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3. The Petitioner's contention is that on 11th September, 2009 at about 04:00 hours in the morning, the Petitioner heard a knock at her door. Three persons were standing outside. They asked whether Altaf is available. She told them that he is sleeping. All of them came inside her house and on seeing Altaf sleeping they started beating, slapping and kicking him. One of them disclosed that he was Sub-Inspector Khedekar from Ghatkopar Police Station and had come to pick up Altaf for his presence is required by the SHO of Ghatkopar Police Station. She requested him that since the SHO will not be present at the wee hours, she will drop Altaf at the SAT 8-WP-1954-2019.doc Ghatkopar Police Station early morning. P.S.I. Khedekar did not listen to her request and kept on slapping Altaf. Three of them caught hold of Altaf by his collar and back of his pant and dragged him to the auto rickshaw by kicking and punching him constantly. They pulled Altaf's hair and slapped him on his face. They threw him in auto rickshaw and took him to Ghatkopar Police Station. Sub-Inspector Khedekar had told the Petitioner that she should visit the Police Station in the morning. Two Policemen visited Petitioner's house. They told her that she have been called at Ghatkopar Police Station for recording her statement. She accompanied them. On the way she was informed that Altaf has been hit on the head and he was admitted in Rajawadi Hospital. She was taken to Rajawadi Hospital. On reaching Rajawadi Hospital, the Petitioner found her son's body lying on the stretcher. His body had unbuttoned shirt and underwear. His body had bruises. Injury marks were present at his head, hands, arms, back, legs, ears and blood was oozing. Lady Nayab Tahsildar was present. She was recording Panchanama. Petitioner's thumb impression and her elder son's signatures were attested on written and blank papers stating that Altaf's body and Panchanam is required to be sent for conducting postmortem urgently. Postmortem was conducted by panel of five Doctors. Petitioner was SAT 8-WP-1954-2019.doc informed that she will get postmortem report within ten days. Petitioners husband visited J.J. Hospital for collecting Postmortem Report. He was told by hospital authorities that the report has been sent to Assistant Commissioner of Police. Thereafter, it was informed that, Postmortem Report had been sent to New Delhi. ADR report was filed vide ADR No. 184 of 2009. The Petitioner filed complaint agitating about the death of Altaf Shaikh in Police custody and seeking investigation. No FIR was registered.

7. The CBI conducted investigation. Statements of witnesses were recorded. Charge-sheet was filed before the Court of learned Additional Chief Metropolitan Magistrate only for the offences punishable under Section 120-B, 323 and 342 of IPC. The learned Magistrate took cognizance of charge-sheet on 11 th March, 2013.

SAT 8-WP-1954-2019.doc Charges were framed under Section 120-B, 323 and 342 of IPC against the accused. The Criminal Writ Petition No.2613 of 2009 was heard for considering prayer for compensation and vide order dated 19th June, 2014, it was directed that trial Court to dispose of the trial within one year and also clarified that the trial court would be entitled to consider independently the question of compensation. The charge-sheet filed by CBI indicate that, on 11 th September, 2009 the Respondent Nos. 2 to 4 entered into criminal conspiracy with each other, the object of which was for voluntarily causing hurt and wrongful confinement of Altaf Kadir Shaikh. In pursuance of said criminal conspiracy, on 11th September, 2009, the Accused visited residence of Altaf and assaulted him. He was dragged to auto rickshaw. Assault at the hands of Accused resulted into several injuries to him. He was taken to Police Station and confined in enclosure of detection room. The Police did not make any entry in the station diary of Ghatkopar Police Station nor recorded arrest Panchanama. On 11th September, 2009 at 9:00 hours Shri. Zendekar, Senior Police Inspector of Ghatkopar Police Station directed Accused No.2 to wake up Altaf Shaikh. When Accused No.2 tried to wake him up, he did not respond. Altaf Shaikh was taken to Rajawadi Hospital where he was declared brought dead by Doctor at about 9:46 am. Inquest proceedings of SAT 8-WP-1954-2019.doc deceased Altaf were conducted at Rajawadi Hospital by Accused No.4 from 3:00 pm to 3:45 pm on 11th September, 2009 which revealed no fresh external injury, though postmortem report mentions eight external injuries on body of deceased. During investigation exhibits such as CD's of videography and photographs of autopsy, inquest report, histopathology report, neuropathology report etc. were sent to Department of Forensic Medicine and Toxicology, All Indian Institute of Medical Sciences, New Delhi. The three Doctors gave opinion that, injuries mentioned in postmortem report of the deceased are linear abrasions, abrasion and contusions. The