be liable for an offence under Section 201 I.P.C., merely because, he sent a report Ex.P.158 denying the press report for the assault of Rasheed. Any act done by the accused with a view to screen the real offender from legal punishment and with a view to cause disappearance of the evidence is punishable under Section 201 I.P.C., if that act was done by that person with the knowledge and belief that the particular offence has been committed. We are at a loss to understand as to how A.11 was convicted for an offence under Section 201 I.P.C. Therefore, the conviction of A2, A4, A5 and A11 under Section 201 I.P.C. also has to be set aside.
43.Now, we have to see as to whether the conviction of A2 & A11 for an offence under Section 218 I.P.C can be upheld. To establish an offence under Section 218 I.P.C., the prosecution is expected to prove that the public servant framed incorrect records knowing them to be incorrect with intent to cause or knowing it to be likely that he will thereby cause loss or injury to the public or to any person or with intent thereby to save or knowing it to be likely that he will thereby save any person from legal punishment.
44.Coming to the conviction of A2 and A11 for an offence under Section 218 I.P.C., the learned trial Judge founded the conviction on the premise that Exs.P.159, 177 reports were prepared by A2 with false details and A11 also prepared Exs.P.157, 118B and 160 with incorrect particulars with the intention of screening the offenders from punishment. Ex.P.159 is a report submitted by A2 to the Deputy Commissioner of Police, Law and Order (West) Bangalore City, wherein he had discussed about the ill feeling between Sadhasivam, P.W.35 on the one side and K.R. Srinivasan, S.Y. Mariappa and Smt. Saradambal Rao on the other side. He also elaborates about the pending cases between the parties and gives the history of a case registered against Rasheed for offences under Sections 452 and 506(ii) I.P.C. Finally A2 has stated that Shri M.A. Rasheed made vague allegation of assault by the High Grounds Police and denied the allegations. He would further say that neither himself nor the staff of High Grounds Police Station beat Shri M.A. Rasheed and nor was he taken into custody by the High Grounds Police on 16.8.1987. There is the evidence to show that Rasheed was taken to custody on 14.8.1987 on a complaint given by Smt. Rathna claiming to be the Principal of Sanjay Gandhi College of Education. But as rightly stated by A2 in Ex.P.159, there is no evidence to conclude that Rasheed was taken to custody of High Grounds Police on 16.8.1987. Therefore, this statement of A2 cannot be taken to prove the offence under Section 218 I.P.C. The next one is Ex.P.177,parawise remarks submitted to the High Court of Karnataka in W.P.No.79/87 by A2 on 30.8.1987, wherein he speaks about the case registered between the parties, arrest of M.A. Rasheed and his production before the II Metropolitan Magistrate Court, Bangalore and Rasheed coming to the police station on 16.8.1987 with an allegation that Sadhasivam's people assaulted him and about 9.45 hours, he received a telephone from Sandhya Lodge from Rasheed and he sent P.K. Nair A.S.I. These statements were not held to have been proved to be false in the light of the evidence discussed supra. Of course on 16.8.1987, according to the version of the accused, Rasheed came to the Police Station and thereafter, with the assistance of A.S.I., P.K. Nair, his suitcase was recovered and later he was sent to Sathyaprakash Lodge. Therefore, it cannot be said that this statement was made by A2 in Ex.P.177 with a view to save any person from legal punishment and it cannot also be said that this statement has been framed incorrectly. Insofar as the statement made by A2 in Ex.P.177 that he received telephonic message from Rasheed telling him that he was going to his native place to see his children, there is no contrary evidence to show that Rasheed had not spoken to A2. This circumstance alone cannot be taken to hold that A2 committed an offence under Section 218 I.P.C.
45.Coming to A.11, the documents relied on are Exs.P.157, 118B and 160. Ex.P.157 is a press note said to have been framed by A.11, wherein, it is stated that assault of Rasheed by High Grounds Police is far from truth and on the complaint of Smt. B.M. Ratna, Principal of Sanjay Gandhi College of Education, Rasheed was found misbehaving with the Principal and he was in fact overpowered by the members of the staff of the college and later handed over to the High Grounds Police on 14.8.1987 at about 9.45 hours. This cannot be said to be incorrect record at all, in the absence of any proof that there was no complaint by Smt. Ratna, Principal and that the members of the staff of the college did not overpower and hand over Rasheed to the High Grounds Police Station for legal action. The next document is Ex.P.118 B, which is an endorsement made on the warrant, Ex.P.118 issued by the II Metropolitan Magistrate on 21st day of August 1987, wherein A.11 has written that the warrant has been directly sent to C.S. Court by C.I., Chickpet and hence with may be referred. By such an endorsement, it cannot be held that he has committed an offence under Section 218 I.P.C. Ex.P.160 was pressed into service to hold him guilty of the offence. That is the report given by A.11 to the Commission of Police, wherein after narrating the events, he had stated that it was not true to say that Rasheed was taken to custody of the High Grounds Police on 16.8.1987. It has been further written therein that since Rasheed failed to attend the II Metropolitan Magistrate Court on 17.8.1987 as directed by the Court, the Court issued non-bailable warrant dated 18.8.1987 to the High Grounds Police for producing Rasheed on or before 7.12.1987 and responding to a non-bailable warrant, the P.S.I., High Grounds Police Station deputed A.S.I. Shri P.K. Nair and HC 429, Narayanappa to Pattanathitta near quillon, Kerala State on 24.8.1987 and the A.S.I. was yet to report from Kerala. This statement made by him cannot be said to be incorrect one, as there is absolutely no evidence to contradict Ex.P.160. Therefore, we hold that even A11 cannot be held liable for the offence under Section 218 I.P.C.
46. In the result, the State appeal in C.A.No.375/1991 stands dismissed and the appeals in C.A.No.766, 771 and 779/1990 filed by the convicted appellants stand allowed and their conviction and sentence are set aside and they are acquitted. Their bail bonds shall stand cancelled.