Gujarat High Court
The State Of Gujarat vs Hargovandas Devrajbhai Patel And Ors. on 11 October, 1991
Equivalent citations: 1992CRILJ3598
Author: J.M. Panchal
Bench: J.M. Panchal
JUDGMENT J.M. Panchal, J.
1. This appeal has been preferred by the State of Gujarat against the judgment and order passed by the learned Addl. Sessions Judge, Mehsana dated 30-5-1983 in Sessions Case No. 5/83 acquitting the respondents-accused of the offences punishable under Sections 201, 32 of the I.P. Code or under Section 302 r/w 34 & 114 of the I.P. Code.
2. The respondents-accused are the police officers and respondent No. 1 as PSI while rest of the respondents as police, constables were serving at the relevant time at Vadnagar Police Station, Vadnagar town. The prosecution case, as narrated in the FIR dated 22-7-1982 given by police Head Constable Ramanbharathi Devabharathi P.W. 3 Exh. 30, which is at Exh. 65, is that the complainant H. C. Ramanbharathi was serving as a Head Constable at Vadnagar Police Station. since about one year of the date of the incident. On 19-7-1982, at about 8-05 p.m. he had come on duty as Police Station Officer at Vadnagar Police Station. At that time, PC Gambhirji Bhathiji, P.W. 11 Exh. 47, PC Pursottam Ramji, P.W. 5 Exh. 35 and constable Kakusing Bharatsing i.e. accused No. 5 were also on duty on lock-up Guard (Picket Guard). When the complainant Ramanbharathi resumed his duty as Police Station Officer on 19-7-1982, accused No. 1 was present in his office in the police station and accused Nos. 2 & 6 were also present in the office of the accused No. 1. Complainant Ramanbharathi was sitting in the office. Meanwhile, at about 10-30 p.m., two residents of Bhaleswarvas locality of Vadnagar town had come at Vadnagar Police Station and had talked to accused No. 1 that one man appearing like a "gunda", had come in their locality and they had caught him and had tied him in their maholla. When these two persons informed the accused No. 1 about this fact, one Mr. Laxman B. Patel who is Editor of a periodical being published from Vadnagar town, was also sitting in the office of the accused No. 1. After getting this news, accused No. 2 telephoned accused No. 3 who was serving as constable-driver and who had gone to see the movie in Old Cinema Theatre of Vadnagar and on receiving message from accused No. 2, accused No. 3 also came at the police station. Thereafter, accused No. 1 along with accused No. 2 and 6 and constables Rameshbhai, Mahendrabhai and Devjibhai, went towards Bhaleswarvas in police jeep car taking those two informants with them while complainant Ramanbharathi, two constables Ghambhirji and Pursottam and editor of news paper Laxmanbhai were sitting in the police station and four persons of village Kahipur who were called for interrogation at the police station, were also sitting there and at that time, Deputy Sarpanch of village Kahipur, who had come to the police station to get those persons of Kahipur released, Was also sitting. Within half an hour i.e. at about 11-00 p.m., accused No. 1 and other accused who had gone with accused No. 1 in the jeep car, had come back at the police station bringing one unknown man with them. After they brought that unknown man at the police station from Bhaleswarvas locality, accused No. 1 directed constables Ramesh, Mahendrabhai, Devji and Jaykaran to go on the night round duty in the town. Accused No. 1 and accused Nos. 2 to 4 and 5 were interrogating that unknown man who had given his name as Kantuji Mohansing and had also told that he was resident of village Rajpura. Said unknown man was raising shouts and while shouting, he was also speaking "O. Prahaladsingh, save me. O Nathubha, save me. "Tongue of that man was also stammering while speaking and he was also telling that he was serving in the Railways. As during interrogation, the unknown man was going on, that man was raising shouts, on hearing those shouts, one Rasiklal. P. Dave, PW 4 Exh. 34, residing in the. same maholla in which the police station is situated, had also come in the police station and had also made inquiries from Kantuji and that man had told Rasiklal Dave that he was of Village Rajpur. During the interrogation, said Kantuji Mohansing had become unconscious. As the complainant Ramanbharathi Was not keeping well, he was sitting on the cot in the police station. At that time, accused No. 4 and accused No. 7 who are serving as police constables, had also come at the police station when Kantuji was being interrogated. As Kantuji became unconscious, at the instance of accused No. 1, accused Nos. 4 & 5 had lifted Kantuji bodily and had placed him in the jeep car which was lying outside the police station. Accused No. 3 who was driver of that jeep car, was also present. After putting Rantuji in an unconscious state in police jeep car, accused no. 1 and 2 to 7 went in that jeep car saying that they were going to the hospital and accused No. 1 also told, that he would return from the hospital at the police station. It appears that till 4.00 a.m. of 20-7-1982, none of the accused who had gone in the jeep car taking Kantuji with them, had returned at the police station and so the complainant Ramanbharathi was confused as to what should be done and so he tried to contact Circle Police Inspector of Kheralu on telephone and had also made attempts to contact DSP of Mehsana and Patan on telephone, but he was not able to contact either CPI or DSP of Mehsana and Patan and, therefore, he made an entry as to what had happened during that night and as to how he made attempts to contact superior police officers on telephone. The said entry was made in the police station diary of Vadnagar Police Station and, therefore, he had sent a wireless message by calling Wireless Police Constable Ratansing through constable Gambhirji.
