Gujarat High Court
Bhavsing Chhaganbhai Bilval Police Sub ... vs State Of Gujarat on 14 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1138 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√ -
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BHAVSING CHHAGANBHAI BILVAL POLICE SUB INSPECTOR
SINCE DECEASED THROUGH HIS LEGAL HEIRS
Versus
STATE OF GUJARAT
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Appearance:
MR HORMAZ B SHETHNA (2436) for the Appellant(s)
MR ROHANKUMAR H RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/08/2025
ORAL JUDGMENT
1. The trial of custodial death was against seven
accused, in Sessions Case no.37 of 1990 before
the learned Additional Sessions Judge, Bhavnagar
Camp, Mahuva. The learned Additional Sessions
Judge, Bhavnagar on 30.11.2000 convicted accused
no.1-Bhavsingbhai Chhaganbhai Bilval, PSI,
Savarkundla Town Police Station for the offence
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under Section 304-II of IPC, sentencing him to
seven years rigorous imprisonment and fine of
Rs.15,000/- with the default clause on non-
payment, to further suffer one year simple
imprisonment.
1.1 For the offence under Section 330 IPC, accused
no.1 was sentenced for three years rigorous
imprisonment and Rs.10,000/- fine, in default of
payment of fine, six months simple imprisonment.
1.2 Both the sentences to run concurrently. The
benefit of set off under Section 428 of the
Criminal Procedure Code (Cr.P.C.) was granted.
The amount of compensation of Rs.25,000/- was
ordered to be given to the legal heirs of the
victim, deceased Kanudo @ Bhoplo Vallabhbhana
Waghri of Maninagar Vaghrivas, Savarkundla.
1.3 Aggrieved by the judgment and order of
conviction, accused no.1 as appellant filed the
present Criminal Appeal no.1138 of 2000 under
Section 374(2) of Cr.P.C.
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1.4 During pendency of the appeal, the appellant-
Bhavsing Chhaganbhai Bilval died. Thus, in
accordance to the proviso to sub-section (2) of
Section 394 of Cr.P.C., the daughters and sons
1/1 to 1/6 as the heirs of the deceased were
permitted to continue the appeal. Proviso under
sub-section (2) has given a right to the near
relatives of the accused who is convicted and
sentenced to death or of imprisonment and who
dies during the pendency of the appeal to
continue the appeal by making an application to
the Appellate Court within 30 days of the death
of the appellant. This proviso is made to cover
those exceptional cases, where the interest may,
apart from being merely sentimental may be
pecuniary also. The object in adding this
proviso is to remove any stigma that may attach
to the relatives of the accused by continuing
the appeal. Where the legal heirs of the accused
do not prosecute the appeal, otherwise as
provided under sub-section (1) of Section 394,
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every appeal under Section 377 or Section 378 of
Cr.P.C. shall finally abate under death of the
accused.
2. Learned advocate Mr. H.B. Shethna has raised a
legal issue about the sustainability and
legality of the conviction of the sole deceased
appellant-accused under Section 34 IPC, where
the other six co-accused as police personnel
came to be acquitted.
2.1 Learned advocate Mr. Shethna referring to the
judgment of Javed Shaukatli Qureshi v. State of
Gujarat, (2023) 9 SCC 164, a case under Sections
396, 307, 445, 201 read with 149 IPC, submitted
that when the similar identical evidence of eye-
witnesses against the accused by ascribing them
same or similar role is to be considered against
all, the Court cannot convict one accused and
acquit others. Learned advocate Mr. Shethna
submitted that criminal court should decide like
cases alike and in such cases, as observed in
Javed Shaukatali Qureshi (supra) submitted that
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the Court cannot make distinction between two
accused which would amount to discrimination.
Thus, stressing on the benefit of parity,
learned advocate Mr. Shethna submitted that the
deceased appellant is required to be declared as
acquitted.
3. On 27.10.1989, accused no.1 was discharging his
duty as PSI in Savarkundla Police Station,
Bhavnagar between 6.00 p.m. and 0.15 a.m. on
28.10.1989, accused no.2 to 7 were discharging
their duty in the same Police Station. Accused
no.2 was unarmed Police Head Constable, while
accused nos.3 and 7 were unarmed Police
Constables, accused nos.4, 5 and 6 were armed
Police Constables.
3.1 The charge framed below Exh.5 during the trial
was to the effect that one Vinubhai Vaghaji
Patel gave his complaint of theft in Savarkundla
Police Station. In the matter of that complaint,
deceased Kanudo was called for inquiry. In order
to extort confession from Kanudo and to compel
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him to return the stolen money, or to get such
information by force or to extort the confession
from him which would lead to disclosure of the
offence, deceased Kanudo was beaten by all
accused with the sticks and fisticuffs, which
resulted into injuries on his person, and/or to
see that the property or valuable security be
returned or that their demand to that effect is
satisfied or that from such information, the
property or valuable security could be obtained,
accused no.1 to 7 all shared the common
intention while abetting each other, voluntarily
caused injuries on the person of the deceased
Kanudo by giving him fisticuffs and blows with
the sticks. For that purpose, one and all
accused were charged under Section 330 read with
Section 34 of IPC.
3.2 On that day, time and place, all the accused in
concert, abetting each other, in furtherance of
the common intention for that act, gave
unbearable beatings with sticks and kick and
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fist blows, causing injuries, with the knowledge
that such injuries would cause death, inspite of
that, during the police custody, Kanudo @ Bhoplo
Vallabh Waghri was beaten to death and thus, all
the accused had committed the offence under
Section 302 read with Section 34 IPC.
4. Learned advocate Mr. Shethna submitted that the
conviction of the deceased appellant is not
supported by any evidence on record. There is no
injury attributed to the appellant as PSI
Savarkundla Town Police Station who had the
legal custody of the deceased in connection with
the case of theft registered against Kanudo. Mr.
Shethna stated that the deceased Kanudo was
called for inquiry, which was a legal act of
Shri Bilval. Beatings by any of the accused had
not been proved during the trial. Inquest
Panchnama suggests only three injuries and the
defence could prove that deceased Kanudo had
jumped from the jeep and thereafter, sustained
the injuries. Mr. Shethna stated that PW11 - Dr.
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Pardhi was medical person who had examined the
deceased, who had not found any injury on the
body of the deceased at the place alleged to be
the place of offence. Mr. Shethna submitted that
Dr. Pardhi was Government servant and had no
reason to give any false evidence. Advocate Mr.
Shethna referring to the evidence of PW12 - Dr.
Mangal, stated that PW12 and Dr. Rajavat in
panel had conducted postmortem of the dead body
of deceased Kanudo and had marked about twenty
three external injuries and five internal
injuries. However, the injuries as ascribed
cannot be attributed to the appellant - Bilval
and further submitted that Dr. Mangal has
specified injury nos.14, 16, 17 and 18 to have
been caused by hard and blunt substance like
stick which could be long and could be bent a
little or can be cane sticks. The Muddamal
article did not disclose any blood stain on it,
while the Doctor opined that all the external
and internal injuries taken together was
sufficient to cause death of deceased and in
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opinion of the Doctor, all the injuries might
have been received by the deceased during 24
hrs. preceding the time of his death. Mr.
Shethna submitted that the Doctor could not
clarify that the injury nos.14, 16, 17 and 18
could have been possible because of fall from
jeep and thus, there is no definite opinion of
the Doctor with regard to those specified
injuries. Mr. Shethna further submitted that the
external injuries also did not cover any blood.
Mr. Shethna submitted that since dead body was
examined after two days, such blunt marks would
develop in natural course. Mr. Shethna stated
that the internal injuries suffered by the
deceased were possible if the deceased had
jumped from running jeep and fallen on road and
if he had come in contact of the road by taking
2-3 turns.
4.1 Advocate Mr. Shethna submitted that the
investigation was in connection with the
complaint given by PW9 - Vinubhai Kanani and
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Kanudo was brought in connection with the FIR
lodged against him and therefore, the custody
cannot be termed as illegal. PW9 - Vinubhai had
stated in his evidence that on the second
occasion, when they had gone to Waghrivas, along
with PSI - Bilval, Kanudo had jumped out of
running jeep and had run away, the police
stopped the jeep and apprehended him. The fall
from the jeep and deceased taking 2-3 flips and
running away from the place has been
corroborated by the witness PW9. If that
evidence is to be considered, then the death
could be because of such a fall of Kanudo from
jeep.
4.2 Advocate Mr. Shethna referring to the evidence
of PSO PW7 - Mansingbhai Kalibhai stated that
PSO has not mentioned of any torture by beatings
by any of the accused, when the boy was called
for questioning. Mr. Shethna submitted that the
complaint by PW2 - Dolatsinh Sahebji Khant,
Dy.S.P. had invoked the provision of Section 114
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IPC along with Section 302 IPC and thus, stated
that invocation of Section 34 IPC by court would
be prejudicial to the accused since the facts of
the case do not invite the scope for the
provision of Section 34, inspite of that, the
Court decided to deal with the trial under
Section 34 IPC. Mr. Shethna submitted that the
prejudice caused to the deceased appellant
Bilval would make him entitle for acquittal. Mr.
Shethna submitted that the appellant was
required to be acquitted by the Trial Court
along with the co-accused no.2 to 7 as the Court
could not convict only one accused on the basis
of constructive liability.
4.3 Advocate Mr. Shethna contended that PW16 -
Kantilal Vallabhbhai, brother of the deceased
Kanudo and PW17 - Vallabhbhai Bhanabhai, father
of deceased Kanudo had no opportunity to witness
what had occurred in the chamber of Shri Bilval.
The table of the PSO and the chamber of PSI were
at a distance of 25-28 ft. The evidence of the
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brother and father in that circumstances could
not be believed as they are the interested
persons and more so, the situation of the
chamber of Shri Bilval would not have permitted
them a direct access or a direct view to see
what had transpired in the chamber of Shri
Bilval. Advocate Mr. Shethna submitted that
overt act of the accused no.1 was required to be
proved for sustaining the conviction. There is
no indication that it was only A-1 who gave all
the blows and injuries which were sufficient in
the ordinary course of nature to cause death.
The cause of death is shock and hemorrhage
because of multiple injuries, no blood stain has
been found from the place of offence. Exh.34 is
the map of the Police Station. The driver of
jeep PW6 - Ghanshyam Gohil has corroborated the
evidence that Kanudo had jumped from the jeep.
PW7 - Mansing Kalibhai has given the evidence of
roll call made by Shri Bilval and his evidence
would bring on record the police who were on
duty at that relevant time. Mr. Shethna
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submitted that the police Pehredar named as
Himmatbhai was present there but he was not
examined. The investigating officer - Shri
Satishchandra Sharma only recorded the
statements while there was no further
investigation on his part. PW10 - PSI Sangvan
refers to the custodial death entry. However,
Mr. Shethna submitted that it was only on the
instructions of Mr. Sangvan that Shri Bilval had
entertained PW9 - Vinubhai, regarding his
complaint of theft and therefore, stated that
PW10 was also required to be made an accused in
the matter, if the concept of common intention
under Section 34 IPC is to be entertained.
4.4 Mr. Shethna further stated that the inquest
Panchnama was drawn by the Executive Magistrate
in presence of Shri Sangvan, except three
injuries, no injuries as recorded in the P.M.
Note were found to be recorded in the inquest
Panchnama. Mr. Shethna stated that Shri Bilval
(A-1) had called Shri Sangvan PW10 at 11.15
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p.m., and this act itself clarifies that it was
under the instructions of Shri Sangvan that Shri
Bilval had called deceased Kanudo.
4.5 Referring to the evidence of PW16 and PW17-
brother and father of the deceased, Mr. Shethna
submitted that presence of mother of the
deceased as well as one Kadarbhai Kazi and
Manjibhai and Khumanbhai as well as Advocate
Balubhai Trivedi have been brought, by both the
witnesses, and thus, relying upon the provision
of Section 6 of the Indian Evidence Act, 1872
submitted that those witnesses could be
considered as res gestae witnesses and in
absence of their evidence, PW16 and PW17 should
not be believed.
4.6 Advocate Mr. Shethna further submitted that in
all ten police witnesses have been examined by
the prosecution. PW2 - Shri Khant states that he
has conducted preliminary inquiry and had joined
the names of seven accused in the complaint.
However, in the cross-examination, he admits
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that it has not been disclosed of any accused
beating the deceased. The name of the accused
had been recorded on the basis of preliminary
inquiry which would be baseless for the
prosecution, as the complaint does not disclose
that the accused had obtained the custody of
deceased Kanudo. The FIR is based on no
evidence, as nothing was available on record,
neither in the form of documents, nor in the
form of evidence of the witnesses and thus,
stated that the complaint of Shri Khant bears no
value.
4.7 Advocate Mr. Shethna further contended that PW6-
driver of the jeep does not refer to any overt
or covert act on the part of the accused
policemen against deceased Kanudo. Advocate Mr.
Shethna submitted that PW6-driver evidence
proves that Kanudo had jumped from the jeep and
he has clarified in his evidence that in his
presence, none of the accused had beaten the
deceased.
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4.8 PW7 - PSO was in charge of the duty from 8.00
p.m. to next day 8.00 a.m. He has referred to
police guard - Himmatbhai Bachubhai who has not
been examined in the present matter. In the
evidence of PW7, it has come that the
investigation of theft was taken over by accused
no.1. The boy was taken by accused no.3 and
accused no.4 in the chamber of accused no.1.
Except these three persons, nobody else was
present. However, the fact could have been
corroborated had police guard - Himmatbhai
Bachubhai been examined. PW8 - Bhaisingh Vaghela
had seen the boy sitting in the lobby of the
Police Station and roll call was taken by
accused no.1 - Bilval at 8.15 p.m. and in the
evidence, he also states that he does not know
when the boy was brought for the second time.
4.9 Referring to the evidence of PW10 - PSI -
Sangvan, Advocate Mr. Shethna stated that Police
Constable Himmatbhai, Police Constable
Kishorbhai Bhikhalal who were reserve police
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were not examined as the witness though were
present in the Police Station. On 27.10.1989,
between 4.00 p.m. and 8.00 p.m. in reserve
police, constable-Ayubkhan Hasankhan (A7),
Vajubhai (A3), Govindbhai (A5) were there. While
in the cross-examinatin, PW10 stated that when
he reached the Police Station, three persons,
accused no.1, P.H.C. and P.S.O. were there and
other policemen assisting him were present.
Advocate Mr. Shethna submitted that the duty
list refers to sixty three policemen on duty
including those who were on leave.
4.10 Advocate Mr. Shethna further contended that the
station diary Page-29 was totally blank and
canceled so also the reverse portion. The
reverse side of Page-27 shows the entry in the
diary upto "23-19" on 29.10.1989. Thereafter,
leaving the blank Page-29, on reverse side the
entries upto 24-00 hrs. on 29.10.1989 came to be
recorded. Though the witness was put to
question, but could not clarify about the blank
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pages in the cross-examination.
4.11 Advocate Mr. Shethna also submitted that PW18 -
DSP Verma was in-charge of Palitana Sub-
Division, which did not include the jurisdiction
of Savarkundla Police Station, despite that
fact, DIG, Junagadh Range handed over the
investigation by sending a wireless message.
PW18 learnt the facts from the complainant PW2 -
Shri Khant, while the investigating officer -
Shri Verma had failed to inquire the actual role
of the accused as ascribed by the complainant,
and when there was clear evidence on record that
the investigation was in connection with CR
no.173/89 Savarkundla Town Police Station under
Section 379 read with Section 114 IPC, and it
was legal judicial custody, the investigation
was conducted by PW18 - Shri Verma under the
pressure of the crowd of Waghri community and
thus, stated that the registration of FIR as
well as the investigation had succumbed to the
crowd, which suggests that there was no
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independent investigation.
4.12 Advocate Mr. Shethna raised a contention that
the grounds appreciated by the Trial Court under
which the conviction has followed, should only
be examined by the Appellate Court and the
Cr.P.C. recorded has not been considered by the
Trial Court for conviction, thus, the Appellate
Court should not lay any reliance on the same.
4.13 Advocate Mr. Shethna concluding his arguments,
submitted that the injuries on the body of the
accused was because of his fall from the jeep
and also because the dead body was carried at
different places in the tank for the postmortem,
which was delayed for about three days. Mr.
Shethna submitted that the provision of Section
106 of the Indian Evidence Act, 1872 should not
be drawn to put the accused for clarification
for those circumstances which were not known to
him and further stated that Section 106 of the
Indian Evidence Act, 1872 becomes applicable
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only when the foundational facts have been laid
down by the prosecution. Stressing upon the need
to bifurcate the provision of Section 34 IPC and
its application viz-a-viz the acquitted accused,
Advocate Mr. Shethna submitted that the deceased
Shri Bilval has a right to be ordered as
acquitted from the charges.
5. Relying on the judgments of Govindbhai
Adherabhai Katara v. State of Gujarat, 2016 (2)
GLR 1500, Balaji Gunthu Dhule v. State of
Maharashtra, [(2012) 11 SCC 685] and Ravi v.
State of Punjab, [(2025) 3 SCC 584], learned
advocate Mr. Shethna in regard to Section 313 of
Cr.P.C., submitted that where prosecution fails
to prove its case beyond reasonable doubt by
leading cogent reliable evidence, accused cannot
be convicted on his further statement. Mr.
Shethna stated that the statement of the accused
under Section 313 Cr.P.C. is mainly
corroborating in nature, the Court may rely, but
Court is not mandated to exclusively rely on
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such statement of the accused for conviction.
5.1 Learned advocate Mr. Shethna has also placed
reliance on the judgment of Killer Thiayagu v.
State, (2018) 16 SCC 207, to submit that the
principle of vicarious liability enshrined by
Section 34 of IPC would be attracted only if
more than one accused person act conjointly in
commission of the offence with others. Mr.
Shethna submitted that the evidence has to be
brought by the prosecution to disclose that more
than one accused persons had acted in concert
with other persons. State of Gujarat v.
Khatubhai Limbabhai Pagi and Ors., [2014 (3) GLR
1919], was relied upon to bring distinction upon
section 34 and 114 of IPC, and Mr. Shethna
contended that under Section 34, a criminal act
is done by several persons in furtherance of
common intention of all, and each becomes
liable, as if the offence was committed by
himself alone. While under Section 114 IPC, a
person prior to the commission of the act makes
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himself liable as an abettor, and if he remains
present at the time of commission of the offence
without taking any active part in doing of the
act, he renders himself liable under this
Section. Thus, Mr. Shethna stated that the
invocation of Section 34 IPC by the learned
Trial Court Judge has seriously affected the
appellant.
5.2 Mr. Shethna also relied on the case of Krishna
Govind Patil Vs. State of Maharashtra, AIR 1963
SC 1413, to submit that common intention under
Section 34 of IPC implies a pre-arrange plan and
the criminal act executed in pursuance to a pre-
arrange plan. Mr. Shethna thus submitted that
such plan may be developed on the spot during
the commission of the offence. Referring to the
facts of the case submitted that all the accused
had gone together as per the prosecution case,
under the investigation of A-1, had brought
deceased Kanudo at the police station and if
such a plan could be assumed to have been
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executed, then Mr. Shethna submitted that all
the accused were required to be convicted or at
the same time all were required to be acquitted.
5.3 The case of State of Chhattisgarh v. Ashok Bhoi
Etc., [2025 (0) AIJEL-SC 74852], was relied upon
to submit that the theory of 'last seen
together' cannot be said to be proved. Rather
than placing reliance on section 106 of the
Evidence Act, by leading reliable evidence, the
prosecution was required to establish the case
that the accused was last seen with the deceased
and then only the burden could be said to be
shifted to the accused to explain the
incriminating circumstances in his statement
under Section 313 of Cr.P.C. On the same line,
Mr. Shethna relied on the case of Jagdish Gond
v. State of Chhattisgarh and Ors., [AIR 2025 SC
2423] and also placed reliance in the case of
Sadashiv Dhondiram Patil v. State of
Maharashtra, [(2025) 4 SCC 275], stating that
the prosecution has first to lay down the
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foundational facts before it seeks to invoke
section 106 of the Evidence Act.
5.4 Mr. Shethna stressed upon the judgment in the
case of Maiku v. State of U.P., [1989 Supp. (1)
SCC 25], to submit that here all the police
officials were pursuing investigation which were
their duty, and therefore, submitted that it
could not be said that while pursuing the
investigation it was the pursuance of unlawful
object, and in pursuance of investigation it is
alleged in the present case, that the deceased
appellant resorted to violence. Mr. Shethna
thus, stated that the object was the recovery of
theft amount, which apparently could not be said
to be unlawful object and therefore, conviction
cannot lie. Mr. Shethna further stated that in
the present case Kanudo lost his life and it is
alleged that he had sustained injuries by hard
and blunt weapon on his body, but it is not
clear under what circumstance it had happened
and how the deceased appellant could be
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connected with those injuries.