abrasions are varying from 0.2 x 0.2 cm to 2 x 0.5 cm and two contusions are of the size of 4 x 3 cm and 2 x 1 cm. Such small injuries are likely to be missed on examination by a non-medical person particularly in an uncleaned dead body. However, Medical Officer may observe them on detailed examination at the time of postmortem examination. The injuries are likely to be better appreciated on proper washing/cleaning of dead body. Smt. Vandana Rane was name as Accused in FIR. However, in view of the opinion of Doctors of AIIMS, New Delhi, she is not being prosecuted/sent up for trial as there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of her to the Court. Smt. Vandana Rane may be SAT 8-WP-1954-2019.doc discharged. After postmortem, brain and viscera of the deceased Altaf Kadir Shaikh were sent for neuropathological, histopathological and chemical examination/analysis at Sir J.J. Hospital, Mumbai and F.S.L. Kalina, Mumbai. Based on above reports, the Doctors, who conducted postmortem issued final cause of death of Altaf Shaikh as 'Death due to Acute Alprazolam and Ethyl Alcohol Toxicity with contusion of scalp with sub-Arachnoid Heamorrhage with pneumonia associated lesion tatty liver.' The opinion of Doctors of AIIMS, New Delhi was obtained about final cause of death on 19th July, 2010 that cause of death could be respiratory failure due to combined additive effect of toxicity of Alprazolam and Ethyl Alcohol and Lung Pneumonia. The above facts disclose commission of offences of criminal conspiracy punishable under Section 120-B of IPC, voluntarily causing hurt punishable under Section 323 of IPC and causing wrongful confinement punishable under Section 342 of IPC by Accused Nos. 1 to 3 (Respondent Nos. 2 to 4). The offence under Section 302, 201 and 330 of IPC are not made out against the Accused in the absence of legal evidence. Sanction under Section 197 of Cr.P.C. has been obtained for prosecution of Accused.

SAT 8-WP-1954-2019.doc

16. The Petitioner's son Altaf Kadir Shaikh died on 11 th September, 2009. It is not disputed that on the date of incident the deceased was at home and that the Policemen had visited his house. It is also not disputed that the deceased was taken into custody by the Police who visited the house of the Petitioner and was purportedly taken to the Police Station for inquiry. On the same day he was found dead. It is not disputed that the deceased died while in custody of Police. The question involved in this case is whether the deceased was subjected to torture / assault by Policemen which has resulted in his death. There cannot be debate that the death of the suspect / Accused while in custody of the Police on account of torture and assault by Police would amount to murder. The complaint was made by the Petitioner alleging that the deceased was tortured by Police which has resulted in death. Cognizance of complaint was not taken by the Police. The Petitioner who is mother of deceased was constrained to approach this Court by preferring Criminal Writ Petition No.2613 of 2009. This Court had made critical observations about the conduct of Police, preparation of inquest, finding of injuries on the body of the deceased and the cause of death. The Division Bench of this Court directed that the case be registered against the concerned Police Officials and persons who conducted inquest for the offences under SAT 8-WP-1954-2019.doc Section 302, 201 and 330 of IPC. The investigation was transferred to CBI. The Apex Court directed that FIR be registered regarding death of Altaf Kadir Shaikh and matter be investigated by CBI without being influenced by any of the observations made by the High Court. FIR was registered by CBI on 27th November, 2009 under Section 302, 201 and 330 of IPC. The CBI filed a charge- sheet under Section 120-B, 323 and 342 of IPC. Thus, the CBI had indicted Respondent Nos. 2 to 4 to the extent of offence of conspiracy, assault and wrongful restraint. The Court of learned Magistrate had thereafter framed the charge. Subsequently protest petition was filed by the Petitioner and at that point of time the learned Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai vide order dated 3rd November, 2014 allowed the protest petition and committed the case to the Human Rights Court i.e. Court of Sessions for trial of offences under Sections 302, 323, 330 and 342 r/w 34 of IPC. It is pertinent to note that the learned Magistrate has taken efforts to peruse the documents on record and after analyzing them proceeded to pass the aforesaid order. It was observed that the Respondent Nos. 2 to 4 are Police Sub-Inspector, Police Head Constable and Police Naik attached to Ghatkopar Police Station. They visited the house of deceased on 11th November, 2009 and it is the prosecution case that the SAT 8-WP-1954-2019.doc deceased was assaulted and dragged into auto rickshaw and wrongfully detained in detention room of Ghatkopar Police Station. He was found dead in the enclosure of detection room. He was shifted to Rajawadi Hospital. He was