HARGOVANDAS DEVRAJBHAI PATEL AND ORS.versusTHE STATE OF GUJARAT

A            HARGOVANDAS DEVRAJBHAI PATEL AND ORS.
                                          v.
                           THE STATE OF GUJARAT

                              NOVEMBER 18, 1997

B                [M.M. PUNCHHI AND M. SRINIVASAN, JJ.]


          Penql Code, 1860: Sections 201, 302134, 304 Part II read with Section
    114-Murder-lnterrogation of stranger in police station-Severely beaten
C   up-Became unconscious-Taken in police jeep-Subsequently highly
    decomposed body recovered from Jungle-Body identified by the relatives-
    Trial Court acquitted the accused Police Officers giving benefit of doubt-
    High Court convicted and sentenced them-On appeal, held, several links in
    the chain of circumstances missing-Prosecution failed to prove that the
    accused committed murder-Several discrepancies and unexplained factors
0   causing doubt on the identification of the dead body-Henc~ accused not
    guilty-Conviction set aside.
          The appellants-police officers were prosecuted for an offence under
    Sections 201, 302 and 304 read with Section 34 J.P.C. The prosecution case
    was that two persons came to the police station and informed appellant No.
E   I that one stranger had entered into their Mohallah and they had detained
    him. Appellant No. I along with appellants 2 and 6 and two other constables
    went in Police Jeep along.with the said informants. They returned with an
    unknown person. Appellants I to 5 interrogated the person who gave his
    name as 'K'. He was severely beaten up by the appellants. He became
    unconscious. The appellants took him in the Police Jeep on the pretext that
F   they were taking him to hospital. On their failure to return, Head Constable
    'R' (PW-3) tried to contact the Circle Inspector and made an entry in the
    Station Diary.
          On the next day appellant No. I had registered an offence under
    Section 122(c) of Bombay Police Act against on,e 'P,' who was not the man
G   interrogated in the police station on the previous night. Relatives of 'K' came
    to the police station enquiring the whereabouts of'K'. Head Countable, PW-
    3 lodged a complaint to the Circle Inspector and a case was registered
    against the appellants for the offence of commission of murder of 'K' and
    for concealing the dead body. Circle Inspector started the investigation and
H   found a dead body in a highly decomposed state lying in the jungle. The
       .                                   I~
                        H.D. PATEL v. STATE OF GUJARAT                            155
~   relatives of 'K' on the basis of the clothes and other articles put on the          A
    person of the dead body identified the body to be that of' K'. The appellants
    came out with the case that the man brought to the police station was one
    'P' and the said 'P' was still alive and no offence has been committed by them.

          The trial court giving the benefit of doubt to the accused, acquitted
    them under Seetion 232 Cr. P.C. However, on appeal, the High Court reversing        B
    the conclusion of trial court, convicted the appellants under Section 304 Part
    II read with Section 114 and Section 2011.P.C. Hence the present appeal.

          Allowing the appeal, this Court

          HELD : 1.1. The prosecution has failed to prove that the appellants C
    had committed the offence alleged against them. Thus the appellants are not
    guilty of the offences for which they were charged.1162-E-FI

           1.2. In the instant case an analysis of the evidence shows that there
    are several links in the chain missing and thus it is not possible to hold that
    the accused were guilty of the offences with which they stood charged. The          D
    case rests on circumstantial evidence and there is no eye witness.
    Circumstances from which the conclusion of guilt is to be drawn should be
    fully proved and those circumstances must be conclusive in nature to connect
    the accused with the crime. All the links in the chain of event must be
    established beyond reasonable doubt and the circumstances should be
    consistent only with the hypothesis of the guilt of the accused and totally         E
    inconsistent with his innocence. In other words the only inference that could
    be drawn from the circumstances should be in support of the case of the
    prosecution and wholly incompatible with the innocence of the accused.
                                                                      1159-A-B; El

