CR.A/1301/1999 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1301 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE ANIL R. DAVE HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GOVINDBHAI SHIVABHAI JADAV - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KJ SHETHNA for Appellant(s) : 1, MR KT DAVE, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANIL R. DAVE and HONOURABLE MR.JUSTICE KS JHAVERI Date : 04/04/2007 CR.A/1301/1999 2/38 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE ANIL R. DAVE) This appeal has been filed against the judgment and order dated 30th November, 1999 passed in Sessions Case No. 172/91 by the Addl. Sessions Judge, Kheda at Nadiad. By virtue of the impugned judgment, the appellant-accused has been held guilty of the offence punishable under the provisions of sec. 304 Part-II of the Indian Penal Code and has been sentenced to rigorous imprisonment for 10 years with a fine of Rs.10,000/-, in default of payment of fine, to undergo rigorous imprisonment for 2 years and the appellant-accused has also been convicted of the offence punishable under sec. 331 of the IPC and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo rigorous imprisonment for 1 year. The substantive sentences have been ordered to run concurrently. 2. The case of the prosecution against the appellant-accused was as under: 3. The appellant-accused was serving as a Senior Police Sub-Inspector at Petlad Rural Police Station. On 4th February, 1988, around 2.30 p.m., one Bhupendrabhai Chhotbhai Patel, an accused in Petlad Rural Police Station C.R.-II No. 15/88, against whom an offence had been registered under the provisions of sections 352, 504 and 506(2)of the IPC, had been CR.A/1301/1999 3/38 JUDGMENT arrested. At the time of his arrest, he was found to have consumed alcohol and, therefore, an offence under the provisions of Bombay Prohibition Act, 1949 was also registered against him and he was produced before the Judicial Magistrate First Class, Petlad (for short 'JMFC') on 5th February, 1988 at 3.15 p.m. An application submitted by the appellant-accused seeking remand of Bhupendrabhai Chhotbhai was granted, and in pursuance of the order, the appellant was given custody of Bhupendrabhai Chhotabhai on 5.2.1988 at 3.20 p.m. for 24 hrs. Thereafter, at 2.30 a.m. on 6.2.1988, Bhupendrabhai Chhotabhai was found dead in the police custody and, therefore, an offence had been registered against the appellant and other four persons under the provisions of sec. 330 r/w sec. 34 of the IPC. 4. Due to death of Bhupendrabhai Chhotabhai (who has been hereafter referred to as 'the deceased') in police custody, the widow of the deceased also filed a complaint on 3.5.1988, which had been registered as Inquiry Case No. 72/88, alleging commission of offences under sec. 302 r/w sec. 114, 201, 217, 218 and 221 of the IPC by the appellant and other six accused. In pursuance of the said complaint, an order dated 10.5.1990 had been passed by the learned JMFC, Petlad, ordering that case be registered for commission of offences under sec. 302, 201, 217, 221 and 114 of the IPC by the appellant and other persons. It was also ordered that Inquiry Case No. 72/88, which had been filed by the widow against the appellant and others, be tried alongwith with the chargesheet filed against the accused. CR.A/1301/1999 4/38 JUDGMENT 5. It is worth mentioning at this juncture that applications had been submitted on behalf of accused Nos. 6 & 7, being Circle Police Inspector, Parasnath Shivmandir Pandey (accused No. 6) and Dr. Vallabhdas Somabhai Shah (accused No. 7) below Ex. 9, 10 and 26 praying for their discharge. Upon hearing the concerned advocates, the learned Addl. Sessions Judge, Nadiad, by an order dated 6th August, 1994, dropped the proceedings against the aforesaid two accused for the reason that necessary sanction for their prosecution under the provisions of sec. 197 of Cr.P.C. had not been accorded by the State Government. Thus, the proceedings continued so far as accused Nos. 1-5 are concerned. 