STATE OF GUJARAT Vs. HARGOVANDAS DEVRAJBHAI PATEL

JUDGEMENT

(1.) This appeal has been preferred by the State of Gujarat against the judgment and order passed by the learned Addl. Sessions Judge, Mehsana dated 30-5-1983 in sessions Case No. 5/83 acquitting the respondents-accused of the offences punishable under Ss. 201, 32 of the I. P. Code or under S. 302 r/w 34'and 114 of the I. P. Code.

(2.) The respondents-accused are the police officers and respondent No. 1 as. PSI while rest of the respondents as police constables were serving at the relevant time at Vadnagar Police Station, Vadnagar town. The prosecution case, as narrated in the FIR dated 22-7-1982 given by police Head Constable Ramanbharathi Devabharathi P.W.3 Exh. 30, which is at Exh. 65, is that the complainant H C Ramanbharathi was serving as a Head Constable at Vadnagar Police Station since about one year of the date of the incident. On 19-7-1982, at about 8-05 p.m. he had come on duty as Police Station Officer at Vadnagar Police Station. At that time, PC Gambhirji Bhathiji, P.W. 11 Exh. 47, PC Pursottam Ramji, P.W. 5 Exh. 35 and constable Kakusing Bharatsing i.e. accused No. 5 were also on duty on lock-up Guard (Picket Guard). When the complainant Ramanbharathi resumed his duty as Police Station Officer on 19-7-1982, accused No. 1 was present in his office in the police station and accused Nos. 2 and 6 were also present in the office of the accused No. 1. Complainant Ramanbharathi was sitting in the office. Meanwhile, at about 10-30 p.m., two residents of Bhaleswarvas locality of Vadnagar town had come at Vadnagar Police Station and had talked to accused No. 1 that one man appearing like a "gunda", had come in their locality and they had caught him and had tied. him in their maholla. When these two persons informed the accused No. 1 about this fact, one Mr. Laxman B. Patel who is Editor of a periodical being published from Vadnagar town, was also sitting in the office of the accused No-1. After getting this news, accused No. 2 telephoned accused No. 3 who was serving as constable-driver and who had gone to see the movie in Old Cinema Theatre of Vadnagar and on receiving message from accused No. 2, accused No. 3 also came at the police station. Thereafter, accused No.1 along with accused No. 2 and 6 and constables Rameshbhai, Mahendrabhai and Devjibhai, went towards Bhaleswarvas in police jeep car taking those two informants with them while complainant Ramanbharathi, two constables Ghambhirji and Pursottam and editor of news paper Laxmanbhai were sitting in the police station and four persons of village Kahipur who were called for interrogation at the police station, were also sitting there and at that time, Deputy Sarpanch of village Kahipur, who had come to the police station to get those persons of Kahipur released, was also sitting. Within half an hour i.e. at about 11-00 p.m., accused No, 1 and other accused who had gone with accused No. 1 in the jeep car, had come back at the police station bringing one unknown man with them. After they brought that unknown man at the police station from Bhaleswarvas locality, accused No. 1 directed constables Ramesh, Mahendrabhai, Devji and Jaykaran to go on the night round duty in the town. Accused No. 1 and accused Nos. 2 to 4 and 5 were interrogating that unknown man who had given his name as Kantuji Mohansing and had also told that he was resident of village Rajpura. Said unknown man was raising shouts and while shouting, he was also speaking "O. Prahaladsingh, save me. O Nathubha, save me. "Tongue of that man was also stammering while speaking and he was also telling that he was serving in the Railways. As during interrogation, the unknown man was going on, that man was raising shouts, on hearing those shouts, one Rasiklal. P. Dave, PW 4 Exh. 34, residing in the same maholla in which the police station is situated, had also come in the police station and had also made inquiries from Kantuji and that man had told Rasiklal Dave that he was of village Rajpur. During the interrogation, said Kantuji Mohansing had become unconscious. As the complainant Ramanbharathi was not keeping well, he was sitting on the cot in the police station. At that time, accused No. 4 and accused No.7 who are serving is police constables, had also come at the police station when Kantuji was being interrogated. As Kantuji became unconscious, at the instance of accused No. 1, accused Nos. 4 and 5 had lifted Kantuji bodily and had placed him in the jeep car which was lying outside the police station. Accused No. 3 who was driver of that jeep car, was also present. After putting Kantuji in an unconscious state in police jeep car, accused No. 1 and 2 to 7 went in that jeep car saying that they were going to the hospital and accused No. 1 also told that he would return from the hospital at the police station. It appears that till 4-00 a.m. of 20-7-1982, none of the accused who had gone in the jeep car taking Kantuji with them, had returned at the police station and so the complainant Ramanbharathi was confused as to what should be done and so he tried to contact Circle Police Inspector of Kheralu on telephone and had also made attempts to contact DSP of Mehsana and Patan on telephone, but he was not able to contact either CPI or DSP of Mehsana and Patan and, therefore, he made an entry as to what had happened during that night and as to how he made attempts to contact superior police officers on telephone. The said entry was made in the police station diary of Vadnagar Police Station and, therefore, he had sent a wireless message by calling Wireless Police Constable Ratansing through constable Gambhirji.