          Stale of Pu11jah, v. Blwja11 Si11gfl, AIR (1975) SC 258, referred to.         F
          2. The Trial Court has held that the dead body found was that of' K'.
    The said conclusion was arrived at by the trial judge on the basis of the
    identification made with the aid of the dress and other things found on the
    body, such as talisman, plastic sandals etc. But there are several discrepancies    G
    in the evidence of those witnesses including the colour of the dress worn by
    the person when he was brought to the police station. Even assuming that
    such discrepancies are not very material, there are some unexplained factors
    and unanswered questions which cause grave doubt on the identification of
    the body to be that of 'K'. The wife of 'K' was not examined in Court who
    would have been the best person to identify the dead body of'K'. There is no        H
    156                     SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A explanation for not examining her. The doctor who performed the post mortem
    (PW-I) has deposed that it was not possible to identify as to whose dead body
    it was as the same was highly decomposed. In the circumstances it is difficult
    to accept the correctness of the finding of the trial judge that the dead body
    was that of 'K' even though it has been affirmed by the High Court.
                                                               !159-F-H; 160-C-EI
B
         3. The evidence on record does not support the case of the prosecution
   that the accused beat 'K' when he was being interrogated at the police
   station. If there was no beating, the death could not be said to be homicidal.
   Unfortunately, the High Court has omitted to consider these aspects of the
  ·matter and failed to note that several links are missing in the chain of
C events. (162-D-E]
          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 770
    of 1991.

           From the Judgment and Order dated 11.10.91 of the Gujarat High Court
D   in Crl. A. No. 765 of 1983
          U.R. Lalit, Ms. Neithono Rhetso and Ms. H. Wahi for the Appellants.
          Prashant Kumar and S.K. Sabharwal for M/s. l. M. Nanavati Associates
    for the Respondent.
E         The Judgment of the Court was delivered by
          SRINIVASAN, J. The appellants are police officers. The first of them
    was a Sub Inspector and the others were Constables. They were charged with
    offences under Sections 201, 302 and 302 read with Section 34 l.P.C. The Court
    of Additional Sessions Judge, Mahesana acquitted them by giving benefit of
    doubt and the High Court reversing the said conclusion convicted them
F   under Section 304 part II and Section 201 read with Section 114 l.P.C. and
    awarded 7 years rigorous imprisonment and 2-1/2 years rigorous imprisonment
    besides a fine of Rs. 100 each. There was one other accused by name Ramaji
    Sursangji Thakor who died during the pendency of the appeal in the High          ,_
                                                                                     '
    Court resulting in its abatement against him.
G         2. The prosecution case was as follows :
          (i) On July 19, 1982, two residents ofBhaleseravas locality ofVadnagar
    town came to the police station around 10.30 PM and inform~d the P.S.l (first
    appellant) that one man had entered their mohallah and they had tied him up
    and detained there. The first appellant alongwith appellants 2 and 6 and two
H   other constables went in police jeep taking the two informants with them.
          H.D. PATEL v. STATE OF GUJARAT [SRINIVASAN, J.)                    157
They returned within half an hour with an unknown person. The said person            A
was shouting all the •time. He was saying sometimes that he was serving in
the Railways and sometimes that his father was serving in the Railways.
Appellants 1 to 5 were interrogating that person who had given his name as
Kantuji Mohan Singh of Rajpura village (Katosan). He was severely beaten
by the appellants. At that time one Rasiklal Dave (PW-4) a resident nearby           B
came to the police station and enquired about the same. He also enquired
Kantuji about him and went away. The said Kantuji became unconscious
during the interrogation. The appellants took him in the police jeep saying
that they were taking him to hospital. As they did not return for more than
three hours, the Head Constable Ramanbharathi (complainant) tried to contact
the Circle police Inspector of Kheralu and the D.S.P. of Mehesana by phone           C
but in vain. He made an entry in the Station Diary and sent a wireless message
to police constable Ratan~ing through constable Gambhirji. As he was not
feeling well he called H.C. Vadansing at about 7.10 AM on 20.7.82 and handed
over charge of the police station and went home.

