STATE OF GUJARAT Vs. GOPALRAO BAVRAO MOHITE

JUDGEMENT

(1.) This acquittal appeal is directed against the judgment and order of the Additional Sessions Judge, Baroda dated 31-3-1984 passed in Sessions Case No. 76 of 1980 acquitting all the seven accused, who were charged for the offences punishable under Sec. 330 read with Sec. 34 and Sec. 304 Part II read with Sec. 34 of the Indian Penal Code. The prosecution version was that on 18th February, 1980 in the evening, a cycle repairer Fatehsinh Raising was brought to Sayajiganj Police Station for interrogation in connection with an offence under Sec. 379 of the Indian Penal Code registered as C.R. No. 29 of 1980 on an allegation that there was a theft committed of a cycle. Fatehsinh was handed over by P.S.I. Vaghela to the accused No. 1 P.S.I. Gopalrao Bavrao Mohite, who was incharge of the cycle squad and was interrogated. According to the prosecution, accused Nos. 2 to 7 were also in the cycle squad and during the night between 18-2-1980 and 19-2-1980 before 2-00 A.M. 15 injuries were caused to Fatehsinh during his interrogation in police custody as a result of which he died. According to the prosecution, the injury on the head with internal haemorrhage and the other injuries caused by the accused persons in furtherance of their common intention to Fatehsinh (sic.) while he was in custody and being interrogated resulting in his death, and therefore, all these accused have committed the aforesaid offences.

(2.) The charge-sheet was submitted on 27-3-1980 against all the accused and they were committed to the Sessions Court on 30-6-1980. These accused were tried earlier by the learned Assistant Sessions Judge, Baroda, who acquitted them, holding them not guilty, by judgment and order dated 23rd October, 1980. A Revision Application was preferred against that decision by the original complainant in Criminal Revision Application No. 126 1981 which was allowed by a Division Bench of this Court by its judgment and order dated 21st Sepatember, 1983 and the order of acquittal of all the seven accused persons was set aside and the matter was sent back with a direction to hold a retrial in the light of the directions given in the judgment. The decision of this Court ordering retrial of the matter was challenged by the accused persons before the Supreme Court and the Supreme Court by its order dated 13-2-1984 in S.L.P. (Criminal) No. 100 of 1984, dismissed the Special Leave Petition by observing that any observation made by the High Court being for the disposal of the case, will not prejudice either party at the trial. The prosecution as well as the defence led evidence again before the trial Court and the Additional Sessions Judge, by the aforesaid judgment and order dated 31- 3-1984, acquitted all the accused.

(3.) The trial Court held that there was no evidence to show as to at what time the interrogation of Fatehsinh had taken place after he was handed over to the accused No. 1 P.S.I. G.B. Mohite by P.S.I. Vaghela around 8-00 P.M. It was held that the possibility of deceased Fatehsinh having been injured earlier in some quarrel could not be ruled out. It was also held that the prosecution had not ruled out existence of any injury on the person of Fatehsinh before he was brought to the Police Station. According to the learned Judge, the prosecution should have shown that Fatehsinh was not having any injury on his body at the time when he was brought to the Police Station. It was further held that the police witnesses P.S.I. Vaghela, P.S.I. Vohra or P.S.I. Shrimali did not disclose any fact which would go to show that the accused No. 1 P.S.I. G. B. Mohite had caused any injury to Fatehsinh during his interrogation. It was held that there was nothing on record to show that the accused Nos. 2 to 7 had interrogated Fatehsinh. It was further held that there was nothing to show that the accused Nos. 2 to 7 were in any way involved in the crime and there was no reliable evidence to hold that they were actually working in the cycle squad. The trial Court came to a finding that Fatehsinh appears to have died while he was being taken to the hospital at 2 A.M. on 19-2-1980 after he had complained of chest pain and suffocation pursuant to which the accused No. 1 gave a report to Vohra who sent Yadi Ex. 66 to the hospital recording this fact. It was held that there was no evidence to show that during interrogation, Fatehsinh was beaten up by any of these accused persons and there was no evidence to connect them with the crime. It was held that there was no direct or substantial evidence on the basis of which these accused persons could be arraigned and that merely because death of Fatehsinh occurred while he was in custody, the guilt of these accused could not be inferred.