Gujarat High Court
State Of Gujarat vs Shabbirhusein Shekhadam Khandvawala on 24 February, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1509/2003 JUDGMENT DATED: 24/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1509 of 2003
With
R/CRIMINAL APPEAL NO. 1195 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================
Approved for Reporting Yes No
√
CRIMINAL APPEAL NO.1509/03
==========================================
STATE OF GUJARAT
Versus
SHABBIRHUSEIN SHEKHADAM KHANDVAWALA & ORS.
==========================================
Appearance in CR.A 1509/03:
MS JYOTI BHATT, APP for the Appellant(s) No. 1
MR JAL UNWALA, SENIOR ADVOCATE assisted by MR NANDISH H
THACKAR (7008) for the Respondent(s) No. 1
ABATED for the Respondent(s) No. 3,4
==========================================
CRIMINAL APPEAL NO.1195/03
==========================================
SHABBIRHUSEIN SHEKHADAM KHANDVAWALA & ORS.
Versus
STATE OF GUJARAT
==========================================
Appearance in CR.A 1195/03:
MR JAL UNWALA, SENIOR ADVOCATE assisted by MR NANDISH H
THACKAR (7008) for the Appellant(s) No. 1
ABATED for the Appellant(s) No. 2,3
MS JYOTI BHATT, APP for the Respondent(s) No. 1
==========================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/02/2026
COMMON ORAL JUDGMENT
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1. Criminal Appeal no.1195 of 2003 had been filed by the
appellants – original accused, whereby the challenge is to
the judgment and order of conviction and sentence dated
30.09.2003 passed by the learned Additional Sessions
Judge, 5th Fast Track Court, Junagadh in Sessions Case
no.76 of 1982. The accused persons were charged under
Sections 331, 336, 337, 344, 346, 348, 352, 356, 365
read with Sections 34 and 114 of the Indian Penal Code,
1860 (hereinafter referred to as “IPC” for short) for
voluntarily causing grievous hurt to the complainant with
a view to extort confession and for causing hurt by
endangering life and personal liberty of the complainant
and for wrongful confinement at Porbandar Police Station
and for use of criminal force etc.
1.1 Accused no.2 – Shri P.A. Raol had died during the course
of the trial proceedings and therefore, the case was
abated against him.
1.2 Appellant – accused no.1 – S.S. Khandwawala was
sentenced to undergo five years rigorous imprisonment
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with fine of Rs.2,000/- and in default of payment of fine,
to further undergo rigorous imprisonment of two months
for the offence punishable under Section 365 of the IPC.
1.3 Accused no.1 – S.S. Khandwawala, accused no.3 –
Bhupatsinh Devubha Vaghela and accused no.4 –
Rampalsingh Hardansinh Pawar were sentenced to
undergo one year rigorous imprisonment with fine of
Rs.1,000/- and in default of payment of fine, to further
undergo simple imprisonment of one month for the
offence punishable under Section 348 of IPC and were
sentenced to undergo one month simple imprisonment
for the offence punishable under Section 352 of IPC and
further were also sentenced to undergo five years
rigorous imprisonment with fine of Rs.2,000/- and in
default of payment of fine, to further undergo rigorous
imprisonment of two months for the offence punishable
under Section 331 of IPC.
1.4 The substantive sentences for each accused were
ordered to run concurrently.
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1.5 During the pendency of the appeal, the names of the
accused no.3 – Bhupatsinh Devubha Vaghela and the
accused no.4 – Rampalsingh Hardansinh Pawar were
ordered to be deleted from the cause title, since
deceased, thus, the appeal stood abated against them by
order dated 26.03.2025. Likewise, in the State appeal,
their names were deleted as respondents. Hence, now
the matter would be considered only for accused no.1 –
S.S. Khandwawala who came to be convicted under
Sections 365, 348, 352 and 331 of the IPC.
1.6 Criminal Appeal no. 1509 of 2003 under Section 377 of
the Code of Criminal Procedure, 1973 (for short
“Cr.P.C.”) has been filed by the State praying for
enhancement of the sentence passed in the judgment
and order of conviction and sentence dated 30.09.2003.
1.7 Criminal Revision Application no.615 of 2003 was filed by
the original complainant as petitioner under Section 397
and 401 of the Cr.P.C. for enhancement of the sentence.
By order dated 20.07.2009, the Criminal Revision
Application stood disposed of, by observing that the
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State of Gujarat has preferred the appeal and no fruitful
purpose would be served in keeping the Revision
Application pending.
2. The brief facts of the prosecution case is that on
07.10.1976 at about 04.00 p.m. at Village Sutrej, Taluka
Keshod, the complainant house was searched and
thereafter was taken at Porbandar Police Station. On
08.10.1976 at about 08.00 a.m., the complainant –
Merag Haja was allegedly beaten by accused and other
4-5 persons and the complainant had become
unconscious. It is alleged that the complainant had
sustained fracture of left leg femur. It is stated that the
proceedings commenced on 02.11.1976 being Inquiry
Case no.2 of 1976 registered as a private complaint
against the accused named therein. It is alleged that the
house of the complainant was searched for possession of
unauthorised weapons on 07.10.1976. The search was
made by DSP – Shri Jani, PSI – Shri Upadhyaya and
some other police personnel. Nil panchnama was drawn.
At that time, one Rabari Bhikha Deva was present at the
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house of the complainant. It is alleged that the appellant
no.1 had come in a police vehicle and told the
complainant to deliver the weapon. The complainant is
said to have told the accused no.1 that he was having
one 12 Bore gun, for which, he had a valid licence and he
had deposited it in the month of July, 1976 at Keshod
Police Station and that he was not in possession of any
illegal weapon. It is further alleged that the complainant
was called upon to sit in the police van and thereafter,
other houses at Village Khirsara and Sarsali were
searched and the complainant was thereafter asked to sit
in the SRP Van, the SRP personnel along with the
accused no.1 is said to have taken possession of the
complainant and the said Bhikha Deva who was also
arrested from the house of the complainant and having
reached Porbandar Police Station at about 11.30 p.m.
Bhikha Deva and the complainant were allegedly confined
at Porbandar Police Station. It is the case of the
complainant that on the next day at about 08.00 a.m.,
accused no.1 and other accused came to the police
station and asked the complainant to hand over the
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weapon. The complainant denied and thereafter, the
complainant alleged that he was beaten and that he had
become unconscious and that he had suffered fracture of
left leg femur. The complainant was under lock up, who
requested that he should be sent to the hospital and
further requested for arrangement of an easy chair at the
cost of the complainant, which was accordingly provided
as per the say of the complainant.
2.1 Moreover, it is stated that on 08.10.1976, a Vaidhya was
called for the treatment of the complainant in the lock up
and at about 06.00 p.m. Shri Bhargav, a Police Officer
along with Porbandar Civil Surgeon – Shri Vora came to
visit the complainant and moved the complainant to
Bhavsingji Hospital, Porbandar at about 09.00 p.m.
where he remained indoor patient upto 10.10.1976.
Thereafter, the complainant was instructed to go to
Jamnagar for the treatment of his leg fracture and on
14.10.1976 was released on bail. The complainant
remained in hospital until 23.10.1976. Thereafter, he was
under treatment of Dr. Sarvaiya from 25.10.1976 to
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29.11.1976 and was referred to Jashlok Hospital at
Bombay for further treatment.
2.2 On 02.11.1976, the complainant on stretcher came to
the Court and his statement on oath below the complaint
came to be recorded and the matter was sent for inquiry
under Section 202 of the Code of Criminal Procedure,
1973. It is alleged there has been a chequered sequence
of petitions being filed against the complainant.
Thereafter, on 14.12.1981, cognizance came to be taken
and on 16.09.1982, matter came to be registered as
Sessions Case no. 76 of 1982.
3. Heard learned Senior Advocate Mr. Jal Unwala assisted
by learned advocate Mr. Nandish Thackar for the accused
and Ms. Jyoti Bhatt, learned APP for the State.
4. Learned Senior Advocate Mr. Unwala for the accused has
submitted that the charge against the appellants, all
being police officers, was of kidnapping the complainant
and keeping in illegal confinement and during the said
period, the accused persons have been alleged to have
beaten the complainant causing grave injuries for the
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purpose of extorting confession out of the complainant.
Learned Senior Advocate Mr. Unwala submitted that the
evidence on record proves that the allegations are totally
false, frivolous and concocted.
4.1 Learned Senior Advocate Mr. Unwala has submitted that
the prosecution has examined PW1 – Bhupen
Kanakshankar Vora at Exh.103, Doctor at Bhavsinhji and
MR Hospital, Porbandar. The said witness had deposed
relying upon a refer note dated 11.10.1976 that the
complainant was referred to a Irvin Hospital, Jamnagar,
as there was a fracture on the femur bone of the left leg
of the complainant. Learned Senior Advocate Mr. Unwala
stated that the said witness did not have any medical
papers and it was further established during the cross
examination that in the situation of the medico-legal
cases, it was necessary to inform the police station,
which the witness failed to do so. Learned Senior
Advocate Mr. Unwala has also submitted that it was
further established in the further cross examination that
even if a person falls from a height of 10 to 15 ft., such
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injuries are possible. According to Mr. Unwala, no history
of custodial torture had been given by the complainant to
this witness. No Doctor had certified it as medico-legal
case. Mr. Unwala contended that the injury could have
been sustained while trying to run away from the police
custody, which eventuality could not be ruled out in the
background of the facts and circumstances of the case.
4.2 Learned Senior Advocate Mr. Unwala while referring to
the evidence of PW2 – Vipin Mohanlal Shah at Exh.105,
Orthopedic Surgeon at Irvin Hospital, Jamnagar, has
submitted that the said witness, relying upon the
certificate at Exh. 106, had given his testimony but had
failed to give evidence of alleged torture, the said
witness stated that the complainant was admitted on
08.11.1976 and was discharged on 24.11.1976, it was
established during the cross-examination that the said
witness does not remember as to what treatment was
given to the complainant, as the said witness did not
have any medical papers of the complainant. Learned
Senior Advocate Mr. Unwala has also submitted that it
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was further established that normally in situation of
medico-legal cases, it is to be reported to the police
station, however, whether it is done in the present case
or not, has not been certainly told by the witness.
4.3 Referring to PW3 – Digvijaysinh Sajjansinh Sarvaiya at
Exh.117, Doctor at Bhagwat Hospital, Keshod, Learned
Senior Advocate Mr. Unwala has further submitted that
the said witness, relying upon the medical certificate
issued by him, had deposed that the said witness had
treated the complainant from 25.10.1976 to 08.11.1976.
Learned Senior Advocate Mr. Unwala submitted that the
said witness has not produced a single document,
wherein any history was recorded and on asking the
same during the cross-examination, the said witness
stated that he had the medical papers, however, the
same were not produced. Learned Senior Advocate Mr.
Unwala has submitted that the Trial Court had
summoned the said witness and re-examined on the
point of the said medical papers; inspite of that, the said
witness had informed that the said medical papers were
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not traceable.
4.4 Learned Senior Advocate Mr. Unwala thus submitted that
it becomes clear that the prosecution has failed to
establish the nature of injuries, the cause of injuries and
treatment given to the complainant at the relevant point
of time. Learned Senior Advocate Mr. Unwala has further
submitted that none of the said witnesses have produced
any medical papers to support the version of the
complainant.
4.5 Learned Senior Advocate Mr. Unwala contended that the
prosecution had recorded the evidence of PW5 –
Samatbhai Devabhai Ranavaya at Exh.136, advocate of
the complainant, who had deposed that he had prepared
and file the bail application on behalf of the complainant
which was granted by the concerned Court, and during
the cross-examination, the said witness has stated that
the offence, in which, the complainant was arrested, was
under the Arms Act, which was registered by the
Porbandar Police and the charge-sheet was also filed
against the complainant. Thus, learned Senior Advocate
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Mr. Unwala has submitted that it becomes clear from the
deposition of the said witness that the complainant was
lawfully arrested for the offence under the Arms Act and
therefore, there would not be any question of kidnapping
or illegal confinement by the appellants. Learned Senior
Advocate Mr. Unwala has submitted that when the said
witness met the complainant in the hospital, there was
no information given by the complainant with regard to
the injuries allegedly caused by the appellants and
therefore, the entire version given by the complainant is
nothing but an afterthought and falsehood.
4.6 It was the contention of learned Senior Advocate that the
complainant, in his deposition, has narrated a completely
concocted version. Learned Senior Advocate Mr. Unwala
has further submitted that as per the complainant, on
the date of incident along with the complainant, one
Bhikha Deva was present at the residence of the
complainant, and PW7 and another police officer had
visited the house of the complainant for a search, and at
the end of the search, they could not find anything and
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therefore, they had left drawing NIL Panchnama and
after that, the complainant alleges that the appellants
along with other officers had visited the complainant and
asked him about carrying any illegal weapon.
4.7 Learned Senior Advocate Mr. Unwala has submitted that
considering the deposition, cross-examination of the
complainant along with other medical evidences, it
becomes clear that the complainant has created a false
version of confinement, only with a view to save himself
from the offence under the Arms Act. Learned Senior
Advocate Mr. Unwala has further submitted that the
offence under the Arms Act was registered against the
complainant, and the beating alleged by the complainant
is not corroborated with the injuries reported on record.
4.8 Learned Senior Advocate Mr. Unwala’s submission was
that the best witnesses to the incident could have been
one Bhikha Deva and Jusab Habib. Since Bhikha Deva
had passed away, Jusab Habib could have been
examined by the prosecution to know the true facts,
since all the three were in the same room of the Police
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Station as per the complainant.
4.9 Learned Senior Advocate Mr. Unwala contended that the
Trial Court failed to appreciate weekly diary produced on
record at Exh.162 of accused no.1, which records the
details, which clearly negates the version of the
complainant. The relevant part as relied upon is
reproduced hereinbelow for the ready reference of this
Hon’ble Court:-
“Left Mangrol at 7:00 hrs and reached
Khirasara at 8-00 hrs. Attached one double
barrel tamancha country-made from Rabari
Bhikha Deva and he was arrested at 9:50
hrs. Left Khirasaraat 10-00 hrs. and
reached Sutrej at 10-15 hrs. Attached one
revolver and five cartridges from Merag
Haja. He was arrested at 12:00 hrs. As per
the information received carried out, a raid
on the residence of Sindhi Jusub Habib and
seized one country-made ML Gun. (Keshod
PS. CR No.II 93/76-u/s. 25-1(a). Left
Khirsara at 15:15: hrs. and reached
Zariyavada at 1500 hrs. and searched the
house of Lohar Jaga. He was brought to
Porbandar for interrogation. Left
Zariyavada at 15:00 hrs. and reached
Porbandar as per DSP’s instructions at 1900
hrs. and reached Mangrol at 2100 hrs. Total
Kms. 268.”
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4.10 Learned Senior Advocate Mr. Unwala hence contended
that the alleged incident, as per the case of the
prosecution, had occurred on 07.10.1976 and the
complainant had approached the learned Magistrate only
on 02.11.1976. Learned Senior Advocate Mr. Unwala,
thus, contended that the said delay clearly goes to show
that the complainant was filed as an afterthought, with a
view to protect himself from the offence under the Arms
Act and/or for other ulterior motive best known to the
complainant.
4.11 In totality of the facts and circumstances, it was
contended by learned Senior Advocate Mr. Unwala that
the prosecution has clearly failed to establish the case
beyond reasonable doubt, and submitted that the version
of the complainant is not supported by either the medical
evidence or by the advocate of the complainant. Learned
Senior Advocate Mr. Unwala’s contention was that the
deposition of the complainant is not reliable as there is
no corroboration from any other evidences, which are
placed on record.
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4.12 Learned Senior Advocate Mr. Unwala has submitted that
the appellants have in fact substantiated the defence by
bringing on record the corroborative evidence, which
goes on to show that the appellants were only doing their
duties as there was a high profile murder case to be
investigated in the said area and therefore, the
appellants had conducted raids with a view to seize
illegal weapons and lodge the complaints against such
miscreants. Learned Senior Advocate Mr. Unwala has,
stated that there was no kidnapping or illegal
confinement of the complainant in view of the legal
arrest for the offence under the Arms Act, nor the
injuries as alleged are corroborated by supporting
medical evidences. Senior Advocate Mr. Unwala has,
therefore, submitted that the judgment and order of
conviction and sentence deserves to be quashed and set
aside and the appellants may be acquitted from all
charges.
5. Per contra, Ms. Jyoti Bhatt, learned APP for the State,
while opposing the order of sentence, pressed for
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enhancement of the sentence, and submitted that the
learned Judge ought to have imposed the maximum
sentence, as the victim has suffered a lot and that he
became unconscious on account of beating and has
suffered fracture of left leg femur. Learned APP
submitted that on account of inhuman act of the accused,
the victim has become lame forever and therefore,
maximum sentence of ten years ought to have been
imposed on the accused and that the amount of fine
should also be increased substantially so that out of the
said amount of fine, the Court could pass appropriate
order for compensation to the victim. Learned APP
further submitted that the learned Trial Court Judge
ought to have appreciated that the accused is a high-
ranking police officer who ought not to have acted
mercilessly while inflicting blows on the victim knowing
well the law of the land. Learned APP further submitted
that considering Sections 331, 348, 352 and 365 of IPC,
the learned Trial Court Judge ought to have imposed
maximum sentence to the accused persons. On the
aforesaid grounds, Ms. Bhatt, learned APP submitted that
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the sentence imposed by the learned Trial Court Judge is
inadequate and deserves to be enhanced, in the interest
of justice.
5.1 Ms. Jyoti Bhatt, learned APP submitted that the
appellants preferred application for protection under
Section 197, which came to be dismissed on 10.05.1983.
Being aggrieved, Revision Application no. 894 of 1983
came to be preferred before this Court, which came to be
withdrawn. The accused moved the Sessions Court with
an application for discharge at Exh.18 and the same was
dismissed, against which, Criminal Revision Application
no. 223 of 2001 came to be filed. It is stated that
Criminal Misc. application no. 3661 of 2000 had also
been preferred seeking necessary direction to hear
Exh.18 on merits. The accused also preferred Criminal
Revision Application no. 568 of 2001, which came to be
dismissed by this Court on 29.07.2000, against which,
Special Leave Petition no. 3533 of 2002 came to be
preferred before the Hon’ble Supreme Court and the
same was withdrawn on 13.08.2002.
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5.2 Learned APP Ms. Bhatt has submitted that to support the
charge, the prosecution relied on the evidence of PW1 to
PW3, who were Doctors, PW4 – the complainant, PW5,
who is the advocate of the complainant and other
documentary evidences in the nature of medical case
papers.
5.3 Learned APP Ms. Bhatt submitted that even when the
complainant had denied of having any illegal weapons,
the complainant was taken in the police jeep along with
Bhikha Deva, and was made to sit in the jeep, the
complainant was taken in police custody and was beaten
on hands, back and legs so much so that the complainant
had become unconscious. Learned APP Ms. Bhatt has
submitted that upon complaint of the complainant, the
Vaidhya was called to examine the complainant,
however, as the Vaidhya could not treat the complainant,
the complainant was taken to the Civil Hospital by the
police personnel, which itself proves the police torture in
the custody.
