This acquittal appeal is directed against the judgement and order of the Additional Sessions Judge, Baroda dated 31.3.1984 passed in Sessions Case No. 76/80 acquitting all the seven accused, who were charged for the offences punishable under Section 330 read with Section 34 and Section 304 Part II read with Section 34 of the Indian Penal Code. The prosecution version was that on 18th February, 1980 in the evening, a cycle repairer Fatehsinh Raisinh was brought to Sayajiganj Police Station for interrogation in connection with an offence under Section 379 of the Indian Penal Code registered as C.R No.29/80 on an allegation that there was a theft committed of a cycle. Fatehsinh was handed over by PSI Waghela to the accused No.1 PSI Gopalrao Bavrao Mohite, who was in-charge of the Cycle squad and was interrogated. According to the prosecution, accused Nos. 2 to 7 were also in the Cycle squad and during the night between 18.2.1980 and 19.2.1980 before 2.00 A.M, 15 injuries were caused to Fatehsinh during his interrogation in Police custody as a result of which he died. According to the prosecution, the injury on the head with internal haemorrhage and the other injuries caused by the accused persons in furtherance of their common intention to Fatehsinh while he was in custody and being interrogated resulting in his death, and therefore, all these accused have committed the aforesaid offences.
2.The charge-sheet was submitted on 27.3.1980 against all the accused and they were committed to the Sessions Court on 30.6.1980. These accused were tried earlier by the learned Assistant Sessions Judge, Baroda, who acquitted them, holding them not guilty, by judgement and order dated 23rd October, 1980. A Revision Application was preferred against that decision by the original complainant in Criminal Revision Application No.126 of 1981 which was allowed by a Division Bench of this Court by its judgement and order dated 21st September, 1983 and the order of acquittal of all the seven accused persons was set aside and the matter was sent back with a direction to hold a retrial in the light of the directions given in the judgement. The decision of this Court ordering retrial of the matter was challenged by the accused persons before the Supreme Court and the Supreme Court by its order dated 13.2.1984 in S.L.P (Criminal) No. 100/84, dismissed the Special Leave Petition by observing that any observation made by the High Court being for the disposal of the case, will not prejudice either party at the trial. The prosecution as well as the defence led evidence again before the trial Court and the Additional Sessions Judge, by the aforesaid judgement and order dated 31.3.1984, acquitted all the accused.
3.The trial Court held that there was no evidence to show as to at what time the interrogation of Fatehsinh had taken place after he was handed over to the accused No.1 PSI G.B Mohite by PSI Vaghela around 8.00 P.M. It was held that the possibility of deceased Fatehsinh having been injured earlier in some quarrel could not be ruled out. It was also held that the prosecution had not ruled out existence of any injury on the person of Fatehsinh before he was brought to the Police Station. According to the learned Judge, the prosecution should have shown that Fatehsinh was not having any injury on his body at the time when he was brought to the Police Station. It was further held that the Police witnesses PSI Vaghela, PSI Vohra or PSI Srimali did not disclose any fact which would go to show that the accused No.1 PSI G.B Mohite had caused any injury to Fatehsinh during his interrogation. It was held that there was nothing on record to show that the accused Nos. 2 to 7 had interrogated Fatehsinh. It was further held that there was nothing to show that the accused Nos. 2 to 7 were in any way involved in the crime and there was no reliable evidence to hold that they were actually working in the Cycle squad. The trial Court came to a finding that Fatehsinh appears to have died while he was being taken to the hospital at 2 A.M on 19.2.1980 after he had complained of chest pain and suffocation pursuant to which the accused No.1 gave a report to PSI Vohra who sent yadi Ex.66 to the hospital recording this fact. It was held that there was no evidence to show that during interrogation, Fatehsinh was beaten up by any of these accused persons and there was no evidence to connect them with the crime. It was held that there was no direct or substantial evidence on the basis of which these accused persons could be arraigned and that merely because death of Fatehsinh occurred while he was in custody, the guilt of these accused could not be inferred.
4.The trial Court has held that death of Fatehsinh was homicidal. The point that arises for our consideration therefore is, whether while Fatehsinh was in Police custody for interrogation in connection with theft of a cycle, the accused No.1 PSI G.B Mohite and other accused persons of the Cycle squad caused injuries to him while being interrogated, resulting in his death and thereby committed offences under Section 330 read with Section 34 and under Section 304 (2) read with Section 34 of the Indian Penal Code.
5.The appeal has abated against the respondent No.7 Adarsinh Bhadubhai vide order dated 16.9.93, since he had passed away during the pendency of the appeal. The respondent No.2 has been served. The learned Senior Counsel Mr. N.D.Nanavati appears for the other respondents.
