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PETITIONER:

HARGOVANDAS DEVRAJBHAI PATEL & ORS.

Vs.

RESPONDENT:

THE STATE OF GUJARAT

DATE OF JUDGMENT: 18/11/1997

BENCH:

M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

Srinivasan, J.

The appellants are police officers. The first of them

was Sub Inspector and the other were Constables. They were

charged with offence under Sections 201, 302 and 302 read

with Section 34 I.P.C. The Court of Additional Session

Judge, Mahesana acquitted them by giving benefit of doubt

and the High Court reversing the said conclusion convicted

them under Section 304 part II and Section 201 read with

Section 114 I.P.C. and awarded 7 years rigorous imprisonment

and 2-1/1 years rigorous imprisonment besides a fine of

Rs.100/- each. There was one other accused by name Ramaji

Sursangji Thakor who died during the pendency of the appeal

in the High Court resulting in its abatement against him.

2.The prosecution case was as follows:

(i) On July 19, 1982, two residents of Bhalesaravas

locality of Vadnagar town came to the police station around

10.30 PM and informed the P.S.I (first appellant) that one

man had entered their mohallah and they had tied him up and

detained there. The first appellant alongwith appellants 2

and 6 and two other constables went in police jeep taking

the two informants with them. They returned within half an

hour with an unknown person. The said person was shouting

all the time. He was saying sometimes that he was serving in

the Railways and sometimes that his father was serving in

the Railways. Appellant 1 to 5 were interrogating that

person who had given his name as Kantuji Mohansing of

Rajpura village (Katosan). He was severely beaten by the

appellants. At that time one Rasiklal Dave (PW 4) a resident

nearby came to the police station and enquired about the

same. He also enquired Kantuji about him and went away. The

said Kantuji became unconscious during the interrogation.

The appellants took him in the police jeep saying that they

were taking him to hospital. As they did not return for more

than three hours, the Head Constable Ramanbharathi

(complainant) tried to contact the Circle Police Inspector

of Kheralu and the D.S.P of Mehesana by phone but in vain.

He made an entry in the Station Diary and sent a wireless

message to police constable Ratansing through constable

Gambhirji. As he was not feeling well he called H.C.

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Vadansing at about 7.10 AM on 20.7.82 and handed over charge

of the police station and went home.

(ii) On 20.7.82 the first appellant had registered an

offence under Section 122 (c) of Bombay Police Act against

one Thakarda Parbatji Bhikhaji of Jagapura who was brought

to the police station in the morning by him. The said

Parbatji was not the man who was interrogated in the police

station on (9.7.82) night. On 21.7.82 some relatives of

Kantuji came to the police station and the complainant

learnt from the m that Kantuji's whereabout were not known

since 19.7.82. On 22.7.82, the complaint lodged a complaint

before circle Police Inspector of Kheralu and on the basis

of the same registered a complaint against the appellants at

the Vadnagar police station for the offence of commission of

murder of Kantuji Mohansing and for concealing the dead body

with a view to screening them from legal punishment.

(iii) Thereafter investigation was started by Circle

Police Inspector and a dead body was found lying in the

judge between Danta and Ambaji. It was in a decomposed

stated and the clothes thereon were similar to those worn by

Kantuji when he was brought to the police station on the

19th. The relatives of Kantuji identified the clothes and

also other articles put on the person of the dead body and

also identified the body to be that of Kantuji. The

appellant were arrested and after completion of

investigation they were chargesheeted.

3. The accused put forward a case that the man who was

brought to the police station on 19.7.82 was one Parbatji

Bhikhaji of Jagapura village and he was taken for

investigation of an offence of house breaking committed in

Bhalesaravas locality and as he was not found to have been

involved in that offence, he was brought back to the police

station in the morning and the first appellant registered a

complaint under Section 122(c), Bombay Police Act. The said

Parbatji is alive and no offence was committed by them.

4. The additional Sessions Judge, Mahesana framed the

following points for determination:

"(1) Whether it is proved that the

dead body found at Trishuliya

Dhata, between Danta Ambaji, on

23.7.82 was of Kantuji Mohansing

Thakor of village Rajpur (Katosan)

Taluka: Viramgam?

(2) If yes, whether said Kantuji

died a homicidal death?

(3) Whether it is proved that

between the night of 19.7.82 and

20.7.82 all the accused or any of

them, with aid and abetment of each

other or by sharing common

intention, had intentionally killed

said Kantuji at vadnagar police

station as alleged?

(4) Whether it is proved that all

the accused or any of them had

thrown the dead body of Kantuji

Mohansing the place from where it

was found with the intention of

screening the offenders from legal

punishment?

