T.P. Naik, J.
1. This accused-appellant Ramdhani Pandey has been convicted by the Third Additional Sessions Judge. Jabalpur, under Section 330 of the Indian Penal Code and sentenced to rigorous imprisonment for a period of three years together with a fine of Rs. 100/- or, in default of payment of the fine, further rigorous imprisonment for a period of one month. He has also been convicted in the same trial under Section 348 of the Indian Penal Code and sentenced to rigorous imprisonment for a period of one year together with a fine of Rs. 100/- or, in default of the payment of the fine, further rigorous imprisonment for a period of one month. The substantive terms of imprisonment have been ordered to runconcurrently.
2. The prosecution case, in short, is as follows. The accused-appellant, who was a Sub-Inspector of Police, was posted as Station Officer, Police Station, Shahnagar, district Panna. in November and December 1966. A corpse was found near & place called 'Dana Baba Ki Bhatia' in the forest near village Kurena. The Identity of the corpse could mot be established as it has decomposed only bones being left.Near the dead body, amongst other things, an empty paper packet of sweets bearing the name 'Khanna Stores, Jabalpur' was found. The accused-appellant, who was in charge of the investigation in respect of the aforesaid death, 'believed it to be the case of a suspected murder and, presumably because an empty paper bag of sweets bearing the name 'Khanna Stores, Jabalpur' had been found near the dead body, came to Jabalpur for further investigation- At Jabalpur he learnt that on 1-11-1966 two reports had been lodged - one (Exhibit P-61) by Mst Harchhatia (P. W. 23), mother of one Phoolchand. at Police Station, Khamaria complaining that her son Phoolchand was missing since 26-10-1966 and that the last she had heard of him was that he had been taken by one Sukku to Pamagar, and the other (Ex. P-60) by Sukku (P. W. 1) at police-station, Ranjhi stating that while he and Phoolchand were going to Bombay by train, Phoolchand got down at Bnusaval and did not enter the train again and had not been heard of since. On the basis of the aforesaid reports and other material, the accused-appellant conjectured that the dead body found in the forest of village Kurena was that of the missing Phoolchand and that his murder had been committed by Sukku (P. W. 1).
The 'prosecution alleges that on 22-11-1966 the accused-appellant went to village Piparia and took into custody Sukku (P. W. 1), and between the period 23-11-1966 to 3-12-1966 kept him under wrongful confinement at police-station, Jabalpur Cantt. where he beat him and tortured him to confess to the commission of the murder of Phoolchand. In the result, on or about 28-11-1966 Sukku (P. W. 1) confessed that he had murdered Phoolchand with the help of Chandansingh (P. W. 28) and Dranari (P. W. 27).
The accused-appellant thereafter took Sukku (P. W. 1) along with Chan-dansingh (P. W. 28) to Panna where they were formally arrested on 5-12-1966 and produced .before the Additional District Magistrate, (Judicial), for remand. Sukku (P. W. 1) was in jail on remand from 7-12-1966 to 27-12-1966. However, before a challan could be filed, Phoolchand (P. W. 24) returned home. Consequently on 27-12-1966 Sukku (P. W. 1) was ordered to be released by the Additional District Magistrate (Judicial), Panna.
3. The first information report (Exhibit P-l) dated 13-1-1967 was drafted by Dutta. Advocate. Jabalpur. and signed by the complainant Sukku (P. W. 1). On its basis an investigation was conducted which resulted in the prosecution of theaccused-appellant for offencesunder Sections 330 and 348 of the Indian PenalCode intheCourt of the ThirdAdditional,SessionsJudge, Jabalpur.
4. The accused-appellant abjured his guilt and pleaded that he had been falsely implicated. He denied having beaten or tortured Sukku (P. W. 1) during investigation. According to him, theconfession made by Sukku (P. W. 1) that he had committed the murder of Phoolchand (P. W. 24) was voluntary and not the result of any beating or torture.
5. The learnedAdditionalSessions Judge, relying on the evidence of Sukku (P. W1) whichaccordingto himwas amplycorroboratedbythe other evidence on record convicted the accused-appellants as stated above.The accused-appellanthas,thereforecome up in appeal against his convictions and sentences aforesaid.