6.The learned Public Prosecutor has contended that the trial Court has overlooked the important circumstantial evidence and the impact of the medical evidence, which clearly point to the guilt of the accused persons. He contended that the fact that death of Fatehsinh had occurred while in custody was amply borne out from the evidence on record. He argued that from the fact that as many as 15 injuries were found on the body of Fatehsinh which were proved to be ante-mortem injuries, it could safely be inferred that the injuries were caused by more than one person and they were caused while he was being interrogated. It was contended that there was cogent evidence to show that Fatehsinh was hail and hearty when he was brought to the Police Station for interrogation. It was further contended that the presence of accused Nos. 2 to 6 at the Police Station was established by the evidence of PSI Shrimali, who had taken the body of Fatehsinh to the hospital. It was submitted that from the evidence of Shrimali, it was clear that these accused persons belonged to the Cycle squad headed by PSI Mohite and they were with PSI Mohite at the time when Fatehsinh was taken to the hospital. It was also contended that attempt was made by PSI Mohite to cover the crime by concocting a version that Fatehsinh had complained of chest pain and causing an entry to be made to that effect in the Station diary on the basis of his report. It was submitted that circumstantial evidence coupled with the fact that accused persons had put up a false defence, clearly point to the guilt of all these accused persons.
7.The learned Senior Counsel Mr.N.D.Nanavati appearing for the accused submitted that the role of PSI G.B. Mohite and the role of accused Nos. 2 to 6 should be examined separately. He submitted that there was nothing to show that accused Nos. 2 to 6 were all present at the time when PSI Mohite was interrogating Fatehsinh. He argued that it was not established as to at what time accused Nos. 2 to 6 had reported for duty and merely from the fact that they had accompanied PSI Shrimali and PSI Mohite to the hospital at 2.00 AM on 19.2.1980, it cannot be inferred that they were present at the Police Station all throughout the period of Fatehsinh's custody with PSI Mohite. It was contended that even if it was held that they were in the Cycle squad, it was not clear as to which from amongst these accused Nos. 2 to 6 was actually present at the time of interrogation or at the time of causing injuries to Fatehsinh. It was further argued that there was indication in the prosecution evidence itself that Fatehsinh had sustained some injuries prior to his being brought to the Police Station and therefore the possibility of he being injured before being entrusted to accused No.1 PSI Mohite could not be ruled out and therefore even PSI Mohite cannot be held to be guilty for causing injuries to Fatehsinh. It was therefore, contended that there was no material against these accused persons to connect them with the crime.
8.The medical evidence consists of Dr. Ramanlal Khusalbhai Patel, who has deposed at Ex.55. The Postmortem Notes are at Ex.56. Opinion of Dr. Ramanlal K. Patel in his letter dated 1.3.1980 is at Ex.57. The deposition of Dr. Ashok Bhatt, P.W. 15 who had declared Fatehsinh to be dead when he was brought to him from the Police Station after 2.00AM on 19.2.1980 is at Ex. 92 and Ex.93 is an entry from the Cold Room Register which was made by him.
9.The fact that Fatehsinh had sustained injuries is clearly borne out from the medical evidence on record. These injuries which are described in the Postmortem Notes Ex.56, and corroborate the deposition of Dr Ramanlal K. Patel read as under:-
Column No.17 External injuries:
"(1) Superficial abrasions two of 1/4" x =/8" on the postero medial aspect of right elbow.
(2) Two small superficial abrasions of 1/4" x 1/6"
size on the back of left elbow.
(3) Small Abrasion 1/2" x 1/4" on the front of right upper arm at middle.
(4) Bruise mark and 2" x 1", three on the left scapular region.
(5) Faint contusion 4" x 3" on the right side at the middle of chest of dark brown colour.
(6) Two oblique bruise marks 2" x 1" of dark brown colour at inter scapular region.
(7) Faint dark brown contusion 6" x 1" on right buttock.
(8) Faint dark brown contusion 4" x 1" of lower part of right buttock.
(9) Black contusion 1" x 1" on the back of upper part of right thigh.
(10) Two superficial abrasions of 1/2" diameter on front of right knee.
(11) One superficial abrasion of 1/2" x 1/2" on lateral aspect and three on the middle aspect of right knee.
(12) Faint reddish contusion 1" x 1/2" on lateral aspect middle of right thing.
(13) Abrasion and scale formation of black colour of 2" x 3/4" with swelling and redness round about on outer lateral aspect of left thigh.
(14) Small abrasions two on left knee and one on right medial meliobs."
(15) Diffused swelling on the left frontal region.