6. Mr. Rohankumar Raval, learned APP raised his
submission by stating that the accused deceased
Cr.P.C. had admitted that it was he only, who
was interrogating. When referred to the evidence
of the presence of Mahivirsinh (A3) and
Bhupatbhai (A4) in his chamber, Mr. Rohankumar
Raval, learned APP submitted that, accused No.1
Shri Bilval has categorically admitted that both
A3 and A4 were not with him while interrogating
deceased Kanudo.
6.1 Learned APP Mr. Rohankumar Raval submitted that
the accused himself admitted of the custody of
deceased Kanudo with him. APP submitted that
initial common intention of extorting confession
could be gathered of all the accused. What had
happened in the chamber of A-1 was within the
knowledge of A-1 himself and in that
circumstances law compelled him under Section
106 of Evidence Act to give a plausible
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explanation regarding the death of Kanudo.
6.2 Mr. Rohankumar Raval, learned APP submitted that
it is the case of custodial death and the
accused was not an ordinary person, but a P.S.I.
who was investigating a crime and was duty bound
to remain within the boundaries of law and he
was a person, who was well versed with the
provisions of law and also knows the importance
of his statement under Section 313 of Cr.P.C.,
where he has made himself solely liable for the
incident.
6.3 Mr. Rohankumar Raval, learned APP submitted that
the evidence has been rightly appreciated by the
Trial Court Judge, however, if necessary the
appellate Court can review all the evidence of
acquitted accused and can express the view by
determining the guilt, which Mr. APP stated that
is permissible in context of provision of
Section 34 of IPC.
6.4 Mr. Rohankumar Raval, learned APP submitted that
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the evidence of the brother and the father of
the deceased Kanudo would be an additional
evidence to the conduct of accused No.1, who
both have witnessed accused No.1 and other
policemen taking Kanudo twice from their house
and the evidence is also of the brother, who was
running after the Jeep and police persons
beating Kanudo in the Jeep. Father, Mother and
brother of deceased had come to the police
station, where they could see Kanudo beaten in
the gallery mercilessly by all. The 'last seen
theory' becomes well established from the
evidence of the father and brother and there is
denial of accused No.1, as the custody of Kanudo
was with him in connection with the
investigation of the theft.
6.5 Mr. Rohankumar Raval, learned APP submitted that
23 external injuries and five internal injuries
could be proved by the Doctor who conducted
forensic postmortem. The injuries were alleged
to have been given by sticks which were used by
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the police as well as by kick and fist blows.
The possibility of blood oozing out from the
injuries would be negligible, which had been
proved by the medical evidence. The deceased was
confined in the police station and was
interrogated, requires no proof, as it is an
admitted position on record. Deceased Kanudo was
continuously in the custody of police was also
proved on record. The rest of the accused Nos.2
to 7 could not be convicted, as they could not
be named by the witness PW16 and 17, brother and
father, while the other police witnesses had
supported the prosecution case to prove the
presence of accused No.2 to 7 by naming them.
Mr. App submitted that in such a case of
custodial death there would a tendency of the
police to support their police brothers and
therefore, no direct evidence of the presence of
accused Nos.2 to 7 could be brought on record
during the trial. However, the fact remains and
could be proved that Kanudo was in custody of
accused No.1 and accused No.1 too had
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mercilessly beaten Kanudo in his custody and
PW16 and PW17 could prove as eye-witness of
having seen other policemen also beating Kanudo.
6.6 Mr. Rohankumar Raval, learned APP submitted that
precious life of Kanudo was lost at the hands of
police and the crime is dehumanising and against
human dignity.
6.7 Mr. Rohankumar Raval, learned APP by placing
reliance in the case of Brathi @ Sukhdev Singh
v. State of Punjab, (1991) 1 SCC 519, submitted
that after considering the series of decisions,
the Hon'ble Supreme Court was of the view that
when a definite number of known persons were
alleged to have participated in the crime, and
all except the appellant were acquitted, the
appellant alone may not be convicted under
Section 34 IPC, but he would be liable for his
individual act of assault.
6.8 Learned APP Mr. Raval placed reliance on the
case of Haricharan v. State of M.P., (2011) 4
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SCC 159, for the observation, reproduced
hereinbelow:-
"35. ...It was emphasised that
custodial death is perhaps one of
the worst crimes in a civilised
society governed by the rule of law.
It is aggravated by the fact that
crimes in custody are committed by
persons, who are charged with the
solemn responsibility to protect the
fundamental rights of all the
citizens. These crimes are committed
under the shield of uniform and
authority within the four walls of
the police station or lock-up, the
victim being totally helpless."
6.9 The case of State of M.P. v. Shyamsunder
Trivedi, (1995) 4 SCC 262 was relied upon by
learned APP Mr. Raval to stress upon the 4th
report of June, 1980, whereby the National
Police Commission acknowledged the fact of
custodial torture. The observation relied upon
by learned APP is as under:-
"18. In its 4th Report of June 1980,
The National Police Commission
noticed the prevalence of custodial
torture etc. and observed that
nothing is so dehumanising as the
conduct of police in practising
torture of any kind on a person in
their custody. The Commission
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noticed with regret that the police
image in the estimation of the
public has badly suffered on account
of the prevalence of this practice
in varying degrees over the past
several years and noted with concern
the inclination of even some of the
supervisory ranks in the police
hierarchy to countenance this
practice in a bid to achieve quick
results by short-cut methods. Though
Sections 330 and 331 of the Penal
Code, 1860 make punishable those
persons who cause hurt for the
purpose of extorting the confession,
by making the offence punishable
with sentence up to 10 years of
imprisonment, but the convictions,
as experience shows us, have been
very few because the atrocities
within the precincts of the police
station are often left without any
ocular or other direct evidence to
prove who the offenders are.
Disturbed by this situation, the Law
Commission in its 113th Report
recommended amendments to the Indian
Evidence Act so as to provide that
in the prosecution of a police
officer for an alleged offence of
having caused bodily injuries to a
person while in police custody, if
there is evidence that the injury
was caused during the period when
the person was in the police
custody, the court may presume that
the injury was caused by the police
officer having the custody of that
person during that period unless,
the police officer proves to the
contrary. The onus to prove the
contrary must be discharged by the
police official concerned. The
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recommendation, however, we notice
with concern, appears to have gone
unnoticed and the crime of custodial
torture etc. flourishes unabated.
Keeping in view the dehumanising
aspect of the crime, the flagrant
violation of the fundamental rights
of the victim of the crime and the
growing rise in the crimes of this
type, where only a few come to light
and others don't, we hope that the
Government and Legislature would
give serious thought to the
recommendation of the Law Commission
(supra) and bring about appropriate
changes in the law not only to curb
the custodial crime but also to see
that the custodial crime does not go
unpunished. The courts are also
required to have a change in their
outlook and attitude, particularly
in cases involving custodial crimes
and they should exhibit more
sensitivity and adopt a realistic
rather than a narrow technical
approach, while dealing with the
cases of custodial crime so that as
far as possible within their powers,
the guilty should not escape so that
the victim of the crime has the
satisfaction that ultimately the
majesty of law has prevailed.
6.10 Reliance was placed by learned APP in the case
of State of U.P. v. Ram Sagar Yadav, (1985) 1
SCC 552 to submit that in the said case, the
Hon'ble Supreme Court had chose to impress upon
the Government the need to amend the law
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appropriately so that the policeman who commits
atrocious on person who are in their custody are
not allowed to escape by a reason of paucity or
absence of evidence. Learned APP submitted that
it has been observed that the police officers
alone and none else can give evidence as regards
the circumstances in which a person in their
custody comes to receive injuries while in their
custody. Bound by the ties of kind of
brotherhood, they often prefer to remain silence
in such situation and when they choose to speak,
they put their own gloss upon facts and distort
the truth.
6.11 State of Rajasthan v. Thakur Singh, (2014) 12
SCC 211 was relied upon by learned APP to
address the aspect of Section 106 of the Indian
Evidence Act, 1872 to submit that Section 101 of
the Evidence Act lays down a general rule of
burden of proof on the prosecution. However,
Section 106 is not intended to relieve the
accused of his duty. Section 106 is designed to
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meet certain exceptional cases, in which, it
would be impossible or difficult for the
prosecution to establish the facts which are
especially within the knowledge of the accused.
Learned APP has also relied upon the judgment of
D.K. Basu v. State of W.B., (1997) 1 SCC 416.
7. Having heard the submissions of both the
advocates, perused the record and depositions of
the witnesses.
8. In the cases of D.K. Basu v. State of W.B. with
Ashok K. Johri v. State of U.P., (1997) 1 SCC
416, the observation in Paragraph 28 would
require a special mention, where the Hon'ble
Supreme Court has made reference of custodial
death and the rights inherited under Article 21
of the Constitution which requires zealous and
scrupulous protection. The observations are as
under:-
"Custodial death is perhaps one of
the worst crimes in a civilised
society governed by the rule of law.
The rights inherent in Articles 21
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and 22(1) of the Constitution
require to be jealously and
scrupulously protected. The
expression "life or personal
liberty" in Article 21 includes the
right to live with human dignity and
thus it would also include within
itself a guarantee against torture
and assault by the State or its
functionaries. The precious right
guaranteed by Article 21 cannot be
denied to convicts, under trials,
detenue and other prisoners in
custody, except according to the
procedure established by law by
placing such reasonable restrictions
as are permitted by law. It cannot
be said that a citizen 'sheds off
his fundamental right to life the
moment a policeman arrests him. Nor
can it be said that the right to
life of a citizen can be put in
'abeyance' on his arrest. Any form
of torture or cruel, inhuman or
degrading treatment would fall
within the inhibition of Article 21,
whether it occurs during
investigation, interrogation or
otherwise. If the functionaries of
the Government become law-breakers,
it is bound to breed contempt for
law and would encourage lawlessness
and every man would have the
tendency to become law unto himself
thereby leading to anarchy. No
civilised nation can permit that to
happen. The Supreme Court as the
custodian and protector of the
fundamental and the basic human
rights of the citizens cannot wish
away the problem. The right to
interrogate the detenus, culprits or
arrestees in the interest of the
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nation, must take precedence over an
individual's right to personal
liberty. The Latin maxim salus
populi suprema lex (the safety of
the people is the supreme law) and
salus republicae suprema lex (safety
of the State is the supreme law)
coexist and are not only important
and relevant but lie at the heart of
the doctrine that the welfare of an
individual must yield to that of the
community. The action of the State,
however, must be "right, just and
fair". Using any form of torture for
extracting any kind of information
would neither be "right nor just nor
fair" and, therefore, would be
impermissible, being offensive to
Article 21. Such a crime-suspect
must be interrogated indeed
subjected to sustained and
scientific interrogation determined
in accordance with the provisions of
law. He cannot, however, be tortured
or subjected to third-degree methods
or eliminated with a view to elicit
information, extract confession or
derive knowledge about his
accomplices, weapons etc. His
constitutional right cannot be
abridged in the manner permitted by
law, though in the very nature of
things there would be qualitative
difference in the method of
interrogation of such a person as
compared to an ordinary criminal.
Challenge of terrorism must be met
with innovative ideas and approach.
State terrorism is no answer to
combat terrorism. State terrorism
would only provide legitimacy to
"terrorism". That would be bad for
the State, the community and above
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all for the rule of law. The State
must, therefore, ensure that various
agencies deployed by it for
combating terrorism act within the
bounds of law and not become law
unto themselves. That the terrorist
has violated human rights of
innocent citizens may render him
liable to punishment but it cannot
justify the violation of his human
rights except in the manner
permitted by law. Need, therefore,
is to develop scientific methods of
investigation and train the
investigators properly to
interrogate to meet the challenge."
9. The complaint was filed, as cognizable offence
on 29.10.1989 at 23.00 hrs. for the offence
committed on 27.10.1989 between 18.00 hrs. to
23.15 hrs., by Shri Verma, ASP, Palitana. The
person informing about the complaint was Shri
D.S. Khant, Police Inspector, Mahuva Camp,
Savarkundla.
10. The accused were Police Sub-Inspector - Bhavsing
Chaganbhai Bilval, Head Constable, Vajubha
Akhubha, buckle no.13 and Police Constables
Mahavirsinh Bahadursinh, buckle no.1193, Bhupat
Nanu, buckle no.259, Jagjivan Raghuram, buckle
no.143, Govind Arjan, buckle no.225, Yusufkhan
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Hasankhan, buckle no.1533, all residing at
Savarkundla as noted in complaint Exh.28.
11. The prosecution examined about eighteen
witnesses, out of them, ten were police
witnesses. The complaint which originated for
the present matter was I-CR no.173/1989 at
Savarkundla Town Police Station under Section
379 and 114 of IPC filed by the complainant -
Vinubhai Vaghjibhai Kanani (Patel) on 27.10.1989
against Kanudo @ Bhoplo-Vallabh Waghri and other
unknown boys of Waghri community.
12. Section 302,330 read with Section 114 IPC were
invoked against the police accused by way of
charge-sheet.
12.1 Section 330 is reproduced hereunder for
appreciating the evidence on record:-
"330. Voluntarily causing hurt to
extort confession, or to compel
restoration of property--
Whoever voluntarily causes hurt, for
the purpose of extorting from the
sufferer or from any person
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interested in the sufferer, any
confession or any information which
may lead to the detection of an
offence or misconduct, or for the
purpose of constraining the sufferer
or any person interested in the
sufferer to restore or to cause the
restoration of any property or
valuable security or to satisfy any
claim or demand, or to give
information which may lead to the
restoration of any property or
valuable security, shall be punished
with imprisonment of either
description for a term which may
extend to seven years, and shall
also be liable to fine."
13. It is the case of the prosecution that in
connection with CR no.173/89, the police officer
and police constables brought accused Kanudo @
Bhoplo Vallabh, aged about 22 years, at the
referred time of 18.00 hrs. to 23.15 hrs. at
Savarkundla Town Police Station and during the
interrogation, the police officer and the
constables to extort confession had beaten
deceased-Kanudo, who sustained innumerable
injuries and thus, out of shock and hemorrhage
on account of multiple injuries to the body, he
died, which came to be known through the
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postmortem report, the injuries noted as under:-
"Injuries -
1. Abrasion 1.5 x 1 cm Vertical on
Rt maxillary prominence irregular
2. Abrasion 0.8 x 0.2 cm transverse
on the front of neck Rt side
situated 1 cm above the medial end
of Rt clavicle
3. Abrasion 0.2 x 0.1 cm transverse
1.5 cm Rt to the injury no. 2
4. Abrasion 1 x 0.5 cm in sagittal
plam situated on the tip of Rt
shoulder
5. Abrasion 0.5 x 0.3 cm.
transverse 0.5 cm below the injury
6. Abrasion transverse 3.5 x 0.5 cm
transverse situated on the inner
side of Rt arm 3 cms below the
axillary pit
7. Abrasion 3 x 0.8 cm transverse
situated 5 cms below the injury No.
8. Multiple small irregular
abrasions on the back of Rt forearm,
9 cms below the tip of Olecranon
(elbow) in an area of 5 x 5 cm. size
varies from 0.2 cm. diameter to 0.5
x 0.2 cm
9. Abrasion 0.5 cm diameter on
inner side of (Rt) elbow.
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10. Reddish contusion on the (Rt)
flank midaxillary line just above
iliac crest extending on the back in
transverse plam margin are diffused
size 9 x 2 cms, skin abraded at
places.
11. Reddish contusion with skin
abraded at place on the (Rt) back
2.5 cm below the illiac crest & 1.5
cm (Rt) to midline oblious with
lower end on medial side size 7 x
1.5 cms.
12. Multiple small abrasions 6 in
number on (Rt) back, situated in one
vertical row, 1.5 cm (Rt) to midline
and from the level of T7 to L1
vertebrae, oval to round in shape
size varies from 0.5 cm in diameter
to 1 x 0.5 cm, the distance between
two abrasions vary from 2 to 3.5 cms
intervening area of skin is slightly
contuised.
13. Same type of abrasions (as
injury No.12) on Lt back two in
number situated 1 cm left to midline
and at the level of T12 to L1
vertebrae lower one in oval
(vertically) 1.5 x 1 cm & upper one
is 2 cms above and 0.5 cm diameter
intervening area of skin is slightly
contuised
14. Railroad pattern bruises
(contusion) reddish in colour on
back of chest extending from 7 cms
Rt to midline at the level of T5
Vertebra going downwards to the Lt
crossing the midline & terminating 7
cms Lt to midline at the level of T7
vertebra, margins are diffused size
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15 x 2 cms with 0.6 cm non-contused
area between two parallel lines
15. Reddish contusion with abraded
skin at places on Lt side of back
situated just above the iliac crest,
extending from posterior axillary
line level going downwards &
medially on back for the length of 8
x 2.5 cm.
16. Multiple irregularly arranged
contusions with abraded skin at
places of Lt gluteal region in an
area of 16 x 10 cm transverse.
Contusions are in reddish in colour
& intermingled with each other but
rail road pattern of contusions can
still be appreciated. The size of
contusions varies from 5 x 2 cm. to
8 x 2 cms. with 0.6 cm. non-contused
area in between two parallel lines.
Most of them are in transverse
plain.- This area is swollen.
17. Reddish colour rail road pattern
contusion on the back of Rt thigh
nearly transverse situated 6 cm
below the gluteal fold size 5 x 2 cm
with 0.5 to 0.6 cm non-contused area
of skin in between two parallel
lines. Margins are diffused.
18. Reddish colour rail road pattern
contusion on the back of Lt thigh
oblique situated 4 cm below the
gluteal fold lower end to the inner
side, size 6 x 2 cm with 0.5 to 0.6
cm non-contused area in between two
parallel lines. Margins are
diffused.
19. Abrasion 3 x 1.5 cm vertical on
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back of Rt thigh 2 cm outer to the
injury no.17.
20. Reddish contusion on outer side
of Lt thigh just below iliac crest
extending on front upto the outer
half of inguinal region in an area
of 16 cm vertical & 14 cm
transverse, margins are diffused and
appreciable swelling present on this
region.
21. Reddish diffused contusion on
back of Rt leg (calf region) in an
area of about 8 x 3 cm in oblique
plan.
22. Faint Reddish Contusion on
proximal half of sole of Lt foot
size 6 x 4 cms in sagittal plane.
Margins are diffused.
23. Faint Reddish contusion on the
sole of Rt foot inner side size 8 x
4 cms. in sagittal plane. Margins
are diffused.
Varying degree of ecchymosis is
present in the subcut-aneous tissue
& muscles underneath the external
injuries mentioned above.
The degree of ecchymosis is severe
with more amount of blood
extravasated in to the muscles &
soft tissue on back of chest
abdomen, Lt gluteal region
posterolateral aspect of both thighs
Rt calf & sole of both feet
underneath the respective external
injuries.
All injuries are antemortem in
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nature.
Only one injury on the back & two on
buttock as noticed further detail
are mentioned in inquest
Panchanama."
14. Exh.73 is addressed by Dr. H.M. Mangal, M.D.
(Forensic Medicine), Professor In-charge
Forensic Medicine, M.P. Shah Medical College,
Jamnagar. The communication is addressed dated
20.11.1998 with a subject to answer queries in
reference to A.D. no.16/89 of Savarkundla Town
Police Station based on the PM report
no.364/1989 dated 9.11.1989. The communication
reads as under:-
"Sir,
With reference to the subject cited
above, herewith I am giving the
answer to your querries in the same
sequence.
1. Injuries mentioned in the
postmortem report of the deceased
Kanudo alias Bhopala Vallabh Waghri
are caused by hard & blunt object.
Pattern by few of the injuries like
injury No.14, 16, 17, & 18 are
suggestive of use of hard blunt long
& yielding object like a cane
(lathi).
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2. Death of the deceased was as a
result of cumulative (collective)
effect of all the injuries mentioned
in the postmortem report.
3. Injuries were inflicted in with
24 hours before the death of the
deceased.
4. The regargitated food material
mentioned in the postmortem report
is the effect of decomposition,
since if was not found during the
conduction of inquest panchanama,
when body was fresh.
5. The regargitated food was no
evidence of any type of disease
found during the postmortem
examination.
(6&7) The injuries mentioned in
the postmortem report of deceased in
are sufficient to cause death of a
moderately nourished adult male in
ordinary course of nature."
15. Learned advocate Mr. Shethna had placed very
strong reliance on the evidence of PW11 at
Exh.61 Dr. Ramjibhai Pardhi who was a Medical
Officer at K.K. Hospital on 27.10.1989 who had
examined the deceased in the lock up and
declared him dead. Dr. Pardhi did not make any
note of examining the deceased. He did not see
any injuries on the person. From his deposition,
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it transpires that he had no idea who all were
present at the Police Station at the relevant
point of time. Dr. Pardhi was at his residence
at about 11.30 p.m. on 27.10.1989 and one
Bababhai of Aero Gas Agency of Savarkundla
called him to inform that he was called by P.I.