declared dead. The Court then referred to the external injuries and internal injuries suffered by deceased and the provisional opinion regarding cause of death given by the Doctors at J.J. Hospital and final opinion given by the Doctors who conducted the postmortem. The learned Magistrate also made reference to the opinion of All Indian Medical Institute of Medical Science, Delhi. Reference was also made to the statements of witnesses recorded during the investigation. On analyzing the factual matrix it was observed that, even after taking cognizance of the offences against particular Accused at subsequent stage without resorting to Section 319 of Cr.P.C., the Court has power to direct additional Accused to face the trial and the said analogy referred to the said decision could be applicable in the present case. Reference was also made to Section 216 of Cr.P.C. which empowers Court to alter or add any charge at any time before the Judgment and observed that for exercising such powers recording of evidence is not necessary. It was further observed that the statement of family members of the deceased and neighbours prima facie show that the Accused / Police Official while taking the SAT 8-WP-1954-2019.doc deceased in their custody have mercilessly assaulted him and dragged him in rickshaw and took him to Police Station where he was illegally detained and found dead. The Court took into consideration the report of Doctors at J.J. Hospital who conducted the postmortem and their statements. The Court also referred to reports of Doctors of AIIMS, Delhi and then observed that when there are two contrary opinions of the teams of the Doctors, at the stage of prima facie case the opinion of the Doctors must be given predominance over the opinion given by the other Doctors who have not conducted the postmortem. The Court is not competent to decide as to whose opinion is correct and such question would be decided only in the course of trial by the Competent Court. Only the Competent Court has final voice of such question of facts and the Court is required to find out prima facie case which means possibility of death of deceased by assault. Considering the fact that deceased died in the custody of the Accused, he had two contusions resulting into sub-arachnoid heamorrhage which could be the cause of death of the deceased, prima facie there is sufficient material to show that the deceased died homicidal death which is an offence punishable under Section 302 of IPC. It was also observed that there is evidence to support the charge for an offence under Section 330 of IPC. By assigning cogent reasons and with SAT 8-WP-1954-2019.doc elaborate order the learned Magistrate allowed the protest petition and committed the case to the Human Rights Court / Sessions Court.

24. The postmortem of the victim was conducted by panel of five doctors attached to J.J. Hospital namely Dr. Balchandra Gopinath Chikhalkar, Dr. Gajanan Sheshrao Chavan, Dr. Ashutosh Harshwardhan Meshram, Dr. Anand Parshuram Rajmane and Dr. M. E. Bansude. During the course of investigation, their statements are recorded. Dr. Balchandra Chikhalkar in his statement dated 20 th January 2010 stated that, he has been working in Sir J.J. Hospital, Mumbai for the past twelve years. He has conducted around 4,000 postmortems. According to him on 11 th September 2009, the dean of Grant Medical Collage received a letter from Senior Police Inspector, Ghatkopar Police Station requesting them to form a panel of doctors to conduct postmortem of Altaf Kadir Shaikh. The SAT 8-WP-1954-2019.doc panel comprised of him, Dr. G. S. Chavan, Dr. A.H. Meshram, Dr. M.E. Bansude and Dr. A.P. Raymane, conducted postmortem of Altaf Shaikh. He has referred to external and internal injuries on the body of deceased Altaf Shaikh, which were also reflected in postmortem report. He stated that, no specific odour being perceived him while examining the stomach. Generally on examination of stomach of alcoholic persons under intoxication, they perceived odour of alcohol which was absent in the said case. As per inquest conducted by Naib-Tahsildar, only one old external injury was found on left knee of Altaf Shaikh. Whereas in the postmortem report Eight visible external injuries were noted. The external injuries mentioned in the postmortem report were visible with the neked eye and it did not not require washing to be seen. Secretion was seen coming out of nose of deceased due to severe pulmonary oedema or due to depression of respiratory centers at the time of death. It's cause may be due to respiratory insufficiency or depression. Bleeding was observed from left ear pinna due to the punctured part of the pinna of the left ear. It exhibit signs of external injury caused from hard and blunt object. Contusion present on the left side of back over lumbar region of 4cm X 3cm has been caused due to the impact of hard and blunt object like wooden block or heeled shoes. Contusion present on the right SAT 8-WP-1954-2019.doc tibial tuberosity of size 2cm X 1cm has