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5.4 Ms. Bhatt, learned APP had placed reliance on the
decision of this Court in the case of Bhavsing
Chhaganbhai Bilval, Police Sub-Inspector since deceased
through his legal heirs v. State of Gujarat, 2025 (0)
AIJEL-HC 251301 and submitted that the case of illegal
detention and torture for extorting confession was proved
by examining witnesses who have given evidence of
physical injuries suffered by the complainant in police
custody. Learned APP Ms. Bhatt stated that the learned
Trial Court Judge has given consistent reasons with the
analysis of evidence, however, the sentence is not
proportionate to the gravity of offence and hence, urged
for enhancing the sentence to set down an example and
to have deterrent effect on the police persons.
6. The proceedings and the dates, prior to the trial between
the parties, would be required to be noted. On
28.10.1976, the complainant – Merag Haja had filed the
private complaint before the JMFC, Keshod through his
lawyer against the accused persons for the offences
punishable under Sections 331, 336, 337, 334, 346, 348,
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352, 255, 265, 34 and 114 of the IPC. On 02.11.1976,
Merag Haja was brought to the Court on stretcher for
recording of his statement on oath. On 12.04.1979, the
order under Section 203 Cr.P.C. was passed stopping the
inquiry on the ground of want of jurisdiction noting that
the complainant was beaten at Porbandar Police Station.
So, Criminal Revision Application no.21 of 1979 was
preferred by the complainant – Merag Haja and the
learned Sessions Judge was pleased to remand the
matter back to JMFC, Keshod for further inquiry. The
learned JMFC, Keshod conducted the inquiry and
dismissed the complaint under Section 203 of the Cr.P.C.
Against the order of dismissal, the complainant preferred
a Revision Application before the Sessions Court,
Junagadh, which came to be allowed and the Magistrate
was directed to conduct further inquiry. On 14.12.1981,
the learned Magistrate took cognizance of the case and
on 16.09.1982, the case was committed to Sessions
Court numbered as 76 of 1982.
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6.1 On 10.05.1983, the accused preferred an application for
protection under Section 197 of Cr.P.C., which was
dismissed by the learned Sessions Judge, Junagadh.
Against the order of dismissal, the accused preferred
Special Criminal Application no. 894 of 1983 before this
High Court, which came to be withdrawn. Thereafter,
accused moved application Exh.18 for discharge before
the learned Sessions Judge, which was dismissed.
Aggrieved by the order, the accused filed Criminal Misc.
Application no.3661 of 2000, High Court remanded back
directing the Sessions Court to hear the matter afresh on
merits. On 07.05.2000, the learned Sessions Court
dismissed the application EXh.18 on merits. Thereafter,
the accused approached the High Court by filing Criminal
Revision Application no. 568 of 2001, which came to be
dismissed. Against that order of dismissal, the accused
filed SLP (Cri) no.3533 of 2002 before the Hon’ble
Supreme Court and it was dismissed as withdrawn.
7. In this background of the matter, having heard learned
Senior Advocate Mr. Unwala for the accused and Ms.
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Bhatt, learned APP for the State, perused the record and
proceedings and the testimony of the prosecution and
the Defence Witnesses.
8. The injured complainant, as a witness, was examined as
PW4 at Exh.134. The deposition of the complainant –
Merag Haja was recorded on 02.01.2003 before the
Court of 6th Fast Track Judge, Junagadh. At the time of
giving the deposition, he was aged about 73 years and
referred himself as retired person, resident of Sutrej,
Junagadh. According to his evidence, the incident had
occurred on 07.10.1976. On the day of the incident, he
was at his home and along with him was his labourer –
Bhikha Deva, who he stated died 15 years ago. The
police had come to his house, the police was Deputy
Superintendent of Police – Shri Jani (PW7) and Shri
Upadhyay. They started making search of his house for
weapons. Along with them, were SRP personnel. They
came and told him that his house was to be searched and
therefore, he asked for the reason and informed them
that he was not having weapons without licence. PW4
stated that those people started searching his house, but
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they had no warrant for the search. He, respecting the
law, allowed them to search his house. He had in total
eight houses, which included compound wall and fence.
After three hours of search, NIL Panchnama was drawn.
The witness stated that nothing could be found from his
house. In the NIL Panchnama, the panchas were Bavaji
Keshavdas Jamnadas and another Arvind @ Bhupendra
Naranbhai Joshi of Khirsara.
8.1 The complainant witness – PW4 further stated that in the
evening at about 7 O’Clock, one SRP man came with the
bottle of liquor at his house, and since no weapon was
found from his house, SRP man told Shri Jani (PW7) to
show that liquor bottle in the Panchnama. Shri Jani
stated that he would do no wrong and therefore, Shri
Jani and Shri Upadhyay went away drawing NIL
Panchnama.
8.2 PW4 – complainant then further stated that the vehicles
were on the road and Shri Khandwawala (A-1) came
down from the vehicle near the road adjoining his house.
Shri Khandwawala (A-1) asked him to give the weapon,
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so the complainant replied that he had no weapon. He
further informed Shri Khandwawala (A-1) that he had
one country-made licence Joto (Pistol), and three months
prior, he had already deposited the same to the police.
According to the witness, Shri Khandwawala (A-1)
replied that if he would not give the weapons, then, they
would beat him, so he replied that he had no weapon and
if they wanted to beat him, they could do so. Thereafter,
Shri Khandwawala (A-1) made him sit in his vehicle.
From there at the outskirts of Village Khirsara, a search
was made in a field, then, the search was in Sarsali
Village and from there, the vehicle stopped at Antroli
crossing, where from, one road was heading towards
Mangrol and another towards Porbandar. At that place,
Shri Khandwawala (A-1) made him and Bhikhabhai sit in
the SRP vehicle, while Shri Khandwawala, on his own,
headed towards Mangrol and he was taken to Porbandar
and at 11:30 p.m., they were kept in police custody.
8.3 According to the testimony of PW4 in the morning at
about 8 O’Clock, Shri Khandwawala (A-1) came there
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and asked him to give the weapon. He replied that he
had no weapon. The witness stated that accused no.1
told that he was to be beaten. Thereafter, the
complainant’s both hands were held at a distance and he
was beaten severely. He was beaten on the hand, waist
and back. Thereafter, he was made to lie down and both
his legs were broadened and with the heals of the shoes,
his legs were crushed and both the legs were heavily
rolled with the stick. Thereafter, he was made to stand
outside in the Osri, where below both his hands, keeping
a stick, with the rope, both his upper arm were tied and
the rope was pulled up on the ceiling from a hole and he
was dropped down. Thereafter, he got unconscious.
According to the witness, the incident had occurred at
Porbandar Police Chowky. The person who had beaten
him were Shri Khandwawala (A-1), another Shri Raol,
third Shri Waghela and Shri Rampal and other persons
whom he could identify, but does not remember the
name. He stated that apart from these four persons,
there were another about 4-5 persons. The witness
identified Shri Khandwawala (A-1), Shri Waghela and
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Shri Rampal as accused in the Court, while Shri Raol was
recorded as dead.
8.4 The incident, which the complainant witness stated, was
of 07.10.1976. Initially, PW7 – Shri Jani and Shri
Upadhyay had come to his house for the search of
weapon. It appears that a team had come, while Shri
Khandwawala (A-1) was sitting in the vehicle outside the
house and Shri Jani and Shri Upadhyay along with SRP
team were making the search. The houses of the
complainant in total were eight in number. According to
him, NIL Panchnama was drawn. The search was for
about three hours. According to the witness, an attempt
was made at about 7 O’Clock in the evening by one SRP
personnel to show a liquor bottle, as seized from his
house, while Shri Jani (PW7) denied to do anything
wrong.
9. The prosecution had examined Shri Prataprai Laljibhai
Jani (PW7) at Exh.139, the officer who had come for the
search. According to his deposition, he served lastly as
an Inspector General, Rajkot. In October, 1976, he was
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having his duty as Divisional Police Officer, Nadiad. The
police stated that during the time of this incident, there
was murder of the President of the Nagarpalika of
Porbandar – Dhanjibhai Kotiyawala and he was ordered
to investigate and therefore, he had come from Nadiad to
Porbandar on 04.10.1976. He reported to the Range DIG
and started his investigation.
9.1 PW7 stated that on 07.10.1976, along with the Police
Sub-Inspector – Kanakbhai Upadhyay of Keshod, he
started from Porbandar to Mangrol and had made a raid
under prohibition at Village Khirsara and Sutrej. At
Village Sutrej, they searched the house of Merag Haja
(complainant) from 16:45 to 20:00 hrs., and drew a
Panchnama, but since no objectionable thing was found,
he drew NIL Panchnama. The Panchas were Bavaji driver
and one another person from Village Sutrej and the
second Panch was from Khirsara. He stated that almost
about three hours, he searched the house of Merag Haja.
According to the witness, he had conducted the legal
search, as per his duty. The witness also stated that
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Police Sub-Inspector – Kanakbhai Upadhyay was no more
and that he was deceased. After completing the
Panchnama, he went to Porbandar. The witness, in the
deposition, clarified that during this period, no incident
had occurred, nor any other person had come there, nor
it has so occurred of anyone saying anything. The
witness stated that he had not taken Merag Haja, and
Merag Haja had voluntarily allowed the search and had
raised no objection.
9.2 From the evidence of this witness, it transpires that he
was ordered for the investigation in connection with the
murder of the President of the Municipality – Dhanjibhai
Kotiyawala. The witness had not clarified as to why he
had to go for a search at the house of Merag Haja
(complainant) under the Prohibition Act when he was
investigating the murder. Whether Merag Haja was a
suspect in the murder and what was the reason for the
search in the house under Prohibition Act, does not
become clear from the evidence of this police witness.
This police witness had not produced any documentary
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evidence regarding the order, which he had received in
connection with the murder, nor had he produced any
connecting evidence to show that the search, which he
had made on 07.10.1976 at the house of the
complainant, was legal. The only question was asked in
the cross-examination to the witness by the advocate of
the accused no.1, to which, the police witness affirmed
that on 07.10.1976, after drawing the Panchnama, when
he left for Porbandar at 8 O’Clock night, at that time,
Merag Haja was present at his house.
10. As per the deposition of PW4 – complainant, when PW7 –
Shri Jani along with Shri Upadhyay had come to his
house for search, the search was for the weapon, while
PW7 – Shri Pratapray Laljibhai Jani stated that it was the
search under the prohibition raid, while Shri Jani was
ordered for investigating the murder of Municipality
President – Shri Dhanjibhai Kotiyawala. How the three
aspect got interconnected, does not become clear in the
testimony of PW7 – Shri Jani.
10.1 The evidence of the complainant – Merag Haja (PW4)
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discloses the fact that he was not alone. He was along
with Bhikha Deva and in the cross-examination, presence
of one Jusab Habib has also been brought by the defence
whose farm was in the outskirts of Village Khirsara. All
the three i.e. Merag Haja, Bhikha Deva and Jusab Habib
were made to sit in the SRP vehicle at Antroli crossing. At
the time of the search, which was conducted throughout
the houses of the complainant to the house of Jusab
Habib, it also comes on record that the farm of
Sarpanch-Premdas was also searched. PW7 has not
disclosed any fact about all the search made at different
places. It does not become clear as to why PW7 had
shown the raid at the house of the complainant on
07.10.1976 under prohibition. PW7 stated that he had
along with the PSI – Kanak Upadhyay had raided Village
Khirsara and Village Sutrej under prohibition. The person
who was found from Khirsara was Jusab Habib and even
the house of the Sarpanch – Premdas Narandas, resident
of Sarsali was raided, while PW7 had nothing to say
about this raid at Village Khirsara and Village Sarsali.
Was this police witness Shri Jani trying to hide some
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facts camouflaging the search for the murder? According
to the complainant, the search, which was made by Shri
Jani in his house was for weapons, while Shri Jani (PW7)
stated that it was under prohibition. PW7 has not clarified
about Shri Khandwawala (A-1) and his team present
there at the house of Merag Haja. The persons, who were
investigated for the weapons, were Merag Haja, Bhikha
Deva, Jusab Habib and Premdas Narandas. Bhikha Deva,
Jusab Habib and Merag Haja all the three were together
in the SRP vehicle. The presence of SRP at all these
places becomes clear, who according to the complainant
SRP team was with PW7.
10.2 The complainant, in his deposition, further stated that
after the police torture, as described by him, Bhikha
Deva had informed him that he was brought in a room
and after bringing him down was made to sleep in the
room. There was fan running and further they were
fanning him. He became conscious after two hours. The
police thereafter informed Shri Khandwawala (A-1) that
Merag Haja got conscious and therefore, Shri
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Khandwawala (A-1) came near him and asked him to
stand up, at that time, he informed that he was not
knowing as to what was happening to his hands, legs and
body and that he was in excessive pain. He had asked for
water. After giving him water, Shri Khandwawala (A-1)
went away. The witness – PW4 stated that he was lying
down there. Before that, he had informed Shri
Khandwawala (A-1) that he was not in a position to sit or
sleep and because of excessive pain, he asked for
relaxing chair. So Shri Khandwawala (A-1) told him that
if he had money, he could buy it and therefore, the
witness gave Rs.52/- for the purchase of chair. According
to him, Bhikha Deva and SRP man picked him up and
made him lie on the relaxing chair. The witness stated
that his left leg got separated and was broken. Shri
Khandwawala (A-1) again came back at 05.00 p.m., at
that time, along with him was Shri Raol (A-2) and he had
asked those officers to send him to the Hospital. The
witness stated that Shri Raol threatened him that he was
not to be sent to the hospital, but to Sabarmati jail. After
they left, CID Inspector – Shri Sharma came and asked
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him ‘as to what it was’. Therefore, he informed him and
thereafter, he told him that he would try to send him to
the Hospital and in the evening, Deputy Bhargav and
Civil Surgeon of Porbandar had come there.
11. The prosecution has not examined CID Inspector – Shri
Sharma as witness. According to the complainant, Civil
Surgeon, Porbandar Shri Vora had visited him with
Deputy Bhargav. Civil Surgeon – Shri Vora was examined
as PW1. The evidence of the complainant was that he
was beaten on the hands, back, waist. His legs were
crushed by the shoes as well as stick. He was hanged up
at the ceiling and was dropped down. The evidence of the
complainant states that after informing – Shri Sharma in
the evening, Civil Surgeon, Vora of Porbandar had visited
him with Deputy Bhargav, which could be 08.10.1976.
The witness further stated that after examining him, they
conversed in English, which he could not understand and
thereafter, one local Vaidhya was called who informed
that the case was serious and therefore, during the night
approximately about 9 to 9.30 hrs., he was taken in an
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Ambulance or police car to Bhavsingji Hospital,
Porbandar.
11.1 Dr. Bhupen Kanakshankar Vora – PW1, in the year 1976,
was serving as a Civil Surgeon at Bhavsingji and M.R.
Hospital, Porbandar. In the deposition, he stated that he
has no information as to which patient had come to him
in October, 1976. Since he received the summons, he
went to the Hospital to procure the papers, however, the
Civil Hospital told him that no information was available.
The witness Doctor had not inquired the reason for non-
availability of the papers and stated that the Civil
Surgeon too had not informed him and he had not taken
any written report for that purpose from them.
11.2 He was shown Mark 1/2 – Inquiry no.2/76. He had
examined the original victim on that day and he referred
to the certificate of 1976 dated 11.10.1976, where the
certificate showed the name of Merag Haja, aged about
46, with the femur bone fracture of left leg and he had
referred him to Orthopedic Surgeon at Irvin Hospital,
Jamnagar. The witness identified his signature on the
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certificate, which was produced in the evidence at
Exh.104, referred as inward no. 1/E/Refer/5/4993/76
dated 11.10.1976.
11.3 The witness – Dr. Vora, Civil Surgeon was the person
who had visited the complainant along with Deputy
Bhargav in the custody of the police. According to the
complainant, Civil Surgeon Vora and Deputy Bhargav
talked in English, which he could not understand and
thereafter, a local Vaidhya was called who considered it
as a serious case and thereafter, at 9.00 to 9.30, he was
sent to Bhavsinh Hospital, Porbandar, where he stayed
for two days. PW1-Shri Vora was a Civil Surgeon at
Bhavsing Hospital. This Doctor had not stated during the
trial as to what he had medically observed with regard to
the complainant in the police custody. Though the
complaint was of beatings on the hands, waist and back,
both the hands were tied and the rope was pulled up to
the ceiling and from there, he was dropped down nothing
about any injury on hand wrist, waist, back were
reported. Whether the complainant had made any such
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complaint before PW1, at that relevant time, when PW1
visited the complainant in the police custody, has not
come on record. The sequence of the incident would
record that PW1 – Dr. Vora visited the complainant on
08.10.1976, but the certificate, which he refers is of
11.10.1976 and being a Civil Surgeon, he had referred
him to Irvin Hospital. The Doctor has no knowledge as to
how many days, Merag Haja was an indoor patient in his
hospital, while Merag Haja stated that he stayed for
about two days in Bhavsing Hospital.
11.4 Dr. Vora further clarified that since records were not
available, he could not say whether the patient had come
on his own or with the police yadi. Dr. Vora, in his
deposition, stated that the fracture on the thigh could
occur by falling down or by direct beatings. He also
stated that such kind of injury is possible even if the
person is beaten by hard and blunt substance and when
the person is dropped down hanging from the height of
15 ft., such kind of injuries are possible, explaining that if
a person is raised to a roof and released, then, can
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sustain such injury if a person is forcefully dropped down.
The Doctor further stated that if the person is tied up at
the wrist of both the hands and thereafter, raised to a
roof and suddenly, the end of the rope is released, then,
such injuries are possible. The Doctor also stated that he
does not remember as to what treatment he had given,
since long time had passed.
11.5 In the cross-examination, the Doctor affirmed that in the
document Exh.104, no reference has been made of the
name of the Village of Merag Haja. The Doctor affirmed
that he could not identify a person, named, Merag Haja
on the day of the deposition. The Doctor also affirmed
that if a person is beaten by hard and blunt substance
and if a person is raised upto a roof and forcefully thrown
down, then, it becomes a medico-legal case. The Doctor
also affirmed that if there is a medico-legal case, then,
they have to inform the nearest Police Station; while
denied the suggestion that even in a medico-legal case
whenever the patient is referred for further treatment, at
that time, a slip has to be appended referring to the
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injuries. The Doctor affirmed that if a person falls down
from the stairs at the height of 10-15 ft. or his legs
suddenly slips down, then, the injuries, as described in
Exh.104, are possible. The Doctor also affirmed that he
would have certainly written in Exh.104 of any serious
injury to Merag Haja. The Doctor further stated that if a
person is beaten with hard and blunt substance, then,
there are possibilities of external injuries. The witness
also stated that the injury, which he has shown in
Exh.104 on the side of the neck with the hard and blunt
substance, then, he has not to write about the external
injury of the patient in the referred letter, but such
reference would be in the case papers. The witness
stated that he does not recollect whether in the present
case, he had informed Porbandar City Police Station.
