HARISHCHANDRASING SAJJANSINH RATHOD ANDANOFHER Vs. STATE OF GUJARAT

JUDGEMENT

(1.) this criminal appeal by certificate is directed against the judgment and order dated Dec. 6/7, 1972 of the High Court of Gujarat at Ahmedabad convicting the appellants under S. 202 of the Indian Penal Code and sentencing them to rigorous imprisonment for six months and a fine of Rupees 1,000/-.

(2.) Shorn of details, the case as put forth by the prosecution was:one Rayab Nathu Sumera was murdered at Jamnagar on the evening of Oct. 20, 1970. The incident resulting in the death of the said Rayab Nathu Sumera was alleged to have been witnessed by Bhagwanji son of jesangji, a resident of Khodiyar Colony, Jamnagar. The first information report with regard to the commission of murder of Rayab Nathu Sumera was laid at the B Division Police Station, Jamnagar, by one Abu Hussein. On the basis of this information, a case under S. 302 of the Indian Penal Code was registered at the said Police Station and investigation of the crime was entrusted to Shermohmad Makarani, Sub Inspector of Police, who deputed Harish- chandrasing Sajjansing Rathod, Probationary S.I. attached to the police station and Chanduji Jethiji, Head Constable attached to the police station but on the day of the incident on duty in Irvin Hospital, Jamnagar, appellants herein, as also Gambhirsinh Jivansinh, an unarmed police constable attached to 'A' Division police station, Jamnagar city, to go to the house of the said Bhagwanji and bring him over to police station for interrogation. Pursuant to the instructions given to them by Shermohmad Makrani, the appellants along with Gambhirsinh Jivansinh, Hanubha Kanaji and Lalji Hiraji, constables went in a police jeep to the house of Bhagwanji and after making him sit in the jeep started off for the police station. On the way, the jeep carrying Harishchandrasing Sajjansinh Rathod, his posse and Bhagwanji met the jeep carrying Joel Florian Gilbert who was returning from the scene of the offence of murder of Rayab Nathu Sumera. At the point of the meeting of the two jeeps, a talk took place between Harishchandrasing Sajjansinh Rathod and Joel Florian Gilbert where after with a view to extort information from Bhagwanji in relation to the aforesaid murder of Rayab Nathu Sumera, the six persons viz. Harishchandrasing Sajjansinh Rathod, Chanduji Jethiji, Gambhirsinh Jivansinh, Hanubha Kanaji, Lalji Hiraji and Joel Florian Gilbert formed an unlawful assembly and inflicted a number of injuries on the person of Bhagwanji by means of fists, kicks and sticks knowing that the bodily injuries inflicted by them were likely to cause the death of Bhagwanji. On arrival of the jeeps at the police station, Bhagwanji was taken before Shermohmad Makrani who interrogated him for about ten minutes. During the course of investigation, Bhagwanji complained about pain in his chest whereupon Shermohmad Makrani directed Harishchandrasing Sajjansing Rathod to take Bhagwanji to the Irvin Hospital. In compliance with instructions of Shermohmad Makrani, Bhagwanji was taken to the Irvin Hospital where he was admitted in the casualty ward at about 11 O'clock at night. After a few hours, Dr. Upadhyaya, Medical Officer In-charge of the casualty ward noticed that the condition of Bhagwanji was deteriorating. Thereupon he apprised Motising, constable on duty at the hospital who jotted down the information given to him by the Doctor in the register called the Hospital Duty register maintained by the Police Department and recorded the dying declaration of Bhagwanji in the course of which he disclosed that he had been beaten by some policeman with fists, kicks and sticks. Bhagawanji ultimately died in the hospital at 2.15 A.M. On the information regarding the death of Bhagwanji being conveyed to Shermohmad Makrani, the latter repaired to the hospital. Subsequently Shermohmad Makrani reported the matter to the Deputy Superintendent of Police who instructed him to send for Hematsinh, the brother of Bhagwanji, deceased. Accordingly Hematsinh was sent for on the following morning and on his arrival, his report recorded and crime case registered. After completion of the investigation the appellants and four other persons viz. Gambhirsinh Jivansinh, Hanubha Kanaji, Lalji Hiraji and Joel Florian Gilbert were prosecuted and tried by the Sessions Judge, Rajkot for offences punishable under Ss. 331, 304 (Part II) read with S. 149 of the Indian Penal Code or in the alternative with offences punishable under Ss. 331 and 304 read with S. 34 of the Penal Code as also for offences punishable under S. 202 of the Penal Code read with S. 145 (2) of the Bombay Police Act. Harishchandrasing Sajjansinh Rathod was also charged with the commission of the offence under Section 193 of the Indian Penal Code. On consideration of the evidence, produced in the case, the Sessions Judge Rajkot acquitted all the accused of the aforesaid charges. On appeal by the State, the High Court while maintaining the rest of the order of acquittal passed by the Sessions Judge, Rajkot convicted and sentenced the appellants, as stated above. It is against this judgment and order that the present appeal is directed.

(3.) Appearing in support of the appeal, Mr. Patel has vehemently urged that on the proved facts and circumstances of the case, the aforesaid offence under S. 202 of the Indian Penal Code is not made out against the appellants. It would be convenient at the stage to refer to S. 202 of the penal Code which runs as under:-