6. A charge-sheet dated 25th November, 1994 had been filed against all the accused by the learned Addl. Sessions Judge, Nadiad alleging that on 4.2.1988 at 2.30 p.m. Bhupendrabhai Chhotabhai had been arrested from village Sonav by the accused and from the time of arrest till the time of his death, the deceased was in police custody and the accused had made an effort to get confession from the deceased and in the said process, the deceased was beaten to such an extent that in normal course, the injuries caused on his body were sufficient to cause his death and as a result of the injuries inflicted upon him, the deceased had died an unnatural death in the police custody and, therefore, the appellant-accused had been charged for committing an offence under sec. 302 r/w sec. 114 of the IPC. Alternatively, it was charged that on the aforesaid date, with an intention CR.A/1301/1999 5/38 JUDGMENT to obtain confession from the deceased and to recover the sword, the accused had caused such severe injuries on Bhupendrabhai Chhotabhai, which in its normal course were sufficient to cause his death and as a result of the said injuries, the deceased had died in police custody and, therefore, the accused were guilty of committing an offence under sec. 331 r/w sec. 34 of the IPC. It is pertinent to note that in pursuance of the aforesaid offences, which had taken place in February, 1988, accused Nos. 1-4 were arrested on 26th January, 1990, accused No. 5 was arrested on 18th August, 1990, accused No. 6 was arrested on 3rd June, 1990 and accused No. 7 was arrested on 13th June 1990. Subsequently, accused Nos. 1-4 were released on bail on 26th June, 1990, accused No. 5 was released on 21st August, 1990, accused No. 6 was released on 6th March, 1990 and accused No. 7 was released on 30th June, 1990. 7. What is significant and peculiar in the instant case is that all the accused are members of the police force and in an attempt to get confession from the deceased, they appear to have inflicted such grave injuries on the deceased, which in normal course were likely to result into death of a person. It is also pertinent to note here that the accused being members of the police force and the investigating agency also being part of the fraternity, leniency appears to have been shown in the course of investigation and possibly for that reason, even though the deceased had admittedly died in police custody, the accused had not even been arrested for a considerably long period of almost 2 CR.A/1301/1999 6/38 JUDGMENT years. 8. For the purpose of establishing the prosecution case in the trial, the investigating agency had examined the following 12 important witnesses: (1)Indiraben Bhupendrabhai Chhotabhai, wife of the deceased, who was subsequently declared hostile, P.W. No. 1 (Ex 61) (2)Dr. Vallabhdas Somabhai Shah, Medical Officer, (who was accused No. 6 initially), who had performed the first post-mortem at Petlad, P.W.No. 2 (Ex. 63) (3)Ratilal Somabhai, photographer who had taken photographs of the dead body of the deceased, P.W. No. 3 (Ex. 67) (4)Dr. Kiritbhai Mithawala, who did not perform post-mortem at Nadiad, but referred the dead body for second post-mortem to the Civil Surgeon, Civil Hospital, Ahmadabad, P.W. No. 4 (Ex. 76) (5)Jashbhai Patel, farmer, P.W. No. 5 (Ex. 101) (6)Ratilalbhai Parshottambhai, a farmer, in whose presence the deceased had been arrested, P.W. No. 6 (Ex. 102) (7)Rambhai Laxmidas Patel, a famer, who was taken by police to see the dead body of the deceased when the body was in police custody, P.W. No. 7 (Ex. 103) (8)Udaisingh, Police Head Constable, who was in charge of jail guards from 8 am of 5.12.1988 to 8 am of 6.2.1988(who had turned hostile), P.W. No. 8 (Ex. 107) CR.A/1301/1999 7/38 JUDGMENT (9)Dr. Rathindra B. Deshmukh, who had performed the second post-mortem of the deceased on 7.2.1988 in panel with Dr. Patil, P.W. No. 9 (Ex. 108) (10)Vasantbhai Nagjibhai Solanki, P.S.I., who had accompanied Circle Police Inspector Shri Parasnath Pandey from the night of 5.2.1988 till 6.2.1988 for making investigation with Shri Pandey, who was original accused No. 7, P.W. No. 10 (Ex. 128) (11)Parasnath Pandey, Circle Police Inspector, the Investigating Officer, who was accused No. 7 initially, who had filed an FIR against the accused for commission of offence u/s 302 of the IPC, P.W. No. 11 (Ex. 129) (12)Vijaysinh Ishwarlal, Sub-Divisional Police Officer, who had supervised the investigation, P.W. No. 12 (Ex. 134) 9. In the course of the trial, several important documents had been exhibited and they have been referred to by the learned Addl. Sessions Judge in the judgment. They include documents such as complaint filed by the widow of the deceased, first and second post-mortem reports, inquest panchnama, panchnama of the place where the dead body of the deceased was found in police custody, sketch of place of incident, certificates of medical officers, etc. 10. It is an admitted fact that on Friday, 5.2.1988 at 3.20 p.m., when the application for remand submitted by the appellant had been granted, custody of the deceased was given to the appellant and before completion of 24 hrs. of remand, at 2.30 a.m. on CR.A/1301/1999 8/38 JUDGMENT 6.2.1988 (Saturday), the deceased was found dead in the police custody. The said fact points an accusing finger of suspicion towards the accused police personnel and their complicity in the incident. 