(5) What offence, the seven accused

or any of them are proved to have

committed?"

5. The prosecution examined twelve witnesses and marked

several documents. After considering the evidence the trial

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judge answered the first point in the affirmative and points

2 to 4 in the negative. He held on the fifth point that none

of the accused was proved of have committed any offence for

which they stood charged. Consequently he gave benefit of

doubt to the accused and acquitted them under Section 232

Cr.P.C.

6. The state of Gujarat preferred an appeal. The High

Court reversed the conclusion of the trial court and found

the appellants to be guilty. Both the judges of the Division

Bench wrote separate but concurrent judgments convicting the

appellants under Section 304 part II read with Section 114

I.P.C. as well as Section 201 I.P.C. The appellants have

preferred this appeal challenging the same.

7. We have heard learned counsel on both sides at length

and perused the entire record. At the outset, It is to be

noticed that the case rests on circumstantial evidence and

there is no eye witness for the occurrence of the offence.

It has been repeatedly laid down by this Court that

circumstances from which the conclusion of guilt is to be

drawn should be fully proved and those circumstances must be

conclusive in nature to connect the accused with the crime.

All links in the chain of event must be established beyond

reasonable doubt and their circumstances should be

consistent only with the hypothesis of the guilt of the

accused and totally inconsistent with his innocence. In

other words the only inference that could be drawn from the

circumstances should be in support of the case of the

prosecution and wholly incompatible with the innocence of

the accused. It is unnecessary to refer to the rulings on

the subject except to cite a decision relied on by the

learned counsel for the appellant. In State of Punjab Versus

Bhajan Singh AIR 1975 S.C. 258 this Court held that the

circumstancial evidence was suffering from a number of

infirmities and the doctor was unable to find the cause of

death because the dead bodies were in decomposed stage. In

such circumstances the Court opined that it could not be

said that the death of the persons whose bodies were

recovered was homicidal. This Court also observed that

suspicion against accused by itself, however strong it may

be, is not sufficient to take place of proof and warrant a

finding of guilt of accused.

8. Bearing to the above principles in mind if the evidence

in this case in analysed, it is clear that there are several

links in the chain missing and it is not possible to hold

that the established circumstances lead to an irresistable

inference that the accused were guilty of the offence with

which they stood charged.

9. The trial judge has no doubt held that the dead body

found at Trishuliya Dhata between Danta and Ambaji on

23.7.82 was that of Kantuji Mohansingh of village Rajpur,

(Katosan). The said conclusion was identification made with

the aid of the dress and other things found on the body such

as talisman, plastic sandals etc. But there are several

discrepancies in the evidence of those witnesses including

the colour of the dress worn by the person who was brought

to the police station on the night of 19.7.1992. Even

assuming that such discrepancies are not very material,

there are some unexplained factors and unanswered questions

which cause grave doubt on the identification of the body to

be that of Kantuji. According to the evidence of Jayantibhai

Kakubha, a cousin brother of Kantuji, both of them had gone

to Visnagar to consult Dr. Motibhai Chaudhari in his

dispensary with regard to Eczema from which Kantuji was

suffering. As there was a rush of patients in the

dispensary, Kantuji said tat they would come again on the

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next day and therefore both had gone to Visnagar S.T.Bus

station at about 7.30 P.m. in order to return to Rajpur.

According to the witness, Kantuji had boarded a bus which

was proceeding to Vadnagar when he had gone to the water

room for drinking water and he was left behind. Kantuji was

admittedly sufficiently educated so as to read t eh board

displaying the destination of the bus. There was no reason

whatever for him to go to Vadnagar and that too leaving his

cousin brother in the lurch. It is not in evidence that at

that time there was no bus to (Katosan) Rajpur and that one

had to go to Vadnagar and proceed from there to Rajpur. The

prosecution has failed to adduce any evidence on this aspect

of the matter.

10. Secondary, the wife of Kantuji was not examined in

Court who would have been the best person to identify the

dead body to be that of Kantuji. There is no explanation for

not examining her.

11. The doctor who performed the post mortem (PW-1) had

deposed that it was not possible to identify as to whose

dead body it was as the same was highly decomposed. In the

circumstances we are unable to persuade ourselves to accept

the correctness of the finding of the trial judge that the

dead body was that of Kantuji even though it has been

affirmed by the High Court.