11.6 The witness, who had seen the complainant prior to his
arrest, was Shri Jani (PW7), the officer who had raided
the house of the complainant under the prohibition, and
PW1-Dr. Bhupen Kanakshankar Vora who had seen the
complainant in the police custody, where PW1-Dr.
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Bhupen Kanakshankar Vora was called to examine him as
a Civil Surgeon, Porbandar. Though PW1 had seen the
complainant in the police custody inspite of that fact,
PW1 has not stated of the injuries, which the injured
complained, as beaten by the accused no.1 – Shri
Khandwawala and rest of the accused. PW1-Dr. Bhupen
Kanakshankar Vora had not given any description of the
injuries, which the complainant stated that he had
sustained by the atrocious act of the accused in the
police custody. If the complainant is to be believed, then,
PW1 has very surreptitiously not made any mention in
his deposition of his visit in the police custody to examine
the complainant – Merag Haja. The complainant stated
that he was taken to the police custody on 07.10.1976.
As per his allegation, he was beaten on 08.10.1976 and
if the evidence of the complainant, as referred
hereinabove, is analyzed, then, it was on 08.10.1976
that PW1 has visited the complainant in the police
custody. Even if it is considered that PW1 was not the
person who visited the complainant in the police custody,
then, it was before him at the first, complainant was
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brought for treatment, this witness PW1 does not record
any history of police torture in the police custody. While
the evidence of PW1 speaks of 11.10.1976, where he had
only referred to left leg femur bone fracture. A local
Vaidhya was also called and if that has been so, his name
could have been found out from the entry made in the
police station record. No such Vaidhya has been
examined in the matter.
11.7 The complainant stated that after the Vaidhya informing
that the case was serious, at about 9.00 to 9.30 p.m., he
was taken to Bhavsing Hospital, Porbandar in Ambulance
or police vehicle. If that fact has to be correlated to the
evidence of PW1, then, PW1 – Dr. Vora, having examined
the patient, should have recorded of any injuries on any
other part of the body of the complainant, apart from left
leg femur bone fracture.
11.8 It is not the case of the complainant that in the police
custody, he was not given the service of Doctors or
inspite of his complaint, he was not taken to the hospital,
rather the facts suggest that accused no.1 – Shri
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Khandwawala, on the insistence of the complainant, had
also provided him the relaxing chair. On complainant’s
demanding water, it was provided to him and when he
asked to take him to the hospital, PW1 was called for as
a Civil Surgeon as well as a local Vaidhya also visited him
and from there, in an Ambulance or in a police vehicle,
he was taken to Bhavsing Hospital, Porbandar. This
treatment by the police in the police custody does not
show that the act of the police was inhuman. Along with
Merag Haja, there were Bhikha Deva and Jusab Habib.
Bhikha Deva and Jusab Habib have not made any
complaint of police torture in custody to extort any
confession. All the three were in the same room.
12. In the case of D.K. Basu v. State of West Bengal, with
Ashok K. Johri v. State of U.P., (1997) 1 SCC 416, it was
observed in Paragraph 28 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 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
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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, undertrials, detenus 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 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”.
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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. The 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 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.”
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13. The examination of the evidence must be in regard to the
facts and circumstances of the case. The primary burden
is on the prosecution, which shifts on the accused, as
being a police person to disprove the prosecution case.
The complainant has to prove beyond all reasonable
doubt and with evidence of certainty that the bodily
injury was caused in custody of accused as police. The
evidence of the complainant as PW4 further records that
at Bhavsing Hospital, Porbandar, he stayed for two days.
Thereafter, it was Sunday and on Monday in the
newspaper, he read the news of police finding revolver
from Merag Haja of Sutrej and a case was filed against
him and therefore, he inquired about the lawyer, but he
did not find any lawyer and thereafter, Punja Karshan of
his Mer community of Kotda Village was called and the
complainant informed him to search for a lawyer and he
brought Vakil Samatbhai Ranavaya, examined as PW5
during the trial. The complainant stated that through
him, he had filed bail application and thereafter, with the
permission of the Court, he had gone for treatment at
Jamnagar under police Bandobast and he was admitted
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in V.M. Shah Hospital, where he was operated on
13.10.1976 for the fracture of his left leg. He was
released on bail on 14.10.1976. From there, the police
left him. The complainant stayed for 9-10 days at
Jamnagar. He further stated that from Jamnagar
Hospital, he had also made applications to I.G., Panch
and five applications to various other places. From there,
he came back to Keshod, where he took the treatment of
Dr. Sarvaiya – PW3.
14. The evidence of advocate – Samatbhai Devatbhai
Ranavaya (PW5) would be relevant to be noted at this
stage, where he stated that he was practising at
Porbandar Court in 1976 and he had filed bail application
for Merag Haja of Sutrej, whom he was knowing. One of
his acquaintance had taken him to the Hospital and he
had received the signature of Merag Haja on the bail
application as well as Vakalatnama. The bail application
was under the Arms Act. PW5 – advocate stated that he
had come to Bhavsing Hospital, Porbandar. The advocate
does not recollect the date of the bail application, which
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was moved before the learned JMFC. The advocate stated
that the Court granted bail and also stated that some
other application for treatment was also moved, but he
does not recollect the same. He does not also recollect
that prior to the signature on the bail application,
whether any permission was granted on any application
for treatment.
14.1 The advocate – PW5 stated that the bail application was
decided four days after its filing and during that period,
the applicant was in Bhavsing Hospital as an indoor
patient and when the bail application was granted, he
still was in Bhavsing Hospital. The advocate does not
recollect whether after filing of the bail application, the
complainant – Merag Haja was taken to any other place
for treatment from Bhavsing Hospital. The advocate also
clarified that he does not remember whether any
permission was granted for the treatment of the
complainant at Jamnagar, when he had filed the bail
application. He also does not remember whether Merag
Haja was at Jamnagar for treatment at the time of the
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order on the bail application. The advocate stated that he
had undertaken all the procedures for releasing him on
bail. He does not recollect whether the personal bond of
Merag Haja was taken at Jamnagar and the witness also
does not recollect whether he was advocate of only
Merag Haja. He was not having any record of the bail
application and had not tried to make any efforts to
procure the record from the Court after receiving the
summons.
14.2 Here, the vital evidence would have been the bail
application, which could have been crucial and relevant
to decide whether the allegation made by the
complainant of custodial torture was true. The advocate
on record would certainly had informed the Judicial
Magistrate First Class about the ill-treatment if at all by
the police in the police custody. Further, the JMFC
himself would have inquired from the accused of any ill
treatment as within twenty-four hours of arrest, the
accused is required to be produced before the concerned
JMFC, as provided under Section 57 of the Code of
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Criminal Procedure, 1973.
14.3 Section 54 of the Cr.P.C. gives the right to the arrested
person on production before the Magistrate to make a
request for examination by the Medical Practitioner.
Section 54 of the Cr.P.C., as it stood at the relevant time,
reads as under:-
“54. Examination of arrested person by
medical practitioner at the request of the
arrested person.―When a person who is arrested, whether on
a charge or otherwise, alleges, at the time
when he is produced before a Magistrate or
at any time during the period of his
detention in custody that the examination
of his body will afford evidence which will
disprove the commission by him of any
offence or which will establish the
commission by any other person of any
offence against his body, the Magistrate
shall, if requested by the arrested person
so to do direct the examination of the body
of such person by a registered medical
practitioner unless the Magistrate considers
that the request is made for the purpose of
vexation or delay or for defeating the ends
of justice.”
14.4 The evidence of the advocate – Shri Ranavaya (PW5),
thus, becomes relevant to know that no such application
was made by the complainant as an accused under the
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Arms Act before the Magistrate to get himself medically
examined by the Medical Practitioner. Section 54 confers
an important right on an arrested person. It is the right
of an arrested person to have his medical examination
done. Since the provision made is with an object that the
examination of the accused’s body would afford evidence,
which will disprove the commission by him of any offence
or which will establish the commission by any other
person or any offence against his body.
14.5 Here, in this case, Advocate Shri Ranavaya appears to
have not made any such application before the JMFC. A
copy of the bail application had not been produced by the
advocate, nor the bail order. In the cross-examination,
the advocate had affirmed that he had got Merag Haja
released on bail under the Arms Act, which was
registered by Porbandar Police and charge-sheet was also
filed for that offence. Thereafter, he was not the lawyer
for Merag Haja. The advocate also stated that when he
had filed the bail application, he had not seen the FIR
and he does not recollect whether he had filed bail
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application of other accused apart from Bhikha Deva in
that matter.
15. The evidence of the complainant was that the police had,
on his request, sent him to the Hospital by Ambulance or
police vehicle when he was in custody for interrogation.
If custodial torture would have been the case, then the
accused would have exercised his right under Section 54
of Cr.P.C.
16. The evidence, as could be observed and analysed
comparatively with the testimony of Shri Prataprai Lalji
Jani (PW7) – the police, Samatbhai Devabhai Ranavaya
(PW5) – advocate, Shri Bhupen Kanakshankar Vora
(PW1) – Doctor with the evidence of the complainant-
PW4. The incident alleged is of 07.10.1976 and on the
next day, i.e. on 08.10.1976, the complainant alleges of
police torture and on that day, at night at about 9.00 to
9.30 p.m., he was sent to the Bhavsing Hospital,
Porbandar in an Ambulance or police vehicle. PW7 refers
to the incident only of 07.10.1976, though the
complainant states that PW1 – Doctor had seen him in
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the police custody on 08.10.1976; however, the Doctor
does not make mention of the said date while his
evidence is for 11.10.1976, and the advocate – PW5 does
not refer to any date, but states that the Vakalatnama
and the bail application was signed by the complainant at
Bhavsing Hospital, Porbandar, in which, PW1 was serving
as a Civil Surgeon, so only on 11.10.1976 or thereafter,
the complainant could have signed the bail application.
According to the complainant, he was under police
Bandobast while having the treatment at Jamnagar and
thereafter, he was admitted in V.M. Shah Hospital and on
13.10.1976, he stated that he was operated for the
fracture of the left leg, and on 14.10.1976, he was
released on bail. At Jamnagar, he stayed for about 9-10
days. From there, he had gone to Keshod, where he took
treatment from Dr. Sarvaiya who was examined as PW3.
The provisions of Section 54 Cr.P.C. and Rule 14 of the
Criminal Manual would certainly had been followed during
the process of production of accused in connection with
the arrest of the complainant.
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17. Rule 14 as provided under Chapter-II under the heading
“Arrest and Investigation” of the Criminal Manual
provides as under:-
“14.(1) If any allegation of ill-treatment
is made by a prisoner, the Magistrate shall
then and there examine the prisoner’s
body, if the prisoner consents, to see if
there are any marks of injuries as alleged
and shall place on record the result of his
examination. If the prisoner refuses to
permit such examination, the refusal and
the reason therefore shall be recorded. If
the Magistrate finds that there is a reason
to suspect that the allegation is well
founded, he shall at once record the
complaint and cause the prisoner to be
examined by a Medical Officer, if possible,
and shall make a report to the Sessions
Judge, through the Chief Judicial Magistrate
or to the Chief Metropolitan Magistrate, as
the case may be. If he has no jurisdiction
to hold a necessary inquiry himself or he is
not empowered to take cognizance of the
offence, he should forward the prisoner
with the record to the Judicial Magistrate or
the Metropolitan Magistrate having
jurisdiction to hold the inquiry and
empowered to take the cognizance of the
offence.
(2) A Medical Officer, to whom a person
in police custody is brought for
examination, should examine the person or
the prisoner, and even though no
suspicious marks of injury are found,
should at once report to the Magistrate
authorising notice custody that he has done
so.
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(3) (i) Medical Officer in charge of jail must
carefully examine the body of the every
under-trial prisoner on the day of his arrival
in jail, or at least on the day following.
(ii) Similarly, in the case of third class
subsidiary jails, if there is a Sub-Assistant
Surgeon or other Medical Officer in local
charge of the place, every under-trial
prisoner should be examined by him, if
present at the station, within 24 hours of
admission.
(iii) In the case of lockups and subsidiary
jails at places where there is no Medical
Officer, the Officer in charge in all
suspicious cases should send under-trial
prisoners in custody to the nearest Medical
Officer for examination.
(4) In all such cases the Medical Officer
should record the result of the examination.
(5) If any marks or symptoms at all
indicative of recent violence or ill-treatment
are found, the Medical Officer concerned
should immediately make a report to the
concerned Judicial Magistrate or the
Metropolitan Magistrate and to the Sessions
Judge or to the Chief Metropolitan
Magistrate, as the case may be. The report
should specify the nature of the injuries
and their position, together with the opinion
of the Medical Officer as to their causation,
and should state whether the prisoner
makes any allegations in regard to them
against the Police or others responsible for
his arrest or custody.
(6) If such allegations have been made,
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the Sessions Judge or the Chief
Metropolitan Magistrate, as the case may
be, should arrange for an immediate
Magisterial inquiry into the complaint
through such Magistrate as he may deem
most convenient, unless he is satisfied by
the Magistrate’s report under sub-
paragraph (1) above, that adequate inquiry
is proceeding.
(7) The result of the inquiry, so far as it
ascertains the truth or falsehood of the
allegations made, must be communicated
as soon as possible to the Court seized of
the substantive case. If it considers it
desirable or necessary, the Court may
summon the Medical Officer to give
evidence in the case.”
18. There is no such evidence on record of any complaint of
custodial torture and injury before the concerned
Magistrate, nor had the Magistrate sent the accused for
medical examination. The witness – Vipin Mohanlal Shah
(PW2) has given the evidence of the complainant –
Merag Haja visiting him on 13.10.1976 as patient. The
witness was running the Hospital at Jamnagar in the
name of ‘Orthopedic’. The witness stated that the patient
had sustained fracture of the right side thigh, while the
complainant stated that it was his left leg operation. PW2
could also state that there were bruises on the upper
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part of the elbow of both hands and the patient was
under treatment from 13.10.1976 to 23.10.1976, as
indoor patient. He had given advise for rest.
18.1 PW2 was referred to Mark 1/1 in his handwriting, which
was produced in the Inquiry Case no.2/76; thus, was put
in evidence at Exh.106. The Doctor stated that the
injuries, as shown in Exh.106, could occur if any person
is hanged down with the rope tied on the upper part of
the hands and the fracture on the thigh was possible
because of the fall. The Doctor also stated that if the
person is beaten with hard and blunt substance, then,
such injuries are also possible and if a person falls down
from the top, then too, such injuries are possible. The
Doctor further stated that if both the hands of any person
is tied and is dragged up high and from there, the person
falls down, the injury was possible. These are the
possibilities the Doctor stated, but no such complaint was
made by the patient to him.
18.2 The Doctor, apart from Exh.106, stated that he had no
other record. The Doctor was referred to Mark 18/1 of
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Inquiry Case no.2/76, which is the original document.
Seeing the document, the Doctor stated that on
08.11.1976, Merag Haja was admitted in his Hospital for
treatment and on 24.11.1976, he was discharged and he
had advised for three months rest. The Doctor stated
that again osteotomy operation was done and a plate
was inserted and for that purpose, certificate Exh.107 in
his handwriting was given. The witness was also shown
Mark 102/3, which was in the handwriting of the
receptionist of his Hospital about the operation charges
dated 23.10.1976 produced in evidence at Exh.108. The
prescription in his handwriting was placed in evidence at
Exh.109. Exh.110 dated 09.11.1976 the Doctor referred
as laboratory report from Bharat Laboratories with the
signature of the Doctor, which was on his advise. The
prescription Exh.111, in his handwriting, was also
introduced in evidence during the trial.
18.3 The documents in relation to second admission of patient
in the Hospital, the Doctor referred the bill Exh.112 as
charges. Exh.113 in the handwriting of the receptionist
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as charge for the indoor patient of the Hospital. Exh.114-
charge bill for the x-ray with the signature of the
technician, Exh.115 was the consultation bill under the
signature of the receptionist dated 24.11.1976 and
Exh.116, the construction fee prepared by the
receptionist. The Doctor stated that since it was the
fracture on the thigh, there would be possibility of
permanent disablement.
18.4 This Doctor was put to cross-examination, where he
stated that in October, 1976, he was serving both at
Irvin Hospital as well as had private hospital. The
treatment of the complainant – Merag Haja was given in
his private Hospital. The Doctor does not remember
whether he had received any forwarding letter of this
patient from Bhavsing Hospital, Porbandar. The Doctor
also cannot say as to what treatment was given to Merag
Haja at Irvin Hospital. Merag Haja had come to his
Hospital for treatment, but the papers, which were
prepared for his treatment, were not available with him.
18.5 The Doctor affirmed that if there was any medico-legal
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case in his Hospital, then, the police would be informed.
He could not say whether he had informed the Police
Station for the medico-legal case of Merag Haja who had
come for treatment in his Hospital.
18.6 The witness was shown the certificate at Exh.106 and the
Doctor affirmed that the history of the patient does not
reflect of any assault. The Doctor also affirmed that in
the certificate Exh.106, the injuries were shown on both
the hands. The colour of the injury has not been stated.
Therefore, the Doctor stated that it could not be decided
as to how old the injuries were. The Doctor also stated
that in MLC cases, whenever the certificate is issued,
they would write on the top as MLC and he affirmed that
in this case, it has not been written so.
18.7 The evidence of Dr. Vipin Shah (PW2) does not refer to
the case as medico-legal case. From 08.11.1976 to
24.11.1976, Dr. Shah stated that Merag Haja was in his
Hospital. It appears that Merag Haja had immediately
come to the Hospital of this witness after his treatment
at Keshod from Bhagwat Hospital, where he was treated
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from 25.10.1976 to 08.11.1976, where Dr. Digvijaysinh
Sajjansinh Sarvaiya (PW3) stated that because of
infection, Merag Haja was suffering from fever and
therefore, he had advised him to come to the Hospital. It
appears that the treatment with Dr. Sarvaiya was not
fruitful and therefore, Dr. Sarvaiya had referred him to
PW2 – Dr. V.M. Shah’s Hospital, Jamnagar.
19. PW3 – Dr. Digvijaysinh Sajjansinh Sarvaiya had a
Hospital in Keshod, which was named as Bhagwat
Hospital. Prior to the treatment on 25.10.1976, the
Doctor had visited Merag Haja at his home at Sutrej. He
had examined Merag Haja who was suffering from fever
and as the treatment was not possible at home, he had
advised him to be admitted in the Hospital. According to
the Doctor, the fever was because of infection. So, on the
next day, Merag Haja was admitted in his Hospital. The
certificate Mark 5/1 in Inquiry no.2/76 was referred to
affirm that Merag Haja was treated in his Hospital from
25.10.1976 to 08.11.1976 produced at Exh.118.