19. Internal injuries:
Head:
"(1) Haematoma under the scalp at the fronto perietal region;
(3) Subdural haemorrhage in the left side fronto - perietal region and subarachnoid haemorrhage all over the brain and brain stem."
23. Opinion as to the cause of death:
"Cause of death is due to intracranial haemorrhage and multiple bruises."
Dr. R.K.Patel in his deposition Ex.57 has stated that he had carried out the Postmortem examination of the dead body of Fatehsinh on 19.2.1980 between 12.50 PM and 2.30 PM. He has deposed to the external injuries enumerated in item 17 of the Postmortem Note, as also to the internal injuries enumerated in item 19 thereof. He has stated that the contents of the Postmortem notes Ex.56 were correct. He has then in terms deposed that the injuries Nos. 1, 2, 3, 5, 11, 12, 14 and 15 were likely to have been caused within 24 hours while injuries Nos. 6, 7, 8, 9 and 13 could have been caused within 24 to 72 hours. As regards injury No.15, he has stated that he cannot with certainly say that it was caused within 24 hours or within 72 hours. Injury No.15, according to him, was a serious injury. These injuries could be caused by hard and blunt substance. He has stated that all these injuries could not have been caused at a time to a person falling down due to giddiness. He stated that injury No.15 and injury Nos. 4, 5, 6, 7 and 8 could be caused by a stick. He has been cross-examined generally on as to whether intracranial haemorrhage could be caused by some other reasons, despite his clear evidence to show that external injury could have caused the same. In this regard, the opinion of Dr. R.K.Patel which was sought and is proved at Ex.57 would also be material. In that opinion, Dr. R.K.Patel had in terms stated that injury No.15 i.e. diffused swelling on the frontal region alongwith internal findings may be considered serious and grave. He has stated that injuries Nos. 4 to 9, 12 and 15 are possible by some hard and blunt article. In paragraph 4 of his opinion, it was stated that external injury No.15 on the head with internal injuries i.e. Haematoma and subdural and subarachnoid haemorrhage are capable of causing death. It was also stated that a diffused swelling on the left frontal region injury No.15 was noted and haematoma was present under the scalp on fronto parietal region and therefore, he believed that the diffused swelling was due to haematoma. Dr.Patel in his deposition Ex.55 has stated that he had given the said opinion and it was under his signature. It will be noted that in fact more than 15 injuries enumerated under 15 heads in column 17 were found on the deceased. All these injuries are clearly proved to have been ante-mortem injuries in view of the medical evidence. It would therefore be clear that death of Fatehsinh was caused due to external injury No.15 which resulted in the internal injuries causing intracranial haemorrhage.
10.The contention as to whether these injuries were already suffered by Fatehsinh before he was brought to the Police Station is now required to be considered. In this context, the widow of deceased Fatehsinh Smt. Madina has been examined at Ex.16. She has stated that on the day of the incident i.e. 18.2.1980, Fatehsinh was in good health and he was not suffering from any ailment. He had gone for work in the morning and had come for lunch in the afternoon. Thereafter, he had again gone for work and that he was doing cycle repairing work. There is no suggestion in her cross-examination that Fatehsinh was having any injury or that he was unwell on that day. Therefore, it is borne out from her evidence that Fatehsinh was in good health on the day in question and that he was attending to his work.
11.Fatehsinh's son P.W 7 Hanif who was 12 years of age, was examined at Ex.63. As he could understand the sanctity of oath he was administered oath. He has deposed that on the day when his father Fatehsinh was taken by the Police in a jeep car, his father was in good health and he was not suffering from any disease. His evidence also shows that Fatehsinh was attending to his work on that day before he was taken away by the Police. There is absolutely no suggestion in his cross-examination that Fatehsinh had already suffered any injury on that day.
12.The mother of Fatehsinh, Kesharben Abhesinh P.W 11 has also deposed at Ex.71, that Fatehsinh was in good health on that day and in the morning, he had gone for work. Driver Bhaskar Senpadu P.W 6 with whom PSI Vaghela had gone in the jeep has deposed at Ex.62 that Fatehsinh was near the larri and he was taken to the Police Station. The evidence therefore clearly shows that Fatehsinh was doing his normal work on the day in question, which could never have been possible if he had suffered these serious injuries. The evidence of these witnesses proves that Fatehsinh was hail and hearty when he was taken by the Police in the evening on 18.2.1980. If Fatehsinh was having 15 injuries on his body when the Police took him, they would have noticed these injuries and got them noted so that they may not get implicated. No suggestion is made in the cross-examination of any of these witnesses for putting any defence version that any of these injuries were already on the body of Fatehsinh before he was handed over to PSI Mohite for interrogation in connection with the theft of a cycle. From the evidence on record, we are fully satisfied that none of these injuries were caused to Fatehsinh before he was taken to the Police Station. These injuries are proved to be ante-mortem injuries as noted in the Postmortem notes. It therefore follows that Fatehsinh sustained these injuries after he was brought to the Police Station and before he died.