been caused due to the impact of hard and blunt object like wooden stick. Four abrasions found on shin of right leg are caused due to the frictional dragging force over the rough surface. The other abrasions found on the body are caused due to the frictional dragging force over the rough surface. The contusion found under scalp had high parietal region of 6cm X 5cm in size periosteal deep occurs due to the impact with hard and blunt object. This injury alongwith associated internal injuries of brain can lead to death of person . The contusion found under the scalp at left tempero-occipital region are based of 4cm X 4cm in size periosteal deep occurs due to the impact with hard and blunt object. This injury along with associated internal injuries of brain can lead to death of person. Meninges can be secondary to the impact on head or it can occur due to intoxication. The sub- arachnoid haemorrhage is caused due to the secondary effect of the trauma (impact on the head with hard and blunt object). It will interfere with the functioning of vital centres of nervous system. In some cases sub-arachnoid haemmorrhage may occur due to intoxication but its chances are very limited. Sub-Arachnoid haemmorrhage associated with the contusions under the scalp indicates association of external injury with it. It may lead to the death of person. The contusion found under the scalp at high SAT 8-WP-1954-2019.doc parietal region corresponds to sub-arachnoid haemmorrhage found at the right parietal region whereas contusion found under the scalp at left tempero-occipital region may lead to sub-arachnoid haemmorrhage at the left frontal lobe at the inferior surface. The final cause of death certificate is based on findings by the Forensic Science Laboratory, Mumbai histopathology report and neuropathology report as well as gross postmortem findings. Contusion of scalp with sub-arachnoid haemmorrage due to external injury were observed autopsy. All of them are individual causes and are not linked to each other except contusion of scalp with sub-arachuoid haemmorrage. Death would have occurred as a result of the combination of all causes mentioned in the final death certificate. However, individual causes may lead to death of a person. Contusion of scalp with sub-arachnoid haemmorrage is more likely to cause death. Dr. Gajanan Chavan in his statement dated 19th January 2010 stated that, no specific odour was perceived by him while examining stomach. It is suggestive of no evidence of poisoning and consumption of alcohol. External injuries were visible. Contusion on the right tibial tuberosity is due to impact with hard and blunt object. Abrasions found on the body due to dragging on the rough surface. Contusion found under scalp at high perietal region periosteal deep is due to impact with SAT 8-WP-1954-2019.doc hard and blunt object and it may lead to death of a person. Contusion found under the scalp at left tempero-occipital region periosteal deep due to impact with hard and blunt object and it may lead to death of person. Sub-arachnoid haemorrhage found on left frontal lobe at inferior surface and right parietal region of deceased due to rupture of blood capillaries. It causes irritation of the neurons. Intoxication may lead to sub-arachnoid haemorrhage at terminal level. External injury to the head can also lead to sub- arachnoid haemorhage. Sub-arachnoid haemorrhage can lead to death of person. There are two components for death i.e. acute Alpazolam and Ethly Alcohol Toxicity and the other being the contusions of scalp caused due to external injury. Both these conditions may cause sub-arachnoid Haemorrhage. These two components are possible to cause death individually or collectively of these two components, contusion of scalp with sub-arachnoid haemorrhage is more likely to cause death. Dr. Ashutosh Meshram in his statement dated 25th January 2010 has reiterated the version of the aforesaid doctors. According to him contusion found under the scalp at left tempero-occipital region is due to impact with hard and blunt object and it will lead to death of person. Death of deceased might have occurred due to individual reason or collective reasons as mentioned in the certificate. Statement of Dr. SAT 8-WP-1954-2019.doc Anand Rayamane is similar to the version of other medical officers. Dr. Mahadev Bansude in his statement dated 27 th January 2010 has given similar opinion. According to him contusion found on scalp at high perietal region is due to the impact with hard and blunt object and it can lead to death of person. Contusion found under the scalp at left tempero occipital region due to the impact with hard and blunt object and it can lead to death of person. Sub- arachnoid heamorrhage can be caused due to hard and blunt object on the head or due to acute intoxication. External injury can lead to sub-arachnoid haemorrhage and cause death in person. The death of deceased might have occurred either due to individual reason or on account of collective reasons mentioned in the certificate.