11. Indiraben, PW No. 1 (Ex. 61), the widow of the deceased, who turned hostile has mainly stated in her cross-examination that the deceased was her husband, and on 4.2.1988 around 2.30 p.m. he had been arrested by the police and on 5.2.1988 he was produced before the JMFC, Petlad. An application for bail had been submitted by her for release of the deceased. An application for remand of the deceased had been submitted by the police and, therefore, the deceased had not been released on bail. She has stated that the deceased was in the habit of consuming liquor and about five prohibition cases had been filed against him. 12. Prosecution Witness No. 8 (Exh. 107) Head Constable Udaisinh Motibhai, who was in charge of the Petlad Town police lock-up room, where the deceased had been lodged, has stated that the deceased was the only person who was in the police lock-up room at that time. He has made an effort to show that the deceased was not comfortable and was uneasy at night and as he had made a grievance with regard to his bad health, at 11 p.m. on 5.2.1988 two constables had taken him to a hospital and thereafter he was brought back to the lock-up room, but, he was unable to name those two constables. It is also pertinent to note that at the time when the deceased was sent to the hospital, he was quite serious. Except at the time CR.A/1301/1999 9/38 JUDGMENT when he was taken to the hospital, according to the said witness, the deceased had not been taken out from the police lock-up room. Upon perusal of the extract of the lock-up room register (Ex. 130), it can be seen that the deceased was brought to the lock-up room at 5 p.m. on 5.2.1988 and he was found dead at 2.30 a.m. on 6.2.1988. 13. The prosecution has examined the Investigating Officer, Parasnath Pandey, PW No. 11 (Ex 129). The said witness has stated that the deceased was found to have consumed liquor at the time of his arrest and, therefore, his blood had been examined. As the deceased was found to have expired in police custody, he had been entrusted with the investigation of the said incident and the investigation had been supervised by his higher officer, Shri Vijaysinh, Sub-Divisional Police Officer. He had made an effort to take statement of the widow of the deceased, PW No. 1 (Ex. 61) but he could not record her statement as father of the deceased had not permitted the widow to make her statement. It is pertinent to note here that the widow of the deceased, PW No. 1, (Ex. 61) had turned hostile. In the course of his deposition, Pandey has stated that when the deceased was found dead, an inquest panchnama (Exh. 84) was drawn and post-mortem had been conducted by Dr. Vallabhdas Somabbai Shah, PW No. 2 (Ex. 63). Except slight abrasion on left elbow joint, according to the inquest panchnama (Exh. 84) and post-mortem report submitted by Dr. V.S. Shah, P.W. No. 2 (Exh. 63), there was no injury on the body of the deceased. Only when the family members of the deceased had CR.A/1301/1999 10/38 JUDGMENT insisted for a second post-mortem, the dead body was taken to Nadiad, where Civil Surgeon Dr. Kiritbhai Mithawala, PW No. 4 (Ex. 76) and Dr. Macwan did not conduct the second post-mortem but asked the IO to take the body to B.J. Medical College (Civil Hospital) at Ahmadabad, where the second post-mortem was conducted. 14. The most important evidence which has been considered by the Sessions Court is of Dr. Deshmukh, PW No.9 (Ex.108). Upon perusal of the post-mortem report (Exh. 111) submitted by the said witness, it is crystal clear that several serious injuries had been inflicted upon the deceased, which were anti- mortem in nature. As stated hereinabove, the family members of the deceased were not happy with the first post-mortem report submitted by Dr. V.S. Shah, PW No. 2 (Ex. 63) and, therefore, they had requested the Civil Surgeon, Nadiad, Dr. Mithawala to conduct another post-mortem, but as the civil hospital at Nadiad was not having sufficient facilities, Dr. Mithawala had referred the body to the Civil Hospital, Ahmedabad for conducting another post- mortem and in pursuance of the said request, second post-mortem had been conducted by Dr. Deshmukh, PW No. 9 (Ex. 108) and Dr. Patil