13.As per the prosecution version, one Sitaram Lalchand had brought Anopbhai Laxmanbhai with a cycle to Sayajiganj Police Station on 18.5.1980 at 5.00 P.M alleging that the cycle belongs to him and it was stolen. Thereafter, PSI Vaghela who was on duty went with Anopbhai in a Police jeep to Gorva to the place of Mohanbhai Somabhai, the cousin brother of Anopbhai, who had said that he had brought the cycle from Mohanbhai. From Mohanbhai it was learnt that the cycle was taken from Fatehsinh. PSI Vaghela therefore, went with Anopbhai and Mohanbhai to Fatehsinh Raisinh who was doing cycle repairing work in his hand-larri at the gate of Jyoti Limited and from there, Fatehsinh was brought to the Sayajiganj Police Station for interrogation. PSI Waghela Ex.69 has deposed to these facts and he has stated that Fatehsinh who was, earlier also, involved in cycle theft cases was handed over by him to PSI Mohite, who was in-charge of the Cycle squad. Thereafter, at 8.00 P.M when his duty shift was over, he handed over his charge to PSI Vohra and had gone home. The version of PSI Vaghela is not disputed in the cross-examination. It therefore, clearly transpires from his deposition that in connection with cycle theft, Fatehsinh was brought by him and other Police Constables from the place where he was working to the Police Station and handed over to PSI Mohite, who was in-charge of the Cycle squad before 8.00 P.M on 18.2.1980. This witness has not stated about any injury on Fatehsinh nor is any suggestion made to him in the cross-examination that Fatehsinh already had any injury before he was handed over to PSI Mohite.
From the aforesaid evidence on record, it is therefore clear that when Fatehsinh was handed over to PSI Mohite in connection with cycle theft for interrogation, he was not having any injuries on his body and that he was physically well, displaying no signs of any ailment. In view of this positive evidence, the suggestion to the hostile witness Mohanbhai in the cross-examination, promptly accepted by him, that Fatehsinh at the time when he was being taken to the Police Station was saying that in the afternoon there was a quarrel in which he was injured and that he should not be taken alongwith them, cannot be believed. There is no suggestion to PSI Vaghela about this fact that Fatehsinh had referred to any quarrel and that he should not be taken to the Police Station. There is therefore, no substance in this defence version that Fatehsinh was injured in a quarrel in the afternoon of 18.2.1980. This story can hardly be given any credence in view of the positive evidence showing that Fatehsinh was in a fit physical state when he was handed over to PSI Mohite around 8.00 P.M on 18.2.1980.
14.This case is therefore, clearly a case of custodial injuries and consequential death. In such cases, it would be too much to expect any Police Officers coming forth as eye-witnesses to the incident against their own colleagues. From the fact that the injuries were caused while PSI Mohite was interrogating Fatehsinh, one and the only inference which can be drawn is that while interrogating Fatehsinh, PSI Mohite was responsible for all these injuries, which were caused to him. Looking to the number of injuries and the fact that cycle squad comprised of Police Constables headed by PSI Mohite, there is every possibility of other Constables of the Cycle squad being present at the time of interrogation. The injuries were therefore caused in furtherance of the common intention of all concerned during the interrogation by PSI Mohite. Panchnama Ex.15, which was taken on record and exhibited in view of the no objection endorsed on behalf of the accused on the application Ex.86, shows the place of the offence which was a hutment in the rear compound of the Police Station where Fatehsinh was interrogated by PSI Mohite in presence of other staff members. Even apart from this panchnama, other evidence also shows substantively that PSI Mohite interrogated Fatehsinh in a hutment, which was in the rear compound of the Police Station and that there were other constables of the Cycle squad in the Police Station on that night. The fact that Fatehsinh complained of pain and uneasiness during his interrogation is borne out from the report of PSI Mohite Ex.65, in which he had informed the PSO of the Police Station Mr. Vohra that while Fatehsinh Raisinh was being interrogated in connection with the offence relating to theft of a cycle on 19.2.1980 at about 2.00 AM, he had stated that he was suffering from previous ailment because of which he had developed chest pain and was feeling suffocation and perspiring. In the report, PSI Mohite has narrated what Fatehsinh had told him at 2.00 A.M and requested the PSO to send Fatehsinh to the Hospital for urgent treatment. PSI Mohite requested