19.1 Till 08.11.1976, he was at the witness’s Hospital and
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thereafter, was referred to Jamnagar to Dr. V.M. Shah –
PW2. Dr. Sarvaiya stated that he too had gone along
with Merag Haja to the Hospital. After discharge from
Jamnagar Hospital, again Merag Haja came to him and
then, he advised him to go to Jaslok Hospital, Bombay.
19.2 According to Dr. Sarvaiya, he got the information that
Merag Haja was operated as Jaslok Hospital, Mark 18/2
was referred to the patient, which was report of Jaslok
Hospital.
19.3 Dr. Sarvaiya stated that when Merag Haja had come to
him for the treatment, at that time, Merag Haja had
informed him that he was taken to Porbandar Police
Station and had also informed him that he suffered
injuries.
19.4 Dr. Sarvaiya stated that in the history before him, Merag
Haja had informed that he was tied with rope and was
smashed and thereafter, he was sent to Porbandar Civil
Hospital. The Doctor was referred to 102/1 and 102/2,
the prescriptions, which were in his handwriting placed in
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evidence at Pages-119 and 120. Even the document at
Exh.121 was placed in evidence.
19.5 The Doctor stated that his testimony was recorded in
Inquiry Case before Keshod Court and he had produced
vide Mark 18/2, the certificate from Jaslok Hospital.
19.6 The witness had started his private practice since 1972.
He had attended many medico-legal cases prior to the
present one. The witness stated that in medico-legal
cases, he would inform Keshod Police Station.
19.7 In the cross-examination, the Doctor witness stated that
he was not aware whether it was medico-legal case of
Merag Haja, when he was admitted in his Hospital. The
Doctor affirmed that from 25.10.1976 till 08.11.1976, he
was having no information that it was medico-legal case
of Merag Haja. He does not recollect the date of
admitting Merag Haja again in his Hospital after
08.11.1976 and also affirmed that even when Merag
Haja was admitted second time in his Hospital, at that
time too, he had no information that it was a medico-
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legal case. The Doctor does not remember the days
Merag Haja remained admitted in his hospital for the
second time and also stated that during that period,
while staying as indoor patient, Merag Haja had not given
him the history and also affirmed that since he had not
received history as of medico-legal case, so he had not
informed Keshod Police Station. He denied the
suggestion that he has not mentioned of history in the
treatment papers. The witness volunteered that he had
noted in medico case papers, but does not remember the
date and time. The papers, which he stated was not
produced during the inquiry before Keshod Court.
Exh.118 is stated was the certificate prepared on
16.03.1977, which was prepared on the basis of case
papers, wherein too, he affirmed that there is no mention
in the certificate of any history given by Merag Haja.
19.8 This witness was recalled under the order below Exh.122
by the Public Prosecutor and was asked about the papers
with regard to the treatment dated 25.10.1976. The
witness stated that after receiving the summons, he has
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searched for the documents, but he could not locate
since those were old records and also stated that there
was no possibility of finding them. In the cross-
examination, the witness affirmed that he had kept a
separate file for the case papers of Merag Haja. He also
affirmed that while he visited Keshod Court for his
testimony, he had carried those case papers with him
and stated that on 17.10.2002 i.e. during the trial of the
present Sessions Case, when he was giving his
testimony, he had not brought case papers of Merag Haja
and denied the suggestion that in fact, he had no such
note of the history in the case papers.
19.9 This witness – Dr. Sarvaiya could not prove the alleged
history, as stated to be informed by Merag Haja. If he
had taken the case papers during the inquiry in Keshod
Court, then certainly, they would have been produced
and referred to. Twice, Merag Haja was admitted in
Bhagwat Hospital, Keshod. This Doctor could not give
evidence of Merag Haja informing him of the injury with
the history of alleged assault to be considered as medico-
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legal case.
19.10 In the cross-examination of the complainant – Merag
Haja, it has come on record that on that day i.e.
07.01.1976, there have been combing in the area of
Sutrej, Khirsara, Sarsali Villages for weapons. The police
had taken Merag Haja, Bhikha Deva and Jusab Habib in
SRP van. All of them were made to sit in the vehicle at
Antroli crossing and according to the complainant, in the
police station room, all the three were made to stay
together.
20. Sections 46 and 49 of Cr.P.C., as stood prior to
31.12.2009, provided as under:-
46. Arrest how made.-
(1) In making an arrest the police officer
or other person making the same shall
actually touch or confine the body of the
person to be arrested, unless there be a
submission to the custody by word or
action.
(2) If such person forcibly resists the
endeavour to arrest him, or attempts to
evade the arrest, such police officer or
other person may use all means necessary
to effect the arrest.
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(3) Nothing in this section gives a right to
cause the death of a person who is not
accused of an offence punishable with
death or with imprisonment for life.
49. No unnecessary restraint.-
The person arrested shall not be subjected
to more restraint than is necessary to
prevent his escape.
So Section 46 Cr.P.C. permits the police to use
force if such person forcibly resists the endeavour to
arrest him, sub-section (2) of Section 46 authorises the
police officer or other person to use all means necessary
to effect the arrest.
21. The reference of these sections becomes necessary to be
made since here in the present case, it was not only that
Merag Haja was put under restrain, but even Bhikha
Deva and Jusab Habib, all the three were taken to
Porbandar Police Station. There appears to be no
complaint by Bhikha Deva and Jusab Habib of any police
torture. Merag Haja was even provided medical
assistance in the custody, as stated by him. Civil
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Surgeon-Shri Vora (PW1) and one local Vaidhya had also
visited him in the police custody. Merag Haja was also
taken to the Hospital as per his own request in the police
vehicle. He also sought legal assistance of PW5 –
Samatbhai Devabhai Ranavaya. When the case was
lodged under the Arms Act, he also moved a bail
application and on 14.10.1976, he was released on bail.
Till that period, he remained in the Hospital. He had not
informed Dr. V.M. Shah on 13.10.1976 when he had
come for the treatment and remained as an indoor
patient of any police torture. If statement of Merag Haja
is to be believed, then, PW1-Dr. Bhupen Kanakshankar
Vora had visited him in the police custody on
08.10.1976, inspite of that, Dr. Vora as PW1 is not
stating such facts and Dr. Vora had also not found his
case to be of medico-legal, nor Dr. V.M. Shah could
affirm of any medico-legal case and even Dr. Sarvaiya –
PW3 could not say that it was a medico-legal case. From
11.10.1976 till 24.11.1976, Merag Haja visited these
three Doctors, but none of the Doctors could conclude his
case as a medico-legal case.
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21.1 In the cross-examination, Merag Haja was put to
question that on 08.10.1976, Porbandar PSI – Shri
Shinde (DW3) had investigated him with regard to his
revolver and that he had informed PSI – Shri Shinde that
it was on the roof top of his house and that Bhikha Deva
had also stated of having Tamancha (country-made
pistol) at his house and volunteered to produce and that
the deceased – Shri Raol took them from Porbandar to
Sutrej and Bhikha Deva was taken to Khirsara. Bhikha
Deva, from his residential house, had given the
Tamancha to Shri Raol and on 09.10.1976, at about
09:00 a.m., a Panchnama was drawn with regard to
Tamancha. The complainant – Merag Haja denied to all
these suggestions.
21.2 The defence advocate informed Merag Haja that on
09.10.1976 at 12:00 noon, he used staircase to climb to
the loft of the house to remove the revolver and at that
time, he slipped from the stairs and fell down and the
revolver, which he had removed fell on the ground. A
Panchnama to that effect was drawn at 12:00 noon at his
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house by Shri Raol and thereafter, he and Bhikha Deva
reached with Shri Raol at about 4 O’Clock in the
afternoon at Police Station and since he made complaint
of pain, he was admitted in Bhavsing Hospital,
Porbandar. To this suggestion, the witness did not affirm.
21.3 The prosecution specifically asked the complainant that
on 07.10.1976, he was never present at Porbandar Police
Station or Porbandar Village, to which, he denied. The
investigation was by PSI – Shri Shinde. The complainant
witness stated that during the period from 09.10.1976 to
14.10.1976, Shri Khandwawala (A-1) had never visited
the Hospital and the complainant had no knowledge
whether A-1 had gone to the Police Station. From
Jamnagar Hospital, he had made five applications and
those applications he got it written by a person of
Jamnagar, but Merag Haja does not know the name of
that person. Such communications were made by RPAD.
The acknowledgment slip is stated that he had kept it
safe till 1983, but got lost in the flood of that year. He
affirmed that in the Inquiry Case of 1976, he had not
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produced the acknowledgment slip of the five
applications.
21.4 In the cross-examination, Merag Haja affirmed that he
had filed a complaint on 02.11.1976 and the verification
of the complaint was on the same day. He denied the
suggestion that since he was physically disabled and as
he was in the Hospital of Dr. Sarvaiya, he had got the
complaint written through Advocate Mesvaniya in the
Hospital.
21.5 According to the complainant, as recorded in his
testimony, he felt that he, Bhikha Deva and Jusab Habib
were wrongly confined in the room and when he felt so,
he had attempted to file a complaint, but no one heard
him. As per his deposition, during the time of the incident
at Porbandar, the members of his community as well as
relatives were residing there. He even tried to contact
the relatives as well as his acquaintance at Porbandar
Police Station and since it was 11.30 night and as no one
heard him in the Police Station, he could not contact
them. The defence was raised that no such incident had
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occurred when Merag Haja and Bhikha Deva were
brought at Porbandar Police Station from their house.
That on 08.10.1976, none had gone from Porbandar
Police Station at Sutrej.
21.6 According to the witness, when he was at Porbandar
Hospital, his wife had visited to him, while no other
family members or his community persons from Sutrej
had visited him. After being admitted in Bhavsing
Hospital, Porbandar, he had made attempts to call his
relatives and therefore, Punja Karsan, resident of
Kotdawala had visited him. Apart from him, none other
had come. The witness stated that in his complaint, he
had not referred Punja Karsan as his witness. He had
given all the facts to his Vakil – Shri Ranavaya and
accordingly, the complaint was filed in the Court and he
had also given his deposition in the Court.
21.7 The evidence, as was recorded, shows that he felt that
on 08.10.1976, his confinement in the Police Station was
illegal. He said that he had tried to give the complaint. As
per his evidence, on 08.10.1976, Civil Surgeon – Dr.
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Vora and Deputy Bhargav had visited him in the custody.
Even one local Vaidhya was permitted to see him. Even
CID Inspector – Shri Sharma had inquired from him in
the police custody on 08.10.1976. The Deputy Bhargav
and CID Inspector – Shri Sharma as well as the local
Vaidhya had not been examined, while Civil Surgeon –
Dr. Vora as PW1 has not stated in his deposition that he
had visited the complainant in Porbandar Police Station
on 08.10.1976 and had examined his injuries. His
Advocate – Samatbhai Devabhai Ranavaya (PW5) has
not produced copy of the bail application, nor the order
of bail. The application was made from the Hospital.
Nothing is on record to prove that he was taken from the
police custody to Bhavsing Hospital through police
Ambulance or police vehicle. PW1-Dr. Bhupen
Kanakshankar Vora has not stated in his evidence that
the patient had come in a police vehicle or police
Ambulance. The witness – PW1-Dr. Bhupen
Kanakshankar Vora had not brought any record and thus,
stated that since record was not available, he could not
say whether the patient had come with police yadi or
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without. PW1 had issued the certificate on 11.10.1976.
The inward no. 1E/Refer/5/4993/76 – Exh.104 dated
11.10.1976, is scanned to reproduce hereunder:-
21.8 This document becomes relevant for comparing the
injury as well as to note the date of the alleged custodial
torture. The complainant stated about the beatings in his
testimony, as referred to hereinabove. The custodial
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torture, as per the complainant, was on 08.10.1976.
Here, in this document at Exh.104, the only injury
referred is of fracture of neck of left femur. The injury
was described as the upper part of left thigh. Nothing has
been produced in the form of X-ray by PW1 to
substantiate the exact place of injury on the femur bone.
21.9 The prosecution is required to prove that the torture was
on 08.10.1976. The complainant was operated on
13.10.1976 at V.M. Shah Hospital. He was released on
bail on 14.10.1976 and he remained in Jamnagar
Hospital for 9-10 days. The private complaint, which he
filed on 28.10.1976, was produced on record at Exh.135.
In the inquiry before the Magistrate, the verification of
the complaint of Bhikha Deva Rabari was recorded on
02.11.1976.
21.10 In the further cross-examination, it comes on record that
when Shri Upadhyay and Shri Jani (PW7) were making
search in his compound, at that time, accused no.1 –
Shri Khandwawala had come there and prior to accused
no.1 reaching the place, the Panchnama was drawn. So,
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as per the complainant, in presence of Shri Upadhyay
and Shri Jani, accused no.1 had come at the house of the
complainant, while no such evidence has been given by
Shri Jani as PW7. Shri Jani refers to the NIL Panchnama
and also refers of making the search along with the
Police Sub-Inspector – Kanakbhai Upadhyay, but in his
deposition, Shri Jani does not make any mention of
accused no.1 appearing there at the house of the
complainant in their presence. Shri Jani had stayed at
the house of the accused till 08:00 at night. The
complainant witness also stated that SRP man, who had
come with the liquor bottle, had come prior to Shri
Khandwawala (A-1). He was in uniform who waited for
about two minutes. The witness complainant also stated
that Shri Khandwawala (A-1) and Shri Upadhyay had not
taken any action against the SRP man who had come
with the liquor bottle. The complainant himself has not
made any efforts to know the name and residence of the
SRP man.
21.11 The witness also stated that his neighbours were his
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uncle – Meraman Bhaya and his son Bhima and he had
not informed any of his uncle or his cousin of he being
taken away to Porbandar. The witness volunteered to
state that he was not provided any opportunity to inform
those people, nor his wife.
21.12 With regard to Bhikha Deva, the witness stated that
Bhikha Deva had come half an hour or an hour ago for
taking his labour charges and when he was having tea
with Bhikha Deva, the police had come there. The
complainant does not know whether at Sutrej Village,
over and above his house whether Deputy
Superintendent of Police – Shri Jani (PW7) or Shri
Upadhyay had made any search. He did not know why
Bhikha Deva was taken in the police vehicle. He had not
insisted for keeping Bhikha Deva along with him in the
police van. The witness specifies that at 7 hours and 10
minutes, they had started from his house at Sutrej
Village in the van. This fact does not get corroborated by
the evidence of the Deputy Superintendent of Police –
Shri Jani examined as PW7, who was at the house of the
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complainant till 08:00 at night on 07.10.1976. The
complainant had given the specific time of 07.10 hours in
the evening, when he was taken by the accused.
21.13 With regard to weapon, the complainant affirmed that he
had gone to file the complaint at Keshod Court. He had
not tried to produce the licence of the weapon, which he
said had produced before the police. He denied the
suggestion that Junagadh Collector had canceled his
licence of his weapon Joto (revolver) and the revolver
was expropriated. The witness was confronted to the
facts in the complaint before the learned Magistrate. He
had not stated that Shri Khandwawala (A-1) had asked
his weapon and threatened to beat him if he failed to do
so. In the same way, he denied that in the testimony
before the learned Magistrate, he had got it recorded of
his reply, telling Shri Khandwawala (A-1) that he was not
having the weapon and if he wanted to beat him, he
could do so. In the cross-examination, he stated that
when he was taken from Sutrej to Porbandar, at that
time, he had worn Jabbho and Chorni and a cap on his
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head and when he was released on bail, at that time, he
had changed his clothes twice. Those clothes were
brought by his cousin – Chana Haja and Samaj Bhoj at
the Hospital.
21.14 The witness stated that the details of the injuries, which
he had stated in his chief-examination from those
injuries, there was no oozing of blood, nor there was any
bruises or lacerations. The witness stated that his body
has turned black. It had not so happened that the
clothes, which he had worn got torned or holed.
21.15 The complainant denied the suggestion that in the case
against him under the Arms Act, the co-accused was
Salemohammad Abdul Rahman of Porbandar and denied
the suggestion that prior to the incident, he was knowing
Salemohammad. He was knowing Rabari Pitha Bhaya
who was the driver of MLA of Porbandar – Vasantji
Thakarar, but denied the suggestion that the driver of
MLA is also an accused in the said case under the Arms
Act. The witness does not remember whether Rabari
Bhikha Deva was an accused in that matter. He knows
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Jagjivan Pitambar Lohar, but denied the suggestion that
Jagjivan Pitambar was also an accused in that Arms Act
case filed by the Porbandar Police. He denied the
suggestion that the investigation of the case was by
Porbandar PSI – Shri Shinde. He denied the suggestion
that prior to the incident, he had purchased the revolver
from Salemohammad and another weapon was sold by
Bhikha Deva to Salemohammad and also denied that
Bhikha Deva had purchased the weapon from Jagjivan
Pitambar of Jariyawada and denied the suggestion that
all were made the accused in the charge-sheet filed
before the Porbandar Court. The witness denied the
suggestion that on 08.10.1976, he and Bhikha Deva were
called at Porbandar Police Station and PSI – Shri Shinde
on 08.10.1976 had inquired from him about the revolver
and at that time, he had informed that it was at the
ceiling of his house and he denied the suggestion that
Bhikha Deva had also produced the country-made pistol
from his house and from there, deceased – Shri Raol had
taken them from Porbandar to Sutrej. He denied the
suggestion that the weapon from the house was given by
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Bhikha Deva to Shri Raol and denied the suggestion that
on 09.10.1976, in the morning at 09:00, the Panchnama
for the country-made pistol was drawn and also denied
the suggestion that on 09.10.1976 in the afternoon at
about 12 O’Clock, he climbed to the loft of his house
through a ladder and had removed the revolver. At that
time, his legs suddenly tripped from the ladder and he
fell down and the revolver too fell on the ground. The
Panchnama was drawn by Shri Raol at about 12:00 in the
afternoon at his house and he denied the suggestion that
he and Bhikha Deva along with Shri Raol had reached at
about 04:00 in the afternoon and at that time, he had
made complaint about the pain and therefore, was
admitted in Bhavsing Hospital. The evidence of the
complainant in the examination-in-chief refers to Shri
Raol. In his evidence, he had referred to the presence of
Shri Raol in the police custody.
22. In D.K. Basu‘s case (supra), Paragraph 33 gives
reference of right to interrogation of arrestees to be
given precedence over an individual’s right to personal
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liberty.
“33. There can be no gainsaying that
freedom of an individual must yield to the
security of the State. The right of
preventive detention of individuals in the
interest of security of the State in various
situations prescribed under different
statutes has been upheld by the courts. The
right to interrogate the detenus, culprits or
arrestees in the interest of the 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
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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 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.”
23. The complainant has to prove custodial torture and has
to prove that he was subjected to third degree methods
with a view to elicit information, extract confession or
derive knowledge about his accomplices, weapons, etc.
The complainant had failed to prove that he had already
deposited the licence weapon to the concerned Police
Station or the Collector. Under the Arms Act, the police
has the authority to arrest any person found carrying or
conveying any arms whether covered by licence or not
under such circumstances affording suspicion. The
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complainant was required to even prove before the JMFC
during the inquiry under Section 202 of Cr.P.C. that he
had deposited his licence weapon before the police or the
Collector. Further, no such evidence has been produced
by the complainant during the trial of the weapon being
earlier surrendered by him.