3. It is the further case of the prosecution that thereafter, in the morning, as the complainant Ramanbharathi was not feeling well, he had called HC Vadansing who had come at about 7-10 a.m. on 20-7-1982 and had handed over the charge of Police Station Officer to the said Head Constable and had gone at his house. Said unknown person Kantuji Mohansing, resident of village Rajpur, was strongly built, had dark complexion and was aged about 30 years and he had put on light khakhi colour pant and red colour bushirt with design of dots and had also put on PVC rubber sandles in his legs having brown colour and had also tied two talisamana with a black colour thread around his neck and he was bare headed. On 20-7-1982, accused No. 1 had registered an offence punishable under Section 122(c) of the Bombay Police Act against one Thakarada Parbatji Bhikhaji of Jagapura village and said Parbatji was brought by accused No. 1 in the morning of 20-7-1982, but according to the complainant, said Parbatji Bhikhaji was not the same person who was brought by the accused at the police station on 19-7-1982 at about 11-00 p.m. from Bhaleswarvas locality. The complainant had seen accused No. 1 bringing said Parbatji Bhikhaji in the morning after he left the charge and handed over the charge to HC Vadansing from his house which is just near the police station and he had also seen accused No. 1 preparing papers for the offence punishable under Section 122(c) of the Bombay Police Act and at that time, Parbatji Bhikhaji was also with accused No. 1 and those papers were being written by accused No. 2 as per the dictation of Jamadar Pruthvising of Valasana Out Post. At that time, Jamadar Pruthvising and accused Nos. 2 to 5 were telling said Parbatji Bhikhaji as to what part he had to perform and the complainant had seen all of them doing so from the terrace of his house and this had happened at about 10-00 a.m. on 20-7-1982. On 21-7-1982, some relatives of deceased Kantuji had come at Vadnagar Police Station and from them the complainant had come to know that Kantuji was missing from 19-7-1982 and thereafter, Kantuji's whereabouts could not be traced by his relatives. According to the complainant, said Kantuji who was missing on 19-7-1982, was the same who was brought from Bhaleswarvas locality during the night of 19-7-1982 by the accused at the Vadnagar Police Station and all the accused had taken said Kantuji in an unconscious state from the police station at about 12-00 mid-night and had not returned till the morning and had also not brought said Kantuji back who was taken by them saying that they were taking said Kantuji to the hospital and so, according to the complainant, Kantuji Mohansing had perhaps, died either in the police station or on the way while taking him in the jeep car and with a view to concealing that fact, accused No. 1 had made false case against Parbatji Bhikhaji in the morning of 20-7-1982. The above referred complaint of the complainant was recorded on 22-7-1982 before CPI of Kheralu Mr. Harishchandra V. Zala, P.W. 12 Exh. 48 for the commission of murder of Kantuji Mohansing and for concealing dead body of Kantuji with a view to screening the persons from legal punishment.