(3.) It is the further case of the prosecution that thereafter, in the morning, as the complainant Ramanbharathi was not feeling well, he had called HC Vadansing who had come at about 7-10 a.m. on 20-7-1982 and had handed over the charge of Police Station Officer to the said Head Constable and had gone at his house. Said unknown person Kantuji Mohansing, resident of village Rajpur, was strongly built, had dark complexion and was aged about 30 years and he had put on light khakhi colour pant and red colour bushirt with design of dots and had also put on PVC rubber sandles in his legs having brown colour and had also tied two talisamana with a black colour thread around his neck and he was bare headed. On 20-/-1982, accused No. 1 had registered an offence punishable under S.122(c) of the Bombay Police Act against one Thakarada Parbatji Bhikhaji of Jagapura village and said Parbatji was brought by accused No. 1 in the morning of 20-7-1982, but according to the complainant, said Parbatji Bhikhaji was not the same person who was brought by the accused at the police station on 19-7-1982 at about 11-00 p.m. from Bhaleswarvas locality. The complainant had seen accused No, 1 bringing said Parbatji Bhikhaji in the mooring after he left the charge and handed over the charge to HC Vadansing from his house which is just near the police station and he had also seen accused No. 1 preparing, papers for the offence punishable under S. 122 (c) of the Bombay Police Act and at that time, Parbatji, Bhikhaji was also with accused No, I and those papers were being written by accused No.2 as per the dictation of Jamadar Pruthvising of Valasana Out Post. At that time, Jamadar Pruthvising and accused Nos. 2 to 5 were telling said Parbatji Bhikhji as to what part he had to perform and the complainant had seen all of them doing so from the terrace of his house and this had happened at about 10-00 a.m. on 20-7-1982. On 21-7-1982, some relatives of deceased Kantuji had come at Vadnagar Police Station and from them the complainant had come to know that Kantuji was missing from 19-7-1982 and thereafter, Kantuji's whereabouts could not be traced by his relatives. According to the complainant, said Kantuji who was missing on 19-7-1982, was the same who was brought from Bhileswarvas locality during the night of 19-7-1982 by the accused at the Vadnagar Police Station and all the accused had taken said Kantuji in an unconscious state from the police station at about 12-00 mid-night and had not returned till the morning and had also not brought said Kantuji back who was taken by them saying that they were taking said Kantuji to the hospital and so, according to the complainant, Kantuji Mohansing had perhaps, died either in the police station or on the way while taking him in the jeep car and with a view to concealing that fact, accused No.1 had made false case against Parbatji Bhikhaji in the morning of 20-7-1982. The above referred complaint of the complainant was recorded 22-7-1982 before CPI of Kheralu Mr. Harishchandra V. Zala, P.W. 12 Exh. 48 for the commission of murder of Kantuji Mohansing and for concealing dead body of Kantuji with a view to screening the persons from legal punishment. "