CR.A/209/1998 1/74 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 209 of 1998 With CRIMINAL APPEAL No. 203 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================================= 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 ? ========================================================= DALPATSINH GAMBHIRSINH BARAD - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : Criminal Appeal No. 209 of 1998. Mr. KJ Shethna, for the appellant. Mr. RC Kodekar, APP for the respondent – State of Gujarat. Criminal Appeal No. 203 of 1998. Mr. RC Kodekar, APP for the appellant – State of Gujarat. Mr. Adil Mehta, for the respondent Nos. 1 and 3 to 6. Respondent No.2 – since died appeal is abated. =================================================================== CR.A/209/1998 2/74 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 31/01/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Nine accused persons ('A-1' to 'A-9' for short) were charged and tried by the learned Additional Sessions Judge, Ahmedabad City, in Sessions Case No. 97 of 1992 for the offences under Sections 302/34, 201/34 and 193/34 of the Indian Penal Code ('the IPC' for short) on the accusation that on 10.1.1989 A-1 had taken Navinchandra Dahyalal Dholakia on police remand in connection with an offence of theft and during the remand period, A-1 and other accused persons had interrogated the deceased and during the course of the interrogation, by sharing common intention to cause death of Navinchandra Dahyalal Dholakia, all the accused persons tortured him and inflicted multiple injuries CR.A/209/1998 3/74 JUDGMENT with lathi (stick) and committed his murder (custodial death). 1.1. At the end of the trial, A-1 was found guilty of the offences with which he was charged. Therefore, the trial Court, vide judgment and order dated 13.1.1998, convicted A-1 for the offences under Sections 302, 201 and 193 IPC and sentenced to imprisonment for life and fine of Rs.5,000/- i.d., RI for three months for the offence under Section 302 IPC, RI for three months for the offence under Section 201 IPC and RI for one month for the offence under Section 193 IPC. It is also ordered that all the substantive sentences shall run concurrently. The trial Court found A-2 to A-9 not guilty to the offences with which they were charged, therefore, they were acquitted of the said offences by giving benefit of doubt. 1.2. Aggrieved by the aforesaid judgment and order of conviction and sentence, A-1 has filed CR.A/209/1998 4/74 JUDGMENT Criminal Appeal No.209 of 1998 with the aid of Section 374 of the Code of Criminal Procedure ('the Code' for short) challenging the order of conviction and sentence recorded against him whereas State of Gujarat has filed Criminal Appeal No.203 of 1998 challenging the judgment and order of acquittal recorded in favour of A-2 to A-7 by the aid of Section 378 of the Code. 1.3. It may be noted that the State of Gujarat has not filed appeal challenging the acquittal of A-8 and A-9. 2. The prosecution case as disclosed from the FIR and unfolded during trial is as under: 2.1. On 10.11.1989, DB Chauhan, Deputy Superintendent of Police, CID Crime, Gujarat State, Ahmedabad, filed a complaint before the Deputy Commissioner of Police, CID Crime, Ahmedabad, alleging that on 9.1.1989, the Surveillance Squad of Naranpura Police Station CR.A/209/1998 5/74 JUDGMENT consisting of PSI D.G. Barad and other staff members i.e., Head Constable Omkarrao Sankarlal, Badge No. 5142, Head Constable Ramlal Parsottamdas, B. No. 4425, Police Constable Ratilal Surajdhan, B.No. 4917, Police Constable Jesabhai Kabhai B. No. 5011 and Police Constable Vijaysinh Diluba B. No. 2310 had, while on their surveillance duty, at about 17:30 hours intercepted a person named Navinchandra Dahyalal Dholakia, a resident of Lathi, Dist. Amreli, at Navdeep Building Compound, and recovered a Philips transistor radio and camera and on inquiry, as he could not reply satisfactorily, a personal search was carried out from which 3 keys and one scissors was recovered from his possession and, therefore, under Section 102 of the Code, the articles recovered from him were seized and he was arrested under Section 41 (1) (b)(d) of the Code. Thereafter, further investigation was made and during the interrogation said Navinchandra Dahyalal Dholakia had confessed about having involved in theft cases in the area under the Naranpura Police CR.A/209/1998 6/74 JUDGMENT Station and also showed the Akashganga Apartment. He had committed the offence of theft and the camera which was recovered was stolen by him. It was stolen from Block No. 17/204 of Akashganga Apartment wherein one Sudhir Madhavlal was residing. It was also confirmed by Sudhir Madhavlal that he had lodged C.R. No.I-558/88 