4. After registering the offence, CPI Mr. Zala had started investigation and on 23-7-1982, he had come to know from rumours being spread in Kheralu that one dead body was seen lying in the jungle between Dante and Ambaji and so Mr. Zala had gone there and had found dead body in a decomposed state lying in the jungle known as "Trishuliya Ghata" near the way going to Ambaji from Danta. The clothes which were on that dead body were similar to the clothes which Kantuji had put on when he was missing on 19-7-1982 as described by his relatives who had come to the police station on 21-7-1981 and those clothes were also similar in resemblance with the description of the clothes etc. of the unknown person who was brought at the police station by the accused. Therefore, CPI Mr. Zala sent a man at village Rajpura and called relatives of Kantuji and those relatives identified those clothes and other articles put on by the person whose dead body was found as to be the same and which were put on by Kantuji Mohansing at the time when he was missing and they also identified dead body of Kantuji Mohansing. The Medical Officer of Ambaji Govt. Dispensary was summoned at the spot and he performed the post-mortem examination of the dead body at that very place as it was not possible to remove the dead body as it was in highly decomposed state. Thereafter, after necessary investigation, the accused were arrested and after completion of investigation accused were charge-sheeted. The charge-sheet was submitted against the accused in the Court of learned Judicial Magistrate (F.C.) Kheralu.
5. After supplying copies of the police papers, the learned Judicial Magistrate (F.C.), Kheralu, by the order dated 1-1-1983 passed below charge-sheet committed the accused to the Court of Sessions under Section 209 of the Cr. P.C. Thereafter, the learned Judge framed charge at Exh, 3 against all the accused which was read over and explained to them. The accused did not plead guilty to the charge and, therefore, in order to prove the case, the prosecution examined in all 12 witnesses.
6. On appreciation of evidence, the learned Judge recorded the following conclusions :--
(1) The prosecution has been able to prove by definite and cogent evidence that dead body which was found on 23-7-1982 at the place known as "Trishuliya Ghata" between Danta and Ambaji in the jungle, was that of Kantuji Mohansing Thakor of village Rajpura.
(2) The evidence of four witnesses namely complainant Ramanbharathi Revabharathi P.W.3 Exh. 30, Rasiklal. P. Dave, P.W.4 Exh. 34, Police Constable Pursottam Ramji, P.W.35 and Police Constable Gambhirji Bhathiji, P.W.11 Exh. 47 who have said that they had seen unknown person in the police station during the night of incident, is not sufficiently reliable to hold that the man who was brought at the police station by the accused No. 1 and other accused, was Kantuji Mohansing of Rajpura village.
(3) The evidence of witness Samataji Kadvaji, P.W. 7 Exh. 40 which shows that the man who was brought at the police station from Bhaleswarvas, was Thakarda Parbatji Bhikhaji of Jagapura village, is created with a view to creating false evidence and for an ulterior motive of concealing some important facts.
(4) There is sufficient oral testimony in the form of evidence of complainant Ramanbharathi Devabharathi, P.W. 3 Exh. 30. Rasiklal. P. Dave, P.W.4 Exh. 34, Police Constable Gambhirji Bhathiji, PW. 11 Exh. 47 and Police Constable Pursottam Ramji, P.W. 5 Exh. 34 as well as entry Exh. 31 to show that the man who was brought at the police station was severally beaten by the police officers with a view to take out some admissions from that man and that said person had become unconscious and accused No. 1 and other accused had taken him out in a jeep car saying that they were going for treatment of the said man.
(5) The evidence of medical officer who was on duty at the Govt. Dispensary at that time, shows that during the night between 19-7-1982 and 20-7-1982 no person was brought to him in Govt. Dispensary for examination and treatment by any of the accused.
(6) The prosecution has failed to prove that Kantuji Mohansing dead a homicidal death as the dead body was in decomposed state.
(7) Accused No. 1 has admitted that the man who was brought at the police station from Bhaleswarvas by him and his other subordinates during the night had become unconscious in the police station and they had taken that man brought from Bhaleswarvas from the police station at about 12-00 midnight and had not returned to the police station till the morning.
(8) Accused No. 1 had created false case that from Bhaleswarva, one Parbatji Bhikhaji Thakarda of Jagapura village was brought by him at the police station and he had gone out for investigation taking that Parbatji with him during the night.
(9) The entry Exh. 31 which appears to be really a genuine entry made by the complainant Ramanbharathi during the night of incident clearly shows that accused No. 1 had left police station telling the complainant that he was taking the man who had become unconscious for treatment to the hospital. There is nothing on record showing that man was taken by the accused No. 1 at any Govt. Dispensary or to some private doctor for treatment and Exh. 22 which is a Yadi of CPI Mr. Zala dated 20-7-1982 with an endorsement below it shows that no person was brought by the accused in Govt. Dispensary for treatment during the night between 19-7-1982 and 20-7-1982.