       (ii) On 20.7.82 the first appellant had registered an offence under Section   D
122 (c) of Bombay Police Act against one takards Parbatji Bhikhaji of Jagapura
who was brought to the police station in the morning by him. The said
Parbatji was not the man who was interrogated in the police station on 19.7.82
night. On 2 I .7.82 some relatives of Kantuji came to the police station and the
complainant learnt from them that Kantuji's whereabouts were not known
since 19.7.82. On 22.7.82 the complainant lodged a complaint before Circle           E
Police Inspector of Kheralu and on the basis of the same registered a complaint
against the appellants at the Vadnagar Police Station for the offence of
commission of murder of Kantuji Mohansing and for concealing the dead
body with a view to screening them from legal punishment.

      (iii) Thereafter investigation was started by Circle Police Inspector and
                                                                                     F
a dead body was found lying in the jungle between Danta and Ambaji. It was
in a decomposed state and the clothes thereon were similar to those worn by
Kantuji when he was brought to the police station on the 19th. The relatives
of Kantuji identified the clothes and also other articles put on the person of
the dead body and also identified the body to be that of Kantuji. The                G
appellants were arrested and after completion of investigation they were
chargesheeted.

      3. The accused put forward a case that the man who was brought to
the police station on 19.7.82 was one Parbatji Bhikaji of Jagapura village and
he was taken for investigation of an offence of house breaking committed in          H
    158                     SUPREME COURT REPORTS [1997) SUPP. 5 S.C.R.

A   Bhalesaraves locality and as he was not found to have been involved in that
    offence, he was brought back to the police station in the morning and the first
    appellant registered a complaint under Section 122(c), Bombay Police Act.
    The said Parbatji is alive and no offence was committed by them.

          4. The Additional Sessions Judge, Mahesana framed the following
B points for determination :
            "(!) Whether it is proved that the dead body found at Trishuliya
            Dhata between Danta Ambaji, on 23.7.82 was of Kantuji Mohansing
            Thakor of village Rajpur (Katosan) Taluka; Virmgam?

C           (2) If yes, whether said Kantuji died a homicidal death?

            (3) Whether it is proved that between the night of 19.7.82 and 20.7.82
            all the accused or any of them, with aid and abetment of each other
            or by sharing common intention, had intentionally killed said Kantuji
            at Vadnagar Police Station as alleged?
D           (4) Whether it is proved that all the accused or any of them had
            thrown the dead body of Kantuji Mohansing at the place from where
            it was found with the intention of screening the offenders from legal
            punishment?

            (5) What offence, the seven accused or any of them, are proved to
E           have committed?"

          5. The prosecution examined twelve witnesses and marked several
    documents. After considering the evidence the trial judge answered the first
    point in the affirmative and points 2 to 4 in the negative. He held on the fifth
F   point that none of the accused was proved of having committed any offence
    for which they stood charged. Consequently he gave benefit of doubt to the
    accused and acquitted them under Section 232 Cr. P.C.

          6. The State of Gujarat preferred an appeal. The High Court reversed the
    conclusion of the trial court and found the appellants to be guilty. Both the
G   judges of the Division Bench wrote separate but concurrent judgments
    convicting the appellants under Section 304 part II read with Section 114 l.P.C.
    as well as Section 201 l.P.C. The appellants have preferred this appeal
    challenging the same.

          7. We have heard learned counsel on both sides at length and perused         r
H   the entire record. At the outset, it is to be noticed that the case rests on
           H.D. PATEL v. STATE OF GUJARAT [SRINIVASAN, J.]                     159

 circumstantial evidence and there is no eye witness for the occurrence of the        A
 offence. It has been repeatedly laid down by this Court that circumstances
 from which the conclusion of guilt is to be drawn should be fully proved and
 those circumstances must be conclusive in nature to connect the accused
 with the .crime. All the links in the chain of event must be established beyond
 reasonable doubt and the circumstances should be consistent only with the            B
 hypothesis of the guilt of the accused and totally inconsistent with his
 innocence. In other words the only inference that could be drawn from the
 circumstances should be in support of the case of the prosecution and wholly
 incompatible with the innocence of the accused. It is unnecessary to refer to
 the rulings on the subject except to cite a decision relied on by the learned
 counsel for the appellant. In State of Punjab v. Bhajan Singh, AIR ( 1975) S.c:      C
 258 this Court held that the circumstantial evidence was suffering from a
 number of infirmities and the doctor was unable to find the cause of death
 because the dead bodies were in decomposed stage. In such circumstances
 the Court opined that it could not be said that the death of the persons whose
 bodies were recovered was homicidal. This Court also observed that suspicion
 against accused by itself, however strong it may be, is not sufficient to take       D
 place of proof and warrant a finding of guilt of accused.