6. The salient facts as stated by the complainant Sukku (P. W. 1) are as follows:
Thathewas an employeeof the OrdinanceFactory.Khamaria andlivedatPiparia;thatPhoolchandalsolived atPipariaandwasdoingthebusiness ofshoe-repairingandpolishing; that on the suggestion ofPhoolchandthat theyshould improve their lot by going toBombayandearningmore money there, he pawned his bicycle for Rs. 110/-; that Phoolchand sew Rs. 50/-in the sole of the shoes of Sukku and the rest of the amount of Rs. 60/-was utilized by them for their journey toBombayby them for their joumey to Bom bay; thattheyleft Jabalpurbytrainwithout informing their people exceptsending a letter to his(Sukku's)wife through one boyRamcharan;thatat Bhusaval railway-stationhe saw that Phookhand was ' brushing his teethon the platform and was wearing his(Suk-ku's) shoes containing themoney; that when the train startedhe shouted to Phoolchand tositin anycompartment at the back buton reaching Bombayhe found thatPhoolchand wasnot in the train; thataftersearching Phoolchand fora couple ofdays, he returnedto JabalpurwherehelearntthatPhool-chandhad not come backhome;and that on or about 28-10-1966, he reported the matter of the missing of Phoolchand from Bhusaval at police-station Khamaria
That on 22-11-1966 he was taken totorture, theaccused-appellantatthe house of Kapoorchand (D W. 3) wheretheaccused-appellant charged him withthe murderof Phoolchand (P.W. 24)and bfat him with a danda, which he carri- ed becausehe wouldnotconfesstoa murder which he had not committed.
That the next morning the accused appellanttookhimtopolice-stationRanjhiwherehewas furtherassaultedwith kicks because he would not agree to confessing to the murder of Phoolchand(P- W. 24)
That at about 3.30 p-m.. the accus- ed-appellant took him to police-station,Jabalpur Cantonment where be was tor tured by being applied electric current from a mechanical machine; that on being so tortured, he confessed that he had killed Phoolchand (P. W. 24); and thatthereafter he washandcuffedand
That he was confined in the lock-upatpolice-stationJabalpurCantt.for aboutseven days and furthertortured till heagreed toconfess that Chandan- singh (P. W. 28) and Dumari P. W. 27)were his associates in the killing;and tnat thereafter he confessed that he had killedPhoolchand (P.W. 24) with theassistance of Chandansingh (P. W. 28)Dumari (P. W. 27)
Thatthe accused-appellant thentookhim topolice station Shahnagarwhere he was kept for about three daysthat hewasthenproducedbeforea Jtfagistrate and remanded to jail custody
That hewasreleasedfrom jail Phoolchand (P. W. 24) had. in the mean-to while returnedhome
7. The evidence of Sukku (P.W. 1)is amply corroborated from the evidence on record a found by the learned Additional Sessions Judge. The corroborated pices of evidence are:
(a) Ex- P-60 corroborates him as tothe circumstances m which he started forbombay by train in the company of Phoolchand (P.W. 24) and the circum-stances under which Phoolchand (P. W. 24) was left behind at Bhuaaval.
(b) Nirasia(P. W. 6), Basantibai (P-W. 7)andBenibai (P.W. 15)corroborate Sukku (P.W. 1)in regardto hisassaultby theaccused-appellant at the house of Kapoorchand(D. W. 3)on 22-11-1966. and they as also Basori(P. W. 17)corroboratehimasregards the beating and torture to him at police station Jabalpur Cantt. They saw Sukku(P. W. 1) confined behind bars.Benibai (P. W. 15) saw her husband (Sukku) being beaten by the accused-appellantand (sic)at nightthey also heard the criesSukku due to agonies caused by torture.
(c) Jhunnilal (P. W. 2). who was thehead-constable moharrir at police-station JabalpurCantt.corroborates himastohis statement that he was taken to the police-stationJabalpur Cantt. on23-11-1966; the fact is also corroborated by Ex. P-21 dated 23-11-1966. the report admittedly sent by the accused-appellant from Jabalpur to his Circle Inspector at Pabai. The report was scribed by Birsingh (P. W. 11) on the dictation of the accused-appellant and the statement of the accused-appellant that he was not aware of its contents was rightly not believed.
(d)Ex. P-l, the first information report sent bythecomplainant (P. W. 1) tothepolice alsocorroborateshim as to the assault and torture to him at police Station Jabalpur Cantt. and also as to the circumstances in which he confessed to the commission of the murder ofPhoolchand (P. W. 24). and also as to the complicity of Chandansingh (P. W. 28) and Dumari (P. W. 27) in it.
(e)Chandansingh (P. W. 28) states that he was also beaten and tortured by theaccused-appellantat police-station Jabalpur and that he and Sukku (P. W. 1) were beaten by the police by turns. He also says that he heard the cries of Sukku (P. W. 1). uttered by him due to the beating and torture he was receiving.