(10) A false case was registered against Parbatji Bhikhaji for the offence punishable under Section 122(c) of the Bombay Police Act with a view to concealing some important facts.
In view of the conclusions recorded at Sr. Nos. 2 and 6, the learned Trial Judge gave benefit of doubt to the accused and acquitted the accused of the offences with which they were charged and, therefore, the State of Gujarat has filed the present appeal.
7. Mr. S. P. Dave, learned Addl. P. P. for the appellant State, submitted that the learned Sessions Judge committed serious error in acquitting the respondents of the offences with they were charged. According to the learned Addl. P.P. there is cogent and convincing evidence on the record of the case against the present accused to connect them with the offences in question and chain of circumstantial evidence is so complete that it leads to no other conclusion but only one conclusion that the accused persons are guilty of the offences with which they are charged. The learned counsel for the State further submitted that the evidence of complainant Ramanbharathi P.W. 3 Exh. 30, Rasiklal Dave. P.W. 4 Exh. 34, Police Constable Pursottam Ramji. P.W. 5 Exh. 35 and Police Constable Gambhirji, P.W. 11 Exh. 47, clearly establishes that the person who was brought to the police station in the night of 19-7-1982, was Kantuji and Kantuji alone and, therefore, the finding recorded by the learned Judge being not in accordance with evidence on record, should be reversed by this Court. The learned counsel further submitted that by circumstantial evidence, the prosecution has been successful in proving that deceased Kantuji Mohansing died a homicidal death and, therefore, submitted that the finding recorded by the learned Judge on that count is also erroneous and should be set aside by this Court. The learned counsel submitted that on the overall appreciation of the evidence, the prosecution has been able to establish the case against the present respondents beyond shadow of doubt and, therefore, appeal should be allowed and order of acquittal should be set aside.
8. Mr. S. M. Shah, learned counsel for the respondents as well as Mr. K. B. Anandjiwala, learned counsel, submitted that on true and correct appreciation of the evidence of the above-referred four witnesses, the learned Judge has rightly come to the conclusion that the prosecution has failed to prove that the person who was brought to the police station in the night of 19-7-1982, was Kantuji Mohansing and that prosecution also failed to prove the fact that Kantuji Mohansing died a homicidal death. The learned counsels for the respondents supported the judgment of the trial Court and also submitted that the finding of the fact recorded by the learned Judge to the effect that the prosecution had established the fact that the dead body which was found on 23-7-1982 at the place known as "Trishuliya Ghata" between Danta and Ambaji in the jungle, was that of Kantuji Mohansing Thakor of village Rajpura, was erroneous and submitted that having regard to the facts of the case, even if two views are possible, this court should not interfere with the judgment and order of acquittal recorded by the learned Judge.
9. The learned Addl. P.P. has read over the evidence of all the witnesses in the Court and we have minutely gone through the evidence of each and every witness. We are conscious of the fact that this is an appeal against the acquittal and if this court comes to the conclusion that the view taken by the trial Court is reasonably possible, then this court would not be justified in interfering with the order of acquittal. However, by catena of decisions of the hon'ble Supreme Court, it is now well-settled that High Court has got full power to review at large the evidence upon which the order of acquittal is founded and to reach conclusions that upon such evidence, the order of acquittal should be reversed. But in exercising the powers conferred and before reaching the conclusions upon the facts, we have given proper weight and consideration to such matters as:--
(1) The view of the trial court as to the credibility of the witnesses;
(2) Presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that the accused have been acquitted at the trial;
(3) The right of the accused to the benefit of any reasonable doubt;
(4) The slowness of an appellate court in disturbing the finding of the fact arrived at by a Judge who had an advantage to see the witnesses;
10. The finding and conclusion arrived at by the learned Judge that there is no. sufficient and cogent evidence that on 19-7-1982, Kantuji Mohansing was not brought to the police station by the accused is, in our view, totally unreasonable and not supported by evidence on record. We have carefully and minutely examined the evidence of complainant Ramanbharathi Devabharathi, P.W. 3 Exh. 30 and the evidence of Police Constable Gambhirji Bhathiji. P. W. 11 Exh. 47. The evidence of the above referred witnesses clearly goes to show that the person who was brought to the police station was none else but Kantuji. So also, it becomes clear from the evidence of Police Constable Pursottam Ramji. P. W. 5 Exh. 35 that the person brought to the police station was Kantuji because of the description and identification of the clothes of the deceased, given by the said accused witness. It would be worthwhile to note here that the presence of these police officers at the police station is not challenged and it is most natural. All these police officers were on duty at the relevant time. They are subordinates of accused No. 1 and, therefore, normally, they would not give false evidence against their superior officers and colleague unless there is deep-rooted enmity and strong motive to implicate accused in a serious case, which is not brought on the record of the case. They are neither interested in the deceased nor in the accused and, therefore, their evidence is of independent character and nature and there is no reason to disbelieve the same. They have been subjected to lengthy cross-examination and nothing is brought on record to destroy their credibility. The evidence given by these police officers is natural, probable and in most straight-forward manner, inspiring confidence and, therefore, the learned Judge, in our view, was not justified in disbelieving said witnesses when they said that deceased Kantuji was brought to the police station in the night of 19-7-1982 by the accused.