at the Civil Hospital, Ahmedabad. The anti-mortem injuries which had been found on the body of the deceased have been stated in detail in the post-mortem report (Ex. 111) and in the deposition of Dr. Deshmukh, PW No. 9 (Ex. 108). The said injuries have not been recorded in the first port-mortem report which had been conducted by Dr. V.S. Shah, PW No. 2 (Ex. 63). It is worth noting here CR.A/1301/1999 11/38 JUDGMENT that Dr. V.S. Shah, who had conducted the first post- mortem, was also one of the accused, namely, accused No. 6. But as stated hereinabove, accused Nos. 6 & 7 had to be dropped because of the fact that requisite sanction u/s 197 of the Criminal Procedure Code had not been accorded for prosecuting the said accused. 15. The injuries appearing on the body of the deceased and on the important internal organs, as reflected from the second post-mortem report (Exh. 111) submitted by Dr. Deshmukh, PW No. 9 (Ex. 108), are narrated herein below: External injuries (1) Abrasion present on medial aspect of left elbow, 3.5 cm below the medial epicondyle of the humerus, size 1.5 x 1 cm. (2) Abrasion present on lateral aspect of the left elbow, 1 x 1 cm. (3) A linear abrasion present on left side of back in middle region at T8 level, of 4.5 x .5 cm size. (4) Another linear abrasion 8 cm below external injury No. 3 of size 3.5 x .5 cm. (5) Bruise, reddish blue in colour with swelling present on lower part of back and buttocks and upper part of back of thigh extending from one side to other in Rail pattern, nearly horizontal. Total 9 identified from above downwards. (i)Bruise from mid of right part waist to left lateral waist region, size 28 x 3 cm. (ii)Bruise from upper part of right hip horizontally to left side, horizontal size 33 x 3 cm. (iii)Upper part mid of right buttock to left buttock, size 27 x 3 cm. (iv)Bruise from lateral part of right hip to left CR.A/1301/1999 12/38 JUDGMENT in middle region, of size 30 x 2.5 cm. (v)Bruise on mid of right buttock below (iv), of size 2 x 2.5 cm. (vi)From posterior margin of right greater trocanter... mid part of both buttocks, size 27 x 2.5-3 cm. (vii)Another bruise overlapping (vi) but extending slightly downwards, size 25 x 2.5 cm. (viii)Bruise on lower part of left buttock, of size 9 x 2.5 cm. (ix)Bruise present on upper part of back of left thigh downwards and laterally, of size 15 x 3 cm. Internal injuries Head (1) Ecchymosis of scalp present in anterior part of parietal region, size 5.5 x 4 cm. (2) On internal examination underneath external bruise on buttocks, hips, thigh and on lower part of back-extravasation of blood in muscles of these areas have been observed. Chest Bruising of chest muscles and muscles of anterior abdominal wall seen on chest, in right and left both sides extending from front to lateral sides. Swelling in bruised muscles appreciated. Intercostal muscles on left side, on front and lateral aspects bruised from 2nd to 9th space, left 3rd costal cartilage is fractured. Anterior medial border of left lung is bruised for 6 x 6 cm. Both lungs congested. No incision marks seen on lungs Heart (1) No incision mark or evidence of examination seen on heart and pericardium (2) Atheromatous thickening in left coronary artery is found CR.A/1301/1999 13/38 JUDGMENT (3) A bruise, reddish blue in colour present on heart on anterior wall of right and left side over an area of 5 x 3.5 cm. (If superficial, death may not occur?) (4) This area is bare area of heart. Heart is slightly enlarged, weight of heart 350 gms. (5) Heart is soft, flabby and empty. (6) A haematoma is found on left lower part of chest and abdomen just below abdominal wall from 9th rib to iliac crest, of size 35 x 9 x .7 cm. Stomach is found separate in abdominal cavity, cardiac end tied. Few patches of bruise seen on anterior wall of stomach, size 2 x 2 to 1.5 x 1 cm. Stomach is empty. Small intestine empty but gases present. Large intestine-little amount of faecal matter. Liver (1) Slight cirrhotic changes seen in liver and all organs are bearing P.M. Incision marks (2) All the organs and congested. 16. The Sessions court did not find any reason to disbelieve the aforesaid anti-mortem injuries, which had been inflicted upon the deceased. The said post- mortem had been conducted by a panel of doctors consisting of Dr. Deshmukh, PW No.9 (Ex. 108) and Dr. Patil. Allegations were made by the appellant that certain words had been added in the post-mortem report subsequently by Dr. Patil. The Sessions Court did not find any substance in the said allegation for the reason that the said correction/incorporation had been duly initialled by Dr. Patil and the said incorporation in the post-mortem report was not likely to make any material change which would tilt CR.A/1301/1999 14/38 JUDGMENT the balance in favour of the appellant. The said change, as a result of incorporation of words, has been duly explained by Dr. Deshmukh, PW No. 9 (Ex. 108). 