Sanghvam. From K.K. Hospital, he went to the
Police Station which was at a distance of one
kilometer.
16. Dr. Pardhi after reaching the Police Station
went to the place, where the Police Inspector
used to come. There the Police Inspector Shri
Sangva told him that there was an accused in the
adjacent room and therefore, Dr. Pardhi visited
the room. He saw a dead body of a boy on the
floor aged about 20-25 years and examining him,
he said that he was dead. The witness stated
that he saw the person in the dead condition,
apart from that, he had not seen anything. The
Doctor further clarified that he had not seen
any injuries on the body of that person nor had
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he made any notes of seeing the person. He does
not even recollect as to who was present at that
time at the Police Station.
17. The evidence of Dr. Pardhi was to the effect of
seeing the person and his declaring him dead. It
appears that he was not asked to examine the
injuries on the body of the deceased Kanudo.
Learned advocate Mr. Shethna for appellant
stressed upon this evidence of Dr. Pardhi to
submit that he was the first person and that too
a Doctor who had not found any injury on the
body of the deceased. Mr. Shethna thus has
submitted that on this very evidence of Dr.
Pardhi, all the accused and even the deceased
appellant was required to be acquitted.
17.1 The cross-examination of Dr. Pardhi suggests
that K.K. Hospital is a Government hospital of
Savarkundla and he stated that he had checked
the nerves of the deceased and the pupil of the
eye and had checked his breath. He had not
examined any other things. He in cross-
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examination further affirmed that he had not
seen any injuries on the body of the deceased.
The evidence of the witness was not cross-
examined from the side of the accused no.2 to 7.
18. PW12 - Dr. Harimohan Mangal was examined at
Exh.70 who was serving as a Professor of
forensic medicine in M.P. Shah Medical College,
Jamnagar. On 29.10.1989, the dead body of the
deceased Kanudo was received by him from PSI
G.N. Katariya of Mahuva at 11.20 a.m. along with
the police yadi Exh.50. Dr. Mangal stated that
he along with Dr. Rajavat in the panel, examined
the dead body for the postmortem and marked in
all 23 external injuries on his body. The panel
also marked about 5 internal injuries which were
corresponding injuries in result of the external
injuries. Dr. Mangal stated that if the external
or internal injuries were taken together, they
were sufficient to cause death of the deceased.
All the injuries were caused by hard and blunt
substance. Dr. Mangal stated that injury nos.
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14,16, 17 and 18 were caused by hard and blunt
substance like stick. The stick could be long
and could bend a little or by cane sticks. Dr.
Mangal was shown muddamal article 11 to 17 and
he stated that all the external injuries
referred by him could be caused by those
muddamal sticks or by other substance like the
muddamal sticks.
19. The deposition shows that some organs from the
body were sent to Pathological Department of
M.P. Shah Medical College for hystopathological
examination with forwarding letter Exh.72. The
reply Exh.73 as referred hereinabove was sent by
Dr. Harimohan to the question in the nature of
inquiry by the police about the injuries.
20. Exh.73 by the witness PW12 - Dr. Mangal is
answering the queries raised. As noted in Exh.73
by Dr. Mangal, injuries were inflicted before 24
hours before the death of the deceased. Injury
nos.14, 16, 17 and 18 are suggestive of use of
hard, blunt and long object like cane (Lathi).
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The injury nos.14, 16, 17 and 18 were found to
be the cause of death. Dr. Mangal was referred
to Article 11 to 17 - sticks and he affirmed
that the external injuries could be caused by
the Muddamal sticks or with other similar
material as of the Muddamal stick.
21. In the cross-examination, the defence was raised
of the possibility of injury to have been
sustained by the deceased by jumping out of the
jeep and falling down on the road, if the body
takes two or three turns on the rough road and
the clothes coming in contact of such road could
be torned. This suggestion was put in context of
the bushirt and pant of the deceased found to be
torned and the manner in which they were torned,
the defence suggested that it could not be
possible because of the stick. The Doctor - PW12
affirmed the suggestion and stated of the
probability of the clothes getting torned in
such a manner, had the deceased jumped from the
jeep and fallen on the road taking two to three
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turns.
22. In the cross-examination, the Doctor - PW12,
however, continued to stick to his deposition
that the injury nos.14, 16, 17 and 18 could not
be caused by jumping from the jeep and flitting
on the road. The Doctor stated that there was no
injury on the fingers of both the hands. He
affirmed that all the external injuries were
without any bleeding and were in the form of
abrasions, and very negligible or no amount of
blood could have occurred and he stated that in
medical terms, it cannot be said that there was
any bleeding from the injuries. He further
affirmed that the clothes of the deceased were
not blood stained. Doctor was confronted with
the suggestion that after the injury, if death
occurs, then on examination, such injuries could
not be seen. The said suggestion was denied and
the Doctor voluntarily stated that it could be
possible only if inexperienced person examines,
then such injuries could not be visible at the
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first instance and may be unsuccessful to
identify it, but an experienced Doctor or an
experienced person would not commit any default
in examining the injury.
23. Here it is necessary to refer to the provisions
of Section 176 of Cr.P.C., where the inquiry is
by the Magistrate into the cause of death
including death in custody of the police. While
introducing sub-section (1A) of Section 176 with
effect from 23.6.2006, the power to inquire is
held by the Judicial Magistrate or the
Metropolitan Magistrate, as the case may be. In
the Bharatiya Nagarik Suraksha Sanhita, 2023,
such provision is made under Section 196. The
purpose of Section 176 is for the inquiry by the
Magistrate into cause of death. Provision of
Section 176 Cr.P.C. would get attracted when the
person dies in police custody and there is
suspicion that the death has been caused by the
police itself.
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24. In the case of Madhu v. State of Karnataka,
reported in (2014) 12 SCC 419, it has been
observed in Paragraph 22 that the object of
inquest proceedings is merely to ascertain
whether a person has died under unnatural
circumstances or an unnatural death and if so,
what is the cause of death. Discrepancy
occurring in inquest report cannot be termed as
fatal or suspicious circumstances, which would
warrant benefit of doubt to the accused. It has
been noted that neither inquest report, nor
postmortem report can be termed as basic or
substantive evidence.
25. Much reliance has been placed on the evidence of
Dr. Pardhi who in his testimony stated that he
did not see any injuries on the body of the
deceased Kanudo, but it is this Dr. Pardhi who
had declared him dead in the police custody. The
Police Inspector - Shri Sangvan had showed him
the room, where the dead body of Kanudo was
lying. Dr. Pardhi has categorically stated that
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he had seen the person in dead condition and
that he had seen no other thing, nor any injury
on his body. Dr. Pardhi had come for the inquiry
as was instructed by Police Inspector-Shri
Sangvan to visit the Police Station and the
purpose appears was to find out the actual death
and not the cause of death. Dr. Pardhi had
stated about his act, which he conducted to
examine the deceased Kanudo. He was not asked to
examine the injuries on the body of the deceased
since Police Inspector - Shri Sangvan of Town
Police Station only wanted to know whether
Kanudo was alive or dead. Thus, the evidence of
Dr. Pardhi should be viewed in that limited
context. Under the circumstances, raising a
reasonable suspicion that some person has
committed an offence, the police has the
authority to immediately intimate the nearest
Executive Magistrate empowered to hold inquest.
26. It was also argued by learned advocate Mr.
Shethna that in the inquest panchnama Exh.30,
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only three injuries could be shown. Dr. Mangal -
PW12 said that he did not ask the PSI who had
brought the dead body to do the inquest again.
According to the Doctor, from the eyes of an
inexperienced person at first sight, injuries
could not be seen and so could not be recorded.
The Doctor was, thus, driving to the suggestion
that since inquest panchnama was not prepared by
the experts, therefore, having regard to the
ordinary principle, he did not feel necessary to
prepare the inquest again. However, Dr. Mangal
could state that in the inquest report at
Exh.32, as per his opinion, the injuries which
were referred were tallying with injury nos.14,
15 and 16 and therefore, he stated that injury
nos.14, 15 and 16 in the inquest report were
practically the same, however, he affirmed that
injury nos.14, 15 and 16 separately and
interdependently were not sufficient to cause
death. The opinion of the Doctor in the
examination-in-chief was that the internal as
well as external injuries were definitely prior
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to the death and therefore, they were antimortem
and the internal injuries referred by him were
as a result of the external injuries and the
internal injuries were corresponding to the
external injuries.
27. There was also suggestion from the defence to
the Doctor, that if the dead body was kept in an
open tank to carry for postmortem and is taken
from Savarkundla to Mahuva and thereafter, from
Mahuva to Savarkundla and later on, the dead
body if is taken to Jamnagar Medical College,
during the period because of tossing of the body
in the open tank, there were all possibilities
of sustaining the external injuries as referred.
The Doctor voluntarily thus answered that the
external injuries as per the opinion were
antimortem and if the dead body was brought in a
tank or was carried in a tank, then also, for
the sake of argument too, such kind of
antimortem injuries cannot occur. In that case,
the injury would be postmortem.
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28. PW10 is Dharamsingh Chandansingh Sangvan was on
his duty as PSI on 27.10.1989 at Savarkundla
Town Police Station, on 28.10.1989 at about 0.15
hrs., he received a written report of PSI Shri
B.C. Bilval, the present appellant - accused
no.1. Thereafter, PW10 registered accidental
death no.16/89 under Section 174 Cr.P.C. and
since it was a custodial death, he had asked for
report from Sub-Divisional Magistrate, Mahuva as
well as he had informed the Divisional Police
Officer and District Police Officer. Exh.57 was
the letter written by the accused no.1 - Shri
Bilval. The office copy of the requisition to
the Sub-Divisional Magistrate was produced in
evidence at Exh.58, and according to the letter,
he had instructed to send a wireless message to
the superior officers. PW10 produced Exh.59 the
letter informing the Divisional Police Officer
and the District police officer. PW10 had also
written about the accidental note in his station
diary register of Savarkundla Police Station for
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the period between 17.10.1989 to 5.12.1989. He
referred to Page-26 and the note at Page-2 which
were in his handwriting and he produced the same
at Exh.60. According to PW10, the inquest
panchnama was executed under the instruction of
Savarkundla Executive Magistrate. The
requisition to the Executive Magistrate was
placed at Exh.48. PW10 referred to Exh.32 as the
inquest panchnama in his presence and
thereafter, he stated that the panchnama of the
place of offence was drawn, which was the place
adjoining the chamber of Savarkundla Police
Station Police Inspector. He stated that at the
place of incident i.e. the chamber of PSI and
the sitting area, he did not find any signs and
therefore, he had drawn a NIL panchnama Exh.31.
28.1 PW10 recorded the statement of the complainant-
Vinubhai Vaghjibhai,towards his complaint, the
arrest of the deceased Kanudo was made. The
further investigation was handed over to the
Divisional Superintendent of Police, Mahuva -
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Shri Khant.
28.2 The witness - Shri Sangvan - PW10 stated that
the PSI - B.C. Bilval - deceased appellant was
interrogating deceased Kanudo. Accused no.1-
Bilval on 27.10.1989 from 8-00 to 11-00 in the
evening was at Savarkundla Town Police on his
duty with his staff members. Referring to the
service register running from 7.10.1989 to
25.2.1990 and pointing to Page-27, PW10 stated
that on 27.10.1989 between 8-00 to 11-00 at
Savarkundla Town Police Station, the police
officials were Head Constable - Mansinh
Kaljibhai and Police Constable - Himmatbhai
Bachubhai and in reserved force at the Police
Station, Police Constable - Kishrobhai
Bhikhabhai was present. Three persons present at
the Police Station could be found from the
register.
28.3 The witness - PW10 further referring to the
register stated that on 27.10.1989 between 8-00
in the morning to 01-00 in the afternoon, the
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police officials at the Police Station were
Police Head Constable - Mansing Savjibhai,
telephone duty Police Constable - Bhupendrasinh
Kesarisingh and between afternoon 01-00 to
evening 08-00, the officials were PSO Head
Constable Raising Devabhai and on telephone duty
- Police Constable - Ayubkhan Hasankhan were
present.
28.4 For the time period between evening 04-00 to 08-
00, PW10 stated that the Head Constable -
Vajubhai Akhubha (A2), Police Constable-Jagjivan
Raghuram (A6) and Police Constable-Govindbhai
Arjanbhai (A5) were in reserve. The writing on
27.10.1989 were of Writer Head Constable.
28.5 The witness - PW10 was referred to Page-27
Exh.63 to state that on 27.10.1989 at about 08-
00 at night at Savarkundla Town Police Station,
roll call was recorded and those present during
the roll call, were noted in Police Station
Diary Register. On Page-24 on 27.10.1989, entry
no.15 was about the roll call noted by the PSI -
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Shri B.C. Bilval - accused no.1 in his
handwriting, which the witness identified and
placed it in evidence at Exh.64. The witness
thus clarified that those who were not present
on that night could be identified from the roll
call recorded at 8 O'Clock night at the Police
Station. He had given the yadi Mark-20/18 -
Exh.65 to the investigating officer on
1.11.1989.
28.6 The case papers of theft registered against the
deceased Kanudo was brought by this witness -
PW10 before the Court and he stated that
Vinubhai Vaghjibhai Patel had given the
complaint to PSI - accused no.1 - Shri B.C.
Bilval. Exh.66 - complaint was written by
accused no.1 - Bilval, for that, an entry was
made in Police Station Diary produced at Exh.41.
28.7 The witness PW10 also stated that on 29.10.1989,
the Departmental Police Officer, Mahuva - Shri
D.A. Khant was present and before him, the
complaint was given and the further
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investigation was entrusted to Shri Khant, which
the witness - PW10 referred to from the Station
Diary dated 29.10.1989, wherein the entry from
17.10.1989 to 5.12.1989 and entry no.7 was on
Page-28 continued till Page-29. He identified
his handwriting and placed it in evidence at
Exh.67. On the basis of the complaint, he has
registered the FIR in Police Station register of
Savarkundla Police Station, PW10 produced xerox
copy of the complaint at Exh.68.
28.8 The witness - PW10 was confronted by the defence
advocate. As per the cross-examination, it comes
on record that on 27.10.1989 at about 11:15
night, when PW10 was at his home, he received a
call from accused no.1 and after the phone
message, he went to Savarkundla Police Station
and he saw that the deceased Kanudo was lying on
the floor of the chamber of Sub-Inspector. The
witness PW10 stated that when he saw body of
Kanudo, he did not find any signs of beating on
his body. He verified the said fact and
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thereafter, he called Dr. Pardhi at the Police
Station. Dr. Pardhi examined deceased Kanudo and
declared him dead. PW10 further stated that when
Dr. Pardhi was examining him, he stood near him
and when Dr. Pardhi examined him, he too did not
find any obvious marks of injury on the body of
deceased Kanudo.
29. Advocate Mr. Shethna has taken a defence for the
accused, that PW10 - Dharamsinh Chandansinh
Sangvan and Dr. Ramjibhai Desabhai Pardhi -
PW11, both the officers had not seen any injury
marks on the body of the deceased Kanudo when he
was examined at the place near the chamber of
accused no.1. According to Advocate Mr. Shethna,
this itself was a sufficient evidence on record
to acquit accused no.1.
30. It is required to be clarified from the
deposition of Shri Sangvan that he had called
the Executive Magistrate in accordance to the
provisions of Section 174 Cr.P.C. and had called
Dr. Pardhi for that purpose. In the case of
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Madhu (supra), the Hon'ble Supreme Court notes
in Paragraph 22 that sub-section (1) of Section
174 Cr.P.C. only puts an obligation on the part
of the investigating officer to intimate the
Executive Magistrate empowered to hold inquest
and that there is nothing in law which provides
that the investigation cannot be carried out
without his permission in writing or in his
absence. The object of inquest proceedings under
Section 174 Cr.P.C. is nearly to ascertain
whether a person had died under an unnatural
circumstances or unnatural death and if so, what
is the cause of death. The question regarding
the details as to how the deceased was assaulted
or who assaulted him or under what circumstances
he was assaulted is foreign to the ambit of
scope of the proceedings under Section 174. The
report of inquest is primarily intended of
finding out the nature of injuries and the
apparent cause of death. By the Doctor who holds
postmortem examination, examines the body of the
deceased from the medico legal stand point and
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accordingly, it is the postmortem report that is
supposed to contain the details of the injuries
through scientific examination. In light of the
observation of Hon'ble Supreme Court in Madhu
(supra), non-observing of any injuries on the
body of the deceased Kanudo by Dr. Pardhi - PW11
as well as PW10 - PSI Sangvan would have no
importance since inquiry was conducted only to
the extent of Section 174 Cr.P.C.
31. PW10, on the declaration of the Doctor of the
death of Kanudo, had registered the accidental
death report at 12-15 night at the Police
Station and he himself took upon him the
investigation and the accidental death
complaint, thus, got registered on 28.10.1989.
The investigation remained with him for 3-4 hrs.
and thereafter, Deputy Superintendent of Police
took upon the investigation of the A.D. and
during the time when he had the investigation,
he had drawn the Panchnama of the place of
offence and had recorded the statement of
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Vinubhai who had given the complaint of theft
against deceased Kanudo. Over and above that, as
per the departmental rules, he had informed the
superior officers.
31.1 PW10 could not say when for the first time,
parents of Kanudo had come to the Police
Station. He does not remember whether Deputy
Superintendent of Police - Khant and Sub
Divisional Magistrate both had come together at
the Police Station and he does not have the
knowledge whether Deputy Superintendent of
Police - Khant had examined deceased Kanudo
after coming to the Police Station. The
Panchnama of the place of offence was drawn on
28.10.1989 in the morning between 7.30 to 8.30.
He stated that till that time, the investigation
was with him.
31.2 PW10 denied the suggestion that prior to the
inquest Panchnama, the near relative of the
deceased Kanudo were called at the Police
Station. His father - Vallabhbhai had identified
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the dead body at the Police Station.
31.3 The witness - PW10 stated that when he had gone
to the Police Station at that time, only three
were present there. Accused - Bhavsingh (A-1),
another, Head Constable who was in charge of the
Police Station and the third was Constable who
was PSO. Except that, no police staff was
present at the Police Station. PSO and the
Constable along with him were present there from
8-00 night of 27.10.1989 to 8-00 morning of
28.10.1989.
31.4 The witness - PW10 stated that accused no.1 -
Bhavsingh left the Police Station after his
reaching there. The witness PW10 further
clarified that probably he must have sent him
for some work or on his own may have left the
Police Station. He stated that there was no such
yadi for that purpose, but A-1 at regular
intervals was visiting the Police Station. In
the cross-examination, certain questions were
also asked doubting the missing pages. At Sr.
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No.1 to 3 on the right hand side, with Sr. No.33
to 36 in between with red ink below that name of
Vajubha Appubha (A2), Jagjivan Raghuram (A6) and
Govind Arjan (A5) were written in red ink. He
denied the suggestion that these three names
were not written in the duty register when the
duties were allotted to them and later on were
added to falsely implicate them in the case.
31.5 Witness - PW10 affirmed that the complaint about
the death of Kanudo, almost at about 11-15 night
hrs. on 27.10.1989 was registered against the
accused on 29.10.1989 at 23-00 hrs. and the
complaint of murder was registered. A copy was
sent to the Court on 30.10.1989.
32. Exh.57 is dated 27.10.1989 by the deceased -
appellant - accused no.1 to Police Inspector,
Savarkundla Police Station. Accused no.1
reported that, as the investigating officer at
Savarkundla Town Police Station, he had brought
accused - Waghri Kanudo @ Bhoplo Vallabh,
resident of Maninagar at Police Station in
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connection with Savarkundla Town Police Station
CR no.173/89 under Sections 379 and 114 IPC.
Exh.57 further reports that while inquiring, in
connection with the offence suddenly, Kanudo @
Bhoplo had fallen down on the floor of the
office and had turned unconscious and had become
feeble to give any answer and therefore, Dr.
R.D. Pardhi was called from K.K. Hospital at the
Police Station and on examination, he was
declared dead. Accused no.1, by Exh.57, gave
declaration of the incident.
33. The evidence on record, thus, by Exh.57 suggests
that deceased Kanudo @ Bhoplo was called for
inquiry in connection with CR no.173/89, which
was in connection with theft. Accused no.1, in
the further statement under Section 313 of
Cr.P.C. in connection to report Exh.57, affirmed
that such written report was asked to be given
by the Shri Sangvan - PW10 - Police Inspector,
Savarkundla Police Station. The circumstances
that was placed before accused no.1 under
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Section 313 of Cr.P.C. by the Court questioning,
that witness-Dharamsinh Chandansinh Sangvan in
his oral evidence stated that on 28.10.1989, he
was Police Inspector on duty, at that time, at
about 0.15 hrs., his subordinate Police
Inspector - accused no.1 - Shri Bilval, PSI had
given a written report and therefore, accidental
death entry no.16/89 was registered on
28.10.1989 under Section 174 of Cr.P.C. Accused
no.1 was, therefore, asked about Exh.57, on the
basis of which, the accidental death entry
no.16/89 - Exh.60 was drawn. It was to that
question accused no.1 stated that Exh.57 report
was given by him on the instruction of Shri
Sangvan.