       8. Bearing the above principles in mind if the evidence in this case is
 analysed, it. is clear that there are several links in the chain missing and it is
 not possible to hold that the established circumstances lead to an irresistible      E
 inference that the accused were guilty of the offence with which they stood
 charged.

        9. The trial judge has no doubt held that the dead body found at
  Trishuliya Dhata between Dania and Ambaji on 23.7.82 was that of Kantuji
  Mohan Singh of village Rajpur (Katosan). The said conclusion was arrived            F
  at by the trial judge on the basis of the identification made with the aid of
 the dress and other things found on the body such as talisman, plastic
  sandals etc. But there are several discrepancies in the evidence of those
 witnesses including the colour of the dress worn by the person who was
  brought to the police station on the night of 19.7.1992. Even assuming that         G
 such discrepancies are not very material, there are some unexplained factors
 and unanswered questions which cause grave doubt on the identification of
 the body to be that of Kantuji. According to the evidence of Jayantibhai
"J<akubha, a cousin brother of Kantuji, both of them had gone to Visnagar to
 consult Dr. Motibhai Chaudhari in his dispensary with regard to Edzema from
 which Kantuji was suffering. As there was a rush of patients in the dispensary,      H
    160                      SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A Kantuji said that they would come again on the next day and therefore both ,
    had gone to Visnagar S.T. Bus station at about 7.30 p.m. in order to return
    to Rajpur. According to the witness, Kantuji had boarded a bus which was
    proceeding to Vadnagar when he had gone to the water room for drinking
    water and .he was left behind, Kantuji was admittedly sufficiently educated so
B   as to read the board displaying the destination of the bus. There was no
    reason whatever for him to go to Vadnagar and that too leaving his cousin
    brother in the lurch. It is not in evidence that at that time there was no bus
    to (Katosan) Rajpur and that one had to go to Vadnagar and proceed from
    there to Rajpur. The prosecution has failed to adduce any evidence on this
    aspect of the matter.
c
         IO. Secondly, the wife of Kantuji was not examined in Court who would
    have been the best person to identify the dead body to be that of Kantuji.
    There is.no explanation for not examining .her.

           IL The doctor who performed the post mortem (PW- I) has deposed
D that it was not possible to identify as to whose dead body it was as the same
    ·was highly decomposed. In the circumstances we are unable to persuade
     ourselves to accept the correctness of the finding of the trial judge that the
     dead body was that of Kantuji even though it has been affirmed by the High
     Court.
E
         12. The pos1t10n of the prosecution is worse when the question of
  identity of the person who was interrogated in the police station on the 19th
  is considered. It is the case of the prosecution that two residents of
  Bhalesaravas locality came to the police station at about 10.30 P.M. on 19.7.82
  and informed the P.S.l. that they had apprehended one stranger looking like
F a goonda and thereafter the accused went with them to apprehend the said
  person and brought him to the police station. PW 7 has been examined by
  the prosecution to be one of the persons who reported at the police station
  about the stranger who had been apprehended in Bhalesaravas locality. The
  other person who accompanied him whose name is given as Udaiji Mohanji
G has not been examined. According to PW 7 the stranger claimed to be a
  person belonging to Jagapura and that his name was Parbatji Bhikaji. According
  to PW7 he had seen the said man after two or three days. His evidence has
  been disbelieved by the trial court as created evidence. Nothing has been
  suggested to PW7 as to why he should speak falsehood. He was not treated
  as a hostile witness. According to his evidence several people in the locality
H were with him and they made the stranger sit near the electric pole in their
          H.D. PATEL v. STATE OF GUJARAT [SRINIVASAN, J.)                     161

Vas when the said witness and Udaiji Mohanji went to the police station.             A
There is no reason why no other person from the locality has been examined
to show that the person who was taken to the police station on the night of
the 19th was Kantuji or at any rate it was not Parbatji.