for offence under Sections 454 and 380 IPC for incident of theft occurred on 13.9.1988 at his premises in the afternoon. Therefore, on the basis of the camera which was recovered from Navinchandra Dahyalal Dholalkia and the place which he had shown for the alleged offence, PSI Barad had arrested him for the said offence on 9.1.1989 at 19:40 hours and proceeded with further investigation. During further inquiry, Navinchandra Dahyalal Dholakia is said to have stated about other muddamal having been kept at Sonal Society, Bungalow No. 17 at Mehsana and, therefore, on the same day in the night PSI D.G. Barad took him with the other members of the staff in Government vehicle. Other members of the staff, i.e., Head Constable Omkarrao Shankarrao, CR.A/209/1998 7/74 JUDGMENT Police Constable Vijaysinh Diluba, Police Constable Jesabhai Kabhai, Police Constable Ashokkumar Dahyabhai had accompanied in a Government vehicle No. GBA 814 which was driven by Yuvraj Uttam and Rajaram Vittal and proceeded to Mehsana. From Sonal Society, Bungalow No. 17 at Mehsana of Navinchandra Dahyalal Dholakia, Barad had recovered muddamal worth Rs. 23,570/- as per muddamal pavti No. 17/89 dated 10.1.1989 in connection with CR No.I-558/88 for offence under Sections 454 and 380 of IPC. 2.1.(i) On 10.1.1989, Navinchandra Dahyalal Dholakia was produced before the Chief Judicial Magistrate at Mirzapur by PSI D.G. Barad within the prescribed period and as other muddamal of other offences was required to be recovered, an application for police custody/remand for a period of 10 days was applied for and the court had granted the remand of accused Navinchandra Dahyalal Dholakia for a period of 7 days i.e. upto 16.1.1989 11:30 hours. Thus, accused Navinchandra Dahyalal Dholakia was in the police CR.A/209/1998 8/74 JUDGMENT custody for the remand. 2.1.(ii) After obtaining the remand as sated above, PSI D.G. Barad accompanied by his staff members, Head Constable Omkarrao Shankarrao, B. No. 5142, Police Constable Vijaysinh Diluba, B. No. 2310, Police Constable Ashokkumar Dahyabhai B. No. 7171 and Police Constable Mansinh Kesarisinh B. No. 4460 and Police Constable Ratilal Surajdhan B. No 4917 took the accused in Government vehicle - Jeep bearing No. 814 with the driver Yuvraj Uttam and Rajaram Vittal from Ahmedabad to Junagadh and had proceeded to Junagadh and reached on early morning 4 O' clock on 11.1.1989. On reaching Junagadh, while making an inquiry for the brother-in-law of Navinchandra Dahyalal Dholakia and as they were not available at the residence and having informed that they had proceeded to Ahmedabad, they again proceeded towards Ahmedabad from Junagadh at 9:30 hours. When they reached near Sarkhej at about 17:30 hours, Navinchandra Dahyalal Dholakia had complained about chest pain CR.A/209/1998 9/74 JUDGMENT and therefore was taken to V.S. Hospital where the doctor on duty declared him dead at 18:00 hours. 2.1.(iii) Thus, Navinchandra Dahyalal Dholakia was in the police custody from 9.1.1989 and on 11.1.1989 at 18:00 hours, when he was taken to V.S. Hospital wherein medical officer declared him dead and therefore an Accident Death Case No. 2/89 as per Section 174 of the Code was registered at Naranpura Police Station, which was investigated by S.P. K.K. Patel, D.C.B. Crime, Ahmedabad. However, as death of the deceased occurred in the police custody, City Sub- Divisional Magistrate, Ahmedabad had also started investigation and after preparing the inquest report, the dead-body was referred to the V.S. Hospital for post-mortem but no exact cause of death was given and as the doctor who performed post-mortem did not disclose the cause of death, viscera was sent to the FSL. Thereafter, the investigation was handed over to CID Crime, Gujarat State as per order of DGP and IGP, CR.A/209/1998 10/74 JUDGMENT Gujarat State, Ahmedabad, wide Order No. G- 1/1909/1/Ahmedabad City/89/2175 dated 6.5.1989. Therefore, investigation was started by CID Crime during which the viscera report was received from the FSL. It was sent to the Medical Officer, who performed the post-mortem and the professor of Forensic Medicines of NHL Municipal Medical College, Ahmedabad vide letter F.M.65/89 dated 6.7.1989 stating “the cause of the death is due to the hemorrhage as a result of the injuries. The death is caused 24 hours before the post- mortem was made and the dead body was brought to the hospital after 8 hours after he expired. The injuries were caused within one day.” Therefore, the post-mortem was performed at 09:45 hours on 12.1.1989 as stated in the post-mortem note and on that basis the death of the deceased had occurred on 11.1.1989 at about 09:45 hours as could be definitely believed. Moreover, vide letter No. F.M. 68/89 dated 11.7.1989 it has been further informed and stated that the injuries caused to the deceased were on the head above nose, face, neck, chest, right hand and both CR.A/209/1998 11/74 JUDGMENT elbow/wrist and the legs as well as all over the body and all these injuries were caused with lathi, danda or such solid substance. Thereafter, by another letter bearing No. F.M. 76/89 dated 25.7.1989 it was also confirmed that death of deceased Navinchandra Dahyalal Dholakia was caused on 11.1.1989 at about 10:00 hours and after about 8 hours, when he expired on 11.1.1989 at about 06:00 in the evening the dead body was brought to the V.S. Hospital. 