24. The accused, in their defence, had examined six
witnesses. Vinayak Shivaram Shinde as DW3 was
examined who deposed that he had conducted the raid
on 07.10.1976 and had filed CR no. II-43/76 under
Section 25A of the Arms Act at Porbandar City Police
Station.
25. DW1 – Kasambhai Kanabhai Rajwani deposed that he
was Crime Writer Head at Keshod Police Station. He had
brought the original papers of CR no. 6/70 of Keshod
Police Station, wherein a complaint under Sections 325
and 344 of the IPC and under the Arms Act was filed by
Pravinchandra Mohanlal, and Merag Haja resident of
Sutrej, was the accused. In the original complaint, which
the witness produced in evidence, the witness had also
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brought the conviction register of Keshod Police Station
for the years 1965 to 1970 and referring to Page-24, the
witness stated in CR no. 7/70 for the offence under
Sections 325 and 34 of IPC, the fine was of Rs.20/-. The
certified copy was produced at Exh.166. In the cross-
examination, the witness clarified by referring to Exh.166
that the entry was of CR no. 7/70 and not CR no. 6/70. It
appears that it is an inadvertent error typed in the
examination-in-chief. The witness had brought the
conviction register and complaint both. This witness –
DW1 was examined with reference to CR no. 07/70,
which was filed against the complainant by
Pravinchandra Mohanlal.
26. DW2 – Madhubha Gambhirsinh was a Constable at
Kirtimanzil Police Station, Porbandar “A” Division Police
Station. He has served the summons in connection with
CR no. II-43/76 to PSI – Shri B.B. Parmar. The witness
stated that he had received a report from the Police
Inspector – Shri Kher regarding non-availability of
records of CR no. II-43/76 and the Case Diary to that
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offence was also not found. He produced Exh.168, the
report with the signature of Shri Kher with regard to the
non-availability of the record. He affirmed that he had no
other information, except the report, which was given by
the Police Inspector.
27. DW4 – Jesing Savdasbhai Kher is the officer who has
been referred by DW2. According to Shri Kher, on
02.11.2002, he was at Kirtimandir Police Station,
Porbandar City as Police Inspector. He received a
summons to produce Case Diary and case papers of CR
no.II-43/76. After receiving the summons, he had tried
to find the Case Diary and case papers, but were not
found. He stated that as per the Rules, if the accused is
acquitted, then, those case records are destroyed. In the
referred matter, he stated that the case papers and the
Case Diary were possibly destroyed because of
earthquake, as the Police Station got damaged and had
fallen down and such a report was produced under his
writing at Exh.168 by DW2, wherein he identified his
signature. The witness also stated that they maintained
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the notes of the records, which were destroyed. In the
referred case, he stated that no such note was found of
the destruction of the record and also stated that there
are no possibilities of such notes to be found. Such report
he produced at Exh.174. In the cross-examination, the
witness stated that during his tenure, no such record was
destroyed. He stated that since it was old record, he
assumed that those would have been destroyed. He has
no record in his hand to substantiate that the records
could have been possibly destroyed in the earthquake
and he does not recollect of filing any report to the then
Police Inspector, A.D.S.P. of record destruction due to
earthquake. He had not tried to search the record from
DSP office. The witness stated that it was an acquittal
case. The Case Diaries would only be for the
investigation with the officer and he would maintain it till
the conclusion of the investigation. According to the
witness, in the Case Diary, there would be note regarding
the investigation done by the officer. A copy of the Case
Diary is sent to the superior officer A.D.S.P. or Dy.S.P.
and after the charge-sheet, during the trial, the Case
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Diary would be sent to the Court in a sealed condition.
The witness also stated that the Case Diary would not
bear the seal of the Police Station and generally, the
original Case Diary would be sent to the Court and the
another to DSP or Dy.S.P. Apart from that, there would
not be any other copy. He denied the suggestion that,
the fact of non-availability of the record and those being
destroyed in the earthquake, such facts he had deposed
to help the accused.
28. DW5 – Kanaiyalal Narandas Devchandani, as witness,
was examined with regard to the Court record and he
stated that on 27.09.2002, the record of Criminal Case
no.2395/78 was available and he had produced it,
wherein the accused was Merag Haja and others. The
records, which were available in the District Court, were
produced by him. Rest of the record as per the Rules
were destroyed.
28.1 The witness appears to be working in the Court. He
stated that there would not be any Case Diary in the
Criminal Case. The Case Diary, which would be produced
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along with the remand, would be in carbon copy and
those would be in “D” File. He stated that the original
record, which he has produced does not contain the
original Case Diary. The witness further stated that in
sessions, no such Case Diaries are being entrusted and in
any Criminal Case, if any Case Diary comes in a sealed
condition, initially, it would go to the dispatch Clerk and
thereafter, to the Clerk of the criminal table. Generally,
whenever the Court calls for sealed diary, then, the
concerned Clerk would produce it before the Court,
otherwise, it would remain with the Clerk in the said
condition.
28.2 The witness stated that he cannot say that in the
Criminal Case no.2395/78 at Porbandar, whether any
sealed diary was called from the concerned Clerk. The
witness further stated that as per the ferist, the records
get destroyed and in that, reference would be about the
destruction of the file, but no detail is maintained as to
which of the records were destroyed. He could not say
whether in the related case, Case Diary was destroyed.
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The witness clarified that generally, the copy of the Case
Diary would be produced during the time of remand and
such papers would be in “D” File, which would be
destroyed. The record, which he had produced was “B”
File, while “C” and “D” Files were destroyed. In criminal
cases, he stated that there would not be “A” File and in
the “B” File, which he had produced, it contained Exh.10-
discharge application and Exh.17 – judgment. Both the
documents were placed in evidence at Exhs.177 and 178.
29. DW6 – Bhojabhai Bhimabhai Parmar was examined in
context with the police diary record. He stated that the
record of any police diary of the offences at Porbandar
would be sent to the office of the Deputy Superintendent
of Police. He stated that case diary of II-CR no. 43/76 of
City Police Station, Porbandar was sent to the office of
the Deputy Superintendent of Police and that diary was
destroyed in their office. The original register maintained
for the destruction of the record was brought by him in
the Court, and referring Page-34 at Sr. no.22, the
witness stated that the record of CR no.II-43/76 was
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destroyed in the year 1978. According to the witness, the
Case Diary of all the offences of the year 1976 were
destroyed. The time period for destruction, as recorded
in the register for the papers of 1976 was one year and
on Page-49, on 22.06.1983, the endorsement was that
the records were destroyed because of heavy rain.
Copies of Pages no.44 and 49 were placed in evidence at
Exh.182. The witness stated that the Case Diary of
Porbandar Police Station CR no. II-43/76 was not
available in their office and therefore, he could not
produce. The witness was cross-examined by the Public
Prosecutor, wherein he stated that his post was of PSI.
He denied the suggestion that generally, the time period
for destroying the Case Diary was of five years. The
witness stated that it was of one year. The Police Sub-
Inspector affirmed that in every Police Station, there
were three parts of the offences; serious offences were of
first part, and the minor is classified as second part and
thereafter, there would be a third part. The Case Diary of
the first part would be sent, while he denied that since
second part would not be a serious offence, a copy of the
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Case Diary would not be sent to DSP office. However, he
also stated that he had no supporting evidence for that
proposition. The signatures on Pages-34 and 49 he
referred to be of Shri A.B. Vij. The witness was shown
Page-27 of DSP Office, Porbandar with regard to second
offence, where an endorsement was of the record being
destroyed in presence of Deputy Superintendent of
Police. The true copy was produced in evidence at
Exh.183. The original register was produced at Exh.184.
29.1 The witness, in the cross-examination, was referred to
various pages of the register from Pages-28 to 49, the
reason were records being destroyed because of
excessive rain and on Page-49, there was no
endorsement that it was in presence of the officer. He
denied the suggestion that the entry no.22 and the
signature thereon was concocted later on.
29.2 According to the witness, at the time of the incident,
there was only one division and below the DSP office,
there were five Police Stations. He affirmed the
suggestion that on Page-34, the name of the Police
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Station has not been recorded, whose records were
destroyed. On Page-34 at Sr. no.21, the number denoted
was five and on Sr. no.22, it was shown as 12. The
witness could not state that the numbers, which have
been noted at Sr. nos.21 and 22 whether that would
include CR no. II-43/76. The witness stated that the
records were not destroyed in his presence. He has not
met the officers before whom the records were
destroyed. He further stated that except that register, for
the destruction of the Case Diary of CR no. II-43/76, he
has not verified any other register.
29.3 The witness stated that he has not brought any other
material in support of the say, except Page-34 of the
register Exh.184 to show the destruction of the record of
CR no.II-43/76. The witness also stated that he had not
verified whether the copy of the Case Diary of CR no. II-
43/76 was received by the DSP Office. He denied the
suggestion that to help the accused, he was falsely giving
evidence of the destruction of the Case Diary.
30. So the Defence Witnesses so far examined were to prove
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the case filed against complainant CR no. 7/70 and also
about CR no. II-43/76. The witnesses were also
examined to prove the destruction of case diary of CR no.
II-43/76, and its record.
31. The star witness, which the defence examined was
Vinayak Shivraoram Shinde as DW3. The witness was
Deputy Superintendent of Police of Gujarat State. He
retired on 30.11.2012. According to his testimony, on
07.10.1976, he was Police Sub-Inspector, Porbandar and
on the night of 06/07.10.1976, he was on his night
patrolling with Police Sub-Inspector, B.U. Raval, B.J.
Parmar and other police personnel. At about 11 hrs. in
the night, they received an information that Abdul
Rehman Salemohammad, who in Porbandar Chhaya Plot
from his house was selling Desi Daru (country-made
liquor/Indian Made Indian Liquor (IMIL). No sooner did
they receive the information, they called for two
independent Panchas at Hanuman Gufa Police Station
and appraised the Panchas of the information and with
the Panchas, between 01.30 to 08.00 on 07.10.1976, the
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raid was conducted. During that raid, they had not found
any prohibitory articles, but found 12 Bore Tamancha
from a cloth bag from the house of Abdul Rehman
Salemohammad and two country-made Tamancha and
cartridges of the weapon and other things, which in total
were 42 items. Therefore, in his house, in presence of
Panchas, Panchnama was drawn and a complaint was
filed at Porbandar City Police Station as CR no. II-43/76
under the Arms Act Section 25 and a complaint was filed
with PSO and the witness started the investigation. He, in
detail, interrogated Salemohammad. On 08.10.1976,
prayer for remand was made before the Court for the
accused, which was granted till 18.10.1976.
31.1 The witness – DW3 stated that during the detailed
interrogation of the accused, it was informed to them
that Bhikha Deva had purchased a weapon from Luhar
Jagjivan Pitambar and one revolver was given to the
accused Abdul Rehman Salemohammed by Bhikha Deva.
The witness gave the information referring the Case
Diary of Suleman Sutrej that the sale was to Merag Haja
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of Sutrej for Rs.600/-. The witness further stated that
Bhikha Deva was from Khirsara Village.
31.2 DW3 further stated that he felt on inquiry of
Salemohammad that both the persons were required to
be called for interrogation and therefore, he phoned
Police Sub-Inspector, Keshod at about 11 O’Clock to send
both the persons to Porbandar City and therefore, Police
Sub-Inspector, Keshod at about 17.00 hrs. had sent both
the persons to Porbandar City and both the persons, in
the inquiry, affirmed of they having weapons and
volunteered to produce the same and therefore, while
recording the statement of Merag Haja (present
complainant), he informed that the revolver, which was
in his possession was hidden in the loft of his house at
Village Sutrej, which he wanted to produce and
therefore, this witness – DW3 recorded a detailed
statement of production of weapon.
31.3 During the course of recording of the testimony, the
Public Prosecutor took objection in production of the
statement recorded by the witness on the ground that it
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amounts to confession, while the defence lawyer
submitted that the accused wanted to show the place,
where he had hidden the revolver and therefore, urged to
set aside the objection. The learned Trial Court Judge, on
hearing both the sides, deferred the order and had
decided to hear both the parties on that issue at the time
of the judgment.
31.4 The fact, which becomes relevant to be noted, is that on
06/07.10.1976 during night hours, the information was
received at 11 hrs. of the sale of prohibited liquors in the
house of Abdul Rehman Salemohammed. A Panchnama
was drawn on 07.10.1976 between 01:30 to 08:00,
which means till the morning of 08.10.1976 and on that
day i.e. 08.10.1976, prayer was made before the
concerned Court for the remand of Abdul Rehman
Salemohammed. The witness as DW3 further stated that
during this time, there was murder of Porbandar
Nagarpalika President – Dhanjibhai Kotiyawala and
therefore, the atmosphere in the city was tense and even
the position of order was tight. Porbandar as well as the
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surrounding areas were not good and therefore, District
Superintendent of Police of Junagadh had his camp at
Porbandar. The witness informed the police officer about
the fact that Merag Haja and Bhikha Deva were ready to
produce the weapons and therefore, the officer had
asked to investigate along with Police Sub-Inspector –
Raval (Raol) and his staff and therefore, he had informed
Shri Raval at 21:45 hrs.
31.5 The witness further stated that on 09.10.1976 at about
17:30 hrs., Shri Raval had come to the Porbandar Police
Station and had produced Panchnama of both the
persons. Along with Shri Raval was Merag Haja and
Bhikha Deva. The Panchnamas were for production of the
weapons. The witness – DW3 stated that when he had
seen the Panchnama, he saw that the arrest of Merag
Haja was at 12 O’Clock. Shri Raval informed him that in
presence of the Panchas, through the Panchnama, Merag
Haja has produced his revolver and cartridges. The
witness stated that as the registers are maintained, in
the same way Case Diary was maintained of CR no. II-
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43/76. The witness produced a copy of the Case Diary
from the documentary list, which he stated that it was
the photocopy of the original. The handwriting in the
diary from 07.10.1976 to 21.10.1976 was his own.
Thereafter, the handwriting in the Case Diary was of
Police Sub-Inspector – Shri D.J. Parmar till 12.04.1977,
the witness could not recognize the handwriting
thereafter. The Public Prosecutor took objection to exhibit
the document. A copy of the Case Diary, at that time of
deposition, was not exhibited on the ground that
according to the report Exh.168, the Case Diary and the
case papers could not be found even after verification
and those documents may be destroyed or lost and there
were no possibilities of finding it in near future. The
matter stood adjourned on that day and in further
examination-in-chief from the side of the defence lawyer,
on the next adjournment, again, the copy of the Case
Diary of Porbandar City Police Station bearing CR no. II-
43/76 at Mark 170/1 was referred to be produced, but
still it was not admitted observing that in the Case Diary
at Mark 170/1, certain pages were blank and certain
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pages could not be photocopied and most of the pages
were not legible. The learned Trial Court Judge did not
found it satisfactory to believe it to be exact or compact
copy of the original.
31.6 Thus, in the evidence of DW3, the statement recorded of
Merag Haja and the Case Diary of Porbandar City Police
Station bearing CR no. II-43/76 at Mark 170/1 were not
exhibited to be read as evidence.
31.7 The witness – DW3 further in the testimony, stated that
when Merag Haja was produced before him on
09.10.1976, at that time, he had read the arrest
panchnama of Merag Haja drawn by the police officer,
wherein he had read about the physical condition of
Merag Haja. In the Panchnama, it was recorded that he
had fallen down while removing the revolver and
cartridges from the roof tiles of his house and he tumble
down as his leg got slipped on the staircase, while
descending. The witness stated that there was reference
of complaint of pain in the thigh. Muddamal Pavti slip
was issued for the seizure of revolver and cartridges.
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Thereafter, he recorded the statement of Merag Haja on
09.10.1976 at about 17:30 hrs. and in presence of this
witness, Merag Haja, in his statement, had got it
recorded that when he was removing the revolver and
the cartridges, which he had kept below the loft of his
house, he had fallen down from the staircase and
therefore, there was pain in his left thigh and had asked
for the treatment. Again, the Public Prosecutor took
objection stating that such statement cannot be read in
evidence as it is in the form of confession. The learned
Trial Court Judge held to decide about the same while
hearing both the sides at the time of the judgment.
31.8 The witness – DW3 stated that since complaint was made
of pain, therefore, with the Yadi under Police Japta he
had sent Merag Haja for treatment at Porbandar
Bhavsing Hospital, where he was admitted about 07.00
p.m. and on 10.10.1976, a report was produced in the
Court regarding arrest of Merag Haja and a prayer was
also made for the remand of Merag Haja on the ground
that there would be more weapons with him and that he
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was in the treatment at Porbandar Bhavsing Hospital.
They had resisted for his bail. The witness stated that
after few days, he came to know that Merag Haja was
released on bail.
31.9 In the cross-examination, the Public Prosecutor elicited
the fact that on 07.10.1976, when the house of the
accused and accused’s uncle – Meramanbhai and his son
were searched by Deputy Superintendent of Police – Shri
Jani and Keshod Police Sub-Inspector – Shri Upadhyay,
NIL Panchnama was drawn. The witness, as DW3, stated
that he came to know about the details and cause for the
search, but was not aware as to which of the officer had
conducted the search. The witness volunteered that at
Keshod Police Station, entry was drawn of NIL
Panchnama. The witness was not having information that
Merag Haja had one weapon with licence and that was
deposited by him.
31.10 DW3 denied the suggestion that he came to know about
the incident dated 07.10.1976 and after the incident,
Merag Haja and Bhikha Deva were sent in the custody of
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the accused at Police Station, Porbandar. DW3 also
denied that he was stating false facts inspite of having
the knowledge that on 07.10.1976 from 11:30 night,
Merag Haja and Bhikha Deva were in the lock-up of the
Police Station. The witness affirmed that in 1976, Police
Sub-Inspector – Shri P.A. Raol was the P.S. of the
accused no.1. DW3 denied that on 08.10.1976, from
morning 08:30, Merag Haja and Bhikha Deva was in the
custody of Shri Khandwawala (A-1) and his reader – Shri
Raol and at that time, Merag Haja was beaten and
therefore, he got injured.
31.11 According to DW3, he had not gone in the raid at Sutrej
or Khirsara Village. He has no personal knowledge of
what had occurred during the raid at Sutrej or Khirsara
Village. He has not produced any Muddamal receipt. In
II-CR no.43/76, the Panchnama for the arrest of Merag
Haja was by Police Sub-Inspector – Shri Raol. He denied
the suggestion that he has no knowledge as to what was
written in the Panchnama. According to his memory, till
21.10.1976, he had investigated II-CR no.43/76. By
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producing the report along with the copy of the
Panchnama, he had sought for the permission from the
Collector, but since he was transferred, he has no
knowledge as to what had happened thereafter. The
witness did not have the record of the report as well as
other papers in his personal record. The witness, as
DW3, also stated that no note was made in Station Diary
of Merag Haja falling from the ladder at Porbandar Police
Station. He denied the suggestion that he was stating
false facts that Merag Haja was sent with police yadi to
Porbandar Bhavsing Hospital under Police Japta for
treatment and also denied the suggestion that in the
same way, he is stating false facts that on 10.10.1976,
Merag Haja was produced in the Court and his arrest
report was produced and a remand application was
moved for recovery of more weapons. He also denied the
suggestion of telling false facts of writing coming from
the JMFC, Porbandar Court in connection with Merag
Haja’s injury.
