On Wednesday, the Mumbai Sessions Court rejected a plea by Asiya Begum, the mother of Khwaja Yunus, to add the names of four police officers as accused in the case pertaining to his alleged custodial death.

Readers would recall that Yunus had been named as an accused in the 2002 Ghatkopar blast case, where a bomb placed on a BEST bus exploded killing two and injuring 50 people on December 2, 2002. 27-year-old Sayed Khwaja Yunus Sayed Ayub, originally from Parbhani district in Maharashtra, worked as a software engineer in Dubai. He was arrested from Chikaldhara in connection with the case. According to the police, he allegedly escaped while being transported to Aurangabad.

But a Crime Investigation Division (CID) inquiry revealed that he had actually died in police custody in January 2003. The inquiry had indicted four policemen including ‘encounter specialist’ Sachin Vaze and constables Rajendra Tiwari, Rajendra Nikam and Sunil Desai. They have been charged with murder, voluntarily causing grievious hurt to extort confession, fabricating evidence and criminal conspiracy.

Trial in the custodial death case commenced at the Mumbai Sessions Court in 2017 where Dr Abdul Mateen, who was previously a co-accused in the Ghatkopar blast case and was subsequently exonerated, deposed that he saw Khwaja Yunus being beaten mercilessly till he vomited blood.

In 2018, Special Public Prosecutor Dhiraj Mirajkar had filed a plea seeking the addition of names of four more policemen to the case, namely – ACP Praful Bhosale, senior police inspectors Rajaram Vhanmane, Hemant Desai, and serving policeman Ashok Khot. This was after a witness named them and said that they had assaulted Yunus. But Mirajkar was then sacked by the government, allegedly for moving this plea. Pradip Gharat took over as the new SPP this year and sought to withdraw Mirajkar’s application.

According to the Indian Express, Gharat told the Sessions Court that the Bombay High Court had in 2012 rejected Asiya Begum’s plea challenging the lack of sanction to prosecute the four policemen and others, and the appeal against this decision was pending before the Supreme Court. Therefore, the matter pertaining to addition of the new names could not be decided until the outcome of that matter.

On Wednesday, Additional Sessions Judge VM Pathade allowed for the withdrawal of the prosecution’s plea.

It is noteworthy that at the previous hearing on August 25, Asiya Begum had filed a separate plea through advocate Chetan Mali to include the names of the four policemen as accused in the case. India Today quoted an excerpt from the plea: “The evidence clearly shows that they (proposed accused) have committed the offence. They must be tried in the interest of justice. All the proposed accused were named in the chargesheet, and it was only because of absence of sanction by the state to prosecute these men that the prosecution against them did not proceed.” But the Sessions Court rejected this plea on Wednesday as well.

Related:

Suspension order of accused cops revoked, Khwaja Yunus’s mother moves Bombay HC

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In Pravat Chandra Mohanty and Ors v State of Orissa (CRA No. 207/210 of 1988), the Orissa High Court has directed two ex-police officers to serve simple imprisonment for a month for offences of acting in furtherance of a common intention and voluntarily causing hurt under the Indian Penal Code.

Simple imprisonment of one year has also been imposed on the appellants for voluntarily causing hurt by deadly weapons under the Code. They have also been directed to serve simple imprisonment for another three months for fraudulently using forged documents.

Further, Justice S.K Sahoo directed the the State Government to pay Rs.3,00,000/- in favour of the legal representatives of the deceased within a period of one month from the date of this judgment, i.e. November 9, 2020.

Senior Advocate Yasobant Das and Devasish Panda appeared for the appellants. Additional Government Advocate Lalatendu Samantaray represented the State.

Observing that it is a thirty-two-year-old case of custodial violence, the court said, “Custodial violence on a person which may sometimes lead to his death is abhorrent and not acceptable in a civilised society and it is a crime against humanity and a clear violation of a person’s rights under Article 21 of the Constitution of India.”

“Police excesses and maltreatment of detainees, under trial prisoners or suspects tarnishes the image of any civilised nation. Stern measures are required to be taken to check the malady against those police officials who consider themselves to be above the law and bring disrepute to their department, otherwise the foundations of the criminal justice delivery system would be shaken and common man may lose faith in the judiciary”, Justice Sahoo added.

Referring to the Supreme Court judgment Nilabati Behra (smt) @ Lalita Behra v State of Orissa 1993 (2) SCC 746, where the top court opined that even convicts, prisoners and undertrials cannot be denuded of their fundamental rights under Article 21 of the Constitution of India, the Orissa High Court noted, “Act of custodial violence reflects tragic state of affairs indicating the apparent disdain of the State to the life and liberty of individuals, particularly those in custody and relief could be moulded by granting compensation to the next of kin of the deceased.”

Matter before the court

The Single-judge Bench was hearing criminal appeals by former inspector and senior sub inspector in a case pertaining to a person’s custodial death during an illegal confinement at Purighat police station in Cuttack in 1985.

In August 1988, the Assistant Sessions Judge -cum- Additional Chief Judicial Magistrate (Special), Cuttack had convicted the appellants for culpable homicide not amounting to murder under the Indian Penal Code and sentenced them to rigorous imprisonment for five years and eight years respectively.

They were also sentenced to a maximum sentence of three years rigorous imprisonment for offences of fraudulent preparation of FIR, wrongful confinement and voluntarily causing hurt.

Both appellants had filed criminal appeals in the High Court of Orissa and were subsequently released on bail in August and September, 1988.

Keeping in mind the age of the appellants and that “occurrence in question took place thirty five years back and the appellants must have suffered immense mental agony and pain facing criminal proceeding for a considerable period”, the court acquitted both officers of charges of culpable homicide not amounting to murder and reduced the maximum sentence of three years rigorous imprisonment to one year simple imprisonment for other charges.

On the issue of why the imposition of sentence was necessary, Justice Sahoo opined, “One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The quantum of sentence imposed should not shock the common man. It should reflect the public abhorrence of the crime. The Court has a duty to protect and promote public interest and build up public confidence in efficacy of rule of law.”

Accordingly, their criminal appeals were disposed of and were directed to surrender before the learned trial Court within two weeks from the date of the judgment for undergoing the remaining period of sentence.

The judgment may be read here: 

Related:

India’s dark history of custodial abuse
Custodial killings in Kerala: Deconstructing facts
Madras HC orders Judicial Magistrate to conduct inquiry into alleged custodial deaths in Tuticorin

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