2.1.(iv) Therefore, on the basis of the FSL report, as stated above, the deceased Navinchandra Dahyalal Dholakia was in the police custody when he died and that it could be definitely believed that due to custodial violence by the police and injuries caused he succumbed to death. 2.1.(v) On the basis of the facts stated hereinabove, the investigation revealed that deceased Navinchandra Dahyalal Dholakia was caught from Navdeep Building compound on 9.1.1989 CR.A/209/1998 12/74 JUDGMENT and at that time he tried to run away and was caught near the compound fencing and during the altercation he fell down and had sustained minor injuries and had abrasions for which a panchnama was made by PSI Barad. However, in the report regarding the arrest of the accused made on 9.1.1989 when he was arrested as per Section 41(1)(b)(d) of the Code, no such mention has been made nor any entry has been made in the station diary of Naranpura Police Station. Further, it is also revealed that the deceased is said to have received minor injuries when he fell down for which he was taken by PSI Barad to a private doctor. Therefore, if he had fallen down on 9.1.1989 when he was first caught and arrested by PSI Barad, then it should have been mentioned by PSI Barad in his report for the arrest and should also have sent it with the yadi to the government hospital for treatment. However, when he was taken for investigation after the death, in order to create a defence the panchnama regarding the injuries have been got up and thereby it is subsequently got up to create a CR.A/209/1998 13/74 JUDGMENT false evidence. Similarly, the say about the treatment by the private doctor also cannot be believed and it is false. Moreover, when the deceased was produced before the Court of Chief Judicial Magistrate, Mirzapur with the report on 10.1.1989, at that time the deceased had not complained about any ill-treatment before the Court as it could be found from the record of the Court. Further, on 9.1.1989 when Police Inspector G.S. Ahuja had seen the deceased at Naranpura Police Station, at that time also the deceased had not complained of any ill-treatment as disclosed to him. Therefore, looking to the injuries it is not believable that such injuries could be caused by falling and therefore viewed from this angle, the injuries were caused to the deceased during 9.1.1989 and 10.1.1989 by police as it is revealed from the record. 2.1.(vi) During the investigation PSI Barad had returned from Junagadh to Ahmedabad on 11.1.1989 and he started in the morning from Junagadh and at that time he had talked to Police CR.A/209/1998 14/74 JUDGMENT Inspector G.S. Ahuja at his residence telephone No. 78202 and this talk was for about 516 seconds, that is, 12 minutes consuming 129 units. This talk could be regarding the death of the deceased. This telephone talk was from the public call booth which is situated near/just behind Junagadh City Police Station and District Police Control is also having STD facility. Therefore, if the talk was a routine matter, then PSI DG Barad could have talked to Police Inspector Ahuja from there. Therefore, the time about death of the deceased mentioned in post- mortem report by the doctor is consistent and believable. 2.1.(vii) Moreover, it is also revealed during the investigation that the father-in-law of the deceased, Ishwarsinh Hemaji Chauhan, had gone from Palanpur to Mehsana on 8.1.1989 to see his daughter Veenaben, wife of the deceased, and at that time it was learnt that the police had come from Ahmedabad accompanied by deceased Navinchandra Dahyalal Dholakia to Mehsana on the CR.A/209/1998 15/74 JUDGMENT same day afternoon. Therefore, deceased Navinchandra Dahyalal Dholakia was in fact detained illegally on 8.1.1989 or before and was shown as arrested as per Section 41(1)(b)(d) of the Code on 9.1.1989 at 17:30 hours in connection with C.R. No.I-558/88, Naranpura Police Station, for offence under Sections 454 and 380 and on the same day on the basis of showing his arrest at 19:40 hours on 10.1.1989, he was produced before the Court of Chief Judicial Magistrate, Mirzapur, for remand and obtained remand for 