31.12 The witness stated that he had not recorded the
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statement of the Doctor of Bhavsing Hospital as he did
not feel the necessity. He had sent Yadi for the medical
certificate of Merag Haja, which he had not received and
Merag Haja was admitted in the Hospital under Police
Japta. Thereafter, his investigation concluded; so, has no
knowledge as to how long Merag Haja stayed in the
Hospital.
31.13 The witness DW3 came to know that Merag Haja for his
treatment, was taken to Jamnagar from Bhavsing
Hospital.
31.14 The witness was also asked by the Public Prosecutor that
he was stating false facts of reference in the Panchnama
regarding Merag Haja falling down from the ladder, while
he was descending and as his left leg slipped, he suffered
injury in the left thigh, to which, the witness denied. The
witness has no knowledge of the result in case of II-CR
no.43/76 and further stated that on 09.10.1976, after
Merag Haja was admitted in Bhavsing Hospital thereafter,
Bhikha Deva was in his custody in remand in connection
with II-CR no.43/76. He had not made a separate report
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to the JMFC about Merag Haja falling down from the
ladder and suffering injury on the left leg thigh. The
witness volunteered that he had moved a report to the
JMFC that Merag Haja was under treatment. He had not
given the testimony in II-CR no.43/76 as complainant.
He denied the suggestion that since they had not given
evidence in II-CR no.43/76, therefore, the Court had
acquitted Merag Haja and that fact was known to the
witness. The witness stated that in II-CR no.43/76, he
had recorded the statement of Luhar Jagjivan Pitambar
who was accused in the matter.
31.15 He affirmed that he had not made any entry about the
phone call to Police Sub-Inspector, Keshod in the station
diary. The witness volunteered that such information was
not to be recorded in the station diary. From Keshod,
both of them had come at 5 in the evening. He had only
inquired from them and since arrest was not made, no
arrest Panchnama was drawn. The witness volunteered
that at 11:45 hours. they were sent back. Police Sub-
Inspector – Shri Raol had drawn the arrest Panchnama at
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17:00 hrs. as well as of the Panchnama of seizure of
weapons, which he had received. He denied the
suggestion that both of them were sent away at 21:45
hrs. by Deputy Superintendent of Police, Pal and the fact
of Shri Raol, PSI arresting them and drawing the
Panchnama is a false facts, which the witness stated to
support the accused who are his superior officers. This
suggestion was denied by the witness. The facts, which
was stated by the witness were again raised in the cross-
examination of the Public Prosecutor, on the basis that
he was stating false facts, which the witness denied. It
was also the case of the prosecution, that to protect the
accused, a false case was registered under CR no.II-
43/76 under the Arms Act.
31.16 The witness was recalled for further examination in
connection with the Case Diary Exh.204. Page-11 was
brought to the notice of the witness, which he stated was
in his handwriting, wherein it has been recorded that the
accused – Bhikha Deva and Merag Haja who were
produced and in that connection, the witness as well as
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Divisional Police Inspector, Mangrol had drawn the
Panchnama on 08.10.1976 between 22:10 and 09:10 to
12:00, wherein in presence of the Panchas, both the
persons were taken and kept at Mangrol. At 7 O’Clock at
Khirsara, when they came at the house of Rabari Bhikha
Deva, he, from the pit besides his house after removing
the stones, produced one Tamancha, which was a
country-made weapon, which was having wooden handle
with two nosals, having cartridges fitted in it with two
triggers and bore, which was of six fingers length, valued
at Rs.200/-, which was seized and at 15:15 hrs., Mer
Merag Haja produced a revolver, which was hidden in the
roof top of his residential house by climbing at the loft
and while descending from the ladder with the revolver
and cartridges, he slipped one step of the ladder and fell
down on the ground. It was recorded on Page-11 that
there was no visible injury, but was complaining about
pain in the left thigh.
31.17 The witness was also referred to Page-12 to read that it
was fit in the wooden handle and on the wooden handle,
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there was monogram in wood of the figure “W”, which
could be opened from the upper part of the cartridge,
hammer was on the upper part. There was trigger guard
tilting towards the barrel. The cartridge was found lying
down and on the rear side, it was written 0.38 in English.
The revolver and the cartridges were seized. The
Panchnama and the accused – Merag Haja arrested at 12
O’Clock and Bhikha Deva at 09:50 were produced along
with the report, which was included in the matter.
Thereafter, the receipt of the Muddamal was drawn of
the seized Muddamal, which was included in the matter.
While inquiring from both the accused, they were not
disclosing further facts. On inquiring from Merag Haja, he
volunteered to produce the weapon, at that time while
coming down from the ladder with the weapon, the leg
got tripped and he fell down and as he made complaint of
the injury of the left thigh and therefore, he was taken
for the treatment in police vehicle at Bhavsingji Hospital,
where he was admitted.
31.18 From the side of the State, Public Prosecutor took
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objection to the evidence on the ground that the
statement of the complainant before the police could not
be read in evidence, which was ordered to be decided at
the end of the evidence during the judgment.
31.19 The witness DW3 thereafter, in his testimony, stated that
the fact, which he had read in evidence, of Page no.11
and 12 of his Case Diary, Exh.20, was in accordance to
the evidence, which was produced before him and from
the statement of Merag Haja. The writing in the Case
Diary was true.
31.20 In the chief examination in connection with Exh.204 –
Case Diary, while recalled for deposition, the witness had
made a reference of the event that has been recorded of
09.10.1976. Page-11 was in his handwriting and he
stated that it was in relation to the production made by
accused – Bhikha Deva and Merag Haja and also the fact
of the Divisional Police Officer, Mangrol drawing the
Panchnama on 08.10.1976 from 22:10 hrs. to 09:30,
12:00 hrs., where both the persons were taken to
Mangrol for the night and at 7 O’Clock, the event of
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Rabari Bhikha Deva at Khirsara Village producing the
Tamancha from the pit near his house and thereafter,
about the incident at 15:15 hrs. at the residence of
Merag Haja removing the revolver and cartridges and
thereafter, while descending falling down from the stair
case and sustained injuries in the left leg thigh has been
recorded. Page-12 is the fact recorded of the description
of the weapon and the Panchnama of arrest of Merag
Haja at 12:00 hrs. and Bhikha Deva at 09:50 hrs.
31.21 The evidence, thus, would show that in the morning at 7
O’Clock, Bhikha Deva had produced Tamancha and
Merag Haja at 15:15 hrs. i.e. 03:15 p.m. has produced
the revolver and cartridge and the arrest of Bhikha Deva
at 09:50 and thereafter, Merag Haja was arrested at
12:00 hrs. So, the evidence shows that prior to the
arrest of Merag Haja, Bhikha Deva was arrested.
31.22 The learned Public Prosecutor for the State cross-
examined the witness in connection to Case Diary
no.204, the witness was asked about Page-1, wherein it
was recorded that accused no.3 – Rabari Bhikha Deva,
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resident of Khirsara, arrested at 09:50 dated 9/10. He
denied the suggestion that the said writing was belatedly
written after the writing in the Case Diary and that there
was difference in the handwriting. The witness affirmed
to the suggestion that on Page-1, after writing accused
no.3 – Bhikha Deva, prior to that or thereafter, date of
arrest, time and village of Merag Haja, resident of
Sutrejvala has not been recorded.
31.23 So, according to the evidence, Rabari Bhikha Deva was
arrested on 9/10 at 09:50 hrs. and the examination-in-
chief of DW3 would record that thereafter, at 12:00 hrs.
Merag Haja was arrested; while in the cross-examination
by the Public Prosecutor, on Page-1, no reference of time
and date of arrest of Merag Haja has been made. The
Public Prosecutor could find some change in the writing in
the Case Diary and according to the evidence, on Page-1,
no mention is made regarding the time and date of the
arrest of Merag Haja.
31.24 DW3, in further cross-examination, stated that the facts
which he has recorded at Page-11 in the examination-in-
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chief, was about the Divisional Police Officer, Mangrol,
Panchnama dated 08.10.1976 of 22.10 hrs. to 9/10 till
12:00 hrs. The witness affirmed that on Page-11 of Case
Diary, the name of the Divisional Police Officer as well as
the names of Panchas were not recorded. The witness
affirmed that he has no personal knowledge of the
Panchnama. He affirmed that the Panchnama in
connection with the offence of CR no. II-43/76 of
Porbandar, was in regard with the offence registered
against Salemohammad. The witness affirmed that the
Case Diary for the offence would be one and continuous
and he denied that Case Diaries would be recorded by
different officers as per the investigation they have made
to the offence.
31.25 DW3 affirmed in the cross-examination that on Pages-11
and 12 of the Case Diary, which he had read, it becomes
clear that the investigation of Porbandar II CR no.43/76
was done by another officer and on Pages-11 and 12 of
Exh.204, he has not recorded the name of the officer
who had conducted the investigation. The witness does
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not have the copy of the Panchnama which was recorded
on Page-11. He denied the suggestion that the facts as
recorded on Pages-11 and 12 of Exh.204 was falsely
made to assist his superior officer – accused no.1. The
reference of the complainant falling down from the ladder
and sending him with the police party to Bhavsing
Hospital, was falsely raised, such suggestion was denied
by DW3 who does not remember of any entry made in
the Station Diary to that effect. He affirmed that in II-CR
no.43/76, the arrest time of Merag Haja and Bhikha Deva
was shown differently in the Case Diary and denied the
suggestion that it cannot be seen that both the persons
were with the same officer at the same time, because of
the fact that they were arrested separately.
31.26 The witness – DW3 denied that certain details on Pages-
11 and 12 and certain details of 07.10.1976 and
08.10.1976 were not legible. He affirmed the fact that on
the last Page of the Case Diary – Exh.204, another police
officer has written about the result of CR no. II-43/76
and accordingly, the accused were acquitted.
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31.27 The witness – DW3 has also affirmed that on Page-2, no
mention has been made about his informing Police Sub-
Inspector, Keshod at 11 O’Clock by phone for bringing
both the persons to Porbandar City, as was found
necessary from the inquiry of Salemohammad and
thereafter, both the persons at 17:00 hrs. were brought
to Porbandar City, which the witness affirmed that he has
not recorded such facts in his Case Diary dated
07.10.1976 and 08.10.1976.
31.28 The Public Prosecutor had also asked about not recording
the fact of the murder of Porbandar Municipal President –
Dhanjibhai Kotiyawala and its effect on Porbandar City
and surrounding area being tensed and about the camp
of District Superintendent of Police, Junagadh, which the
witness partially denied stating that the fact of the camp
at Porbandar of District Superintendent of Police has
been recorded. He does not remember the DSP of
Junagadh during the time of 07.10.1976, nor does he
remember the Police Sub-Inspectors working at Keshod
on 07.10.1976 and 08.10.1976. He does not remember
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whether Police Sub-Inspector – Upadhyay was at Keshod.
He has not recorded the statement of any police officer
from Keshod Police Station of sending both the persons
to Porbandar. The witness affirmed that when both the
persons had come at 5 O’Clock at Porbandar, at that
time, no Panchnama was drawn in presence of Panchas
and both the Panchas with the arrest Panchnama, were
produced before him, whose reference has been made on
Pages-11 and 12. For that purpose, he has not drawn
any Panchnama. The witness stated that when both the
persons were produced before him, he had not inquired
from them in presence of Panchas. He denied the
suggestion that on Page-12, there is no mention in Case
Diary of Merag Haja sent to Bhavsing Hospital with police
yadi. He denied that no statement was recorded of Shri
Raol in the case being CR no.II-43/76.
31.29 The prosecution, thus, had cross-examined DW3 with the
defence that the testimony with regard to Exh.204 –
Case Diary was to assist the accused. The case does not
get falsified by the cross-examination of Public
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Prosecutor that complainant – Merag Haja was not the
accused in II-CR no. 43/76.
32. Here in this matter, the complainant himself stated that
when he was brought in SRP vehicle at Antroli railway
crossing. He was with Bhikha Deva and thereafter, even
search was made at the field of Jusab Habib and
Panchnama was drawn there. Jusab Habib was also taken
along with them. Thus, the evidence of the complainant
shows that he was along with the Bhikha Deva and Jusab
Habib. He very categorically stated in his evidence that
Bhikha Deva and Jusab Habib were with him in the same
room at the Police Station. Even a field of Sarpanch
Premdas was searched. What was the reason for
searching the houses of all these people has not been
clarified by the prosecution.
33. The argument was raised before the learned Trial Court
Judge by the defence that the prosecution was required
to examine Jusab Habib and Premdas Narandas who
were the best available witnesses, on the premise that
Merag Haja is an interested eye-witness. The learned
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Trial Court Judge has rejected this argument observing
that there is no material discrepancy in the evidence of
Merag Haja. His evidence has ample corroboration with
medical evidence and other evidence and further the
learned Trial Court Judge observed that there was no
pre-existing enmity between the accused and the
complainant. Before the incident occurred, Merag Haja
was not knowing accused no.1 and found the evidence of
Merag Haja reliable trustworthy and thus, observed that
non-examination of independent witness would not be
fatal to the prosecution case. Further clarifying that the
prosecution has discretion not to examine certain
witnesses so that proliferation of evidence is avoided.
The learned Trial Court Judge observed that adverse
inference cannot be drawn from non-examination of
material witnesses. The learned Judge thus was of the
opinion that if the accused thought that his evidence
would help the defence, it was open to the accused to
examine him as the Defence Witness.
34. The learned Trial Court Judge conceding the fact that
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Jusab Habib has not been examined by the prosecution
and as per defence, he was important witness as he was
in custody with Merag Haja, the learned Trial Court Judge
observed that the evidence adduced and produced on
record nowhere mentions that at the time of beating
Merag Haja, Jusab Habib was present and that it was not
necessary that though Merag Haja and Jusab Habib were
locked in one room, Merag Haja was beaten in presence
of Jusab Habib. On the same line of observation for
Premdas Narandas, the learned Trial Court Judge
observed that if the defence feels that Jusab Habib’s
evidence would help the defence, it was open to the
accused to examine as Defence Witness, but has failed to
do so.
35. The learned Trial Court Judge had not found any case of
wrongful confinement with an intention that the person
confined should not be discovered. No such intention has
been attributed to all the accused and it has been
observed that the prosecution failed to prove any such
intention of the accused. Referring to the provision of
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Section 355 of IPC for assault or use of criminal force
with an intention to dishonour the person, otherwise,
than on grave and sudden provocation given by that
person, the learned Trial Court Judge concluded that the
intention of the accused was to extort confession from
the complainant and observed that the intention of the
accused was not to dishonour the complainant.
35.1 It was noted by the learned Trial Court Judge that the
complainant was abducted by accused no.1 and was kept
in the lock-up with an intention to extort confession from
him. The learned Trial Court Judge failed to clarify from
the evidence recorded as to what kind of confession was
intended to be extorted from the complainant. The
learned Trial Court Judge further had noted that
temporary detention of the person at the Police Station
by the police for the purpose of search or investigation or
for inquiry, does not amount to offence of wrongful
confinement, but came to the conclusion that when the
detention is serious and protracted enough to be a real
and unauthorized prevention from proceeding beyond
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certain circumscribing limits finding the case of the
complainant of wrongful confinement for the purpose of
obtaining confession from him and that he was beaten
and seriously injured and he received permanent
disability in his legs; thus concluded that all the accused
had equally taken part in wrongfully confining the
complainant to extort confession from him. The learned
Trial Court Judge observed that the prosecution has
proved that the accused used criminal force on the
complainant and that act of the accused was intentional
to extort confession from him and accused used such
force without the consent of the complainant and by such
act, the accused were knowing that by doing so, they will
cause injury to the complainant, hence, found all the
accused equally liable for voluntarily causing grievous
hurt to the complainant and abetting each other in the
commission of the crime.
36. It is not that the witnesses – Jusab Habib and Premdas
Narandas could not be examined by the prosecution.
They would have been the most independent persons to
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have corroborated the complainant’s case of custodial
torture. Generally, it is observed that the police persons
bound by brotherhood ties may often prefer to remain
silent. But the witnesses – Jusab Habib and Premdas
Narandas could have cleared out the circumstances. Non-
examination of available independent witnesses would be
fatal for prosecution when case of false complaint cannot
be overlooked. Police person may try to gloss upon facts,
but the mandatory document as Case Diary maintained
under law cannot be overlooked. The trial against the
accused who were all police persons, were under
Sections 331, 336, 337, 344, 346, 348, 352, 355, 365
read with Sections 34 and 114 of the Indian Penal Code,
1860. Section 331 IPC would be charged for voluntarily
causing grievous hurt to extort confession or to compel
restoration of the property. Section 336 makes any act
endangering life of personal safety of others punishable.
Section 344 is about wrongful confinement for 10 or
more days, while 346 provides for wrongful confinement
in secret.
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37. Section 348 makes wrongful confinement to extort
confession or compel restoration of property punishable.
Section 352 is for punishment for assault or criminal
force otherwise than on grave provocation. Section 355 is
the provision for assault of criminal force with intent to
dishonour person, otherwise, than on grave provocation;
while Section 365 is for kidnapping or abducting with
intent secretly and wrongfully to confine person. The
learned Trial Court Judge has made reference of the
evidence of the Defence Witnesses in the judgment and
in Paragraphs 31 and 32, has observed as under:-
“31. Now, as per prosecution, the
complainant sustained injury because of
beating by accused at Porbandar Police
Station. While, as per say of the accused,
Merag Haja slipped from the ladder while,
he was taking arm from the slab of his
house and he sustained injuries. The
standard for proof of their cases for both
the parties are different. Prosecution is
bound to prove their case beyond shadow
of doubt, while defence side is required to
satisfy their case on probabilities only.
Whether accused are able to create doubt
about the case of prosecution for coming to
a correct conclusion, we have to follow the
grain and chaff policy to find out the truth.
32. The prosecution has cited certain
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rulings such as 1997 Cr.L.J. page 743, D.K.
Basu v. State of West Bengal; 1995 (4)
SCC Page-262; 2002 Cr.L.J. Page 914;
1995 CCR 36 (S.C.); AIR 1992 SC Page
1689, all these rulings are referred in
connection with the custodial crime. I have
gone through all the cited rulings and
guidelines and ratio laid down for
appreciation of evidence in a custodial
crime and I have kept in my mind all these
ratios and guidelines while appreciating the
evidence on record in the present case.
Further, the case being an old one, many
oral evidence as well as documentary
evidence, are not available, that factor is
also kept in mind while appreciating the
evidence in the case. Court is required to
adopt a realistic approach rather than a
narrow technical approach while
appreciating evidence in custodial torture.