12. The position of the prosecution is worse when the

question of identity of the person who was interrogated in

the police station on the 19th is considered. It is the case

of the prosecution that two residents of Bhalesarvas

locality came to the police station at about 10.30 P.M. on

19.7.82 and informed the P.S.I. that they had apprehended

one stranger looking like a gonad and thereafter the accused

went with them to apprehend the said person and brought him

to the police station. PW 7 has been examined by the

prosecution to be one of the persons who reported at the

police station about the stranger who had been apprehended

in Bhalesarvas locality. The other person who accompanied

him whose name is given as Udaiji Mohanji has not been

examined. According to PW 7 the stranger claimed to be a

person belonging to Jagapura and that his name was Parbatji

Bhikaji. According to PW7 he had seen the said man after two

or three days. His evidence has been disbelived by the trial

court as created evidence. Nothing has been suggested to

PW7 as to why he should speak falsehood. He was not treated

as a hostile witness. According to his evidence several

people in the locality were with him and they made the

stranger sit near the electric pole in their Vas when the

said witness and Udaiji Mohanji went to the police station.

There is no reason why no other person from the locality has

been examined to show that the person who was taken to the

police station on the night of the 19th was Kantuji or at

any rate it was not Parbatji.

13. Further, if Kantuji who was a railway servant had by

mistake or because of the exigency of the situation gone to

Bhalesaravas as he got into a bus going to Vadnagar instead

of Rajpur, there is nothing on record to show why he should

go into the mohalla of PW7. It passes one's comprehension

that Kantuji failed to disclose his identity and the fact

that he was a railway servant when the people of the

locality apprhended him and made him sit near the electric

pole. There is also no evidence on record that Kantuji

looked like a goonda.

14. The High Court has placed reliance on the evidence of

complainant PW3, police constable Purushotam PW5 and police

constable Gambhirji, PW-11 besides that of Rasik Lal Dave, a

resident near the police station. A perusal of their

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evidence shows that the witnesses are not speaking the

truth, in particular the evidence of Rasik Lal Dave is

highly artificial and unnatural. As regards the complainant,

the High Court failed to take note of one important

circumstance that he ongaged a lawyer of his own in the

Court of Sessions to represent him. That shows that he took

personal interest in the case. Apart from that the various

contradictions pointed out by the trial court in the

evidence of the said witnesses are very relevant and

material and are sufficient to make it unacceptable. We do

not think it necessary to repeat what the trial court has

pointed out in its judgment in this regard. The High Court

has chosen to differ from the trial) court taking the view

that the contradiction are not material. The High Court has

also proceeded on a presumption that the person whose dead

body was found in Trishulya Dhata was the same as the one

who was taken to the police station for interrogation on

19.7.1982. Even assuming that the person who was taken tot

the police station was no Parbatji, it is not possible to

hold on the basis of the available evidence that Kantuji was

taken to the police station. There is nothing on record to

indicate the offence for which Kantuji was brought to the

police station and interrogated.

15. The most important aspect of the case which is also

clinching, in our opinion is that there is absolutely no

evidence worthy of acceptance to prove that the person whose

dead body was found later was beaten by the accused to such

an extent that he became unconscious. The evidence of PW1

the doctor is that if there are any marks of violence or

wounds on the person either anti-mortem or post mortem, it

could be said so even if the dead body is de-composed. The

same witness has stated clearly that there were no blood

stains or soaking of the blood on the clothes which were on

the dead body. PW 3, the complainant has deposed that the

person who was being interrogated was only slapped by the

accused. He has nowhere deposed that the said person was

beaten. Even Rasik Lal Dave (PW-4) whose evidence has been

found by us to be unworthy of acceptance has not gone to the

extent of saying that he saw the accused beating the person

who was in the police station. No doubt he has deposed that

he told the policed officers that it was not proper to beat

people. That statement of his is absolutely worthless when

he had not stated positively that the accused beat the

person who was at the police station. On the other hand, he

had stated in his cross examination that in his presence

beating did not take place and that the man did not tell him

that he was being beaten.

16. We have no hesitation to hold that the evidence on

record does not support the case of the prosecution that the

accused beat Kantuji when he was being intterrogated at the

police station. If there was no beating the death could not

be said to be homicidal. Unfortunately, the High Court and

failed to note that several links are missing in the chain

of events. Hence, we have to hold that the prosecution has

failed to proved that the accused had committed the offences

alleged against them.

17. Learned counsel for the appellants have rightly pointed

out that the High Court ought to have considered the case of

each of the appellants individually and determined the

extent of guilt of each of them. As we are holding that the

appellants are not guilty of the offences for which they

were charged, it is unnecessary for us to consider the case

of each appellant individually.

18. In the result the appeal is allowed and the judgment of

the High Court in Criminal Appeal No. 765 of 1983 on its

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file is set aside. The appellants are acquitted and their

ball bonds stand cancelled.