34. Learned advocate Mr. Shethna had referred to the
evidence of PW9 - Vinubhai Vaghjibhai Kanani who
was the complainant to CR no.173/89 under
Sections 379 and 114 IPC that Vinubhai - PW9 had
initially visited Police Inspector - Shri
Sangvan at his home complaining about the theft
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of Rs.20,000/-. Learned advocate Mr. Shethna,
thus, submitted that the Police Inspector -
Sangvan was required to be made an accused as it
was under his instructions, accused no.1 -
Bilval had interrogated accused - Kanudo @
Bhoplo. Advocate Mr. Shethna submitted that it
has not come on record as to what instruction
has been given by PW10-Sangvan to accused no.1
in connection with the complaint of PW9.
Advocate Shethna thus pointed the probability
that Shri Sangvan may have asked accused no.1 -
Shri Bilval to get confession from Kanudo in
connection with the complaint of PW9.
35. PW9 - Vinubhai Vaghjibhai Kanani at Exh.52
deposed that on 27.10.1989, Rs.25,000/- had come
through Angadiya from Mumbai. That money he
carried on the petrol tank of Hero Honda
motorcycle from his Angadiya office at his home,
he parked his motorcycle along with the money
outside his house. After half an hour, when he
came out of his house, he found Rs.20,000/-
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less. PW9 further stated that at that place,
there was Lohar's son, known as Munno who met
him and informed him that one boy had come and
had given Rs.100/- for the snacks. PW9, thus,
stated that he came to know that there were two
boys of Waghri community involved in the theft.
Therefore, along with Munna, he went at
Vaghrivas, where he identified the person. PW9
stated that he does not recollect the name.
However, when he inquired from the boy, the boy
stated that he had not taken the money and
therefore, he had gone to Police Inspector -
Sangvan's house and had informed about the
theft. Mr. Sangvan asked him to go to the Police
Station.
35.1 PW9 further stated that Shri Sangvan Saheb had
asked PSI Bilval - A-1 to immediately arrest the
accused and to receive the Muddamal. Therefore,
PW9, Munno, PSI Bilval - A-1 and police persons
had gone to Vaghrivas, where earlier he had gone
for inquiry, where at the house, the boy was
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called and on inquiring his name, he stated that
he was Kanudo @ Bhoplo.
36. The argument of learned advocate Mr. Shethna
finds the weight from this evidence that it was
Shri Sangvan who had instructed accused no.1 to
immediately arrest the accused and to recover
the Muddamal. As per the further statement of
accused no.1 under Section 313 of Cr.P.C., as
referred hereinabove, it was Shri Sangvan who
had asked accused no.1 to give report Exh.57 for
the death of Kanudo @ Bhoplo who during inquiry
had fallen down on the office floor and had
become unconscious, while Dr. Pardhi had
declared him dead and it was Mr. Sangvan who on
the basis of Exh.57 had recorded the accidental
death entry no.16/89 - Exh.60. Mr. Sangvan has
not been made an accused in the matter. From the
evidence of PW9 - Vinubhai Kanani, it becomes
clear that Shri Sangvan had instructed accused
no.1 to arrest the accused immediately and to
recover the Muddamal. However, such instruction
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of Shri Sangvan cannot be assumed and inferred
that the superior officer had instructed the
subordinate to compel the accused for extorting
the confession, nor would it be inferred that
Shri Sangvan had instructed the police officer
(A-1) to torture accused - Kanudo @ Bhoplo.
37. The further evidence of PW9 would note that
after inquiring the name, Kanudo @ Bhoplo was
asked to sit in the jeep by A-1 and Kanudo was
brought to Savarkundla Town Police Station. PW9
- Vinubhai further states that A-1 had started
inquiring and Kanudo stated that he would remove
and give the money and therefore, again, Kanudo
was taken to Maninagar at his house. At that
time with PW9, the person was Munno.The police
persons did not find any money from the house of
Kanudo and therefore, the boy was brought back
at the Police Station. Thereafter, A-1 took PW9
complaint Mark 20/2, PW9 identified his
signature. He further stated that after the
complaint, the inquiry of the boy was held. PW9
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identified PSI - Bilval - A-1, while for the
rest of the police persons, he stated that he
does not know. In the cross-examination, it has
come on record that second time, when they had
gone to Vaghrivas with PSI - Bilval and were
returning back, at that time, Bhoplo had run
away from the place. He affirmed that the police
halted the jeep and the policeman ran after him
to catch him. According to PW9, on the front
part of the jeep, driver and PSI - Bilval were
sitting, while the door of the rear side of the
jeep was half open. PW9 also stated that at the
rear side of the jeep, he, Bhoplo and Munna were
sitting. After leaving the house, within short
time, Bhoplo ran away. He also affirmed that
Bhoplo somersaulted and he fell on the ground
and flipped twice or thrice and thereafter, he
started running. The witness also affirmed that
Kanudo had made attempts to run away from the
hands of police and affirmed that till the
police brought the jeep, he was attempting to
run away, and he was brought to the Police
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Station in the jeep.
37.1 PW9 further stated that prior to the
registration of the complaint, he, Munno and
Bhoplo were made to sit in a room and after
inquiry, his complaint was taken. PW9 does not
recollect whether they were sitting in Osari or
in the room. He stated that Munna had informed
him that there were two persons and Munna had
also told him that he would identify both of
them. PW9 was at the Police Station till 10-30
night. PW9 further stated that from the time,
Kanudo was arrested till 10-00 or 10-30, he,
Munno and Bilval Saheb were together. PW9 very
categorically stated that in his presence, it
has not happened that Bilval Saheb or any other
police had beaten Kanudo.
38. For this witness - PW9, complaint, Kanudo was
interrogated. He states that till 10-30, Kanudo
@ Bhoplo was not beaten by any of the policemen,
nor by accused no.1.
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38.1 Next day, at his home, the police had come to
call PW9 and he was taken to Rest House. There a
person in a ordinary dress had started his
inquiry and he in his statement had informed
that Kanudo had escaped from the jeep.
Thereafter again, he was inquired by another
police, at that time too, he had informed that
Kanudo had ran away from the jeep.
39. PW9 - Vinubhai's deposition has excluded the
beatings by the police in the Jeep. According to
Vinubhai, on the front side of the Jeep, P.S.I.
Bilval (A-1) and the driver were sitting, while
on the rear side of the Jeep PW9 himself, Bhoplo
and Munna were sitting. Vinubhai does not bring
the presence of other police in the Jeep.
However, his evidence in the examination-in-
chief do state that when they had gone again at
Maninagar he and Munno and police persons had
gone there.
40. PW9 interest appears to favour the accused. His
testimony cannot be considered as fabricated,
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but surely biased. He was interested in
recovering his money alleged to be stolen. His
interest was the financial benefit from the
outcome of his complaint, however, that could
not happen, but led to the result that the
alleged person lost his life in the process.
41. PW9 was favouring the police persons involved,
who helped in his complaint. He can be termed as
a biased witness. His testimony cannot be
outright rejected, but no reliance can be placed
to examine the credibility, which becomes
doubtful.
42. PW16 - Shantilal Vallabhbhai is the brother of
the deceased Kanudo examined at Exh.104. His
deposition notes that Kanudo was his younger
brother. He does not remember the day but
recalls that it was the day of Dhanteras. He and
his brother Kanudo and others were staying
together. The residential house was at
Savarkundla Village behind Maninagar area.
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42.1 PW16, brother states that on the day of
Dhanteras, in the afternoon between 3 to 4 O'
clock, he, his parents and his brother Kanudo
and uncle and others were sitting in their
house.PW16 evidence recorded that two persons
looking like an agriculturists had come and
called him and Kanudo out of the house and a boy
along with them, pointed towards his brother-
Kanudo and stated that the boy was just like his
brother - Kanudo and therefore, the people who
were like agriculturists had asked his brother
Kanudo to sit on Hero Honda vehicle and to go
along with him. PW16, brother stated that the
farmers had alleged his brother and were stating
that now that money is gone and after sometime,
stating that diamonds are gone and again and
again, they were doubting his brother. When the
farmers asked to sit on Hero Honda, his brother
Kanudo stated that he has not committed any
offence and therefore, denied to sit on Hero
Honda. At that time, the farmers threatened him
to wait for some time and to see how he was not
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coming with them.
42.2 PW16 stated that thereafter, the farmers went
away and while they were sitting in the house,
after some time, Bilval saheb and six police
persons had come to their house in police jeep.
The witness stated that he could identity Bilval
saheb and six police persons. On the day of the
deposition, A-1 was not present before the
Court, while six were there, whom he identified
but stated that he does not know their names.
42.3 The brother - witness further stated that Bilval
Saheb told them that the farmers have filed the
case and they have come to take Kanudo for
inquiry. Thereafter, Kanudo was caught and put
in police jeep by those people. PW16 stated that
the police, which was sitting in the jeep
started beating his brother - Kanudo. He started
running after the jeep, he saw them beating his
brother - Kanudo. He even asked the police not
to beat his brother.
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43. The evidence of PW16 - brother suggests that in
all, seven police had come to his house in a
police jeep. As per the witness, the police
which was sitting in the jeep was beating his
brother.
44. After the police Jeep left the place, PW16, the
brother ran after the jeep and he stated that he
had seen police beating his brother Kanudo and
he had asked the police person not to beat his
brother. Thereafter, he, his parents and his
uncle - Maganbhai went after the jeep to the
police station. When they reached the police
station, at the lobby, he saw Bilvalsaheb (A-1)
and police and others beating his brother Kanudo
and therefore he asked them not to beat his
brother.
44.1 PW16 stated that both the hands of his brother
at the police station were put through the iron
framed grill in such way that both his hands
remain outside the grill parallelly. PW16 stated
that police persons were beating his brother and
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other police men were holding both his hands.
When asked not to beat his brother, the police
started abusing and hurled stick against them
and asked them to leave the police station,
therefore, they came out, where they met person
named Bablabhai Khuman.
44.2 PW16 stated the Bablabhai Kuhman had telephoned
at the police station and he was told that he
had no right to call them and that he should not
make such phone. The police even told Bablabhai
that they had right to beat and that he should
not involve himself in it.
45. Learned advocate Mr. Shethna has made contention
that Bablabhai had not been examined by the
prosecution, who could have verified the fact of
deceased brother present at the Police Station
and further stated that Advocate Balubhai
Trivedi, who too was stated to have made a phone
call at the police station was not examined.
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46. The deposition of PW16 suggests that Bablabhai
Khumanbhai and advocate Balubhbai had made phone
call, while Bablabhai was instructed by the
police not to interfere, however, Advocate
Balubhai Trivedi was told that they were not
beating and Kanubhai was sitting at the police
station. The police had told Advocate Balubhai
to get Kanudo release on bail the next morning,
therefore, Advocate Balubhai told them that they
would initiate procedure to get Kanudo released
from police station.
47. According to PW16, police when had come again on
that day in the evening at about 5.00 to 5.30 at
their house and was making search, PW16 stated
that his brother Kanudo, was also along with the
police. The police did not find any illegal
material from their house. He further stated
that when he had taken the lota (small rounded
water container) of water from his house for
Kanudo, police threw the water mug down with the
stick and did not allow Kanudo to drink water.
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After the search, again police took back Kanudo
along with them.
48. PW16 further stated that after police had left
they waited at their home and about 3.00 to 4 O'
clock night Kadarbhai Kazi and his maternal
uncle Sartanbhai Manjibhai had come to their
house and woke them up, therefore, his father
and uncle both went out of the house, who were
informed that they had talked with Savarkundla
police station and Kanudo would be released
under compromise and therefore asked to join
them at the police station. Therefore, his
father, uncle and the two persons, who had come
to call them, all the four sat in a rickshaw and
went to the police station, while PW16 rided his
cycle to the police station. On reaching there,
he saw that no such procedure was to be done for
releasing his brother, but he saw his brother's
dead body covered with cloth in a room at the
lobby of the police station. Police persons
asked them to put a signature on the fact of his
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brother's death, however, they declined and
returned back home.
49. As per PW16 after three days and three nights
police called them at Savarkundla Government
Hospital and gave the dead body, which they
received for the last rites. The evidence of
PW16 clearly states about the police persons
taking his brother, beating him in the jeep and
even beating his brother at the police station.
He saw A-1 - Bilval and other police were
beating his brother in the lobby of the police
station. He had given the description of the act
of A-1 and other police persons. He had seen the
dead body of his brother in the room of the
police station, which was in the lobby. The
witness specifically named A-1.
50. PW17 is the father of the deceased - Vallabhbhai
Bhanabhai, who was aged about 80 years on the
date of his deposition dated 25.10.1999. As per
his deposition at Exh.113, he has four sons and
five daughters, Kanudo was the third son who was
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fondly called Bhoplo. On the day of the
incident, PW17 was at home. He stated that
Fojdar Saheb and two to five persons had come to
their house in a motor and inquired about Kanudo
and as there was no other person except Kanudo,
the witness showed him to the police, who took
him in a motor. The witness went behind them. He
stated that in police line, there was room of
Fojdar Saheb, where they were beating. Along
with him, his son Shanti, his wife Dhaiben, had
gone together. He stated that no other person
were with them. Kanudo was beaten at the police
station. They were waiting in the street of the
police station. Witness stated that Kanudo was
given, hand and kick blows by the Fojdar Saheb
and the police. He knows the Fojdar Saheb. The
witness identified accused no.1 in Court by
going near the accused seat, and when he was
asked whether he could identify the other police
persons, the witness said that he does not
remember. PW17, the father further stated that
when police took Kanudo at that time, two three
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Kanbis had also come there. When his son was
taken by the Fojdar Saheb, he asked him the
cause, who replied that they were taking for
investigation of theft, at that time, he told
that his son's name was not there in the theft.
50.1 As noted in the deposition of PW17, when police
took his son first time, there was no incident.
He stated that police had come again at their
house to make search, and they had found
nothing, at that time, his son was with the
police. The witness stated that for the first
time police had come at 4 O' clock and again at
5.00 in the evening. According to the PW17, when
first time police had come police persons had
come to his house, while second time police had
come, there was no one along with them. The same
police had come second time in jeep, who took
Kanudo along with them. Thereafter, they later
on followed the police, along with him, was his
son Shanti and his wife Dahiben. They had gone
to Darbanga Police Station, where he saw police
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persons beating Kanudo. The witness father had
asked Fojdar Saheb not to beat, but he did not
listen to him and had asked him to run away from
there and therefore they had come back home and
after coming home they went to visit Bablabhai
Darbar at his house to inform him that police
was beating his son, therefore, Bablabhai phoned
police in his presence, who told Bablabhai that
they would beat, therefore, Bablabhai asked
Fojdar Saheb not to beat. The witness stated
that the phone call was made at 8 or 9 O' clock
at night. Thereafter, they returned back home
and went to sleep. In the morning at the wee
hours, Waghri Motiya and Kadarbhai had come to
their house, and with them he, his son and his
wife, three of them had gone along with
Kadarbhai and Moriya in a rickshaw to the police
station, where inside the police station in a
room they saw Kanudo lying on the ground who was
covered with cloth. He raised the cloth and saw
Kanudo and identified him. The witness stated
that his son's dead body was lying in the office
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of Fojdar Saheb.
51. In the case of Jasdeep Singh v. State of Punjab
reported in (2022) 2 SCC 545 Hon'ble Supreme
Court has referred to various judgments in
relation to the scope of Section 34 IPC. The
reference herein is made as thus:-
28.1.Suresh v. State of U.P. [Suresh v. State of
U.P., (2001) 3 SCC 673 : 2001 SCC (Cri) 601] :
(SCC pp. 682-83 & 686-87, paras 24 & 40)
"24. Looking at the first postulate pointed
out above, the accused who is to be
fastened with liability on the strength of
Section 34 IPC should have done some act
which has nexus with the offence. Such an
act need not be very substantial, it is
enough that the act is only for guarding
the scene for facilitating the crime. The
act need not necessarily be overt, even if
it is only a covert act it is enough,
provided such a covert act is proved to
have been done by the co-accused in
furtherance of the common intention. Even
an omission can, in certain circumstances,
amount to an act. This is the purport of
Section 32 IPC. So the act mentioned in
Section 34 IPC need not be an overt act,
even an illegal omission to do a certain
act in a certain situation can amount to an
act e.g. a co-accused, standing near the
victim face to face saw an armed assailant
nearing the victim from behind with a
weapon to inflict a blow. The co-accused,
who could have alerted the victim to move
away to escape from the onslaught
deliberately refrained from doing so with
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the idea that the blow should fall on the
victim. Such omission can also be termed as
an act in a given situation. Hence an act,
whether overt or covert, is indispensable
to be done by a co-accused to be fastened
with the liability under the section. But
if no such act is done by a person, even if
he has common intention with the others for
the accomplishment of the crime, Section 34
IPC cannot be invoked for convicting that
person. In other words, the accused who
only keeps the common intention in his
mind, but does not do any act at the scene,
cannot be convicted with the aid of Section
34 IPC.
***
40. Participation in the crime in
furtherance of the common intention cannot
conceive of some independent criminal act
by all accused persons, besides the
ultimate criminal act because for that
individual act law takes care of making
such accused responsible under the other
provisions of the Code. The word "act" used
in Section 34 denotes a series of acts as a
single act. What is required under law is
that the accused persons sharing the common
intention must be physically present at the
scene of occurrence and be shown not to
have dissuaded themselves from the intended
criminal act for which they shared the
common intention. Culpability under Section
34 cannot be excluded by mere distance from
the scene of occurrence. The presumption of
constructive intention, however, has to be
arrived at only when the court can, with
judicial servitude, hold that the accused
must have preconceived the result that
ensued in furtherance of the common
intention. A Division Bench of the Patna
High Court in Satrughan Patar v. Emperor
[Satrughan Patar v. Emperor, 1919 SCC
OnLine Pat 4 : AIR 1919 Pat 111] held that
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it is only when a court with some certainty
holds that a particular accused must have
preconceived or premeditated the result
which ensued or acted in concert with
others in order to bring about that result,
that Section 34 may be applied."
28.2.Lallan Rai v. State of Bihar [Lallan Rai v.
State of Bihar, (2003) 1 SCC 268 : 2003 SCC
(Cri) 301] : (SCC p. 277, para 22)
"22. The above discussion in fine thus
culminates to the effect that the
requirement of statute is sharing the
common intention upon being present at the
place of occurrence. Mere distancing
himself from the scene cannot absolve the
accused -- though the same however depends
upon the fact situation of the matter under
consideration and no rule steadfast can be
laid down therefor."
28.3.Chhota Ahirwar v. State of M.P. [Chhota
Ahirwar v. State of M.P., (2020) 4 SCC 126] :
(SCC p. 133, para 24)
"24. Section 34 is only attracted when a
specific criminal act is done by several
persons in furtherance of the common
intention of all, in which case all the
offenders are liable for that criminal act
in the same manner as the principal
offender as if the act were done by all the
offenders. This section does not whittle
down the liability of the principal
offender committing the principal act but
additionally makes all other offenders
liable. The essence of liability under
Section 34 is simultaneous consensus of the
minds of persons participating in the
criminal act to bring about a particular
result, which consensus can even be
developed at the spot as held in Lallan Rai
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v. State of Bihar [Lallan Rai v. State of
Bihar, (2003) 1 SCC 268 : 2003 SCC (Cri)
301] . There must be a common intention to
commit the particular offence. To
constitute common intention, it is
absolutely necessary that the intention of
each one of the accused should be known to
the rest of the accused."
28.4.Barendra Kumar Ghosh v. Emperor [Barendra
Kumar Ghosh v. Emperor, 1924 SCC OnLine PC 49 :
(1924-25) 52 IA 40 : AIR 1925 PC 1] : (SCC
OnLine PC)
"... the words of Section 34 are not to be
eviscerated by reading them in this
exceedingly limited sense. By Section 33 a
criminal act in Section 34 includes a
series of acts and, further, "act" includes
omissions to act, for example, an omission
to interfere in order to prevent a murder
being done before one's very eyes. By
Section 37, when any offence is committed
by means of several acts whoever
intentionally co-operates in the commission
of that offence by doing any one of those
acts, either singly or jointly with any
other person, commits that offence. Even if
the appellant did nothing as he stood
outside the door, it is to be remembered
that in crimes as in other things "they
also serve who only stand and wait". By
Section 38, when several persons are
engaged or concerned in the commission of a
criminal act, they may be guilty of
different offences by means of that act.