the PSO to make an entry to this effect in the Station Diary. PSI Vohra, who was on duty at that time made an entry Ex.67 in the Station Diary at 2.00 A.M on 19.2.1980 on the basis of report of PSI Mohite in which the same fact was narrated. It was stated that on being interrogated as to how he had come to be in possession of the cycle, Fatehsinh had told PSI Mohite on 19.2.1980 at 2.00 A.M that he was suffering from a previous ailment as a result of which he was getting chest pain and suffocation and was perspiring. It is recorded in the said entry that Fatehsinh Raisinh was immediately sent to the hospital with a yadi for treatment. PSI Vohra in his deposition Ex.64 has referred to the said report of PSI Mohite Ex.65 and also proved yadi Ex.66 which was sent to the Medical Officer. He has also proved the entry Ex.67 in the Station diary. Therefore, the deposition of PSI Vohra and the report of PSI Mohite Ex. 65 and entry Ex.67 would show that Fatehsinh was sent to the hospital after 2.00 A.M on 19.2.1980 from the Police Station. In the yadi Ex.66 also there is a mention that while PSI Mohite was interrogating Fatehsinhat 2.00AM on 19.2.1980, he had told PSI Mohite that he was suffering from a previous ailment and that he was having chest pain and feeling suffocated. Below that entry, there is an endorsement of Dr.Bhatt, which reads "Patient was brought dead and dead body transferred to Cold Room". There is a reference to Cold Room Register made in that endorsement. The Cold Room Register entry is proved at Ex.93, which mentions the time when Fatehsinh was brought as 2.15 A.M on 19.2.1980. It is stated that he was brought by PSI Mohite of Sayajiganj Police Station and the patient was brought dead. It is also stated that there was early rigor mortis and the body was transferred to the Cold Room. Dr. Ashok J. Bhatt who had seen the dead body of Fatehsinh and declared him dead at 2.15 A.M on 19.2.1980, has in his deposition Ex.89, stated that he was at the relevant time working as the casualty Medical Officer and PSI Mohite had brought the dead body of Fatehsinh at 2.15 A.M. He had examined the dead body of Fatehsinh in the emergency room where it was lying on a stretcher. He has stated that PSI Mohite told him that he had brought a serious patient. He has proved his endorsement below yadi Ex.66. He has in terms stated that he had noticed early stages of rigor mortis in the body, which he has noted in the entry made in the Cold Room Register, which is at Ex.93. He has then stated that the early rigor mortis can occur between 1 to 6 hours of the death. He has then specifically opined that according to him, death of Fatehsinh had occurred one hour before he was examined. On these material aspect, his version is not disputed in the cross-examination. Therefore, as per the version of this Medical Officer, death of Fatehsinh had taken place around 1.15 A.M which would be one hour prior to the time he had examined the dead body at 2.15 A.M. This clearly brings out one important aspect that though Fatehsinh had already died when he was being interrogated by PSI Mohite, PSI Mohite created a false report to show as if Fatehsinh was alive when he was removed to the Hospital at 2.00 A.M. It is obvious that PSI Vohra who was his colleague, readily obliged him by making the entry Ex.67 on the basis of such false report in which it is stated that Fatehsinh had told PSI Mohite at 2.00 A.M on 19.2.1980 that he was suffering from some previous ailment as a result of which he was getting chest pain and feeling suffocated and perspiring. This story was carried even in the yadi Ex.66 so as to affect the Medical Officer, who has to some extent in the cross-examination, tried to oblige PSI Mohite by stating that he did not notice any external injury on the dead body of Fatehsinh. As has been clearly established, there were more than 15 external injuries including one serious injury i.e. injury No.15 on the left frontal region and therefore, unless the statement was intended to oblige PSI Mohite, Dr. Ashok Bhatt could never have missed so many injuries when he had admittedly examined the dead body and pronounced Fatehsinh dead. From the aforesaid evidence on record, we are firmly of the view that death of Fatehsinh had occurred in the Police custody at the Police Station while he was being interrogated by PSI Mohite before he was removed pursuant to the report made by PSI Mohite at 2.00 A.M on 19.2.1980, as reflected from Exhibits 65, 66 and 67. Therefore, an attempt has been made by PSI Mohite to cover the crime by concocting a story that Fatehsinh had told him that he was already suffering from previous ailment because of which he had developed chest pain, so that it can be shown that Fatehsinh was alive and that he died after he was removed from the Police Station.