     13. Further, if Kantuji who was a railway servant had by mistake or
because of the exigency of the situation gone to Bhalesaravas as he got into         B
a bus going to Vadnagar instead of Rajpur, there is nothing on record to show
why he should go into the mohalla of PW7. It possess one's comprehension
that Kantuji failed to disclose his identity and the fact that he was a railway
servant when the people of that locality apprehended him and made him sit
near the electric pole. There is also no evidence on record that Kantuji looked      C
like a goonda.

        14. The High Court has placed reliance on the evidence of complainant
PW3, police constable Purushotam PWS and police constable Gambhirji, PW-
 ! I besides that of Rasik Lal Dave, a resident near the police station. A perusal   D
of their evidence shows that the witnesses are not speaking the truth, in
particular the evidence ofRasik Lal Dave is highly artificial and unnatural. As
regards the complainant, the High Court failed to take note of one important
circumstance that he engaged a lawyer of his own in the Court of Sessions
to represent him. That shows that he took personal interest in the case. Apart
from that the various contradictions pointed out by the trial court in the           E
evidence of the said witnesses are very relevant and material and are sufficient
to make it unacceptable. We do not think it necessary to repeat what the trial
court has pointed out in its judgment in this regard. The High Court has
chosen to differ from the trial cou11 taking the view that the contradictions
are not material. The High Court has also proceeded on a presumption that
the person whose dead body was found in Trishulya Dhata was the same as              F
the one who was taken to the police station for interrogation on 19.7.1982.
Even assuming that the person who was taken to the police station was not
Parbatji, it is not possible to hold on the basis of the available evidence that
Kantuji was taken to the police station. There is nothing on record to indicate
the offence for which Kantuji was brought to the police station and                  G
interrogated.

      15. The most important aspect of the case which is also clinching, in
our opinion, is that there is absolutely no evidence worthy of acceptance to
prove that the person whose dead body was found later was beaten by the
accused to such an extent that he became unconscious. The evidence of                H
    162                     SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A PW I, the doctor is that if there are any marks of violence or wounds on the
  person either anti-mortem or post mortem, it could be said so even if the dead
  body is decomposed. The same witness has stated clearly that there were no
  blood stains or soaking of the blood on the clothes which were on the dead
  body. PW 3, the complainant has deposed that the person who was being
B interrogated was only slapped by the accused. He has nowhere deposed that
  the said person was beaten. Even Rasik Lal Dave (PW-4) whose evidence has
  been found by us to be unworthy of acceptance has not gone to the extent
  of saying that he saw the accused beating the person who was in the police
  station. No doubt he has deposed that he told the police officers that it was
  not proper to beat people. That statement of his is absolutely worthless when
C he had not stated positively that the accused beat the person who was at the
  police station. On the other hand, he had stated in his cross examination that
  in his presence beating did not take place and that the man did not tell him
  that he was being beaten.

          16. We have no hesitation to hold that the evidence on reccord does
D not support the case of the prosecution that the accused beat Kantuji when
    he was being interrogated at the police station. If there was no beating the
    death could not be said to be homicidal. Unfortunately, the High Court has
    omitted to consider these aspects of the matter and failed to note that several
    links are missing in the chain of events. Hence, we have to hold" that the
E   prosecution has failed to prove that the accused had committed the offences
    alleged against them.

          17. Learned counsel for the appellants have rightly pointed out that the
    High Court ought to have considered the case of each of the appellants
    individually and determined the extent of guilt of each of them. As we are
F   holding that the appellants are not guilty of the offences for which they were
    charged, it is unnecessary for us to consider the case of each appellant
    individually.

          18. In the result the appeal is allowed and the judgment of the High
    Court in Criminal Appeal No.765of1983 on its file is set aside. The appellants
G · are acquitted and their bail bonds stand cancelled.
    S.V.K.I.                                                      Appeal allowed.