Read together, these sections are
reasonably plain. Section 34 deals with the
doing of separate acts, similar or diverse,
by several persons; if all are done in
furtherance of a common intention, each
person is liable for the result of them
all, as if he had done them himself, for
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"that act" and "the act" in the latter part
of the section must include the whole
action covered by "a criminal act" in the
first part, because they refer to it.
Section 37 provides that, when several acts
are done so as to result together in the
commission of an offence, the doing of any
one of them, with an intention to co-
operate in the offence (which may not be
the same as an intention common to all),
makes the actor liable to be punished for
the commission of the offence. Section 38
provides for different punishments for
different offences as an alternative to one
punishment for one offence, whether the
persons engaged or concerned in the
commission of a criminal act are set in
motion by the one intention or by the
other."
28.5.Mahbub Shah v. Emperor [Mahbub Shah v.
Emperor, 1945 SCC OnLine PC 5 : (1944-45) 72 IA
148 : AIR 1945 PC 118] : (SCC OnLine PC)
"... Section 34 lays down a principle of
joint liability in the doing of a criminal
act. The section does not say "the common
intentions of all", nor does it say "an
intention common to all." Under the
section, the essence of that liability is
to be found in the existence of a common
intention animating the accused leading to
the doing of a criminal act in furtherance
of such intention. To invoke the aid of
Section 34 successfully, it must be shown
that the criminal act complained against
was done by one of the accused persons in
the furtherance of the common intention of
all; if this is shown, then liability for
the crime may be imposed on any one of the
persons in the same manner as if the act
were done by him alone. This being the
principle, it is clear to their Lordships
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that common intention within the meaning of
the section implies a pre-arranged plan,
and to convict the accused of an offence
applying the section it should be proved
that the criminal act was done in concert
pursuant to the pre-arranged plan."
28.6.Rambilas Singh v. State of Bihar
[Rambilas Singh v. State of Bihar, (1989) 3 SCC
605 : 1989 SCC (Cri) 659] : (SCC pp. 609-10,
para 7)
"7. ... It is true that in order to convict
persons vicariously under Section 34 or
Section 149 IPC, it is not necessary to
prove that each and every one of them had
indulged in overt acts. Even so, there must
be material to show that the overt act or
acts of one or more of the accused was or
were done in furtherance of the common
intention of all the accused or in
prosecution of the common object of the
members of the unlawful assembly."
28.7.Krishnan v. State of Kerala [Krishnan v.
State of Kerala, (1996) 10 SCC 508 : 1996 SCC
(Cri) 1375] : (SCC p. 515, para 15)
"15. Question is whether it is obligatory
on the part of the prosecution to establish
commission of an overt act to press into
service Section 34 of the Penal Code. It is
no doubt true that court likes to know
about an overt act to decide whether the
person concerned had shared the common
intention in question. Question is whether
an overt act has always to be established?
I am of the view that establishment of an
overt act is not a requirement of law to
allow Section 34 to operate inasmuch as
this section gets attracted when "a
criminal act is done by several persons in
furtherance of the common intention of
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all". What has to be, therefore,
established by the prosecution is that all
the persons concerned had shared the common
intention. Court's mind regarding the
sharing of common intention gets satisfied
when an overt act is established qua each
of the accused. But then, there may be a
case where the proved facts would
themselves speak of sharing of common
intention : res ipsa loquitur." (emphasis
in original)
28.8.Surendra Chauhan v. State of M.P. [Surendra
Chauhan v. State of M.P., (2000) 4 SCC 110 :
2000 SCC (Cri) 772] : (SCC p. 117, para 11)
"11. Under Section 34 a person must be
physically present at the actual commission
of the crime for the purpose of
facilitating or promoting the offence, the
commission of which is the aim of the joint
criminal venture."
28.9.Gopi Nath v. State of U.P. [Gopi Nath v.
State of U.P., (2001) 6 SCC 620] : (SCC p. 625,
para 8)
"8. ... As for the challenge made to the
conviction under Section 302 read with
Section 34 IPC, it is necessary to advert
to the salient principles to be kept into
consideration and often reiterated by this
Court, in the matter of invoking the aid of
Section 34 IPC, before dealing with the
factual aspect of the claim made on behalf
of the appellant. Section 34 IPC has been
held to lay down the rule of joint
responsibility for criminal acts performed
by plurality of persons who joined together
in doing the criminal act, provided that
such commission is in furtherance of the
common intention of all of them. Even the
doing of separate, similar or diverse acts
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by several persons, so long as they are
done in furtherance of a common intention,
render each of such persons liable for the
result of them all, as if he had done them
himself, for the whole of the criminal
action -- be it that it was not overt or was
only a covert act or merely an omission
constituting an illegal omission. The
section, therefore, has been held to be
attracted even where the acts committed by
the different confederates are different
when it is established in one way or the
other that all of them participated and
engaged themselves in furtherance of the
common intention which might be of a pre-
concerted or pre-arranged plan or one
manifested or developed at the spur of the
moment in the course of the commission of
the offence. The common intention or the
intention of the individual concerned in
furtherance of the common intention could
be proved either from direct evidence or by
inference from the acts or attending
circumstances of the case and conduct of
the parties. The ultimate decision, at any
rate, would invariably depend upon the
inferences deducible from the circumstances
of each case."
28.10.Ramesh Singh v. State of A.P. [Ramesh
Singh v. State of A.P., (2004) 11 SCC 305 : 2004
SCC (Cri) Supp 70] : (SCC p. 314, para 12)
"12. ... As a general principle in a case of
criminal liability it is the primary
responsibility of the person who actually
commits the offence and only that person
who has committed the crime can be held
guilty. By introducing Section 34 in the
Penal Code the legislature laid down the
principle of joint liability in doing a
criminal act. The essence of that liability
is to be found in the existence of a common
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intention connecting the accused leading to
the doing of a criminal act in furtherance
of such intention. Thus, if the act is the
result of a common intention, then every
person who did the criminal act with that
common intention would be responsible for
the offence committed irrespective of the
share which he had in its perpetration."
28.11.Nand Kishore v. State of M.P. [Nand
Kishore v. State of M.P., (2011) 12 SCC 120 :
(2012) 1 SCC (Cri) 378] : (SCC pp. 126-27, paras
20-23)
"20. A bare reading of this section shows
that the section could be dissected as
follows:
(a) Criminal act is done by several
persons;
(b) Such act is done in furtherance of the
common intention of all; and
(c) Each of such persons is liable for that
act in the same manner as if it were done
by him alone.
In other words, these three ingredients
would guide the court in determining
whether an accused is liable to be
convicted with the aid of Section 34. While
first two are the acts which are
attributable and have to be proved as
actions of the accused, the third is the
consequence. Once the criminal act and
common intention are proved, then by
fiction of law, criminal liability of
having done that act by each person
individually would arise. The criminal act,
according to Section 34 IPC must be done by
several persons. The emphasis in this part
of the section is on the word "done". It
only flows from this that before a person
can be convicted by following the
provisions of Section 34, that person must
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have done something along with other
persons. Some individual participation in
the commission of the criminal act would be
the requirement. Every individual member of
the entire group charged with the aid of
Section 34 must, therefore, be a
participant in the joint act which is the
result of their combined activity.
21. Under Section 34, every individual
offender is associated with the criminal
act which constitutes the offence both
physically as well as mentally i.e. he is a
participant not only in what has been
described as a common act but also what is
termed as the common intention and,
therefore, in both these respects his
individual role is put into serious
jeopardy although this individual role
might be a part of a common scheme in which
others have also joined him and played a
role that is similar or different. But
referring to the common intention, it needs
to be clarified that the courts must keep
in mind the fine distinction between
"common intention" on the one hand and
"mens rea" as understood in criminal
jurisprudence on the other. Common
intention is not alike or identical to mens
rea. The latter may be coincidental with or
collateral to the former but they are
distinct and different.
22. Section 34 also deals with constructive
criminal liability. It provides that where
a criminal act is done by several persons
in furtherance of the common intention of
all, each of such persons is liable for
that act in the same manner as if it was
done by him alone. If the common intention
leads to the commission of the criminal
offence charged, each one of the persons
sharing the common intention is
constructively liable for the criminal act
done by one of them. (Refer to Brathi v.
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State of Punjab [Brathi v. State of Punjab,
(1991) 1 SCC 519 : 1991 SCC (Cri) 203] .)
23. Another aspect which the court has to
keep in mind while dealing with such cases
is that the common intention or state of
mind and the physical act, both may be
arrived at the spot and essentially may not
be the result of any predetermined plan to
commit such an offence. This will always
depend on the facts and circumstances of
the case,..."
28.12.Shyamal Ghosh v. State of W.B. [Shyamal
Ghosh v. State of W.B., (2012) 7 SCC 646 :
(2012) 3 SCC (Cri) 685] : (SCC p. 682, para 87)
"87. Upon analysis of the above judgments
and in particular the judgment of this
Court in Dharnidhar v. State of U.P.
[Dharnidhar v. State of U.P., (2010) 7 SCC
759 : (2010) 3 SCC (Cri) 491] , it is clear
that Section 34 IPC applies where two or
more accused are present and two factors
must be established i.e. common intention
and participation of the accused in the
crime. Section 34 IPC, moreover, involves
vicarious liability and therefore, if the
intention is proved but no overt act was
committed, the section can still be
invoked. This provision carves out an
exception from general law that a person is
responsible for his own act, as it provides
that a person can also be held vicariously
responsible for the act of others, if he
had the common intention to commit the act.
The phrase "common intention" means a pre-
oriented plan and acting in pursuance to
the plan, thus, common intention must exist
prior to the commission of the act in a
point of time. The common intention to give
effect to a particular act may even develop
on the spur of the moment between a number
of persons with reference to the facts of a
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given case."
52. The reference of the case by learned advocate
Mr. Shethna of the case of Maiku and Ors.
(supra) would not be applicable in the present
case, since the judgment of Maiku (supra) is in
context with the Section 149 IPC. There is
distinction between Sections 34 and Section 149
IPC. Section 34 does not by itself creates any
specific offence whereas, Section 149 IPC does.
Common intention must be proved under Section 34
IPC, while Section 149 speaks of common object.
The distinction between Section 34 and Section
149 IPC has been dealt with in case of Virendra
Singh v. State of M.P., (2010) 8 SCC 407, it was
held as under:
"Distinction between Section 34 and
Section 149 of the Penal Code
46. (i) Section 34 does not by
itself create any specific offence,
whereas Section 149 does so;
(ii) Some active participation,
especially in crime involving
physical violence, is necessary
under Section 34, but Section 149
does not require it and the
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liability arises by reason of mere
membership of the unlawful assembly
with a common object and there may
be no active participation at all in
preparation and commission of the
crime;
(iii) Section 34 speaks of common
intention, but Section 149
contemplates common object which is
undoubtedly wider in its scope and
amplitude than intention; and
(iv) Section 34 does not fix a
minimum number of persons who must
share the common intention, whereas
Section 149 requires that there must
be at least five persons who must
have the same common object.
53. Section 149 IPC is of wider scope than Section
34 IPC and in a case where Section 149 applies,
a constructive liability arises even in respect
of those persons, who may not be actually in the
commission of the offence. Though, in both the
sections the persons are vicariously responsible
for the acts of others. In order that Section 34
IPC may apply, it is not necessary that the
prosecution must prove that the act must done by
a specified person.
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54. In the case of Ramesh Singh v. State of A.P.,
(2004) 11 SCC 305 it was held as under:
"12. ... As a general principle in a
case of criminal liability it is the
primary responsibility of the person
who actually commits the offence and
only that person who has committed
the crime can be held guilty. By
introducing Section 34 in the Penal
Code the legislature laid down the
principle of joint liability in
doing a criminal act. The essence of
that liability is to be found in the
existence of a common intention
connecting the accused leading to
the doing of a criminal act in
furtherance of such intention. Thus,
if the act is the result of a common
intention then every person who did
the criminal act with that common
intention would be responsible for
the offence committed irrespective
of the share which he had in its
perpetration..."
54.1 Thus, according to the observation, the
liability would arise by existence of common
intention connecting the accused and when the
criminal act is done by several persons in
furtherance of common intention of all. In
Virendra Singh (supra), it has been observed
about the vicarious liability under Section 34
IPC, which is as under:
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"38. The vicarious or constructive
liability under Section 34 IPC can
arise only when two conditions stand
fulfilled i.e. the mental element or
the intention to commit the criminal
act conjointly with another or
others; and the other is the actual
participation in one form or the
other in the commission of the
crime."
55. Certain circumstances were referred to A-1,
which had come in evidence during trial to be
explained under Section 313 Cr.P.C. A-1 had
taken all the onus on himself excluding A-2 to
A-7 from the crime. The evidentiary value of
such explanation has to be examined. In regard
to Section 313 Cr.P.C., the Hon'ble Supreme
Court in the case of Premchand v. State of
Maharashtra, (2023) 5 SCC 522, held as under:
"14. A Bench of three Hon'ble Judges
of this Court in State of U.P. v.
Lakhmi [State of U.P. v. Lakhmi,
(1998) 4 SCC 336 : 1998 SCC (Cri)
929] has extensively dealt with the
aspect of value or utility of a
statement under Section 313 CrPC.
The object of Section 313CrPC was
explained by this Court in Sanatan
Naskar v. State of W.B. [Sanatan
Naskar v. State of W.B., (2010) 8
SCC 249 : (2010) 3 SCC (Cri) 814]
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The rationale behind the requirement
to comply with Section 313CrPC was
adverted to by this Court in Reena
Hazarika v. State of Assam [Reena
Hazarika v. State of Assam, (2019)
13 SCC 289 : (2019) 4 SCC (Cri) 546]
. Close on the heels thereof, in
Parminder Kaur v. State of Punjab
[Parminder Kaur v. State of Punjab,
(2020) 8 SCC 811 : (2020) 3 SCC
(Cri) 914] , this Court restated the
importance of Section 313CrPC upon
noticing the view taken in Reena
Hazarika [Reena Hazarika v. State of
Assam, (2019) 13 SCC 289 : (2019) 4
SCC (Cri) 546] and M. Abbas v. State
of Kerala [M. Abbas v. State of
Kerala, (2001) 10 SCC 103 : 2002 SCC
(Cri) 1270] .
15. What follows from these
authorities may briefly be
summarised thus:
15.1. Section 313CrPC [clause (b) of
sub-section (1)] is a valuable
safeguard in the trial process for
the accused to establish his
innocence.
15.2. Section 313, which is intended
to ensure a direct dialogue between
the court and the accused, casts a
mandatory duty on the court to
question the accused generally on
the case for the purpose of enabling
him to personally explain any
circumstances appearing in the
evidence against him.
15.3. When questioned, the accused
may not admit his involvement at all
and choose to flatly deny or
outrightly repudiate whatever is put
to him by the court.
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15.4. The accused may even admit or
own incriminating circumstances
adduced against him to adopt legally
recognised defences.
15.5. An accused can make a
statement without fear of being
cross-examined by the prosecution or
the latter having any right to
cross-examine him.
15.6. The explanations that an
accused may furnish cannot be
considered in isolation but have to
be considered in conjunction with
the evidence adduced by the
prosecution and, therefore, no
conviction can be premised solely on
the basis of the Section 313
statement(s).
15.7. Statements of the accused in
course of examination under Section
313, since not on oath, do not
constitute evidence under Section 3
of the Evidence Act, yet, the
answers given are relevant for
finding the truth and examining the
veracity of the prosecution case.
15.8. Statement(s) of the accused
cannot be dissected to rely on the
inculpatory part and ignore the
exculpatory part and has/have to be
read in the whole, inter alia, to
test the authenticity of the
exculpatory nature of admission.
15.9. If the accused takes a defence
and proffers any alternate version
of events or interpretation, the
court has to carefully analyse and
consider his statements.
15.10. Any failure to consider the
accused's explanation of
incriminating circumstances, in a
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given case, may vitiate the trial
and/or endanger the conviction.
16. Bearing the above well-settled
principles in mind, every criminal
court proceeding under clause (b) of
sub-section (1) of Section 313 has
to shoulder the onerous
responsibility of scanning the
evidence after the prosecution
closes its case, to trace the
incriminating circumstances in the
evidence against the accused and to
prepare relevant questions to extend
opportunity to the accused to
explain any such circumstance in the
evidence that could be used against
him...."
56. The law laid down in the referred judgments
under Section 34 IPC has to be appreciated with
the material facts and evidence on record.
Whether only A-1 was responsible or all had
participated for their common intention needs
evaluation keeping in context the further
statement of A-1, excluding A-2 to A-7 from the
offence. In the cross-examination of brother
PW16, it has come that initially, he ran after
the Jeep alone to certain extent, he saw police
beating his brother in jeep. He stopped running
after some distance, which covered a distance of
10 minutes. When the remaining persons came,
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they all went to the police station. The
evidence of father PW 17 is that he and his son
PW16 and wife had gone to the Police Station.
According to PW16, after his brother was taken
to police station approximately about one to one
and half hour, they reached the police station.
Evidence of father PW17 brings details in
affirmative that when a boy told the police that
it was a boy like Kanudo, police took kanudo
with them. The evidence of PW16 and PW17 is
consistent of their following the police Jeep,
and when they reached Police Station, they saw
police continuously beating Kanudo. Police was
beating Kanudo in the room of Faujdar Sahab.
PW17 denied the suggestion that he had not seen
Faujdar Sahab beating kanudo. He came to know
from the police that the name of Faujdar Sahab
was Bilval Sahab. He had seen Bilval Sahab at
his home twice.
57. The evidence of both eye-witnesses, PW16 and
PW17, brother and father of Kanudo are
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consistent, they had seen the police taking
Kanudo in jeep to police station. Police had
come twice at their house. PW17 father could
very clearly identify A-1 Shri Bilval and PW16
stated that Bilval Sahab and another police were
beating. PW16 could identify all the accused in
the Court, but could not name A-2 to A-7.
58. Learned advocate Mr. Shethna contended that the
prosecution failed to examine the mother of
Kanudo, Bablabhai Khuman and Advocate Balubhai
Trivedi. The mother had seen the same thing, as
what PW16, PW17 saw. Rather their evidence gives
further account of the act of mother, who when
could not pacify herself, had again gone to
police station, when they all after returning
back from police station, were sitting along
with their community people, who were in the
business of selling chewing-stick (Miswak used
for brushing teeth for oral hygiene). Bablabhai
Khuman was the representative of the community
and Advocate Balubhai Trivedi, their legal
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adviser. Meeting these people would be natural
conduct of PW16 and PW17 to seek help. Non-
examination of these witnesses would not be
fatal to prosecution case.
59. PW16 and PW17, father and brother of deceased,
could not name all the police, who had taken
Kanudo with them. They could specifically name
only A-1 Shri Bilval. The presence of other
accused can be verified from the evidence of
other police witnesses.
60. PW6 is the driver of the jeep, Ghanshyamsing
Danubha Gohil. In his deposition, it was noted
that on 27.10.1989, he was on duty as driver to
the Jeep of Police Inspector, who was Sangwan
Saheb. Police Sub-inspector were Bilval Saheb
and Mishra Saheb. On that day at about 5:15 p.m.
P.S.I. Bilval had called him at the Police
Station with Jeep. He took the Jeep to the
Police Station, where Bilval Saheb asked to take
him to Maninagar. Along with them, there were
other police persons.
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60.1 Then they had gone to Maninagar at Vagrivas.
This witness stated that the other police were
one Bhupatbhai (A4), Vajubhai (A2), Yusufbhai
(A7), Jagjivanram (A6), Hargovindbhai (A5) and
Saheb (A-1). The police persons, when they came
back had one boy with them of Waghri Community.
With all these police persons and the boy they
had come back in the Jeep at the police station.
He clarified that when they had gone from Town
Police Station to Maninagar along with them,
apart from the police, there were two other
persons, one named Munno and another Vinubhai.
Both were taken along to identify the person,
who had committed theft.
60.2 This evidence of PW6, as driver of the Jeep
would corroborate the version of PW16 and PW17,
father and brother of deceased Kanudo as well as
PW9 Vinubhai, the complainant of the alleged
theft.
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60.3 PW6 again corroborates the evidence, that after
coming back to the Police Station, they had
again gone back to Maninagar. At that time,
along with PW6 were Bilvalsaheb (A1) Vajubha
(A2), Mahavirsinh (A3), Bhupatbhai (A4),
Jagjivanbhai (A6) and Waghri's son Kano. PW6 was
waiting at the road, having parked the vehicle.
After half an hour, they had come back and
sitting in the vehicle, they had come at the
Town Police Station. At about 9 o' Clock after
taking the permission of Bilvalsaheb, he went
away with the vehicle. PW6 stated that
Bilvalsaheb was in the Police Station in his
chamber.