16.There is reliable evidence on record to show that accused Nos. 2 to 7 had accompanied the dead body of Fatehsinh when PSI Mohite took him to the hospital after 2.00 A.M on 19.2.1980 alongwith PSI Shrimali. PSI Shrimali, who has deposed at Ex.70 has stated that he was on duty on a mobile van and while they were patrolling, a wireless message was received at 1.45 A.M on 19.2.1980 that they were called to the Police Station by PSI Vohra. The anxiety of PSI Shrimali to help PSI Mohite is reflected from the fact that he mentioned that he had received message at 1.45 A.M. He could not have received the message at 1.45 A.M because the entry pursuant to the report of PSI Mohite was made at 2.00 A.M only. He refers to the yadi Ex.66 which was given to him by PSI Vohra for taking Fatehsinh to the hospital. He has stated that he, alongwith PSI Mohite and other Policemen had taken Fatehsinh in a Police van to the hospital. He has in terms said that accused Nos. 2 to 7 came with them from the Police Station to the hospital in the Police van. He has stated that staff of the Cycle squad was with him and from the fact that accused Nos. 2 to 7 sat in the mobile van, he was stating that they belonged to the Cycle squad. He had said that when accused Nos. 2 to 7 got into the mobile van, it was 2.00 A.M. So far the presence of accused Nos. 2 to 7 in the mobile van is concerned, he has even in his cross-examination asserted that they were present when Fatehsinh was taken to the hospital. PSI Vohra has also in his deposition Ex.64 stated that Fatehsinh was sent to the hospital under a yadi Ex.66 alongwith PSI Mohite and other Police personnel. It therefore, transpires that the accused Nos. 2 - 7 were of the cycle squad and were on duty before Fatehsinh was taken to the hospital from the Police Station at 2.00 A.M on 19.2.1980.
As held by us above, Fatehsinh was already dead before his body was removed from the Police Station to the hospital at 2.00 A.M on 19.2.1980. The version of PSI Shrimali that Fatehsinh became unconcious while he was being taken in the van is only an attempt of the Police to cover PSI Mohite's crime and to protect their colleague. This is also reflected from the entry made by PSI Vohra in the Station diary at 2.45 A.M on 19.2.1980 Ex.68 to the effect that Fatehsinh's death was accidental. A clear attempt is made to ensure that Dr.Bhatt does not speak of any of the 15 injuries by stating that he did not notice them and consequent there upon to make an entry to the effect that it was an accidental death. In face of 15 injuries on Fatehsinh's body which were all ante-mortem, the story of accidental death reflected in the entry Ex.68 is a sheer concoction. The story created by PSI Mohite that Fatehsinh was suffering from previous ailment, which had caused chest pain and suffocation to develop at 2.00 A.M is clearly falsified because the death was not due to any cardiac failure and there is absolutely no medical evidence on the basis of which such concoction could be hinged, more so, in face of the clear evidence of Fatehsinh's kith and kin that he was hail and hearty doing his work of repairing cycle on that day till he was taken away by the Police. The cause of death reflected in the Postmortem report Ex.56 and the opinion of the doctor at Ex.57 which are contemporaneous documents, was clearly the external injury No.15 on the head alongwith the internal injuries i.e. haematoma under the scalp and subdural haemorrhage which were noticed on the body of Fatehsinh. It has also come in evidence of P.W 16 Head Constable Dhiraj, who has deposed at Ex.94 that Fatehsinh was not put up in a lock-up at the Police Station. It is therefore, abundantly clear that he had remained for interrogation in the custody of the Cycle Squad headed by PSI Mohite all through out the period that he was in the Police Station. Unfortunately, all the above important material aspects which point to the commission of these offences at the time PSI Mohite was interrogating Fatehsinh, after he was handed over to the Cycle squad, were over-looked by the learned Additional Sessions Judge.