(f)Ex. P-19 dated28-11-1966.the memorandumpreparedbytheaccused-appellantastothe alleged voluntary confessionmade by the complainant (P. W. 1) to him, also corroborates Sukku (P. W. 1); the alleged voluntary statement of Sukku (P. W. 1) containedin Ex. P-49 also corroborates him.
(g)The evidence of Major Pawar (P. W. 10), the Security Officer, OrdnanceFactory, Khamaria contained in Ex.P-37 about Sukku's(P.W.l's) absence from duty from the factoryfrom 23-11-1066to 31-12-1966also lends support to the complainant's (P. W. l's) testimony that from theevening of the 22nd December to 27th December, 1966he was with theaccused-appellant in confinement on a false charge of murder.
8. The aforesaid evidence of Sukku (P. W. 1). as also the evidence which corroborates it. has been believed by the learned Additional Sessions Judge and, in my opinion, there are no good and cogent reasons to disbelieve it. As pointed out by the learned Additional Sessions Judge, the very fact that the complainant Sukku (P. W. 1) had confessed to the murder of Phoolchand (P. W. 24) who. to his knowledge, was last seen, by him at railway-station Bhusawal and whom he had not murdered as the subsequent appearance of Phoolchand (P. W. 24) at Jabalpur amply showed, raises a suspicion that his confession could not be. and was not. voluntary and makes the story of assault and torture narrated by Sukku (P. W. 1) highly probable; and when the evidence of Sukku (P. W. 1) as to the torture and wrongful confinement is also amply corroborated on a number of important and material particulars by the other independent evidence on record, i see no reasontodoubt or discardit.
9. It is, however, contended that the evidence of Sukku (P. W. 1) ought not to be relied on because-
(i) Ex. P-l does not corroborate' it in regard to the alleged beating given to him by the accused-appellant at the house of Kapoorchand (D. W. 3).
(ii) Phoolchand (P. W. 24) gives a different version as to the circumstances in which he and Sukku (P. W. 1) started for Bombay and in which Phoolchand (P.W. 24) was left behind at Bhusaval,
(iii) Nirasia (P. W. 6) Basantibai (P. W. 7). Benibai (P. W. 15) and Basori (P. W. 17). who are alleged to corroborate Sukku (P. W. 1). are closely related to him.
(iv) Durga (P. W. 18) and Keshav (P. W. 19) do not corroborate him as to the assault on him at the house of Kapoorchand(D. W. 3),
(v) there was no corroboration of his statement that he was kicked at police-station Ranihi.
(vi) There were no injuries on his person to account for the alleged beating andtorture,
(vii) he did not complain of the beating or torture to the Additional District Magistrate (Judicial), Panna. before whom he was produced for remand on or about 7-12-1966,
(viii) there were contradictions in the statement of Sukku (P.W. 1). which makes his evidence unnatural and unreliable.
(ix) the police officers Qureshi (P.W. 3) and Birsingh (P.W. ll) attached to police station Jabalpur Cantt. do not corroborate him,
(x) the official records of police station Jabalpur Cantt, also do not corroboratehim. and
(xi) the defence evidence had been wrongly discarded.
10. Thecriticism isarepetition of the criticism made in the trial Court and had been exhaustively answeredby the learnedAdditional Sessions Judge andIquite agreewith him that the criticism had no merit and did not detract fromthevaluetobeattached to thetestimony ofSukku (P.W. 1).