Any form of torture or cruel, inhuman or
degrading treatment, would fall within the
ambit of Article 21 of the Constitution of
India. If the functionaries of the
Government become law-breakers, it is
bound to breed contempt of law and would
encourage lawlessness and every man
would have the tendency to become law
upto himself, thereby leading to anarchism.
The rights guaranteed by Article 21 of the
Constitution of India, cannot be denied to
convict, under trials, detainers and other
prisoners in custody, except according to
the procedure established by law. With this
concept of appreciation of evidence, I
hereby discuss the evidence as under.”
38. The learned Trial Court Judge appears to have analysed
the evidence keeping in mind the concept with regard to
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the rights guaranteed under Article 21 of the Constitution
of India and has appreciated the evidence keeping in
view that it was a case of custodial torture. The
prosecution witnesses were required to prove that the
custodial torture was with regard to extorting confession.
What kind of confession was expected from the
complainant was it related to murder of Porbandar
Nagarpalika President – Dhanjibhai Kotiyawala. It is not
that only Merag Haja house was searched, there were
Bhikha Deva, Jusab Habib, Premdas Narandas. They
have not complained of custodial torture. Apart from
them, houses of many others were searched.
39. The case of NIL Panchnama drawn on 07.10.1976
between 5 to 6 p.m. and the house of the complainant
raided was believed by the learned Trial Court Judge, as
noted to have received the support from Deputy
Superintendent of Police – Shri Jani and Panch – Shri
Keshavdas Jamnadas. Appreciating their evidence to the
FIR that nothing was found from the house of the
complainant hence a NIL Panchnama was prepared.
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However, the Trial Court failed to give reason to
contradict that the raid was actually for search of weapon
by DSP Shri Jani who was entrusted the official duty to
investigate the murder of Nagarpalika President – Shri
Dhanjibhai Kotiyawala, why the raid for weapon was
converted into NIL Panchnama under the Prohibition Act.
40. The learned Trial Court Judge noted that so far as the
injuries to Merag Haja was concerned, they were
supported by the Doctors with the history of injury as
stated by Merag Haja and the say of Merag Haja that he
was taken to Porbandar Police Station gets support from
the admission of the accused no.1 in the further
statement and also gets support from the version of
Defence Witness – Shri B.S. Shinde.
41. The learned Trial Court Judge has failed to take into
consideration the charge framed against the accused. As
per the charge, on 07.10.1976, when the complainant
and his man – Bhikhabhai were present, Police Inspector
Shri Jani and Shri Upadhyay with his staff and other SRP
members had surrounded the house of the complainant –
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Merag Haja and had informed the complainant that he
was having illegal weapon and for that purpose, his
house was to be seized, those persons had no legal
search warrant or authority letter. The learned Judge
failed to take into consideration that the raid that was
conducted on 07.10.1976 was by Shri Jani – PW7 and
Shri Upadhyay; while Shri Jani as well as Shri Upadhyay
had not been made accused in the matter. The raid was
conducted along with the staff as well as SRP persons for
searching illegal weapon. There is no clarification from
PW7 – Shri Jani as to why the raid for the weapon was
converted into raid under the prohibition recording the
NIL Panchnama, though PW7 – Shri Jani had stated in his
evidence that he was deputed in October, 1976 as
Divisional Police Officer, Nadiad to investigate the murder
of Porbandar Municipal President – Dhanjibhai
Kotiyawala. So he was ordered to go from Nadiad to
Porbandar and on 04.10.1976, he had come to Porbandar
reporting DIG Range. The fact becomes clear that PW7 –
Shri Jani was not the police officer serving at Porbandar.
He was called from Nadiad. He has not clarified in his
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evidence that though one SRP official had brought one
bottle of liquor to be implanted in the house of the
complainant – Merag Haja, why no action was taken
against that SRP official who had come at 07.00 p.m.
with the liquor bottle and Shri Jani as well as Shri
Upadhyay refused to make any such mention of having
found a liquor bottle from the house of the complainant
on the ground that they were not willing to do any illegal
act. In the charge, it was also mentioned that while Shri
Jani and Shri Upadhyay were going out of the the house
of the complainant, at that time, on the opposite side, in
the police van, police persons including Shri
Khandwawala (A-1) had come and they had asked the
complainant to give the weapon. While the evidence of
PW7 – Shri Jani would clarify that at about 08:00 p.m.,
after writing the Panchnama, they had left the house of
Merag Haja, while the complainant stated that at 07:00
p.m., accused no.1 – Shri Khandwawala had reached his
house, while PW7 – Divisional Police Officer – Shri Jani
was present there till 08:00 p.m. at the house of the
complainant – Merag Haja on 07.10.1976 and during the
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time of Panchnama, he stated that no another incident
had occurred, nor any one had come there nor any
occurrence had taken place. According to PW7, Merag
Haja had voluntarily allowed to take the search and he
had not raised any objection. There is no explanation
from PW7 that though the raid was for the search of
weapon, and he had gone for the raid to Village Khirsara
and Sutrej for the raid why the search of house of Merag
Haja was shown under prohibition. PW7 had searched the
house of Merag Haja from 16:45 to 20:00 hrs., which
means that till 08:00 p.m., PW7 was in the house of
Merag Haja. PW7 has not alleged that accused no.1, at
that time, in the evening at about 07:00 p.m. accused
no.1 had come with his staff and police vehicles there,
rather PW7 clarifies that nothing had taken place till
08:00 p.m., nor anyone had come to the house of Merag
Haja. Hence, presence of all the accused at the house of
Merag Haja at 07:00 p.m. on 07.10.1976 does not get
proved. As Police Sub-Inspector – Shri Kanak Upadhyay
of Keshod, since deceased, could not be examined as the
Prosecution Witness. Hence, nothing further could be
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brought on record with regard to three hours raid at the
house of the complainant – Merag Haja. From the
evidence of PW7, it also becomes clear that the raid was
for searching of weapons. It also becomes clear that PW7
had come from Nadiad to Porbandar under order for
investigating the murder of Porbandar Municipal
President – Dhanjibhai Kotiyawala. PW7 has not given
any evidence as to what kind of investigation he had
done in connection with the murder of the Municipal
President and why he had to raid the house of the
complainant.
42. As per the charge that was framed, during the time of
NIL Panchnama, when the police persons were going out
of the house of the complainant, at that time, on the
opposite side of the road, accused no.1 – Shri
Khandwawala who was with his police staff in police van
had come near the complainant and asked him to give
the weapon, at that time, the complainant informed him
that he had 12-bore country-made pistol with licence,
which he had deposited at Keshod Police Station in July,
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1976 and that now he had no illegal weapon and that he
had no reason to keep such illegal weapon. Why such
facts were not stated by the complainant to PW7 during
his raid has not been explained by the complainant, nor
by PW7.
43. The complainant has not proved any evidence to show
that he has deposited that 12-bore country-made pistol
at Keshod Police Station in July, 1976. Along with PW7 –
Shri Jani, the police who had accompanied him was
Police Sub-Inspector – Kanakbhai Upadhyay of Keshod
Police Station. Had the complainant deposited his
weapon at Keshod Police Station, PSI – Kanakbhai
Upadhyay had no reason to raid the house of the
complainant and he would certainly have known of the
complainant surrendering his weapon in July, 1976 at
Keshod Police Station.
44. The charge further was that, since the complainant
stated that he has no such weapon, so Shri Khandwawala
(A-1) without the consent and desire of the complainant
with an intent to do criminal act, took the complainant in
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his vehicle at Porbandar and on the route of the
Porbandar, certain houses of Village Khirsara and Sarsali
were searched. So, it is not the case that only the house
of the complainant was searched. The evidence of the
complainant corroborates this fact that when he was
taken away by accused no.1, a field at the outskirt of
Village Khirsara was searched and thereafter, a house in
the Village Khirsara was searched and then the vehicle of
accused no.1 – Shri Khandwawala had come at Antroli
railway crossing from where one road was heading
towards Mangrol and another was going towards
Porbandar, there Shri Khandwawala (A-1) had made him
and Bhikha Deva sit together in an SRP vehicle. The fact
which also requires to be noticed that in the deposition of
complainant while informing accused no.1 that he had no
weapon, at that time, the complainant had also made an
utterance “Tamare Marvo Hoy to Maro”, which means
that he even told accused no.1 at that time that if he
wanted to beat him, they could do so. It is not the case
of the complainant that he was beaten there. Further,
the evidence of the complainant very much clarifies that
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he and Bhikha Deva were both together in the SRP
vehicle, while PW7 – Shri Jani does not state of any SRP
personnel along with him in the raid, while according to
the complainant, PW7 – Shri Jani and Shri Upadhyay had
come with SRP Persons. A reference is also made about
one of the SRP Persons wanted to implant a liquor bottle
in the house of the complainant, why no inquiry has been
made by PW7 – Divisional Police Officer to that action of
SRP, does not become clear.
45. When the search and raid was for weapons in the
background of the murder of Nagarpalika President,
reference of the power of arrest of police becomes
relevant to be made.
46. Section 20 of the Arms Act, 1959 reads as under:-
“20. Arrest of persons conveying arms,
etc., under suspicious circumstances.-
Where any person is found carrying or
conveying any arms or ammunition
whether covered by a licence or not, in
such manner or under such circumstances
as to afford just grounds of suspicion that
the same are or is being carried by him
with intent to use then employee, or that
the same may be used, for any unlawful
purpose, any magistrate, any police officer
or any other public servant or any personsPage 133 of 164
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employed or working upon a railway,
aircraft, vessel, vehicle or any other means
of conveyance, may arrest him without
warrant and seize from him such arms or
ammunition.”
47. From the evidence that has been brought on record by
the examination of the Prosecution Witnesses as well as
Defence Witnesses, the fact becomes very much clear
that the atmosphere at that time at Porbandar was
tensed because of the murder of the Porbandar Municipal
President – Dhanjibhai Kotiyawala.
48. In the case of Munshi Singh Gautam (Dead) & Ors. v.
State of M.P., (2005) 9 SCC 631, it has been observed as
under:-
“9. But at the same time there seems to
be a disturbing trend of increase in cases
where false accusations of custodial torture
are made, trying to take advantage of the
serious concern shown and the stern
attitude reflected by the courts while
dealing with custodial violence. It needs to
be carefully examined whether the
allegations of custodial violence are
genuine or are sham attempts to gain
undeserved benefit masquerading as
victims of custodial violence. The case in
hand is a unique case in the sense that the
complainant filed a complaint allegingPage 134 of 164
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custodial torture while the accused alleged
false implication because of oblique
motives.”
49. The complainant stated that accused no.1 – Shri
Khandwawala had taken him in his vehicle. He does not
state that at that time, Bhikha Deva was with him and
Shri Khandwawala (A-1) had asked him to sit along with
the complainant in Shri Khandwawala’s vehicle. It was at
Anthroli railway crossing that the complainant and Bhikha
Deva were made to sit in the SRP vehicle, which would
prove the fact that both were arrested separately.
Thereafter, Shri Khandwawala (A-1) had gone to Mangrol
and the complainant and Bhikha Deva were taken to
Porbandar police custody, where according to the
complainant, at about 11:30, they were sent in the police
custody.
50. This evidence of the complainant if at all is to be
believed, then, that itself proves that on 07.10.1976 at
night, Shri Khandwawala (A-1) had not joined the
complainant and Bhikha Deva at Porbandar police
custody. The complainant himself has stated that Shri
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Khandwawala (A-1) was heading towards Mangrol.
51. So, from the evidence of the complainant, it gets proved
that on 07.10.1976, Shri Khandwawala (A-1) had not
come to Porbandar police station, while evidence of
PW7-Divisional police officer – Shri Jani makes it clear
that there were no other incidents, which occurred on
that day of 07.10.1976 during his presence till 08:00
p.m. at the complainant’s house. According to PW7, after
the Panchnama at 08:00 p.m., he had started towards
Porbandar and at that time, Merag Haja was present at
his house. So, from the evidence of PW7, it does not get
proved that Merag Haja was in Porbandar Police Station,
as according to PW7, he had headed towards Porbandar.
52. The complainant has referred to the police custodial
torture by the accused on the next day. He does not
specify that it was 08.10.1976, however, from the
evidence of the complainant, it was on the next day at 8
O’CLock, Shri Khandwawala (A-1) had come there and
asked him to give the weapon, at that time, he informed
Shri Khandwawala (A-1) that he had no weapon. Again
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the inquiry was of weapons, the charge against the
accused specifically drawn was of such incident was
dated 08.10.1976 at 08.00 in the morning. The charge
states that accused no.1 – Shri Khandwawala and
accused no.2-P.A. Raol, accused no.3 – B.D. Vaghela
and accused no.4 – Pamolsinh Hardansinh had come
there and had asked the complainant to give the weapon
threatening that otherwise he would be required to be
beaten, the complainant in the testimony gives evidence
of police torture in following terms:-
“Thereafter, his both hands were held at a
distance and was beaten severely. He was
beaten on the hand, waist and back.
Thereafter, he was made to lay down and
both his legs were broadened and with the
heels of the shoes, his legs were crushed
and both the legs were heavily rolled with
the stick. Thereafter, he was made to stand
outside in the Osri, where below both his
hands, keeping a stick and with the rope,
both his upper arms were tied and the rope
was pulled up on the ceiling from a hole
and he was dropped down. Thereafter, he
got unconscious.”
53. In Balu Sudam Khalde & Anr. v. State of Maharashtra,
reported in AIR 2023 SC 1736, wherein the Hon’ble Apex
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Court has observed in Paragraphs 26 and 27 as under:-
“26. When the evidence of an injured
eyewitness is to be appreciated, the
undernoted legal principles enunciated by
the courts are required to be kept in mind:
(a) The presence of an injured eyewitness
at the time and place of the occurrence
cannot be doubted unless there are
material contradictions in his deposition.
(b) Unless, it is otherwise established by
the evidence, it must be believed that an
injured witness would not allow the real
culprits to escape and falsely implicate the
accused.
(c) The evidence of injured witness has
greater evidentiary value and unless
compelling reasons exist, their statements
are not to be discarded lightly.
(d) The evidence of injured witness
cannot be doubted on account of some
embellishment in natural conduct or minor
contradictions.
(e) If there be any exaggeration or
immaterial embellishments in the evidence
of an injured witness, then such
contradiction, exaggeration or
embellishment should be discarded from
the evidence of injured, but not the whole
evidence.
(f) The broad substratum of the
prosecution version must be taken into
consideration and discrepancies whichPage 138 of 164
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normally creep due to loss of memory with
passage of time should be discarded.
27. In assessing the value of the evidence
of the eyewitnesses, two principal
considerations are whether, in the
circumstances of the case, it is possible to
believe their presence at the scene of
occurrence or in such situations as would
make it possible for them to witness the
facts deposed to by them and secondly,
whether there is anything inherently
improbable or unreliable in their evidence.
In respect of both these considerations,
circumstances either elicited from those
witnesses themselves or established by
other evidence tending to improbabilise
their presence or to discredit the veracity of
their statements, will have a bearing upon
the value which a court would attach to
their evidence. Although in cases where the
plea of the accused is a mere denial, the
evidence of the prosecution witnesses has
to be examined on its own merits, where
the accused raise a definite plea or put
forward a positive case which is
inconsistent with that of the prosecution,
the nature of such plea or case and the
probabilities in respect of it will also have to
be taken into account while assessing the
value of the prosecution evidence.”
54. So as the proposition of law, the appreciation of injured
witness evidence has to be examined with the definite
plea or positive case put forward by the accused. The
inconsistency has to be measured by taking into account
the value of the prosecution evidence.
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55. In the case of D.K. Basu (supra), the report of National
Police Commission in India was even referred. The
relevant part of Paragraph 19 is reproduced
hereinunder:-
19. The Third Report of the National Police
Commission in India expressed its deep
concern with custodial violence and lock-up
deaths. It appreciated the demoralising
effect which custodial torture was creating
on the society as a whole. It made some
very useful suggestions. It suggested:
“…An arrest during the investigation of a
cognizable case may be considered justified
in one or other of the following
circumstances:
(i) The case involves a grave offence like
murder, dacoity, robbery, rape etc., and it
is necessary to arrest the accused and
bring his movements under restraint to
infuse confidence among the terror-stricken
victims.
(ii) The accused is likely to abscond and
evade the processes of law.
(iii) The accused is given to violent
behaviour and is likely to commit further
offences unless his movements are brought
under restraint.
(iv) The accused is a habitual offender and
unless kept in custody he is likely to
commit similar offences again. It would be
desirable to insist through departmentalPage 140 of 164
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instructions that a police officer making an
arrest should also record in the Case Diary
the reasons for making the arrest, thereby
clarifying his conformity to the specified
guidelines. …”
The recommendations of the Police
Commission (supra) reflect the
constitutional concomitants of the
fundamental right to personal liberty and
freedom. These recommendations,
however, have not acquired any statutory
status so far.
55.1 D.K. Basu v. State of West Bengal was decided on
December 18, 1996, and in the case of State represented
by CBI v. Anil Sharma, reported in (1997) 7 SCC 187,
which was decided on 03.09.1997, the Hon’ble Supreme
Court has recorded about custodial interrogation. In the
case of Anil Sharma (supra), it has been observed as
under:-
“6. We find force in the submission of the
CBI that custodial interrogation is
qualitatively more elicitation oriented than
questioning a suspect who is well
ensconded with a favorable order under
Section 438 if the code. In a case like this
effective interrogation of a suspected
person is of tremendous advantage in
disinterring many useful informations and
also materials which would have been
concealed. Succession in such interrogation
would elude if the suspected person knowsPage 141 of 164
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that he is well protected and insulated by a
pre-arrest bail during the time he is
interrogated. Very often interrogation in
such a condition would reduce to a mere
ritual. The argument that the custodial
interrogation is fraught with the danger of
the person being subjected to third degree
methods need not be countenanced, for,
such an argument can be advanced by all
accused in all criminal cases. The court has
to presume that responsible Police Officers
would conduct themselves in a responsible
manner and that these entrusted with the
task of disinterring offences would not
conduct themselves as offenders.”
56. From the prosecution side as well as from the defence,
evidence was common that the complainant was sent to
Bhavsing Hospital, Porbandar from the police custody in
police vehicle. As per the Defence Witness – Shri Shinde,
the complainant was sent along with police yadi to
Bhavsing Hospital, Porbandar. Unfortunately, PW1-Dr.
Bhupen Kanakshankar Vora from Bhavsing Hospital had
not received any papers from the Hospital after receiving
the summons. He was the Doctor who had attended the
complainant at Bhavsing Hospital. The complainant
himself has stated that when he was in police custody, at
that time too, Civil Surgeon of Porbandar had visited
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him. Dr. Vora had not stated about any injury as
complained by the complainant in his deposition-in-chief.