17. Upon appreciation of the aforesaid evidence adduced before the Sessions Court, the Sessions Court delivered the impugned judgment and order, whereby accused No. 1, P.S.I. Govindbhai Shivabhai Jadav, who was handed over custody of the deceased, has been held guilty of offences under sec. 304 Part-II and sec. 331 of the IPC, whereas, in absence of sound evidence, other accused have been acquitted. 18. Learned advocate Shri K.J. Shethna appearing for the appellant-accused has submitted that the charge had been levelled against 5 accused collectively and no evidence has been led by the prosecution to prove that accused No. 1 was the only responsible officer who was guilty of the offences held to be committed by him. 19. He has submitted that the evidence adduced by Dr. V.S. Shah, PW No. 2 (Ex. 64), who had conducted the first post-mortem, denotes that there were no serious injuries on the body of the deceased. According to the learned advocate, the said evidence has gone unchallenged and, therefore, there was no reason for the Sessions court to disbelieve the said evidence. It has been submitted by him that when there were two different post-mortem reports, one referring to anti-mortem injuries and another one not recording any anti-mortem injuries on the body of the CR.A/1301/1999 15/38 JUDGMENT deceased, according to the law laid down by the Hon'ble Supreme Court, the Sessions Court ought to have accepted the post-mortem report which did not refer to any anti-mortem injuries. 20. By analogy, relying on the decision of the Hon'ble Supreme Court in the case of Harchand Singh and another Vs. State of Haryana, AIR 1974 SC 344, he has submitted that when two different sets of evidence are adduced and one of them is in favour of the accused, the court should accept the evidence, which is in favour of the accused. It has been therefore submitted by him that the trial court has committed an error by not accepting the post-mortem report of Dr. V.S. Shah, PW No.2 (Ex. 63). 21. Thereafter it has been submitted by him that the Sessions court has considered the photographs (Exs. 68, 69 & 70) of the deceased, which had been taken by photographer Ratilal, PW No. 3 (Ex. 67), who has stated in his deposition that someone named Kanubhai had taken him to the morgue, at the civil hospital, Ahmedabad, where the dead body of the deceased was lying and he was asked to take photographs of the said dead body. The photographer did not know the deceased. According to the learned advocate, Kanubhai, who had identified the body of the deceased to the photographer, ought to have been examined so as to prove that the photographs were in fact of the deceased. By not examining Kanubhai, the prosecution has failed to establish a vital and necessary link for establishing that the photographs were that of the deceased and of none else. CR.A/1301/1999 16/38 JUDGMENT 22. So as to substantiate his case, learned advocate Shri Shethna has also relied upon the judgment delivered by the Hon'ble Supreme Court in the case of T.V. Eachara Warrier v. T.O. Kunchiraman Nambiar & Ors., 1993 Supp. (3) SCC 381. It has been submitted by him that when some of the accused have been acquitted, there is no justifiable reason for convicting the appellant-accused alone. Relying upon the aforesaid judgment, it has been submitted by him that the learned Addl. Sessions Judge has committed an error while convicting the appellant for the same offence because similar treatment should have been given to the appellant also. As all other accused have been acquitted, there was no justifiable reason for not acquitting the appellant-accused No 1. 23. He has also relied upon the judgment delivered by the Hon'ble Supreme Court in the case of Mohan Singh & Anr. v. State of Punjab, AIR 1963 SC 174 to substantiate his case to the effect that as other accused had been acquitted, the appellant should also have been acquitted. We do not agree with the said submission as facts and law involved in the case relied upon by him have no relevance in this case at all. 24. Learned advocate Shri Shethna has also relied upon the following judgments to substantiate his case: (1)Ram Tahal & Ors. v. The State