11. ItistruethatEx. P-l does not contain any reference as to the beating of the complainant (P.W. 1)by the accused-appellant at the house of Kapoorchand (D.W. 3) nor at police station Ranjhi; but the report deals specifically withwhathappenedat police station Jabalpur Cantt. wherehe was beaten and torturedand wherehe. as a result, confessed to the Commission of acrimehehad not committed. The allegedomission does not. therefore, necessarily falsify the evidence of Sukku (P.W. 1) on the point. It has also to beremembered thata witness does not needcorroboration on all material points.Ifhe iscorroboratedon some important and material particulars,that is enoughto justifytheacceptance of his testimony. As regards the version of the story given by Phoolchand (P.W. 24) as to the circumstances in which he and Sukku (P.W. 1)started for Bombay, the learnedAdditional Sessions Judge in paragraph20 of hisjudgmenthascorrectlyheld thatSukku's version was more probable and acceptable under the circumstances established in the case. Nirasia (P.W. 6) Basantibai (P.W. 71, Benibai (P.W. 15)andBasori (P-W. 17) are. mo doubt,related tothecomplainant;but that byitselfwouldnot make their evidencesuspect. There is evidencetoshowthat theywereat the houseof Kapoorchand (D.W. 3)as also at Jabalpur Cantt,police station and I see no reason to reject theirtestimony. Durga (P.W. 18)andKeshav (P.W. 19) were both declared hostile and their evidence was held by the learned AdditionalSessionsJudgeasunnaturaland unreliable. The absence of a complaint tothe AdditionalDistrict Magistrate (Judicial) is.no doubt, animportant circumstance;but when his complaints tothe Police Officers at policestation Jabalpur Cantt. had gone unheeded and he was being tortured in their presence or at least in their knowledge. I cannot muchblamethecomplainant, avillage rusticwhom the learned Additional Sessions Judge hascharacterised as a simpleton, when he did not complain to the Magistratewho remanded him to jail custody. In any case, in view of the overwhelming evidence on record, this circumstance alonecannot falsify the testimony of Sukku (P.W. 1),especially when it was amply corroborated by the otherevidenceonrecord. The alleged contradictions in the testimony of Sukku (P.W. 1)havebeen consideredby the learnedAdditional Sessions Judge in paragraph 36 of his judgment and I agree with him that they were not substantial enough to warrant the rejection of histestimony. Thedefenceevidence also, in my opinion, does not help the accused-appellant and was rightly rejected. Much was made of the fact that the PoliceOfficersattached to police station Jabalpur Cantt. andofficialrecords of that police station do not support theprosecution case. Asobserved by the learned Additional Sessions Judge,-. it is a matter of regret that officers holding such responsible posts deposed false things just to save another officer. Admittedly they were aware of the accused's application Ex. D-4 dated 3-12-66 and they made endorsements A to A and B to B on it. After their permission handcuffs and chains were supplied and motor warrants were given. When Sukku. Chandansingh and Dumari were not officially arrested these officers should have refused to supply the handcuffs, the motor warrants and a constable for help. However they did go out of their way and flouted the rules as they were expected to give whatever help the accused needed. I find it difficult to rely on theirtestimony.
It is a sad comment that the police officer witnesses so far forgot their duty and their oaths as to keep back the truth from the court and were party, directly or indirectly, to the atrocities committed in their police station. Their conduct calls for the severest censure. If the guardians of law and order themselves become participants in criminal activities, the very fabric of society would collapse, and it is time we took serious noteof it.
12. The defence of the accused-appellant was that he did not take the complainant into custody on the 22nd but on the 28th of November, 1966, that he formally arrested him on 5-12-1966, and that the confession was free and voluntary. In my opinion, the evidence on record completely falsifies the aforesaid defence. The evidence of Sukku (P.W. 1) read with the evidence of Jhunnilal (P.W. 2). which I see no reason to doubt, fully establishes that Sukku (P.W. 1) was kept behind bars in the police station lock-up right from the day he was brought there, i.e., from the afternoon of the 23rd of November 1966 to the 3rd of December, 1966 when he was removed from there under handcuffs to police station Shahnagar. Exhibits P-7, P-8 and P-9, the rojnamcha entries, were consistent only with such a state . of affairs, even though there was no specific rojnamcha entry with regard to Sukku (P.W. 1) being brought to the police station on the afternoon of the 23rd of November. 1966. The accused-appellant says that the complainant was formally arrested on 5-12-1966. It may be that formal arrest was shown on 5-12-1966; but again it is a matter of concern that the police in their misplaced zeal falsifies the record by not showing a man under arrest when for( all practical purposes his movements are controlled and he is under complete restraint on the orders of the in- vestigating officer. It is also a matter of concern that even after 21 years of :.he inauguration of the Constitution, police officers so flagrantly violate the salutary provisions of Article 22 of the Constitution. The Constitution makers did not envisage that the provisions should be made nugatory by keeping a person under complete restraint and calling it police surveillance and not arrest. In my opinion, whenever a police officer detains a person against his will and restricts his movements, he arrests him within the meaning of Article 22 of 'the Constitution; and if he fails to produce him before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, he shall be guilty of illegally detaining him. punishable under the provisions of the Indian Penal Code, and it shall be no answer to say that he had kept him under surveillance only. As for the defence that the confession was free and voluntary, the circumstances of the case completely belieit
13. In my opinion, the convictions of the accused-appellant are quite justified and are hereby affirmed. The sentence also calls for no interference.
14. The appealis dismissed.