11. M/s. S. M. Shah and K. B. Anandjiwala, learned counsel appearing for the respondents accused submitted that because of contradictions and omissions to be found in the evidence of complainant Ramanbharathi, his evidence should not be believed. According to the learned counsel, complainant Ramanbharathi had not stated that accused had beaten Kantuji nor he had stated in the FIR that slaps were given by the accused to Kantuji and he had stated in his police statement that unknown man had put on white colour pant and Tipki colour shirt. The learned counsels further submitted that in entry exh. 31. Ramanbharathi has not mentioned the name of Kantuji nor described the clothes put on by Kantuji and, therefore, improvements made during the course of evidence on oath before the Court should be treated as after-thought and should be ignored. Similarly, so far as the witness Gambhirji Bathiji, P. W. 11 Exh. 47 is concerned, the learned counsels submitted that there are several contradictions and omissions as noted by the learned judge according to the learned counsel he had not stated in his police statement that the man who was brought at the police station was giving his name as Kantuji or that the man who was brought at the police station had put on Khakhi colour pant and red colour bushirt having design of checks. So far the above-referred contradictions and omissions are concerned, we are of the view that they are not material at all and are trivial in nature. In fact, minor variations in the accounts of the witnesses are often the hallmark of truth of their testimony. Because of the contradictions and omissions which have been pointed out by the learned counsel for the respondents, the credibility of the witnesses is not destroyed at all. We should not forget that this is a case of death in police custody due to third degree methods and it is generally difficult in cases of death in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police record which they do not find difficult to manipulate. Police has advantage with them of preparing primary record which may "kill" the case against them. This disquieting the set of characteristic, of policemen committing crimes of killing and making perfect paper work case of innocent, said discharge of duties, should not be ruled out when court examines rival versions. In this case, it is to be noted that complainant Ramanbharathi is suffering from TB and his one lung was removed and, when accused No. 1 and other accused did not return to the police station with Kantuji till late in the morning, he got panicky and confused and, therefore, he tried to contact CPI and DSP on telephone and having failed to contact them on telephone, he made entry exh. 31 and having made entry exh. 31, it was not possible even for him to oblige the present accused and but for the entry exh. 31, this whole incident would not have come to light at all. So far as the entry exh. 31 is concerned, we are of the view that it is true that in the entry exh. 31, the name of Kantuji is not mentioned nor description of clothes put on by Kantuji is given, but main purpose of making entry exh. 31 was to make known the fact to DSP that accused No. 1 & other police officers had not returned back to the police station till it was recorded. At that time, it was neither known that Kantuji had died or that an attempt was made to destroy the dead body of Kantuji and, therefore, complainant Ramanbharathi P.W. 3 Exh. 30 had no reason to state all those facts in entry exh. 31. In view of all these circumstances in which entry exh. 31 was recorded, it cannot be said that the omission to mention the name of Kantuji or description of clothes put on by him in the said entry, is of any importance or that it destroys the substantive evidence of Ramanbharathi before the Court.