7 days till 16.1.1989 11:30 hours and while in police station, after obtaining the remand on 10.1.1989 at about 17:30 hours, was taken to Junagadh for investigation and on 11.1.1989 at about 10:00 hours in the morning he died. During this time at any place he was beaten by danda, stick or any blunt substance for eliciting information and/or confession about the offences causing injuries to the deceased all over his body and thereby causing his death and thereafter on 9.1.1989 a false panchnama was got up to bring on record the CR.A/209/1998 16/74 JUDGMENT fact of deceased having fell down to show that the deceased had died as a result of injuries sustained when he fell down and concealed true facts about the death and thereby, in connivance with each other, the accused persons have committed the offence under Sections 342, 302, 330, 114, 196, 201, 202 and 217 of IPC. 2.1.(viii) According to the complainant, the multiple injuries caused by the accused persons in furtherance of their common intention to cause death of the deceased while he was in custody and being interrogated resulted into his death and, therefore all the accused persons have committed the aforesaid offences. 2.2. Pursuant to the filing of the complaint, offence was registered against the accused persons as per the allegations made in the complaint and the investigation was put into motion. On conclusion of the investigation and on receipt of autopsy report as well as report from the Assistant Professor, Pathology and as CR.A/209/1998 17/74 JUDGMENT sufficient incriminating evidence was found against the nine accused persons, charge-sheet came to be filed against nine accused persons for commission of the offences alleged against them in the complaint in the Court of learned Metropolitan Magistrate, Ahmedabad. 2.3. As the offence under Section 302 IPC is exclusively triable by a Court of Sessions, the learned Metropolitan Magistrate, Ahmedabad committed the case to the City Sessions Court, Ahmedabad where it was numbered as Sessions Case No.97 of 1992. Thereafter the said case was transferred to the learned Additional Sessions Judge, Court No.3, City Sessions Court, Ahmedabad. The learned Additional City Sessions Judge, Ahmedabad to whom the case was made over for trial, framed charges against the accused persons for the offences under sections 302/34, 201/34 and 193/34 IPC. The charges were read over and explained to the accused persons. The accused persons pleaded not guilty to the charges and claimed to be tried and, therefore, they were CR.A/209/1998 18/74 JUDGMENT put to trial. 2.4. To prove the culpability of the accused persons, the prosecution has examined as many as 20 witnesses and relied upon their oral testimonies, details of which have been given in paragraph 8 of the impugned judgment and order. The evidence of the relevant witnesses would be discussed hereinafter as and when required. 2.5. In order to prove the charges levelled against the accused persons, the prosecution has also produced 15 documents and relied upon the contents of the same, details of which have also been given in paragraph 8 of the impugned judgment and order, which shall be referred to hereinafter in this judgment as and when required. 2.6. After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused persons the CR.A/209/1998 19/74 JUDGMENT circumstances appearing against them and recorded their further statements as required under Section 313 of the Code. In their further statements, all the accused persons denied the case of the prosecution in its entirety and stated that a false case has been filed against them. However, they have neither produced any evidence nor did they examine any witness in support of their defence. (i) A-1 has filed his detailed written explanation at Ex.102. In his written explanation he has inter alia stated that on account of aggressive action of the mob, the deceased was injured before his arrest. He and his colleagues provided treatment to the deceased from a private doctor only with an intention that he might get best medical treatment. He and his colleagues have not tried to get any medical advise previously and in any circumstances though it is necessary to obtain instructions considering the age of a young person, he and his colleagues CR.A/209/1998 20/74 JUDGMENT have taken immediate action to see that the deceased might get top most medical treatment and advise. If they have committed breach of any so- called rules of the Government it is only with over humanitarian intention to see that the best medical advise is received at the earliest from an expert doctor who has worked in a Government hospital. The physical checkup of the deceased was made from an expert private doctor, Dr. BT Patel before the deceased