17.The circumstantial evidence therefore, clearly shows that Fatehsinh who was brought hail and hearty to the Police Station for interrogation being suspected of Cycle theft; that he died because of 15 injuries including the serious injury No.15 with its corresponding internal injuries which were caused to him at the time when he remained in the custody of PSI Mohite of the Cycle squad for interrogation in connection with a cycle theft; that Fatehsinh died before 2 A.M on 19.2.1980 but the accused have concoted a false story for showing as if Fatehsinh was alive at the time when he was removed from the Police Station to the hospital. Accused Nos. 2 to 7 belonging to the Cycle squad despite their presence at 2.00 A.M on 19.2.1980 at the Police Station alongwith PSI Mohite having been established, have chosen to take up a false defence in their statements to the effect that they had completed their duty at 6 'O clock in the evening on 18.2.1980 and were not present. These accused Nos. 2 to 7 were members of the Cycle squad as stated by PSI Shrimali and they assisted PSI Mohite to remove the body of Fatehsinh from the Police Station, after he died during the interrogation due to injuries. The duration of time that Fatehsinh was interrogated and the number of injuries caused coupled with the fact that the accused Nos. 2 to 7 were on duty in the Cycle squad with PSI Mohite before the body of Fatehsinh was removed, shows that PSI Mohite was not alone when he was interrogating Fatehsinh and these accused or atleast some of them were actively present. The evidence positively shows that Fatehsinh suffered injuries while PSI Mohite was interrogating him. However, though there is every possibility of the accused Nos. 2 to 7 or some of them having actually participated in causing injuries to Fatehsinh, it cannot be said with certainty as to who of the accused Nos. 2 - 7 was actually present and at what time during the interrogation. When Fatehsinh was brought from his place of work to the Police Station, some 4/5 Police Constables had accompanied PSI Vaghela but it is not established whether any of the accused Nos. 2 - 7 were present amongst those 4/5 Constables. Therefore, the question remains as to at what time the accused Nos. 2 to 7 reported on duty at the Police Station. The Police Officers concerned with the investigation have conveniently not produced their duty list and other records which could have shown whether any of these accused Nos. 2 - 7 were present at 8.00 P.M on 18.2.1980 when Fatehsinh was handed over to PSI Mohite for interrogation by PSI Vaghela. Therefore, while it is clear that there were some other Policemen of the Cycle squad at the Police Station when PSI Mohite was interrogating Fatehsinh, it is difficult to say with certainty as to who from amongst the accused Nos. 2 to 7 had actually participated. It would therefore not be safe to convict any of these accused Nos. 2 to 6 and they will have to be given benefit of doubt because of the investigating agency's default in putting up the correct facts on the record of the case. However, PSI Mohite's involvement alongwith other members of his Cycle Squad is amply borne out and even if other accused may not be convicted on the ground that they should be given benefit of doubt, liability of PSI Mohite for the offences under Section 330 of IPC read with Sec.34 and 304 (2) read with Sec.34 of the Indian Penal Code is clearly borne out. It is a settled legal position that even though other accused are acquitted and even though there cannot be evidence to show that accused who is found guilty has caused one of the fatal injuries, he cannot escape conviction under the substantive provision read with Sec.34 of the Indian Penal Code, when his participation with others has been established beyond reasonable doubt by the prosecution and no prejudice would be caused to him in view of his proved participation in the crime alongwith others. This proposition is borne out from the decisions of the Supreme Court in Subash and Shiv Shankar Vs. State of Uttar Pradesh - AIR 1987 S.C 1222; (Lokpal Singh Vs. State of M.P - AIR 1985 S.C. 891), Hazari Parida Vs. State of Orissa (1979) 4 S.C.C 994 and Sukh Ram Vs. State of U.P - AIR 1974 S.C 323.
18.The evidence discloses that Fatehsinh was earlier involved in offences of cycle theft and when the cycle theft was reported on 18.2.1980, he was brought to the Police Station for interrogation and interrogated by PSI Mohite and his party who were in the Cycle squad. The injuries which were caused to Fatehsinh during interrogation were obviously caused for the purpose of extorting from him a confession or information which may lead to the detection of the offence of theft of the cycle reported on that day. The injuries including injury No. 15 which caused the death were clearly caused by PSI Mohite and others who were with him during the interrogation and the ingredients of the offence under Section 330 of the Indian Penal Code read with Section 34 are satisfied in the instant case so far as PSI Mohite is concerned. The external injury No.15 with its corresponding internal injuries which caused intra cranial haemorrhage was an injury of such nature that it was likely to cause death as has been established from the medical evidence and is evident from its seat and impact. We are fully satisfied from the above circumstantial and other evidence that this injury has been caused while PSI Mohite with members of his Cycle squad was interrogating Fatehsinh and that it has been caused alongwith other numerous injuries either by him or at his behest. The accused No.1 PSI Mohite is therefore liable for the offences punishable under Section 330 read with Section 34 as well as under Section 304 Part II read with Section 34 of the Indian Penal Code.
In a similar case, recently, the Supreme Court had an occasion to consider a custodial death where the Police tried to cover up the offence. The Supreme Court in State of Madhya Pradesh Vs. Shyamsundar Trivedi and ors., reported in 1996(1) G.L.H. 9 disapproved the approach of the trial Court and the High Court in appreciating evidence in such case and observed that exagerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case, often results in miscarriage of justice. It was further observed that tortures in police custody, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The Supreme Court held that "rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available, when it observed that `direct' evidence about the complicity of these respondents was not available. Generally speaking, it would be police officials alone who can explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues, and the present case is an apt illustration, as to how one after the other police witnesses feigned ignorance about the whole matter." Even in the case before the Supreme Court, there was no direct evidence showing that any injury was caused by the concerned Police Officer to the victim Nathu Banjara while in Police custody. However, from the circumstantial evidence, the Supreme Court held that the presence of PSI Shyamsundar Trivedi at the Police Station had been amply established and it was also established that multiple external injuries were caused to the victim while he was in custody. We have kept the guidelines given by the Supreme Court in the said decision in mind while appreciating the evidence on the record of this case and we are fully satisfied that the accused No.1 PSI Mohite's guilt is established beyond any shadow of doubt in respect of these offences.