12. It was submitted that the relatives of Kantuji had seen CPI Mr. Zala on 20-7-1982 and had given all particulars at that time about deceased Kantuji and as the complainant was present there, he came to know about all those particulars which were stated by him later on before the Court and, therefore, no reliance should be placed on his evidence. We may note that there is no substance in this submission at all. The evidence of complainant Ramanbharathi P.W. 3 Exh. 30 and that of Police Constable Gambhirji, P. W. 11, Exh. 47 inspires confidence and we have no reason to disbelieve the same. It is not proved that because they had known particulars about the deceased from his relatives, therefore, they have given particulars about the deceased before the Court. In view of above discussion, we come to the conclusion that the learned Judge was not right in recording finding of fact that the prosecution has failed to prove that deceased Kantuji was brought to the police station in the night of 19-7-1982 and we reverse the said finding of fact.
13. So far as the homicidal death of the deceased Kantuji Mohansing is concerned, relying on the case of State of Punjab v. Bhajansing, AIR 1975 SC 258, the learned Judge has come to the conclusion that Kantuji had not died homicidal death as the dead body was in advanced stage of decomposition. As far as this aspect is concerned, Dr. Madhabhai H. Patel, P.W. 1 Exh. 24, has stated that dead body was severely decomposed and so, it was not possible to detect wounds. Said witness had also stated that no external injuries could be detected as dead body was severely decomposed looking to the post mortem notes exh. 26, and the evidence of Dr. M. H. Patel, it becomes clear that the dead body was infected with maggots and, therefore, also, the marks of violence otherwise also could not have been detected. Homicide is a killing of human being by a human being. In the case of Rama Nand v. The State of Himachal Pradesh, AIR 1981 SC 738, (1981 Cri LJ 298) Hon'ble the Supreme Court of India has held as under at pages 305 & 306; of Cri. LJ.:
It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused "caused the death" of the person alleged to have been killed.
14. Hon'ble Supreme Court has further held as under :
This means that before seeking to prove that the accused is the perpetator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the dead body of the victim or a vital part of it bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. " I would never convict" said Sir Mathew Bale," a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead." This was merely a rule of caution and not of law. But in those times when execution was: the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many Cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old "body" doctrine would open the door wide for many a heinous murderer or to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Hale's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of any eye-witness, or by the circumstantial evidence or by both. But where the fact of corpus delicti, i.e. "homicidal death is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world and absolute certainty is a myth....
So far as the facts of the present case are concerned, it is proved that Kantuji was severely beaten to such an extent in the police custody that he had become unconscious in the police station itself and was removed therefrom on the pretext of giving treatment to him. The evidence of Dr. M. H. Patel, P.W. 1 Exh. 24 shows that the post-mortem was performed on 24-7-1992 and as deposed by him, the death might have been caused within 3 to 5 days which would establish that in all probabilities, death took place on 19-7-1982 i.e. the date on which Kantuji was removed in unconscious state by accused on the pretext of giving treatment to him. It is nobody's case that Kantuji had regained consciousness and had gone to the place from where his dead body was found and, therefore, in our view, by satisfactory evidence, the prosecution has been able to prove beyond reasonable doubt that the deceased Kantuji died a homicidal death.
15. So far as the identification of dead body is concerned, it was seriously contended by the learned counsel for the respondents that the finding of the trial court that the dead body found on 23-7-1982 at the place known as Trishuliya Ghata between Danta and Ambaji in the jungle was that of Kantuji Mohansing Thakor, was not correct. The learned counsel submitted that witness Jayantubha Kakubha, P.W. 8 Exh. 41 is the only person who was examined by the prosecution before the Court to identify the clothes to be put on by the deceased and those clothes were not having any special mark of identification and, therefore, it should not have been held by the learned Judge that the identification of the dead body was proved by the prosecution. We have carefully considered the submissions made by the learned counsel. The evidence of Jayantubha Kakubha, P. W. 8 Exh. 41 clearly shows that he had identified those clothes as having been put on by the deceased Kantuji before the Court. He also identified talisamans put on by the deceased Kantuji. Complainant Ramanbharathi, P. W. 3 Exh. 30 has also identified the clothes as the same which were put on by Kantuji while he was brought to the police station. In our view, the learned Judge has given cogent and convincing reasons for coming to the conclusion that it was the dead body of Kantuji and we fully agree with the same. At this stage, it would be relevant to note that the panchanama Exh. 20 which pertains to identification of the dead body of Kantuji is admitted by the respondents under the provisions of Section 294 of the Cr. P. Code. Even if this court comes to the conclusion that identification is not proved, the same has no consequence in as much as even otherwise in absence of corpus delicti, conviction can be made on reliable and cogent evidence. However, having regard to the facts of the case, we come to the conclusion that it has been proved by the prosecution beyond shadow of doubt that dead body which was found on 23-7-1982 at the place known as Trishuliya Ghata between Danta and Ambaji in the jungle, was that of Kantuji Mohanaing Thakor of village Rajpura.