61. The evidence of PW6 driver had brought the
presence of all the other accused police
persons. His evidence also clarifies of going to
the house of deceased Kanudo twice. And further
(A-1) Shri Belwal was at the Police Station even
after 9 o' Clock. Accused No.1 could not deny
his presence, as he was the police in-charge and
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was having the custody of Kanudo. Exh.60, on
28.10.1989 at 0.15 hours, is the Accident Death
Report No.16/89 under Section 174 of Cr.P.C.,
where by information of the death of Kanudo @
Bhoplo of Maninagar was given by Shri B.C.
Bilval (A-1), Police sub-Inspector of
Savarkundla Police Station. The death had
occurred during the police custody while the
accused was interrogated in connection to
C.R.No.173/89 for Section 379 IPC.
62. The death under the custody of Shri Bilval (A-1)
is proved on record by documentary evidence as
well by the oral evidence.
63. The defense had been raised that the injuries
had not occurred in the police custody, but
while Kanudo jumped from the Jeep, while was
brought to the Police Station. In the cross-
examination PW6 driver of the jeep, affirmed the
suggestion that when they came second time to
the Police Station, accused Kanuda jumped from
the running jeep. Therefore, on instruction of
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police he halted the vehicle, and thereafter
Bilvalsaheb and other police ran after him, and
Kanudo was caught and brought near the Jeep. PW6
affirmed that at that time Kanudo tried to
release himself from the hands of police. He
does not remember that to control accused,
Bilvalsaheb slapped him two-three times. It was
about five minutes, when they caught and brought
Kanudo. They had taken Vinubhai and Munno from
outside the Town Police Station in the Jeep.
64. The statement of the witness PW6 was first
recorded by Jamadar-Ganpatbhai Bhatt after two
days of bringing Kanudo. Second statement was
recorded by P.I. Sangvan (PW10) on the same day
evening. Dy.S.P. Khant (PW2) had recorded his
statement and A.S.P. Satish Verma (PW18) too had
recorded his statement.
64.1 Before Vermasaheb, PW6 had stated that when they
were on the way to Police Station with P.S.I.
Bilvalsaheb, they saw Mahivirsinh Bahudarsinh
(A3) near old bus-stop. He stopped the Jeep and
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Bilvalsaheb asked A3 to sit in the Jeep and
thereafter they went to Town Police Station. He
affirmed that in his police statement before
Shri Khant, he had not stated that when they for
the first time left for Maninagar at that time,
Bhupatbhai (A4), Jagivanram (A6) and
Hargovindram (A5) were with them.
64.2 The witness PW6 in his deposition affirmed that
in his presence none of the accused had beaten
the child of Waghri and he does not know that
when he had gone to take the permission of
Bilvalsaheb for leave, at that time rest of the
accused were present there or not. PW6 affirmed
that he had not seen them. He stated that in the
Police Station, there, in front is Osri and one
could see people in the Osri.
64.3 After leaving the Police Station at 9 O' Clock
again PW6 was called at night at 12 O' Clock by
Shri Sangvan (PW10) and he took Shri Sangvan
from Rural Police Station to Town Police
Station, there he met Pehrewala Himatbhai Valji.
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He affirmed that thereafter, he had gone to call
persons from police line. He affirmed that
Mahavirsinh (A3) and Bhupatsinh (A4), both were
at their home in the police line, whom he had
called. He also affirmed that in his statement
before Dy. S.P. Khant, he had stated that there
on inquiry a boy named Munno had identified a
son of Waghri for the theft of Patel.
65. In background of these evidence on record, the
legal question raised by learned advocate Mr.
Shethna becomes relevant to be examined, where
the challenge is to the sole conviction of
deceased appellant, while acquittal of rest of
the co-accused.
66. It becomes amply clear that deceased Kanudo was
picked from home, by Bilval (A-1) and other
police persons. From the evidence of PW16 and 17
and more specifically evidence of PW6 - the
driver of Jeep almost from 5:30 in the evening
Kanudo was in the custody of police. In the
examination-in-chief PW6 does not state of
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Kanudo jumping from the Jeep or running away
from the clutches of police. Even if, that
evidence of PW6 is read, which has come in
cross-examination, it took about five minutes to
again apprehend Kanudo. PW6 does not state that
deceased had sustained injuries on his body by
jumping from the Jeep.
66.1 From the time, he was picked from home, at 5:30
in the evening of 27.10.1989 till mid-night,
Kanudo was in police custody. Exh.60 Accident
Death Report No.16/89 was given by Bilval (A-1)
at 28.10.1989 at 0.15 hours, where it notes very
explicitly that death had been in police custody
while accused was interrogated in connection to
C.R. No.173/89 under Section 379 IPC.
67. There is no controversy of death in police
custody. Accused themselves were in no position
to deny the same. Custodial death was proved
even by the police official documents.
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68. Learned advocate Mr. Shethna's argument was that
PW16 and PW17 could not have seen the accused
beating Kanudo while in their custody, as it has
become clear and evident from the testimony of
police witnesses, that unless and until any
person would come to the lobby of the Police
Station, one will not be able to see inside the
chamber of PSI.
68.1 Exh.34 is the sketch of the Police Station,
where it could be seen that the main door is
falling at the main road and there appears to be
grill on the wall of chamber of Police Sub-
Inspector. The chamber has attached lock-up. The
chamber is falling on the road. Exh.34, in the
chamber, shows the dead body of Kanudo lying
down there. The evidence of PW16 and 17, brother
and father was, having seen Kanudo being beaten
by the police. PW16 could state that it was in a
way that his hands were lying out of the grill
in a parallel position. From the main road, the
grill is easily visible. The evidence, thus, of
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PW16 and PW17 gets corroborated by the document
Exh.34.
69. In the considered opinion of this Court, even if
no one comes forward and depose of the custodial
torture by the police, in the present case, the
fact itself becomes self-explanatory that Kanudo
died in police custody. There is no escape from
that conclusion and it is an admitted fact on
record. The case is registered on the ground of
custodial death. Moreover, there is no denial to
that proposition of law that even in custodial
death, it is for the prosecution to establish
beyond reasonable doubt a proper link between
the accused and commission of crime.
70. Accused Kanudo was interrogated in police
custody. The evidence is now to be examined, to
view as to who were involved in the beatings.
71. It would be relevant to refer to the
observations in State of M.P. v. Shyamsundar
Trivedi & Ors., 1996 (1) GLH 9 : 1995 (4) SCC
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262, where in Paragraphs 16 and 17, it has been
noticed as under:-
"16. .....The High Court erroneously
overlooked the ground reality 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 only
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.
17. From our independent analysis of
the materials on the record, we are
satisfied that Respondents 1 and 3
to 5 were definitely present at the
police station and were directly or
indirectly involved in the torture
of Nathu Banjara and his subsequent
death while in the police custody as
also in making attempts to screen
the offence to enable the guilty to
escape punishment. The trial court
and the High Court, if we may say so
with respect, exhibited a total lack
of sensitivity and a "could not care
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less" attitude in appreciating the
evidence on the record and thereby
condoning the barbarous third degree
methods which are still being used
at some police stations, despite
being illegal. The exaggerated
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, as in the present case,
often results in miscarriage of
justice and makes the justice
delivery system a suspect. In the
ultimate analysis the society
suffers and a criminal gets
encouraged. Tortures in police
custody, which of late are on the
increase, 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 courts
must not lose sight of the fact that
death in police custody is perhaps
one of the worst kind of crimes in a
civilised society, governed by the
rule of law and poses a serious
threat to an orderly civilised
society. Torture in custody flouts
the basic rights of the citizens
recognised by the Indian
Constitution and is an affront to
human dignity. Police excesses and
the maltreatment of
detainees/undertrial prisoners or
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suspects tarnishes the image of any
civilised nation and encourages the
men in 'Khaki' to consider
themselves to be above the law and
sometimes even to become law unto
themselves. 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. The courts must,
therefore, deal with such cases in a
realistic manner and with the
sensitivity which they deserve,
otherwise the common man may lose
faith in the judiciary itself, which
will be a sad day."
72. PW7 - Mansing Kaljibhai Charel, Head Constable
was on his duty on 27.10.1989 at Savarkundla
Town Police Station. His duty was from 8.00 hrs
to 13.00 hrs. On that day from night 8.00 to
next day 8.00, PW7 was in-charge of PSO . On
27.10.1989, he came on duty at night at 8.00. At
that time, roll call was in progress by Shri
Bilval Saheb. He was given the charge of PSO at
8.15 p.m. PW7 stated that in the police station
lobby, there was one boy sitting who had worn
dress alike white colour. After the roll call,
people dispersed and went away. The original
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roll call with the signature of A-1 - Bilval was
examined during trial in the Court and the
photocopy was put in evidence at Exh.40 which
was entry no.15.
73. Perusal of Exh.40 under the signature A-1 of
entry no.15, the copy has also come on record at
Exh.64 shows the roll call of Bakkal nos.1231,
1425, 1530, 1151, 1161, 877, 814, 1657, 1060,
1542, 791, 1279, 1193, 1203, 13, 701, 259, 713,
269, 143, 225, 230, 1689, 625. These are the
police officers who were present during the roll
call at 20-00 hrs. Exh.65 is the statement of
those police persons not present during the roll
call at 8.00 p.m., but were on duty. Exh.128 has
been produced by PW18, the investigating officer
showing the police officers with Bakkal numbers
sent on night duty with entry no.23, they are
Bakkal nos.1530, 1161, 13, 1060, 1425, 225,
1203, 235, 701, 143, 269 and 1180.
73.1 The accused are Bakkal nos.13, 1193, 259, 225,
143 and 1533. Except Bakkal no.1533 A-7,
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presence of others were there in the roll call.
74. PW7 stated that at the Police Station a duty
register is maintained. At 20.20 hrs., PSI Shri
Bilval asked PW7 to give him station diary for
institution of offence of theft. Entry no.20 the
witness produced at Exh.41. After the offence
was registered by Shri Bilval, PW7 came to know
that the boy sitting in the lobby was the
accused named Kanudo @ Bhoplo. When PW7 took the
charge at 8.15 p.m. along with him, Paheredar
was Himmatbhai Bachubhai.
74.1 PW7 stated that Bilval Saheb took on his own the
investigation of the offence which he registered
thereafter. The accused was brought for
investigation by Police Constable - Bhupatsinh
(A4) and police constable Mahavirsinh (A3) who
took him to the chamber of Bilval Saheb. PW7
stated except A1, A3 and A4, there were no other
present there. Thereafter, reserve police
Kishorbhai Bhikhabhai was called. Pehrewala was
sitting near him on a bench and reserve police
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was sleeping on the cot near Registrar's office.
According to PW7, Registrar's office is opposite
to PSO table.
74.2 PW7 further stated that persons for night duty
had come at 11 O'Clock. He had made the entry
accordingly, entry no.23 was put in evidence at
Exh.42.
74.3 According to PW7 at 11.30 p.m., the voice of
Bilval Saheb was calling PSO and Pehrewala. So
this witness and Himmatbhai had gone to the
chamber. There they saw that the boy who was
brought had fallen on the floor. It is the
evidence of PW7 that Bilval Saheb had informed
him that while he was interrogating the boy, he
had fallen down. PW7 stated that the Doctor had
come, however, he does not remember the time.
The Doctor had declared him dead.
75. The evidence of PW7 PSO and PW6 - Driver now
would require a comparison to verify the
presence of other co-accused at the place of
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offence.
75.1 PW6 named the accused who had accompanied A-1 -
Bilval. PW7 could give documentary evidence of
who all were on duty that day. PW7 said as
evidence that when he was called by Bilval Saheb
at that time, apart from him was watchman
Himmatsinh and reserve man Kishor who was
sleeping on the cot near Sub-Registrar's office.
The fact has come on record by way of evidence
of PW16 and PW17, the father and brother of
deceased, that over and above A-1, other police
persons were also beating deceased Kanudo. PW16
and PW17 could name A-1 - Bilval as the person
beating. A-1 is the person who had taken the
investigation in his hand and he had the legal
custody of deceased Kanudo. PW7 evidence gives
the evidence with Bakkal number and PW6 could
name them.
75.2 Exh.34 the sketch of the Police Station was
admitted by PW7 stating that if one has to reach
to PSI chamber, one has to pass through osri.
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The witness affirms that unless people come in
the lobby, nothing can be seen of PSI chamber.
PW7 had not gone along with Dr. Pardhi in the
chamber to see the dead body.
75.3 According to PW7, when Mr. Khant (PW2) had come,
at that in the Police Station, there was Mr.
Sangvan and Bilval and Mamlatdar. PW7 affirmed
that when Mr. Sangvan had come, thereafter jeep
driver and watchman Himmatsinh were sent to call
other police person, the said evidence gets
corroboration from PW6 jeep driver.
76. PW1 - Gordhanbhai Narenbhai Katariya was
examined about the postmortem of deceased on
28.10.1989. The body of deceased Kanudo @ Bhoplo
from K.K. Hospital, Savarkundla had come to
Mahuva Hospital, but Mahuva unit Doctor declined
to do the postmortem in such type of cases and
asked them to go to Jamnagar.
76.1 On order of Deputy Superintendent of Police -
Shri Khant (PW2) along with four police persons
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dead body was taken to Jamnagar in Government
vehicle. They started at 2.30 from Mahuva and
reached at 23.30 hrs. at Jamnagar. The body was
kept in the postmortem room with necessary
arrangement. Next day the postmortem was
conducted. The Doctor gave him a report in a
closed cover with the dead body and with the
report witness PW1 came to Savarkundla and
handed over the dead body and the sealed cover
to Executive Magistrate Shri Mehta. In cross-
examination, he stated that he did not see any
injuries on the face of the deceased with his
bare eyes.
77. PW2 is the complainant Deputy Superintendent of
Police - Dolatsingh Sahebji Khant. He received
the phone call regarding death of one Kanudo in
police custody on 28.10.1989 at 1.00 Monday.
Immediately, he phoned Sub Divisional
Magistrate, Mahuva and both of them went to
Savarkundla Police Station. Sub Divisional
Magistrate gave the inquiry to Executive
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Magistrate, Savarkundla and PW2 took the
investigation of the accidental death registered
by Police Inspector. He recorded the statement
of witnesses.
77.1 PW2 deposed that as there was unwillingness of
the relatives of the deceased, so postmortem
could not be done on 28th at Savarkundla
Hospital, so sent to Mahuva, but as there was no
facility of forensic expert, so for postmortem,
the body was sent to Jamnagar Kirvin Hospital.
77.2 The opinion of cause of death was sent to
Executive Magistrate, Savarkundla from the
hospital at Jamnagar. The cause of death was
shock and hemorrhage due to multiple injuries to
the body.
77.3 On receiving the opinion, he filed complaint on
behalf of State. PW2 stated that accused were
named as per the preliminary investigation he
had done of the offence. He had sent the
complaint to Savarkundla inspector by a
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communication for its registration. The
complaint was put at Exh.26 and Exh.27.
Complaint Exh.27 is signed office copy. He
produced in evidence Exh.28 report to the
superior officer. Exh.29, the wireless message
to Deputy Superintendent of Police, Bhavnagar.
77.4 In the cross-examination, PW2 complainant
affirms that in his preliminary investigation,
it did not get disclose of any of the accused
having beaten Kanudo. Prior to giving complaint,
he had not seen the inquest Panchnama and the
dead body. After the information of custodial
death, he reached Police Station, Savarkundla at
three at night and at that time had seen the
dead body in the chamber of Police Sub-
Inspector.
78. The complainant was only on the basis of
preliminary investigation. PW2 could not say how
and under what circumstances the names of co-
accused got disclosed, for him to name them in
the complaint.
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78.1 The complainant Exh.26 shows the time of offence
on 27.10.1989 between 18.00 hrs to 23.15 hrs.
place of offence as Savarkundla Town Police
Station. The offence got decalred on 29.10.1989
23 hrs. The offence was registered at
Savarkundla Town Police Station as CR no. 175/89
under Sections 302, 330, 114 IPC.
79. PW3 - Amirkhan Abdulkhan, Panch has not
supported the panchnama Exh.31 of place of
offence. PW4 - Ashokbhai Natubhai sheth is the
Panch at Exh.36 regarding the arrest of all the
seven accused on 10.11.1989 at Savarkundla
Police Station, panch denied the arrest . He has
given evidence of bringing Dr. Pardhi from K.K.
Hospital on the instruction of Police Inspector
- Sangvan. PW4 has denied of all accused
producing Muddamal sticks. PW5 is also the panch
of Exh.36 panchnama. He too had denied of any
arrest and production of weapons.
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80. PW18 on 30.10.1989 was serving as an Assistant
Superintendent of Police. As Palitana Assistant
Superintendent of Police, he was not having the
jurisdiction of Savarkundla Police Station.
Inspite of that, he stated that considering the
gravity of the case, DIG, Junagadh Range
entrusted the investigation to him. PW18 stated
that DIG, Junagadh Range received a wireless
message and on that basis, he had taken up the
investigation. PW18 stated that the complainant
and the investigating officer was Shri B.S.
Khant - PW2, Dy.S.P., Mahuva, from whom, he
took over the investigation with the documents,
and appraised himself of the case. He stated
that the accident death entry no.16/89 under
Section 174 Cr.P.C. with regard to the death of
Kanudo @ Bhoplo Vallabh Waghri on 27.10.1989 was
done by Shri B.S. Khant, DY.s.p. At that time,
statement of jeep driver of Savarkundla Police
Station Shri Ghanshyamsinh Gohil was recorded,
and from that statement, it was found that,
approximately six police persons were on duty at
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Savarkundla Police Station and according to
Police Sub Inspector - Shri Bilval (A-1), they
had gone to bring accused from Maninagar area of
Savarkundla.
80.1 According to PW18, the investigation for
accidental death entry was as per rules and the
statements of the concerned witnesses were
recorded and inquest Panchnama was drawn and
report for the postmortem of the deceased were
dispatched. On 29.10.1989, postmortem report of
medical college, Jamnagar for deceased Kanudo @
Bhoplo was received and it was found that the
death was in Savarkundla police Station.
80.2 As per PW18, deceased Kanudo @ Bhoplo in
connection to Savarkundla Police Station CR
no.I-179/89 was not produced before the Court of
Savarkundla for the punishable offence of
Sections 379 and 114 IPC, nor he was as accused
in police custody or judicial custody, but was
brought to Savarkundla Police Station as
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suspicious accused.
80.3 The evidence of PW18 does not state of custody
of deceased Kanudo @ Bhoplo in the hands of A-1
as legal. According to PW18, Kanudo was not
actually made the accused in CR no.I-173/89.
PW18 stated that the death of Kanudo @ Bhoplo
was in Savarkundla Police Station.
80.4 PW18 also referred to law and order situation in
Savarkundla Town, because of distress and
agitation in Waghri community. The group had
gathered near Savarkundla Town Police Station.
The dead body of the deceased was taken to
Savarkundla Government Hospital and Mahuva
Government Hospital, but was not accepted since
the Doctors were of the opinion that the death
had occurred in the custody of Savarkundla Town
Police Station and the Waghri brothers staying
in surrounding area, apprehended undue pressure
from the police officers of Savarkundla on the
Doctors, and therefore, for opinion of Forensic
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Science Experts, the body was sent for
postmortem to Jamnagar Medical College. From
27.10.1989 to 29.10.1989, necessary process was
done for the postmortem from Jamnagar and on
29.10.1989, postmortem report was received, and
on that basis, Shri Khant, DSP, Mahuva filed a
complaint on behalf of the Government at
Savarkundla Town Police Station as CR no.I-
175/89 under Sections 302, 330 and 114 of IPC.
80.5 PW18 has further referred to the complaint of
PW2 - Shri Khant at Exh.125 and had also made a
reference of the wireless message on 28.10.1989
and referring to the office copy, he stated that
it was in connection with CR no.I-173 (sic)/89
under Section 375, 114 IPC of Savarkundla Police
Station the accused was arrested and Waghri
Kanudo @ Bhoplo was called by PSI, Savarkundla
Town Police Station Shri Bilval for the Muddamal
involved in the offence and during the
interrogation, he suddenly got unconscious and
therefore, Dr. Pardhi was called from K.K.
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Hospital, Savarkundla for physical examination
and the Police Inspector on duty Shri Sangvan
was informed as noted in the wireless message,
which he put in evidence at Exh.176.
80.6 The schedule of roll call on 27.10.1989 at 20-00
hrs. to record the presence of the police
officers on duty, the signature of Shri Sangvan-
PW10 with the verification of this witness PW18,
produced in evidence at Exh.128. The certified
copy of the station diary dated 27.10.1989 of
23-00 hrs. of Savarkundla Town Police Station in
context with entry no.23, which was for the
police officer sent for night round, signed by
Shri Sangvan-PW10 and verified by this witness
was produced in evidence at Exh.128. At Exh.129,
he produced the cause of death, received from
Shri M.P. Shah Medical College, Jamnagar Dr.