The appeal is partly allowed and the judgement and order of the trial Court acquitting the accused No.1 PSI Gopalrao Bavrao Mohite are hereby set aside and the following order is made.
We hold the accused No.1 PSI Gopalrao Bavrao Mohite guilty for the offences punishable under Section 330 read with Section 34 and Section 304 Part II read with Section 34 of the Indian Penal Code and convict him for the same. The rest of the accused Nos. 2 to 6 are given benefit of doubt and their acquittal is confirmed.
Since the accused No.1 has been convicted for the aforesaid offences, he will have to be heard on the question of sentence. His learned Counsel submits that he has no instructions to make submissions on the question of sentence, but his presence will be ensured on 1st October, 1996. The accused No.1 Gopalrao Bavrao Mohite is directed to remain personally present before the Court on 1.10.1996 at 11.00AM for a hearing on the question of sentence. Direction issued on the convict will be communicated to him through the concerned Police Station forthwith and the learned Counsel appearing for him also states that he will make sure that the convict remains present before the Court on 1.10.1996 at 11.00 AM.
Dt. 25.9.1996(R.K.Abichandani,J.) (R.R.Jain,J.) We have heard the learned Counsel for the accused - respondent No.1 Gopalrao B.Mohite on the question of sentence. The convict has presented himself before the Court and an affidavit is filed imploring us to take a lenient view of the matter and release him on probation on the ground stated in the affidavit, which are reiterated on his behalf by his learned Senior Counsel. The learned Counsel submitted that the convict is of 70 years of age and has suffered two heart-attacks, one in 1991 and the other in 1994. He has a weak vision even after the cateract operation and he cannot walk more than 50 - 60 steps at a time. His digestive system has also become weak. He has further stated that he had an unblemished record as a Police Constable, Head Constable and Sub Inspector and was a recipient of a Presidential award. He has also stated that his education was only upto VIth Standard and his financial condition was not good as he was getting pension of only Rs. 900/- per month. It is stated that he has never been convicted for any offence in the past nor was he tried in any criminal case except the present one.
We have kept in mind all the grounds which are urged on behalf of the convict but we find it difficult to accept the submission that the convict should be released on probation. The offence which is established against him is of a grave nature. The Police Officers are supposed to protect the citizens and not to misuse their power and authority to torture a person brought in their custody. Death in Police custody is required to be seriously viewed and must be curbed with a heavy hand. As held by the Supreme Court in Shyamsundar Trivedi (supra), death in Police custody is perhaps one of the worst kind of crimes in a civilised society and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens Constitutionally recognised and is an affront to human dignity. Such Police excesses and the maltreatment of undertrials and other persons in Police custody tarnishes the image of any civilised nation and unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing. In our view, therefore, to show any leniency in such a case would amount to approval to establishment of a Police administration without responsibility, without accountability and without administrative morality. It would amount to denial of the right to life of a citizen. It shocks one's conscience when a precious life is deprived by the authorities who are required to protect. Keeping in view all the relevant aspects of the matter, the utmost that can be done having regard to the ill-health and age of the convict and other factors canvassed on his behalf, is to award a sentence of rigorous imprisonment for a period of 3 years on each count for the offences punishable under Section 304/Part-II and Sec. 330, read with Section 34 of the Indian Penal Code, to run concurrently, and also impose a fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for a period of 4 months on one count. In our view, the amount of fine should be paid to the widow of Fatehsinh Smt. Madina. We therefore, pass the following order.
ORDER The appeal is accordingly partly allowed and the convict - accused No.1 Gopalrao B. Mohite is ordered to undergo sentence of 3 years rigorous imprisonment for the offence under Section 304/Part-II, read with Section 34 of the Indian Penal Code and pay a fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for a period of 4 months. The amount of fine should be deposited in the Sessions Court and be paid to Smt. Madina, widow of Fatehsinh.
The accused No.1 Gopalrao B. Mohite is also sentenced to 3 years rigorous imprisonment for the offence punishable under Section 330, read with Section 34 of the Indian Penal Code.
Both the above substantive sentences of imprisonment will run concurrently.
The accused No.1 Gopalrao B. Mohite will be taken into custody forthwith to undergo the sentence of imprisonment.
(R.K.Abichandani,J.) (R.R.Jain,J.) Dt. 1.10.1996