16. Thus, from the overall appreciation of the evidence, we come to the conclusion that the prosecution has been successful in proving the following facts :--
(1) The evidence of Manubhai Iswarbhai, P.W. 9 Exh. 41 and Bharatsing Mohansing P. W. 10 Exh. 44 shows that Kantuji was serving in Railways as Reserved Trollyman and on 17-9-1982, had put on Khakhi pant and red polyester bushirt with white dots as well as PVC rubber sandles and had boarded the bus for Vadnagar from Vianagar Bus-stop on 19-7-1982 and since then he was missing.
(2) Evidence of four witnesses namely complainant Ramanabharathi Devabharathi, P. W. 3 Exh. 30, Rasiklal P. Dave, P. W. 4 Exh. 34, Police Constable Pursottam Ramji, P.W. 5 Exh. 35 and Police Constable Gambhirji Bhathiji P.W. 11 Exh. 47 clearly establishes that deceased Kantuji was brought to the police station and during interrogation, he was raising shouts and was severely beaten and because of severe beating, he had become unconscious and on the pretext of giving him medical treatment, accused No. 1 and other accused had taken him out of the police station in police jeep car. Thus, deceased Kantuji was last seen alive in the custody of all the accused.
(3) Exh. 22 which is a yadi which has been admitted under the provisions of Section 294 of the Cr. P. Code and evidence of Dr. Deepak C. Shah, P. W. 2 Exh. 18 clearly shows that no person was brought by any of the accused for treatment during the night between 19-7-1982 and 20-7-1982.
(4) Entry Exh. 31 made by the complainant Ramanbharathi, P. W. 3 Exh. 30 shows that till the morning of 20-7-1982, accused No. 1 and other accused had not returned to the police station with jeep car.
(5) Panchanama Exh. 20 which has been admitted by the respondents under the provisions of Section 294 of the Cr. P. Code and the evidence of Jayantubha Kakubha, P. W. 8 Exh. 41, as well as the evidence of complainant and other witnesses clearly establishes that the dead body which was found to be lying at Trishuliya Ghata between Danta and Ambaji in the jungle 23-10-1982 was that of Kantuji Mohansing Thakor of village Rajpura.
(6) No explanation worth the name has been given by the accused as to what had happened to Kantuji after he was taken out of police station by accused and on the contrary, false evidence is created to show that the man who was brought to the police station was not Kantuji but was Thakarda Parbatsing who according to the accused, was arrested for the offence punishable under Section 122(c) of the Bombay Police Act regarding which, ultimately the Investigating Officer submitted "B" Summary which means that the complaint was maliciously false.
17. It is to be noted that case rests on circumstantial evidence and while appreciating the case depending on circumstantial evidence, one has to bear in mind the principles laid down by the Hon'ble the Supreme Court of India in the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 : (1984 Cri LJ 1738). In the above referred case, Hon'ble the Supreme Court of India has observed in para 152 as under at pages 1772 & 1773 :
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) The circumstances from which the conclusion of guilt is to be drawn, should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made :
certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
18. Judged in the light of the above principles, we come to the conclusion that the facts and circumstances proved, have definite tendency pointing towards the guilt of the accused and in the totality unerringly lead to the conclusion that within all human probability, the offence was committed by the accused. The facts and circumstances proved are not consistent with the innocence of the accused at all. In the result, we are of the opinion that the judgment and order of acquittal passed by the learned Judge is contrary to evidence on record and is not based on true and correct appreciation of evidence which is on record and, therefore, we set aside the said judgment and order.