Shri H.M. Mangal of Department of Forensic
Medicine. At Exh.130, produced the FSL opinion
dated 11.11.1989 for the Muddamal Articles A to
F in connection with the present offence of CR
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no.175/89 registered at Savarkundla Town Police
Station for Sections 302, 330 and 114 IPC. The
original yadi of the Muddamal was put in
evidence at Exh.135.
80.7 The witness PW18 stated that the accused were
arrested on the basis of the prima facie, oral
as well as documentary evidence and the Muddamal
Articles 11 to 17, sticks were seized from the
accused, which were produced by them voluntarily
and the arrest was made of the accused on
10.11.1989 vide Exh.36 Panchnama between 19-00
to 20-00 hrs. The witness stated that since he
was to go on leave and therefore, the
investigation was handed over to Shri G.S.
Jodhpura - PW15. In the cross-examination of
PW18, the witness PW18 affirmed that in the case
of death of Kanudo in CR no.I-173/89, the
investigation was carried on by Police Sub-
Inspector Shri Bilval Savarkundla and accused
nos.2 to 7 had joined him. However, he stated
that he had not received any document to that
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effect. He also affirmed that Armed Police
Constable has not to assist their superior
officer or equal police officers. He voluntarily
clarified that so far as Armed Police Constables
are concerned, they are to only oversee and keep
the arrested accused in control. He affirmed
that accused no.2 - Vajubha, accused no.4 -
Bhupatbhai, accused no.5 - Govind and accused
no.6 - Jagjivan were Armed Police Constable of
Savarkundla Police Station.
81. By way of evidence at Exhs.127 and 128, PW18 has
tried to project that accused nos.2, 4, 5 and 6
could only be involved in the Japta of the
accused. Accused nos.2, 3 and 7 are shown as
Unarmed Police Constables in the cause title.
Exh.128 read with Exh.17 shows that accused no.2
- Head Constable Vajubha Akhubha, Bakkal no.13
was shown to have been sent in night round. PW18
denied the suggestion that almost about 5 pages
were kept blank in the station diary for the
date 27.10.1989 to 31.10.1989 of Savarkundla
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Town Police Station, and he had come to know
about such facts during his investigation. He
denied the suggestion that such papers were kept
blank to decide the shape to be given to the
incident of death of Kanudo @ Bhoplo. The
witness stated that Exh.63 dated 27.10.1989
showed the duties of total 63 + 3 police
officers, in all 66 police officers present and
has affirmed that in the duty list, no serial
numbers have been noted preceding the names of
Vajubha, Jagjivan Raghu and Govind Arjan. He
denied the suggestion that those names were
written later on and also denied the suggestion
that the names of all the accused were added
later on to falsely implicate them.
82. PW13 and 14 are the Head Constable and Police
Constable respectively who both on 27.10.1989
were at Savarkundla Town Police Station and were
present during the roll call at 8-00 p.m. PW13 -
Pujabhai Virjibhai had seen a boy, aged about 15
years in the lobby near the grill. He had seen
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him at a distance of 15 ft. when he was standing
in the line for roll call of police staff. He
was allotted night duty of 11 O'Clock, and
therefore, had come at 11-00 at the Police
Station, at that time, PSO was Mansingbhai-PW7
and in Pahera was constable Himmatbhai. The
witness stated that when he was in the lobby of
the Police Station near the PSO seat, at that
time, Police Sub-Inspector - Shri Bilval gave a
call to come in his room. Hearing the voice,
this witness-PW13, PSO-Mansing,PW7 and Constable
Himmatbhai, all the three had gone in the office
of Shri Bilval, where Shri Bilval informed them,
that he was interrogating the boy, who had
fallen down. This witness stated that the boy
was near the office table. He also stated that
at that time, Kishorbhai Bhikhabhai, Constable
was sleeping on the otta of the Sub-Registrar
office adjacent to the Police Station building.
82.1 PW13 in his evidence stated that after the roll
call, when he was going towards his house, he
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came out of the Town Police Station, at that
time, he met near the Police Station at the Main
Bazar, constable Yusufkhan (A7). He had general
talk with A7. This witness has brought the
presence of Yusufkhan, who according to PW6, the
driver of the jeep, was along with them while
going to Maninagar.
82.2 While PW14 - Kishor Bhikhalal was also present
at the roll call at 8 O'Clock evening and the
attendance master Shankarbhai had informed him
to serve as leave reserve constable from 8-00
night to 8-00 morning at Town Police Station and
therefore, he appeared accordingly for his duty.
During that period, he saw a 15 year boy sitting
near the table of PSO. PW14 inquired about the
boy from PSO - Mansing (PW7) who told him that
the boy was in the chamber of Bilval Saheb and
Bilval Saheb was interrogating him. At that
time, PW14 stated that Mahavirsing (A3) and
Bhupatbhai (A4) were as Constable near Bilval
Saheb. Witness had not gone into the chamber of
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Bilval Saheb during his leave reserve duty. PW14
affirmed that at 09-30, he went to sleep and
till that time, he had not seen Constable
Mahavirsing or Constable Bhupatbhai or Bilval
Saheb. He stated that he would not know if they
were in the chamber of Bilval Saheb.
83. PW8 - Raising Devabhai Vaghela on 27.10.1989 was
a PSO at Savarkundla Town Police Station between
1-00 in the afternoon to 8-00 at night. He
stated that on that day at about 05-30 to 05-45,
Police Constable - Mahavirsing (A3) had come to
the Police Station and informed him that Shri
Bilval is standing out with his jeep and A3
asked for reserved police, so PW8 sent Head
Constable - Vajubha (A2) to Shri Bilval. He
stated that on that day, Yusufkhan was also on
duty and PW8 informed Yusufkhan that two persons
have gone out and instructed Yusufkhan (A7) to
call them and send to Shri Bilval. The witness
stated that at about 6-30 to 6-45, Shri Bilval
Saheb and other police persons brought a boy at
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the Police Station and along with them, were 2-3
public persons. The boy was made to sit in the
lobby of the Police Station and 2-3 public
persons along with Shri Bilval Saheb entered his
chamber and after sometime, the boy was taken
again out of the Police Station. At that time,
PW8 stated that it was the boy, Bilval Saheb and
2-3 persons of the public and police staff
persons who had gone out. He does not remember
who were there as police staff persons. Those
who had gone out, all had come back between 7-30
to 7-45 at the Police Station and as it was a
roll call time, Shri Bilval Saheb (A-1) took the
roll call and thereafter, at 8-15, Mansingbhai,
PSO - PW7 took the charge, and PW8 went home.
PW8 in the cross-examination stated that reserve
police would have to remain with the PSO and if
they have to go out, then necessary permission
is to be taken. The duties entrusted were noted
at the station diary and on 27th, Head Constable
- Vajubha (A2), Constable Govindbhai (A5) and
police Jagjivan (A6) were in reserve.
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84. The evidence of PW6 - Ghanshyamsing D. Gohil,
PW7 - Mansing Kalibhai, PW8 - Raising Devabhai
Vaghela, PW13 - Pujabhai Virjibhai, PW14 -
Kishorlal Bhikhalal, all police witnesses refers
to the presence of co-accused. PW6 - jeep driver
had given the testimony of A4 - Bhupatbhai, A2 -
Vajubha, A7 - Yusufbhai, A6 - Jagjivanram, A5 -
Hargovindbhai present along with A-1. He has
also further categorically stated that in his
statement before the investigating officer -
Verma, he had informed that while he was going
to the Police Station with Police Sub-Inspector-
Shri Bilval (A-1), on the road, near the old bus
station, they saw Mahavirsing Bahadursing (A3),
and Bilval Saheb (A-1) asked him to sit in the
jeep and they all came to Town Police Station.
The witness also stated that at night 12 O'Clock
he was called by Sangvan Saheb - PW10 and
thereafter, he had gone to call Mahavirsingh
(A3) and Bhupatsinhh (A4) from their house at
police line. PW7 stated that Bilval Saheb took
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the investigation of the matter on his own and
he had taken Police Constable - Bhupatsing (A4)
and Police Constable - Mahavirsing (A3) in his
chamber. PW8 refers to Vajubha (A2), Jagjivan
Raghuram (A6) and Govind Arjan (A5), PW13 refers
to Constable Yusufkhan (A7) near the Police
Station at the main bazar. He had a general talk
with Yusufkhan. PW14 refers to Mahavirsing (A3)
and Bhupatbhai (A4) present in the chamber of
Shri Bilval (A-1). The identification of the co-
accused nos.2 to 7, thus, becomes proved by the
evidence of the referred witnesses - PW6, PW7,
PW13 and PW14. PW16 and PW17 had seen the police
person beating Kanudo in the jeep as well as at
the Police Station.
85. The defence has been raised of Kanudo jumping
from the jeep and sustaining injuries. The
learned Sessions Judge has not believed the
defence and observed that he was trying to run
away, but the police persons who were in the
jeep had held him. Even if the explanation given
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by the accused no.1 in his further statement
under Section 313 Cr.P.C. is taken into
consideration that Kanudo @ Bhoplo had attempted
to jump from the jeep and therefore, he fell
down on the road and flipped, but when he
examined him, he did not find any signs of
injury and therefore, they had gone to
Savarkundla Police Station. In view of this
explanation, the defence raised of injuries
sustained by the deceased at the time when he
was in the jeep would become invaluable. The
postmortem report forensically examined refers
to the injuries, which the deceased received in
the Police Station in the custody of A-1.
86. In the case of Haricharan v. State of M.P.
reported in (2011) 4 SCC 159 it was held as
under:
"38. Mr Nagendra Rai had submitted
that there is no direct evidence of
the involvement of Anil Kumar Singh
Kushwaha in the legal custody and
alleged torture of Mathura. He also
submitted that no specific role had
been attributed to him. In our
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opinion, both the submissions are
without any merit. This submission
of Mr Nagendra Rai is completely
answered by the observations made by
this Court in State of M.P. v.
Shyamsunder Trivedi [(1995) 4 SCC
262 : 1995 SCC (Cri) 715] .
39. We may notice here the
observations made in SCC paras 16
and 17 of the aforesaid judgment in
Shyamsunder Trivedi [(1995) 4 SCC
262 : 1995 SCC (Cri) 715] : (SCC pp.
272-73)
"16. ... The High Court erroneously
overlooked the ground reality 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 the
police officials alone who can only
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.
17. From our independent analysis of
the materials on the record, we are
satisfied that Respondents 1 and 3
to 5 were definitely present at the
police station and were directly or
indirectly involved in the torture
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of Nathu Banjara and his subsequent
death while in the police custody as
also in making attempts to screen
the offence to enable the guilty to
escape punishment. The trial court
and the High Court, if we may say so
with respect, exhibited a total lack
of sensitivity and a 'could not care
less' attitude in appreciating the
evidence on the record and thereby
condoning the barbarous third degree
methods which are still being used
at some police stations, despite
being illegal. The exaggerated
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, as in the present case,
often results in miscarriage of
justice and makes the justice
delivery system a suspect. In the
ultimate analysis the society
suffers and a criminal gets
encouraged. Tortures in police
custody, which of late are on the
increase, 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 courts
must not lose sight of the fact that
death in police custody is perhaps
one of the worst kind of crimes in a
civilised society, governed by the
rule of law and poses a serious
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threat to an orderly civilised
society. Torture in custody flouts
the basic rights of the citizens
recognised by the Indian
Constitution and is an affront to
human dignity. Police excesses and
the maltreatment of
detainees/undertrial prisoners or
suspects tarnishes the image of any
civilised nation and encourages the
men in 'khaki' to consider
themselves to be above the law and
sometimes even to become law unto
themselves. Unless stern measures
are taken to check the malady, the
foundations of the criminal justice
delivery system would be shaken and
the civilisation itself would risk
the consequence of heading towards
perishing. The courts must,
therefore, deal with such cases in a
realistic manner and with the
sensitivity which they deserve,
otherwise the common man may lose
faith in the judiciary itself, which
will be a sad day."
(emphasis in original)
87. In the case of State of Rajasthan v. Thakur
Singh, reported in (2014) 12 SCC 211, it was
held as under:
"16. Way back in Shambhu Nath Mehra
v. State of Ajmer [Shambhu Nath
Mehra v. State of Ajmer, AIR 1956 SC
404 : 1956 Cri LJ 794 : 1956 SCR
199] this Court dealt with the
interpretation of Section 106 of the
Evidence Act and held that the
section is not intended to shift the
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burden of proof (in respect of a
crime) on the accused but to take
care of a situation where a fact is
known only to the accused and it is
well-nigh impossible or extremely
difficult for the prosecution to
prove that fact. It was said: (AIR
p. 406, para 11)
"11. This [Section 101] lays down
the general rule that in a criminal
case the burden of proof is on the
prosecution and Section 106 is
certainly not intended to relieve it
of that duty. On the contrary, it is
designed to meet certain exceptional
cases in which it would be
impossible, or at any rate
disproportionately difficult, for
the prosecution to establish facts
which are 'especially' within the
knowledge of the accused and which
he could prove without difficulty or
inconvenience.
The word 'especially' stresses that.
It means facts that are pre-
eminently or exceptionally within
his knowledge. If the section were
to be interpreted otherwise, it
would lead to the very startling
conclusion that in a murder case the
burden lies on the accused to prove
that he did not commit the murder
because who could know better than
he whether he did or did not."
(emphasis supplied)
18. Reliance was placed by this
Court on Ganeshlal v. State of
Maharashtra [(1992) 3 SCC 106 : 1993
SCC (Cri) 435] in which case the
appellant was prosecuted for the
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murder of his wife inside his house.
Since the death had occurred in his
custody, it was held that the
appellant was under an obligation to
give an explanation for the cause of
death in his statement under Section
313 of the Code of Criminal
Procedure. A denial of the
prosecution case coupled with
absence of any explanation was held
to be inconsistent with the
innocence of the accused, but
consistent with the hypothesis that
the appellant was a prime accused in
the commission of murder of his
wife.
22. The law, therefore, is quite
well settled that the burden of
proving the guilt of an accused is
on the prosecution, but there may be
certain facts pertaining to a crime
that can be known only to the
accused, or are virtually impossible
for the prosecution to prove. These
facts need to be explained by the
accused and if he does not do so,
then it is a strong circumstance
pointing to his guilt based on those
facts."
88. PW15 - Gulamrasum Hasambhai Jodhpura was handed
over the investigation by PW18 - Satish Verma.
He was in charge of A.D.P.O. on 5.12.1989 at
Botad Division. He received an order from DSP,
Bhavnagar to carry on the investigation as ASP,
Palitana was proceeding on leave. The letter
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handing over the investigation to him was
produced at Exh.79. During his investigation, he
received FSL report from Junagadh and biological
report and connecting photographs which were
sent to ASP, Palitana with the forwarding
letter, he accepted the same. The biological
report and serological report with the concerned
forwarding letter he placed in evidence at
Exhs.81 to 103. He had recorded the additional
statements of the witnesses and after the
investigation, he filed a charge-sheet on
23.1.1990 at Savarkundla JMFC Court. He
identified A2 to A7 in the Court, while A-1 -
Shri Bilval was not present on that day during
the trial. Exh.82 is the FSL report with regard
to stomach and its contents, one foot of small
intestine, piece of liver and half of each
kidney, sample of blood, blood of deceased dried
on cloth piece. The result of chemical analysis
did not detect poison, while the blood of
deceased dried on cloth piece was forwarded for
necessary analysis to biology and physics
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division. The biological department's opinion on
examining the bushirt, buttons of the shirt,
pant, 10 paise coin, a metal ring, wrist watch
of the deceased, and for the same sample, F1 to
F5, it was opined by the biological department
that external force was used, however, has noted
that it was not possible to express what type of
force was executed. The report of the biological
department for the blood of the deceased dried
on cloth piece and F1, F2, bushirt and pant
found the presence of blood group 'A'.
89. The charge against accused nos.1 to 7 was of
bringing Kanudo for inquiry to extort confession
and to compel him to return stolen money or to
get information by force or to extort the
confession which could lead to disclosure of the
offence. Thus, with that common intention in
furtherance thereof, the accused had beaten
deceased Kanudo with sticks and kick and fist
blows, so for voluntarily causing hurt were
charged with Section 330 with Section 34 IPC.
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Further, the multiple injuries caused by accused
nos.1 to 7 was the cause of shock and hemorrhage
leading to death and thus, were charged with
Section 302 read with Section 34 IPC.
90. In custodial deaths, Magistrate is empowered to
hold inquiry under Section 196 of Bharatiya
Nagarik Suraksha Sanhita, 2023. At present,
Magistrate includes both Judicial Magistrate and
Executive Magistrate. In People's Union for
Civil Liberties v. State of Maharashtra, (2014)
10 SCC 635, the Supreme Court held that the
inquiry in the cases of death by police torture
must be invariably conducted by Judicial
Magistrate who is empowered to take cognizance
of the offence under Section 176 Cr.P.C. (now
Section 196 of the Bharatiya Nagarik Suraksha
Sanhita, 2023). It was opined that the inquiry
of custodial deaths may be conducted by Judicial
Magistrate rather than Executive Magistrate for
a fair trial.
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91. This Court at present does not find it necessary
to express any opinion on the inquiry of the
Executive Magistrate in the present case. But
can certainly say that judicial mind of a
Judicial Magistrate would have the ability to
judge and decide by analyzing information
applying legal principles and reach to a
reasoned and impartial judgment. It involves a
process of careful consideration weighing of
evidence finding the admissibility, and by
application of relevant legal standard can
arrive at just and fair conclusion.
92. Here the raised issue is the application of
Section 34 IPC to put the accused on trial. The
police while filing the complaint and charge-
sheet, found the case of abetment. So the
charge-sheet filed was with Section 114 IPC,
while the learned Judge while drawing the charge
against the accused found it fit to invoke
Section 34 IPC. The accused took no offence,
denied the charge and prayed for trial.
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93. All the accused faced the trial aware of the
charges, so now would have no scope to claim
prejudice. The difference between the charge
under Section 34 and 114 has been noted in the
case of State of Gujarat v. Khatubhai Limbabhai
Pagi & Ors. (supra) referred by learned advocate
Mr. Shethna. The learned Trial Court was framing
charges under Sections 330 and 302 IPC. The
charge under Section 114 IPC would not be
feasible, having noted the presence of all the
accused police at the place of offence. Further,
the superior relation of A-1 with A-2 to A-7 was
also required to be noted and when all were
police, the question of abetment would have to
be examined with the meaning of Section 107 IPC
and the definition of abettor under Section 108
IPC. Section 34 IPC as noted in the judgment of
Krishnamurty @ Gunodu and Ors. v. State of
Karnataka, (2022) 7 SCC 521 deals with the role
of co-perpetrator. It has been observed that a
co-perpetrator who shares a common intention,
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will be liable only to the extent that he
intends or could or should have visualized the
possibility or probability of the final act. If
the final outcome of offence committed is
distinctly remote or unconnected with the common
intention, he would not be liable. Merely
accompanying the principal accused may not
establish common intention. In the instant case
at hand, A2 to A7 had accompanied A-1 under his
instructions of police officer who took upon
himself the investigation of CR no.173/89, the
offence of theft of Rs.20,000/-. A2 to A7 were
the police on duty at that time, they on the
oral order of A-1 as armed and unarmed police
had gone with A-1 to bring him to the police
station for interrogation. Whether the custody
of deceased Kanudo with A-1 was legal or not
would not have been matter of concern for A-2 to
A-7, however, they had the knowledge that they
had no authority to beat Kanudo who was in
custody of A-1. Evidence of PW18 was in light of
the fact that unarmed police would have to
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ensure the safe custody of accused, who is in
Japta. The common intention initially of all the
police accused was to bring the accused Kanudo
to the police custody for interrogation. The
police had gone to Waghri Vas, thus, to avoid
any untoward incident, the police force would
have been taken, which could be a normal conduct
of A-1. A-2 to A-7 were responsible to bring
deceased Kanudo safely to the police station.
The circumstances and conduct of each police
accused as per the evidence of witnesses were
pointing to their harbouring the intention of
aiding extortion of confession, considering
directly/indirectly compelling Kanudo to return
the money with custodial torture, which ended
into custodial death. For the application of
Section 34, it is not necessary that the plan
should be pre-arranged, common intention can be
formed just a minute before the actual act
happens. The essence and proof that there was
simultaneous consensus of mind of co-
participants in the criminal action is mandatory
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and necessary.
94. Section 35 of IPC explains about the criminal
act done with criminal knowledge or intention.
Section 35 IPC is reproduced hereunder:-
"35. When such an act is criminal by
reason of its being done with a
criminal knowledge or intention.--
Whenever an act, which is criminal
only by reason of its being done
with a criminal knowledge or
intention, is done by several
persons, each of such persons who
joins in the act with such knowledge
or intention is liable for the act
in the same manner as if the act
were done by him alone with that
knowledge or intention."