was taken on remand in police custody from the Court by ignoring the Government rules only on humanity and started for Junagadh. He has stated that it was his humbly belief that the deceased had apprehension that his relatives would know about his unlawful activities. But they had no other way to make his family members aware about his such sordid acts. Therefore, he humbly prayed to consider and examine the chronology of incidents in this case. (ii) A-1 pointed out that the sister of the deceased was residing at Junagadh. So her CR.A/209/1998 21/74 JUDGMENT residence was inquired about by the persons with them. On inquiring whether the deceased's sister was found and she agreed to hand over the stolen muddamal Golden Ornaments?, the deceased felt that his sister was appraised of his such sordid acts and all his relatives would also know about the same. Therefore he was silent and nervous while stating about the same. He came to know about such nervousness in Junagadh. He informed about the same to superior officers at Ahmedabad. They immediately started for Ahmedabad from there as per the instruction of the Officers. (iii) He has further stated that they targeted by night-time when it was the coldest day of the year and the cold was excessive while returning. The deceased was asking them on the way as to “whether his sister was met? What was she saying? Were the ornaments handed over? Was she saying anything for him? etc.” and he was becoming nervous. CR.A/209/1998 22/74 JUDGMENT (iv) While returning to Ahmedabad, they could not know about his death due to cold as he became nervous. Such a habitual criminal sentenced for about thirty offences of theft, is behaving deceitfully sometimes. He was asking aforesaid question again and again by remaining silent many a times. So they brought him to a well equipped Vadilal Sarabhai Hospital at Ahmedabad and got him examined. Only after medical examination they came to know that the person whom they thought to be unconscious was travelling with them dead for any unknown reason from an unknown nearby place. (v) He has further stated that it was impossible that they have beaten the deceased when he was eating. It was also requested as to whether was it possible that they may severely beat a person while giving food to any person for eating..? If they have an intention to harass the deceased, to keep him hungry is not only a physical but the best mental harassment too. It is a medical evidence that food was served upon CR.A/209/1998 23/74 JUDGMENT him sometime prior to death. (vi) He wants only to establish by this fact that his aforesaid act shows his honest awareness towards Government rules as against the allegation of causing harassment. (vii) In the aforesaid circumstances, he respectfully prayed that when the prosecution makes an attempt to refute his flawless character from heresy medical evidence, a chance may be given to prolong flawless career by accepting this evidence. He and his colleagues are innocent. He was produced as an accused for a charge of an unknown death for any unknown reasons. He has stated that it was his humbly belief that it does not transpire from the medical evidence that sudden untimely death has taken place on account of his act. He also believed that ill-intent is endured from the evidence of a Government officer intentionally by collecting the evidence in so-called CR.A/209/1998 24/74 JUDGMENT investigation. (viii) Initially the incident was conveyed to Ahmedabad City Police at Naranpura Police Station. The City police made an inquiry. Then a higher officer assigned this investigation to the City Crime Branch. In the meantime he was transferred to P.T.S. Branch Vadodara, and he filed a petition for stay before the High Court. So an order was passed to assign the investigation to CID Crime Branch. Thereafter the post mortem note for an exact reason of death was obtained after a long time by arrogance of Dr. Kothari and the Superintendent Shri Shah of the V.S. Hospital and an offence of murder was registered against him. He has become victim of the groupism among the higher police officers and doctor's arrogance. (ix)Under the aforesaid circumstances, he has stated that he is innocence. He also stated that indisputably the prosecution has not been able to CR.A/209/1998 25/74 JUDGMENT prove, beyond doubt, the case against him and his colleagues. However, to substantiate any of the explanation, he has not produced any evidence nor did he examine any witness. 2.7. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court held that the prosecution has been able to establish that deceased Navinchandra Dahyalal Dholakia died a homicidal death. It is also held that deceased Navinchandra died when he was in the physical custody of A-1. It