http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

file is  set aside.  The appellants  are acquitted and their ball bonds stand cancelled.