95. In Krishnamurty @ Gunodu and Ors. (supra), the
case of Afrahim Sheikh & Ors. v. State of West
Bengal, AIR 1964 SC 1263 has been referred with
relevant observation of Barendra Kumar Ghosh
judgment. The case referred is relevant to be
mentioned to bring out the corollary for the
provision of Section 34 and 304 Part-II IPC,
which is relevant to be referred at this stage.
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"14. Appropriate at this stage would
be reference to an earlier decision
of this Court in Afrahim Sheikh v.
State of W.B. [Afrahim Sheikh v.
State of W.B., AIR 1964 SC 1263] ,
which referred to with approval the
following quote on the expression
"act" explained by the Judicial
Commissioner in Barendra Kumar Ghosh
v. King Emperor [Barendra Kumar
Ghosh v. King Emperor, 1924 SCC
OnLine PC 49 : ILR (1925) 52 Cal
197] : (Barendra Kumar Ghosh case
[Barendra Kumar Ghosh v. King
Emperor, 1924 SCC OnLine PC 49 : ILR
(1925) 52 Cal 197] , SCC OnLine PC)
"... criminal act means that unity of
criminal behaviour, which results in
something, for which an individual
would be punishable, if it were all
done by himself alone, that is, in a
criminal offence."
This "criminal act" under Section
34IPC, it was held, applies where a
criminal act is done by several
persons in furtherance of common
intention of all. The criminal
offence is the final result or
outcome but it may be through
achievement of individual or several
criminal acts. Each individual act
may not constitute or result in the
final offence. When a person is
assaulted by a number of accused,
the "ultimate criminal act" normally
will constitute the offence which
finally results or which may result
in death, simple hurt, grievous
hurt, etc. This is the final result,
outcome or consequence of the
criminal act, that is, action or act
of several persons. Each person will
be responsible for his own act as
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stipulated in Section 38IPC.
However, Sections 34 and 35 expand
the scope and stipulate that if the
criminal act is a result of common
intention, every person, who has
committed a part of the criminal act
with the common intention, will be
responsible for the offence.
15. It was accordingly held in
Afrahim Sheikh [Afrahim Sheikh v.
State of W.B., AIR 1964 SC 1263] as
under : (AIR pp. 1267-268, paras 9-
10)
"9. Provided there is common
intention, the whole of the result
perpetrated by several offenders, is
attributable to each offender,
notwithstanding that individually
they may have done separate acts,
diverse or similar. Applying this
test to the present case, if all the
appellants shared the common
intention of severely beating Abdul
Sheikh and some held him down and
others beat him with their weapons,
provided the common intention is
accepted, they would all of them be
responsible for the whole of the
criminal act, that is to say, the
criminal offence of culpable
homicide not amounting to murder
which was committed, irrespective of
the part played by them. The common
intention which is required by the
section is not the intention which
Section 299 mentions in its first
part. That intention is individual
to the offender unless it is shared
with others by a prior concert in
which case Sections 34 or 35 again
come into play. Here, the common
intention was to beat Abdul Sheikh,
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and that common intention was, as we
have held above, shared by all of
them. That they did diverse acts
would ordinarily make their
responsibility individual for their
own acts, but because of the common
intention, they would be responsible
for the total effect that they
produced if any of the three
conditions in Section 299IPC applied
to their case. If it were a case of
the first two conditions, the matter
is simple. They speak of intention
and Section 34 also speaks of
intention.
10. The question is whether the
second part of Section 304 can be
made applicable. The second part no
doubt speaks of knowledge and does
not refer to intention which has
been segregated in the first part.
But knowledge is the knowledge of
the likelihood of death. Can it be
said that when three or four persons
start beating a man with heavy
lathis, each hitting his blow with
the common intention of severely
beating him and each possessing the
knowledge that death was the likely
result of the beating, the
requirements of Section 304, Part II
are not satisfied in the case of
each of them? If it could be said
that knowledge of this type was
possible in the case of each one of
the appellants, there is no reason
why Section 304, Part II cannot be
read with Section 34. The common
intention is with regard to the
criminal act i.e. the act of
beating. If the result of the
beating is the death of the victim,
and if each of the assailants
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possesses the knowledge that death
is the likely consequence of the
criminal act i.e. beating, there is
no reason why Section 34 or Section
35 should not be read with the
second part of Section 304 to make
each liable individually."
95.1 In the case of Krishnamurty @ Gunodu and Ors.
(supra), the essence of Section 34 and proof
required to prove common intention for the
criminal action has been explained in following
way.
"16. Accordingly, to attract
applicability of Section 34IPC, the
prosecution is under an obligation
to establish that there existed a
common intention before a person can
be vicariously convicted for the
criminal act of another. The
ultimate act should be done in
furtherance of common intention.
Common intention requires a
prearranged plan, which can be even
formed at the spur of the moment or
simultaneously just before or even
during the attack. For proving
common intention, the prosecution
can rely upon direct proof of prior
concert or circumstances which
necessarily lead to that inference.
However, incriminating facts must be
incompatible with the innocence of
the accused and incapable of
explanation by any other reasonable
hypothesis.
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17. By Section 33IPC, a criminal act
in Section 34IPC includes omission
to act. Thus, a co-perpetrator who
has done nothing but has stood
outside the door, while the offence
was committed, may be liable for the
offence since in crimes as in other
things "they also serve who only
stand and wait". Thus, common
intention or crime sharing may be by
an overt or covert act, by active
presence or at distant location but
there should be a measure of
jointness in the commission of the
act. Even a person not doing a
particular act but only standing as
a guard to prevent any prospective
aid to the victim may be guilty of
common intention. [ See Tukaram
Ganpat Pandare v. State of
Maharashtra, (1974) 4 SCC 544 : 1974
SCC (Cri) 580]
18. Normally, however, in a case of
offence involving physical violence,
physical presence at the place of
actual commission is considered to
be safe for conviction but it may
not be mandatory when prearranged
plan is proved and established
beyond doubt. Facilitation in
execution of the common design may
be possible from a distance and can
tantamount to actual participation
in the criminal act. The essence and
proof that there was simultaneous
consensus of mind of co-participants
in the criminal action is however,
mandatory and essential. [ See
Ramaswami Ayyangar v. State of T.N.,
(1976) 3 SCC 779 : 1976 SCC (Cri)
518] In Krishnan v. State of Kerala
[Krishnan v. State of Kerala, (1996)
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10 SCC 508 : 1996 SCC (Cri) 1375] it
has been observed that an overt act
is not a requirement of law for
Section 34IPC to operate but
prosecution must establish that the
persons concerned shared the common
intention, which can be also
gathered from the proved facts."
96. To apply Section 34 IPC, the requirement is
there should be two or more accused, they had
common intention and they had participated by
doing criminal act in furtherance of common
intention of all, then each of such persons is
liable for that act in the same manner as if it
were done by him alone. Common intention or
crime sharing may be by an overt or covert act,
jointness in the commission of crime is to be
proved.
97. In Rajeshkumar v. State of Himachal Pradesh,
(2008) 15 SCC 705, it has been held as under:-
"24. In Rajesh Kumar v. State of
H.P. [Rajesh Kumar v. State of H.P.,
(2008) 15 SCC 705 : (2009) 3 SCC
(Cri) 1158] this Court had
elucidated and laid down the
following principles as applicable
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to Section 34IPC : (SCC p. 709, para
13)
"13. '17. Section 34 has been
enacted on the principle of joint
liability in the doing of a criminal
act. The section is only a rule of
evidence and does not create a
substantive offence. The distinctive
feature of the Section is the
element of participation in action.
The liability of one person for an
offence committed by another in the
course of criminal act perpetrated
by several persons arises under
Section 34 if such criminal act is
done in furtherance of a common
intention of the persons who join in
committing the crime. Direct proof
of common intention is seldom
available and, therefore, such
intention can only be inferred from
the circumstances appearing from the
proved facts of the case and the
proved circumstances. In order to
bring home the charge of common
intention, the prosecution has to
establish by evidence, whether
direct or circumstantial, that there
was plan or meeting of minds of all
the accused persons to commit the
offence for which they are charged
with the aid of Section 34, be it
prearranged or on the spur of
moment; but it must necessarily be
before the commission of the crime.
The true contents of the section are
that if two or more persons
intentionally do an act jointly, the
position in law is just the same as
if each of them has done it
individually by himself. As observed
in Ashok Kumar v. State of Punjab
[Ashok Kumar v. State of Punjab,
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(1977) 1 SCC 746 : 1977 SCC (Cri)
177] , the existence of a common
intention amongst the participants
in a crime is the essential element
for application of this section. It
is not necessary that the acts of
the several persons charged with
commission of an offence jointly
must be the same or identically
similar. The acts may be different
in character, but must have been
actuated by one and the same common
intention in order to attract the
provision.' "
After referring to the facts in
Rajesh Kumar [Rajesh Kumar v. State
of H.P., (2008) 15 SCC 705 : (2009)
3 SCC (Cri) 1158] , the conviction
was converted from Section 302IPC to
one under Section 326IPC
highlighting the factual position
that the accused in question had
assaulted the victim by a danda on a
non-vital part."
98. The presence of accused nos.2 to 7 with the
accused no.1 had been proved by oral evidence as
eye-witness 16 and 17 brother and father of
deceased Kanudo could depose about the atrocious
act of all police. PW6 G.D. Gohil, the driver of
jeep could bring the presence of all accused.
Documentary evidence brings their presence on
duty on that day, with A-1 accordingly PW2
Dy.S.P. Dolatsinh Khant could file the complaint
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who says he relied on the statement of PW6 the
driver of the jeep. PW16 and 17 had seen A-1 and
other police persons beating deceased Kanudo.
Multiple injuries on the body of deceased would
draw the inference that it was not the act of
beating of one person. The forensic postmortem
has brought the injuries suffered by the
deceased. The presence and participation of
other accused persons cannot be denied since
PW16 and PW17 could state it and injuries gets
corroborated by the evidence of PW12 - Dr.
Harimohan Mangal the P.M. Doctor Forensic
Expert.
99. In the case on hand, the accused were charged
with Section 302 read with Section 34 IPC, while
deceased appellant as accused no.1 was convicted
for offence under Section 304-II and 330 IPC.
The offence against A-2 to A-7 was concluded by
the Trial Court as not proved. The analysis of
evidence by this Court as referred hereinabove
with the law as pronounced under Section 34 in
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the judgments referred, makes all the accused
liable for the acts of all and hence, all are
liable for the death of Kanudo.
100. In Brathi @ Sukhdev Singh v. State of Punjab,
(1991) 1 SCC 519 the case of Sunder Singh v.
State of Punjab, 1962 Supp. 2 SCR 654, AIR 1962
SC 1211, (1962) 2 Cri LJ 290 was referred to
examine the case, when no appeal is filed for
the acquitted accused and in that circumstances,
the power and jurisdiction of the Appellate
Court.
"9. ...In Sunder Singh case [1962
Supp 2 SCR 654 : AIR 1962 SC 1211 :
(1962) 2 Cri LJ 290] four persons
were tried for offence under
Sections 302/304, IPC. The Sessions
Judge gave the benefit of doubt to
Rachpal Singh and acquitted him but
convicted the other three of the
offences charged. No appeal was
preferred against the acquittal of
Rachpal Singh. But the three
convicted persons appealed to the
High Court. The High Court was of
the view that the Sessions Judge was
wrong in giving the benefit of doubt
to Rachpal Singh that Rachpal Singh
was present at the scene of
occurrence and all the four accused
had the common intention alleged by
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the prosecution. The appellants in
that case contended before the
Supreme Court that the High Court
had no jurisdiction or authority to
embark upon an enquiry into the
propriety or validity of the
acquittal of Rachpal Singh and that
its finding that Rachpal Singh had
taken part in the offence as alleged
by the prosecution had introduced
serious infirmity in the judgment of
the High Court.
Gajendragadkar, J., as he then was,
speaking for the bench of three
Judges observed at page 664 as
under:
"When the High Court in appeal
considered the case against the
three appellants, it had inevitably
to examine the comment made by Mr
Sethi against the reliability of the
witnesses on the ground that their
evidence against Rachpal Singh had
not been accepted by the trial Court
and that necessarily meant that the
High Court had to apply its mind to
that problem as well. If in dealing
with the case presented before it on
behalf of the appellants it became
necessary for the High Court to deal
indirectly or incidentally with the
case against Rachpal Singh, there is
no legal bar at all. It may be that
in considering the evidence as a
whole, the High Court may have come
to the conclusion that the evidence
against Rachpal Singh was
unsatisfactory and if it had come to
such a conclusion, it would have
examined the said evidence in the
light of this infirmity. On the
other hand, after considering the
evidence, the High Court may well
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have come to the conclusion, as it
has, in fact, done in the present
case, that the evidence against
Rachpal Singh is also good and need
not have been discarded. In our
opinion, there is no doubt that if
in appreciating the points made by
the appellants before it the High
Court had to consider the whole of
the evidence, in respect of the
accused persons, it was free to come
to one conclusion or the other in
respect of the said evidence, so far
as it related to Rachpal Singh. That
is why we think that the point made
by Mr Sethi that Section 423(1)(a)
precluded the High Court from
considering the merits of the order
of acquittal even incidentally or
indirectly cannot be upheld."
It was pointed out that when the
High Court considered the criticism
against the prosecution evidence
based on the assumption that the
said evidence was found to be
unreliable insofar as Rachpal Singh
is concerned, it was not
appreciating that evidence with a
view to reverse the order of
acquittal passed in favour of
Rachpal Singh; it was appreciating
only with a view to decide whether
the said evidence should be believed
against the appellants before it and
observed thus at page 666:
"Indeed, as an appellate Court, the
High Court has to consider
indirectly and incidentally the
evidence adduced against an accused
person who had been acquitted by a
trial Court in several cases where
it is dealing with the appeals
before it by the co-accused persons
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who had been convicted at the same
trial and in doing so, the High
Court -- and even this Court
sometimes records its indirect
conclusion that the evidence against
the acquitted persons was not weak
or unsatisfactory and that the
acquittal may in that sense be
regarded as unjustified.
10. These observations indicate that
the High Court is entitled to
evaluate the prosecution evidence
and arrive at its own conclusion.
Such assessment is for the limited
purpose of determining whether the
infirmity which led to the acquittal
of one of the accused persons could
be availed of by the other accused
who had been convicted. On re-
examination of the evidence the
appellate court is free to reach its
own conclusion which may be contrary
to the one reached by the trial
court while acquitting the co-
accused. It can certainly come to an
independent finding that evidence
against the acquitted accused was
satisfactory and would not have been
discarded. On the basis of such a
finding, the appellate court does
not proceed to disturb the order of
acquittal which has become final. It
can certainly consider the impact of
its conclusion on the case of the
appellant before it. If on the
evidence, the High Court can
unmistakably arrive at the
conclusion that the appellant and
acquitted person had acted in
furtherance of their common
intention, the conviction of the
appellant with the aid of Section 34
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is legal. It would be a travesty of
justice if no conviction can be
founded with the aid of Section 34
notwithstanding the finding that the
acquitted person was in fact one of
the participants in the offence..."
100.1 Para 18 thus concluded on the observations of
various judgment as follows:-
"18. The authorities thus show that
it is not essential that more than
one person should be convicted of
the offence and that Section 34,
Penal Code, 1860, can be invoked if
the court is in a position to find
that two or more persons were
actually concerned in the criminal
offence sharing a common object.
Where the evidence examined by the
appellate court unmistakenly proves
that the appellant was guilty under
Section 34 having shared a common
intention with the other accused who
were acquitted and that the
acquittal was bad, there is nothing
to prevent the appellate court from
expressing that view and giving the
finding and determining the guilt of
the appellant before it on the basis
of that finding.
21. We are of the opinion that the
High Court was fully justified in
re-assessing the evidence with a
view to determining if the
infirmities pointed out by the trial
court while acquitting the co-
accused existed on record. In doing
so, the High Court was not fettered
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by the conclusions of the trial
court. The entire evidence was
before it and it was free to reach
its own conclusions. It was free to
examine the infirmities for the
limited purpose of assessing the
impact thereof on the case of the
appellant. While doing so, it came
to the conclusion that Teja Singh
was not only present but had given
the fatal blow in furtherance of the
common intention shared with the
appellant. It could not reverse the
acquittal of the co-accused in the
absence of a State appeal. But the
High Court could not refuse to visit
the appellant with the consequences
notwithstanding the conclusions
reached. It could not render the
entire exercise nugatory and
perpetuate the error committed by
the trial court, and resultant
miscarriage of justice. We,
therefore, hold that the High Court
had rightly convicted the appellant
with the aid of Section 34, Penal
Code. The judgment does not suffer
from any infirmity."
101. In the case of State of M.P. v. Shyamsunder
Trivedi reported in (1995) 4 SCC 262, it was
held as under:-
"19. From the evidence available on
the record both documentary and
oral, we are satisfied that
Respondents 1 and 3 to 5 had
participated in causing injuries to
Nathu Banjara while in police
custody, directly or indirectly, and
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even if it is not possible to say
that they intended to cause the
death of Nathu, and they can
certainly be clothed with the
knowledge that the injuries which
were being caused to the deceased at
the police station were likely to
cause his death though probably
without any intention to cause his
death or even to cause such bodily
injuries to him as were likely to
cause death. Their offence would,
thus, squarely fall under Sections
304 Part II/34 IPC. Respondents 3 to
5 are also guilty of the offences
under Sections 201 and 342 IPC and
holding them so guilty, we convict
them for the said offences."
102. Thus, as observed in the case of Brathi Alias
Sukhdev Singh (supra), re-assessment of evidence
is justifiable, to examine whether actually
infirmities observed by the trial Court existed
acquitting the accused. The High Court has to
reach to its own conclusion, on assessment of
entire evidence which was recorded before the
trial Court. The analysis of the evidence and
re-assessment in the present matter proves the
involvement of all the accused, acquitted as
well as convicted. Common intention for the
commission of the crime had been proved. Hence,
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each accused sharing the common intention is
constructively liable for the criminal aid of
each and all. The appellate Court can observe
the guilt of the involved accused person, if the
evidence warrants, to find that the person found
convicted was guilty of the offence under
Section 34 IPC by virtue of having committed the
offence along with the acquitted person.
103. In the result, there is no escape for the
deceased appellant, for the vicarious criminal
liability of the criminal act done by him and
co-accused, for the custodial death of Kanudo.
It was not a crime buried with the grave, but
was in police custody, where every police
becomes answerable to the public for his
custodial torture. The crime does not fade even
after death. Let all the police be reminded of
the fundamental right enshrined in our Indian
Constitution under Article 21 that "No person
shall be deprived of his life or personal
liberty except according to procedure
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established by law." The heirs of deceased
appellant have not succeeded in proving the case
for any benefit of doubt, to declare deceased -
original appellant innocent posthumously.
104. Consequently, the appeal fails merits and thus,
stands dismissed. The judgment and order passed
by the learned Additional Sessions Judge,
Bhavnagar in Sessions Case no.37 of 1990 dated
30.11.2000 is upheld.
104.1 The learned Trial Court Judge had ordered
deceased appellant as accused no.1 to pay the
fine of Rs.25,000/- as compensation to the heirs
of deceased Kanudo @ Bhoplo Vallabhbhana Waghri,
Maninagar Waghrivas, Savarkundla.
104.2 The said compensation amount was computed, as
was fine of Rs.15,000/- for the offence
punishable under Section 304 part-II IPC along
with the sentence and Rs.10,000/- fine was for
the offence punishable under Section 330 IPC
along with the sentence.
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104.3 Fine, as per the provision of the Cr.P.C. are
recoverable from the movable and immovable
property of the accused. Section 70 of IPC
provides that the death of the offender does not
discharge the property from liability and the
fine would be payable even after the death of
the offender and such fine is recoverable from
the property of the deceased. Section 70 of the
IPC is as follows:-
"70. Fine leviable within six years,
or during imprisonment-Death not to
discharge property from liability. -
The fine, or any part thereof which
remains unpaid, may be levied at any
time within six years after the
passing of the sentence, and if,
under the sentence, the offender be
liable to imprisonment for a longer
period than six years, then at any
time previous to the expiration of
that period; and the death of the
offender does not discharge from the
liability any property which would,
after his death, be legally liable
for his debts."
104.4 Thus, the Trial Court is directed to issue a
warrant to the Collector of the District, for
realization of the amount of Rs.25,000/- as
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arrears of land revenue from the movable or
immovable property, or both, of deceased -
Bhavsinh Chhaganbhai Bilval.
104.5 Record and Proceedings be sent back to the
concerned Trial Court forthwith.
(GITA GOPI,J)
Maulik/Pankaj