19. So far as commission of offence is concerned, it is to be noted that there is no deep-rooted enmity between the present accused and the deceased. There was no mitive on the part of the accused to kill the deceased. Of course, there may not be intention on the part of the accused persons to kill the person, but with an object of extracting incriminating material from suspected person which may help police in further investigation, accused resorted to third degree treatment which has resulted into tragic death of Kantuji. In our view, therefore, the offence does not fall under section 302 of the I. P. Code, but it falls under Section 304 part-II of the I.P. Code. Further, the accused have tried to destroy the evidence by throwing deadbody of Kantuji in the interior part of Jungle known as Trishulia Ghata between Danta and Ambaji and, therefore they are also held guilty for the offence punishable under Section 201 of the I. P. Code. Evidence on record clearly establishes that the accused persons knew or had reason to believe that an offence had been committed and having got this knowledge, they tried to screen the offence by disposing of the dead body as stated earlier and, therefore, they are held guilty for the, offence punishable under Section 201 of the I. P. Code.
20. For the reasons stated above, appeal is allowed. The judgment and order of acquittal dated 30-5-1983 passed by the learned Addl. Sessions Judge, Mehsana in Sessions Case No. 5/83 is hereby quashed and set aside. The respondents accused are held guilty for the offences punishable under Sections 304 Part-II, 201 r/w Section 114 of the I.P. Code and accordingly, they are hereby convicted for the aforesaid offences. Accused will be heard on the question of quantum of punishment. Office is directed to issue notice to the respondents returnable on 22-10-1991 for hearing them on the point of awarding sentence.
21. In response to the notice issued by this Court to the respondent-accused for hearing them on the point of awarding sentence for the offence punishable under Section 304 Part-II read with Section 201 of the I.P. Code, all the respondents-accused except respondent No. 7 appeared before this court today. It has been submitted by the learned Addl. P. P. Mr. Section P. Dave that respondent No. 7 accused Ramaji Sursingji Thakor met with an accidental death in the year 1987 and the said fact could be ascertained only when notice issued by this Court was sent for service. This fact was not brought to our notice before passing order dated 11-10-1991 whereby this court convicted respondent No. 7-accused along with other respondents accused for the aforesaid offences. However, appeal against respondent No. 7 accused abates and stands disposed of accordingly.
22. We have heard Mr. B. N. Patel and Kirit. I. Patel, learned for the respondents-accused. We have also heard respondents-accused in person. They have also filed affidavit narrating their financial and family circumstances which are ordered to be kept on record. Mr. Patel, learned counsel for the respondents submitted that looking to the age, financial and family circumstances of the accused persons as narrated in their affidavits, lenient view should be taken in awarding sentence to the accused persons.
23. The Supreme Court in the case of Gaurishankar v. The State, reported in AIR 1990 SC 709, has taken very serious view for such offences committed by the police officers when the victim is in police custody. In our view, this is very heinous offence committed by the respondents who are police officers for which they all are equally liable. Maximum sentence provided for the offence punishable under Section 304 Part-II of the I.P. Code is rigorous imprisonment for 10 years while for Section 201 of I.P. Code maximum punishment provided is rigorous imprisonment for one forth of longer term of imprisonment provided for Section 304, Part-II of the I.P. Code and or a fine. However, looking to the peculiar facts and circumstances of the case and in view of the facts and circumstances enumerated in the affidavits filed by the respondents-accused in our view, ends of justice would be met if the respondents-accused are sentenced to suffer rigorous imprisonment for 6 years for the offence punishable under Section 304, Part/II of the I.P. Code and rigorous imprisonment for 2 1/2 years and a fine of Rs. 100/- each, in default of payment of fine, to further suffer rigorous imprisonment for one month for the offence under Section 201 of the I.P. Code. Hence the following order is passed :--
24. Appeal against respondent No. 7 Ramaji Sursangji Thakor is abates and stands disposed of accordingly. Respondents Nos. 1 to 6 accused are hereby sentenced to suffer rigorous imprisonment for 6 years for the offence punishable under Section 304 Part-II read with Section 114 of the I.P. Code. They are also sentenced to suffer rigorous imprisonment for 2 1/2 years for the offence punishable under Section 201 read with Section 114 of the I.P. Code and also to pay a fine of Rs. 100/- each in default of payment of fine to further undergo rigorous imprisonment for one month. Substantive sentences are ordered to run concurrently. Respondents accused are on bail their bail bonds stand cancelled. Accused be taken into custody forthwith. However, at the request of the learned counsel for the respondents-accused, time to surrender to the custody is extended till 23-12-1991. Respondents-accused are directed to surrender to the custody on or before 23-12-1991.