57. If the complainant was beaten severely on hand, waist
and back and he was made to lay down and by
distancing his both legs, his legs were crushed and both
legs were heavily rolled with a stick and after tying the
complainant’s upper arms, if he was thrown down from
the ceiling, then, certainly those injuries would have
been on all those parts of the body. None of these
injuries have been seen by Dr. Vora who had visited the
complainant, while he was in police custody. After two
hours, the complainant regained consciousness. Dr. Vora
had nothing to state about the alleged custody of the
accused on 08.10.1976, 09.10.1976 and 10.10.1976. His
certificate-Exh.104 dated 11.10.1976 only refers to
fracture of neck of left femure. While Dr. V.M. Shah –
PW2 certificates at Exhs.106 and 107 refer as under:-
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58. Dr. Shah’s observation was also about fracture neck
femur L 2 Linear contusions both upper arms and the
date of admission was 13.10.1976 to 23.10.1976. The
fact, as was brought by Defence Witness – Shri Shinde
on record is about institution of Criminal Case at
Porbandar City Police Station as CR no. II-43/76 against
the accused, which was under the Arms Act, where apart
from the complainant, others were also accused in the
matter. The names of the complainant – Merag Haja and
Bhikha Deva came up during the interrogation of
Salemohammad. The fact of this case under the Arms Act
has not been denied, rather the complainant as well as
his advocate – Samatbhai Ranavaya examined as PW5
affirms the case as Merag Haja had filed bail application
from Bhavsing Hospital. The evidence does not get
correlated that on 08.10.1976, the complainant – Merag
Haja was in Porbandar police custody. His evidence
shows that the CID Inspector – Shri Sharma, who had
visited the complainant in the police custody, had
inquired from him who assured him that he would make
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efforts to send him to the Hospital. The CID Inspector –
Shri Sharma has not been examined. Why Shri Sharma
visited him in Porbandar police custody does not become
clear. Was it that the complainant as accused preferred
to be in hospital rather than in judicial custody till the
bail. This has to be considered in the background of the
fact that Bhikha Deva and Jusab Habib had not made any
complaint of police torture. Nor the evidence has been
brought on record that CID Inspector – Shri Sharma had
also visited Bhikha Deva and Jusab Habib. No Doctor
from Civil Hospital had been examined to prove the
injuries complained. The evidence of PW7 – Pratapray
Laljibhai Jani does not inspire confidence. PW7 has not
clarified as to why the raid was converted under the
prohibition and further nothing is coming on record the
reason for CID Inspector – Shri Sharma to visit the
complainant in the custody. It appears that CID
Inspector – Shri Sharma has aided the complainant and
the evidence further records that after the assurance
from CID Inspector – Shri Sharma, in the evening,
Deputy Bhargav and Civil Surgeon, Porbandar had visited
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him. Thereafter, one local Vaidhya was called and the
complainant was sent to Bhavsing Hospital, Porbandar at
09:00 to 09:30 night in the Ambulance or police vehicle.
59. It appears from the evidence that the complainant
himself had made all the efforts to come out from the
police custody. He had not allowed accused no.1 as the
police to interrogate him in the custody and he shifted
himself to Bhavsing Hospital, from where, he filed the
bail application.
60. The relevant fact, which becomes noticeable, is that the
advocate who had moved the bail application under the
Arms Act, has not produced a copy of the bail
application. It also becomes relevant to note that though
the complainant was under arrest, he had not made any
complaint before the learned Judicial Magistrate First
Class of any custodial torture by the accused. Nothing
has been brought on record by way of documentary
evidence to prove that at that relevant time, the
complainant had suffered the custodial torture as
mentioned by him in his deposition. Reference in bail
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application could have been a corroborative piece of
evidence. Further, any complaint of ill-treatment by the
police made to the learned Judicial Magistrate First Class
in connection with the case CR no. II-43/76 could also
have been a relevant fact. The evidence of Shri Shinde as
DW3 who had investigated the complaint of Porbandar
City Police Station bearing CR no. II-43/76 under the
Arms Act had stated that when they had raided the
house of Abdul Rehman Salemohammad on the basis of
the secret information on 07.10.1976 with regard to the
sale of liquor, no article under the Prohibition Act was
received; however, from his house, a cotton bag was
found, wherein a 12-bore Tamancha and 2 country-made
Tamancha with cartridges and other 42 items were found
from his house and after the referred FIR was recorded,
the remand application was moved on 08.10.1976 for
Salemohammad, which was allowed and remand was
granted till 18.10.1976 and during the course of this
interrogation, DW3 stated that it had come in the
interrogation that Bhikha Deva had purchased weapon
from Luhar Jagjivan Pitambar and Salemohammad had
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stated that Bhikha Deva had also sold him one revolver
and Salemohammad had sold one weapon to Merag Haja
for Rs.600/-. This fact was noticed on 08.10.1976. DW3-
Shri Shinde, therefore, informed the District
Superintendent of Police officer Junagadh whose camp
was there at Porbandar, as statements of Merag Haja
and Bhikha Deva were recorded who both stated that
they wanted to produce the weapon. Therefore, DW3 had
informed the same to District Police Officer about both
wanting to produce the weapon and therefore, the
District Police Officer had asked Police Sub-Inspector –
Shri Raol to investigate the same with his staff and Shri
Raol was informed at 21.45 hrs. and Shri Raol had taken
both these persons for investigation. The fact, thus,
becomes clear by further evidence recorded that on
09.10.1976 at 17.30 hrs., Shri Raol had come to
Porbandar Police Station and had produced both the
persons through Panchnama and accordingly, Merag
Haja’s arrest was made at 12 O’Clock by way of
Panchnama.
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61. The prosecution, through the witnesses, had to prove
that on 07.10.1976 night, Merag Haja – the complainant
was in Porbandar police custody and thereafter too, on
08.10.1976 morning, he was in police custody. The
prosecution witnesses as well as the complainant himself
had failed to prove so. The evidence of Jusab Habib could
have proved this fact of they being in police custody on
07.10.1976 and 08.10.1976. CID – Shri Sharma, Deputy
Bhargav could have proved that fact. As observed, Civil
Surgeon – Shri Vora (PW1) had not uttered about his
visiting complainant on 08.10.1976 in the police custody.
By the evidence of DW3, it had been proved that the
arrest of complainant was in connection to II-CR
no.43/76.
62. The referred documents of Dr. V.M. Shah – PW2 show
the date of admission in the hospital as 13.10.1976 to
23.10.1976 and from 08.11.1976 to 24.11.1976, while
the evidence of Dr. Sarvaiya – PW3 at Exh.118 shows
that the complainant was admitted at his Hospital
between 25.10.1976 to 8th November and was again
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admitted with a complain of pain in the operation from
25.11.1976 to 29.11.1976. Document at Exh.118 is as
under:-
63. Thus, from 13.10.1976 to 24.11.1976, the complainant
remained in the Hospital and the document of PW1-Dr.
Bhupen Kanakshankar Vora is dated 11.10.1976. The
complainant has failed to explain about his alleged police
custody on 07.10.1976, 08.10.1976 and 09.10.1976 as
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well as 10.10.1976. While as per DW3 – Shri Shinde, the
complainant – Merag Haja was arrested on 09.10.1976 at
12:00 hrs.
64. The private complaint was filed before the Magistrate on
02.11.1976. The delay of filing the complaint was
appreciated by the learned Trial Court Judge observing
that the delay has been sufficiently explained. The
learned Judge had, perusing the proceedings of the
matter, observed as under:-
“When we peruse the proceedings of this
case, house of Merag Haja was raided on
07.10.1976. Thereafter, he was taken at
Porbandar, where he was beaten and from
there, he was shifted to Bhavsing Hospital
as indoor patient and thereafter, he was
shifted to Jamnagar and then to Keshod.
Upto 14.10.1976, he was under police
protection and during that period, he was
at Jamnagar Hospital, where he was
operated. He sustained fracture of left foot
femur. He was operated twice. He had filed
the complaint when he was indoor patient
at Keshod. He was brought on a stretcher
in the Court to file the complaint. When a
person was having serious injury and was
operated, in such circumstances, if the
complaint is delayed, it will not defeat the
ends of justice. Further, upto 14.10.1976,
he was under police protection. He was not
having opportunity to file the complaint. On
perusing the complaint, it appears that thePage 152 of 164
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complaint was prepared on 28.10.1976, but
verification below the complaint was taken
on 02.11.1976 and Merag Haja was
brought to the Court on a stretcher for
filing a complaint. We cannot expect from a
person who is suffering from such grievous
injury to rush to the court to lodge the
complaint before the Court. Naturally, first
of all, his attempt would be towards his
treatment and his nearby person will also
make attempts towards his treatment. In
such circumstances, if there is any delay in
lodging the complaint, it cannot be termed
as cooked one.”
65. It appears that the learned Trial Court Judge was
completely in oblivion that the search of almost all the
suspected houses of Village Sutrej, Khirsara, Sarsali were
made in background of the murder of Porbandar
Municipal President – Dhanji Kotiyawala. A team was
constituted, even PW7 was called from Nadiad who had
come down to Porbandar and there was combing all the
houses. The learned Trial Court Judge also forgot the fact
that CR no. II-43/76 was filed against the complainant
and others under the Arms Act. As referred hereinabove,
under Section 20 of the Arms Act, 1959, the arrest of
any person conveying arms whether covered by a licence
or not, under such circumstances as to afford just ground
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of suspicion, then, any police officer may arrest that
person without warrant and seize from him such arms or
ammunition. The evidence of DW3 – Shri Shinde clarifies
under what circumstances and in what manner,
Salemohammed, Bhikha Deva and Merag Haja came to
be arrested in connection with the arms and were the
accused at Porbandar City Police Station CR no. II-43/76.
This fact could not be denied even by the complainant –
Merag Haja that he was an accused in the matter. His
lawyer has been examined as PW5 – Shri Ranavaya has
proved by his evidence that while Merag Haja was in
Hospital, he had moved a bail application under the Arms
Act and while he was in the Hospital, he was bailed out.
66. The learned Trial Court Judge has even not taken into
consideration the fact that Merag Haja, though had the
opportunity at that relevant time to inform the JMFC
about any such custodial torture, he had failed to do so
though law provided him that right. The advocate –
Ranavaya has also not stated of any such complaint
made to the Magistrate even at the time of filing the bail
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application. A copy of the bail application has not been
produced. The medical documents do not reflect the
injury as he had complained in the form of custodial
torture. Merag Haja, during this period, had twice legal
opportunity to make complaint of custodial torture; one
at the time of his production in connection with CR no.
II-43/76 before the Magistrate and another when he filed
bail application, when during production, the Magistrate
invariably would inquire from the accused of any ill-
treatment from the police. As per the evidence of DW3,
application for police custody remand for accused-Merag
Haja was also moved by the police. As of practice, all the
Judicial Magistrates before whom the accused are
brought and produced would inquire about any custodial
torture. In these circumstances, where the complainant
as injured has not made any complaint against the police
before the Judicial Magistrate during his production in
connection with CR no. II-43/76, nor has made any
allegation in the bail application, the delay in filing the
private complaint becomes a relevant aspect and it
becomes incumbent on the complainant to explain the
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fact and in that circumstances, all the burden would fall
upon the complainant and such circumstances could be
considered detrimental to the complaint filed by Merag
Haja. In the case of D.K. Basu (supra), in Paragraph 27,
it has been held as under:-
“27. It needs no emphasis to say that when
the crime goes unpunished, the criminals
are encouraged and the society suffers. The
victim of crime or his kith and kin become
frustrated and contempt for law develops.
It was considering these aspects that the
Law Commission in its 113th Report
recommended the insertion of Section 114-
B in the Indian Evidence Act. The Law
Commission recommended in its 113th
Report that in prosecution of a police officer
for an alleged offence of having caused
bodily injury to a person, if there was
evidence that the injury was caused during
the period when the person was in the
custody of the police, the Court may
presume that the injury was caused by the
police officer having the custody of that
person during that period. The Commission
further recommended that the court, while
considering the question of presumption,
should have regard to all relevant
circumstances including the period of
custody, statement made by the victim,
medical evidence and the evidence which
the Magistrate may have recorded. Change
of burden of proof was, thus, advocated. In
Shyamsunder Trivedi case [(1995) 4 SCC
262 : 1995 SCC (Cri) 715 : (1995) 3 Scale
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that the Government and the legislature
would give serious thought to the
recommendation of the Law Commission.
Unfortunately, the suggested amendment,
has not been incorporated in the statute so
far. The need of amendment requires no
emphasis — sharp rise in custodial
violence, torture and death in custody,
justifies the urgency for the amendment
and we invite Parliament’s attention to it.”
67. In the referred Paragraph of D.K. Basu case as observed,
the recommendation was made in 113th report of the Law
Commission that in a prosecution of a police officer for an
alleged offence of having caused bodily injury to a person
and if there was evidence that the injury was caused
during the period when the person was in the custody of
the police, the Court may presume that the injury was
caused by the police officer having the custody of that
person during that period. The commission had also
recommended that while considering the question of
presumption, regard should be given to the relevant
circumstances including the period of custody, statement
made by the victim, medical evidence and the evidence
which the Magistrate may have recorded.
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68. Here, as noted by way of the documentary evidence, the
custodial torture as alleged by the complainant has not
been proved by way of medical evidence. At the cost of
repetition, it is to be mentioned that Merag Haja had not
even given any complaint of custodial torture when he
was produced after the arrest in CR no. II-43/76. Even
there is no evidence of complaint recorded of custodial
torture in the bail application. None of the witness, as
complainant himself and the witness as his advocate, has
stated of any such reference in the bail application. The
co-accused – Jusab Habib has not made complaint of
custodial torture, nor was he examined. Bhikha Deva
could not be examined since deceased.
69. The Defence Witnesses and more specifically, DW3 had
clearly specified that arrest of Merag Haja was on
09.10.1976 and he was brought at Porbandar Police
Station at 17.30 hrs. by Police – Shri Raol. The
Panchnama of their producing the weapons were also
produced at Porbandar Police Station and as per the
Panchnama, DW3 stated that Merag Haja was arrested at
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12:00 hrs. The police, therefore, by way of examination
of DW3 has categorically proved that Merag Haja was
never in custody of DW1 on 07.10.1976 as well as
08.10.1976. The complainant had all the reason to cook
up the story since he was suspected in the background of
the murder of Porbandar Municipal President – Dhanji
Kotiyawala. No clarification is coming from the evidence
of PW7 – Pratapray Laljibhai Jani who was specially
brought to Porbandar from Nadiad for investigating the
murder of Dhanji Kotiyawala and a NIL Panchnama was
drawn by PW7 on 07.10.1976 under the Prohibition Act
for the search that was made at the house of Merag
Haja. The prosecution has not brought any document to
show as to what had happened about the investigation in
connection with the murder of Dhanjibhai Kotiyawala.
Was it that the complainant – Merag Haja was trying to
hide something or was creating evidence to bring
pressure on the police, does not get ruled out, in the
circumstances of the murder of Dhanji Kotiyawala and
the combing of the police team in the houses of the
suspect in the surrounding villages.
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70. The Case Diary – Exh.204 was also relied upon by DW3.
The learned Trial Court Judge was not ready to believe
the Case Diary referring to provision of Section 145 of
the Indian Evidence Act, 1872 observing that the police
diary cannot be used as evidence in case, but can be
used only for the purpose of assisting the Court in
appreciation of evidence and to clear up any doubt. The
learned Trial Court Judge did not find the evidence of
DW3 – Shri Shinde as supporting the probability of
defence story, while not believing the Case Diary, it was
observed that Section 145 of the Indian Evidence Act,
1872 suggest that the case diary can be used as
evidence in another case to disprove the evidence of
other side. That case diary has very limited purpose as
disclosed in Section 172 Cr.P.C. It can only be used for
contradicting the witness or if there is doubt or confusion
Court can use for such clarification in the said case. The
learned Trial Court Judge found the writing in the Case
Diary – Exh.204 in respect of arrest of Rabari Bhikha
Deva as subsequently interpolated. The learned Judge
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has also observed of CR no. 7/70, which was before the
Keshod Police Station, wherein Merag Haja was
previously convicted under Sections 325 and 34 of the
IPC but was not convicted under the Arms Act. Thus, the
learned Trial Court was of an opinion that it cannot be
said that Merag Haja is a hard criminal.
71. As referred earlier hereinabove, third report of National
Police Commission in India as referred in D.K. Basu’s
case (supra) in Paragraph 19 circumstance, it has been
observed as under:-
(iv) The accused is a habitual offender and
unless kept in custody he is likely to
commit similar offences again. It would be
desirable to insist through departmental
instructions that a police officer making an
arrest should also record in the Case Diary
the reasons for making the arrest, thereby
clarifying his conformity to the specified
guidelines. …”
72. The police in his defence need not disclose all the facts
and procedure in connection with the murder, but the
relevant facts, which is undisputed from both the sides
had been given bypass by the learned Trial Court Judge
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about the arrest of the complainant in CR no.II-43/76.
When the complainant has come with a case that he was
tortured in the custody, then, such torture as mentioned
by him has to be specifically proved by the injured
complainant. The burden on the defence would shift only
when the custody of the injured is proved to be with the
accused police and that bodily injury was proved as per
the allegation.
73. As circumstance (iv) as per the report by the Commission
referred hereinabove mandates the police to maintain the
Case Diary to record reasons for making the arrest to
adhere to the guidelines, the Case Diary becomes a
relevant document. Here the defence had examined
witnesses to prove that original Case Diary was not
available, it was destroyed or got lost, there is absence
of original and in the circumstances proved by the
defence, when the original could not be brought on
record, the copy of Case Diary Exh.204 would be relevant
as the police has to clarify their stance through Case
Diary. There was no reason for the Trial Court Judge not
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to believe the Case Diary, which was maintained by the
police under the guidelines and that could be the only
evidence for the police to defend his action.
74. The prosecution had failed to prove the case of police
custodial torture of the complainant. The injuries are not
proved as of police custody beating. Even the date of
custody is not proved. The complainant had failed to
invoke his right to make complaint of injuries by police as
an accused when was arrested and produced before the
Magistrate in case under the Arms Act. The learned Trial
Court Judge has failed to analyse the evidence as per the
sections of the Arms Act, Criminal Manual and Cr.P.C. in
the matter. The judgment, thus, becomes erroneous and
fails in merits and is required to be set aside. Since there
is no case for conviction, there would be no ground for
the plea of enhancement of the sentence.
75. Consequently, Criminal Appeal no.1509 of 2003 filed by
the State is dismissed. Criminal Appeal no.1195 of 2003
is allowed. The judgment and order of conviction and
sentence dated 30.09.2003 passed by the learned
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Additional Sessions Judge, 5th Fast Track Court, Junagadh
in Sessions Case no.76 of 1982 is set aside. The
appellant herein is acquitted of all the charges leveled
against him. The appellant is entitled to recover the
amount of Rs.10,000/-, as ordered to be paid as
compensatory and exemplary costs in Criminal Revision
Application no.568/2001 from the complainant. Bail bond
stands discharged. Registry is directed to send the record
and proceedings back to the concerned Trial Court
forthwith.
(GITA GOPI,J)
Maulik
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