Cop Dies During Appeal But Gujarat High Court Upholds His Conviction In 36 Yrs Old Custodial Death Case

The Gujarat High Court on Thursday (August 14) upheld a sessions court order convicting a policeman for culpable homicide not amounting to murder in the custodial death of a 22-year-old man in 1989. 

For Context, the incident took place in October 1989. The sessions case was registered in 1990 and the sessions court passed the conviction order and sentence in 2000. 

Justice Gita Gopi in her order while upholding the sessions court's November 30, 2000 judgment held:

"In the result, there is no escape for the deceased appellant, for the vicarious criminal liability of the criminal act done by him and co-accused, for the custodial death of Kanudo. It was not a crime buried with the grave, but was in police custody, where every police becomes answerable to the public for his custodial torture. The crime does not fade even after death. Let all the police be reminded of the fundamental right enshrined in our Indian Constitution under Article 21 that 'No person shall be deprived of his life or personal liberty except according to procedure established by law'. The heirs of deceased appellant have not succeeded in proving the case for any benefit of doubt, to declare deceased – original appellant innocent posthumously. Consequently, the appeal fails merits and thus, stands dismissed".

The trial of custodial death was against seven accused, wherein the appellant was ultimately convicted for Section 304-II IPC and sentenced to seven years rigorous imprisonment. He was also convicted for Section 330 IPC and sentenced to three years rigorous imprisonment.

Against this he moved an appeal before the high court. During pendency of appeal the appellant passed away, the plea was continued by his heirs. With respect to the other accused the trial court had found that the offences were not proved against them.

The appellant's counsel questioned the sustainability and legality of the conviction of the sole deceased appellant-accused under Section 34 IPC, where the other six co-accused police personnel came to be acquitted.

He argued that as similar identical evidence of eyewitnesses against the accused by ascribing them same or similar role is to be considered against all, the Court cannot convict one accused and acquit others. Thus, stressing on the benefit of parity, he submitted that the deceased appellant is required to be declared as acquitted.

As per the prosecution's case a complaint for theft was given to the police in 1989 wherein the deceased victim was called for an inquiry. It was alleged that in order to extort confession from victim and to compel him to return the stolen money, or get information by force or to extort confession which would lead to disclosure of offence, the accused had beaten the victim with the sticks and fisticuffs, which injured him and he ultimately died. 

All the accused were charged under Section 330 read with Section 34 of IPC. Sections 302, 330 (Voluntarily causing hurt to extort confession, or to compel restoration of property) read with Section 114 IPC were invoked against the police accused by way of charge-sheet.

The high court noted that the doctor who conducted post mortem had marked in all 23 external injuries on the victim's body. "The panel also marked about 5 internal injuries which were corresponding injuries in result of the external injuries. Dr. Mangal stated that if the external or internal injuries were taken together, they were sufficient to cause death of the deceased. All the injuries were caused by hard and blunt substance". 

The court said that the "death under the custody of" the appellant "is proved on record by documentary evidence as well by the oral evidence".

The court noted that from the time the victim was picked up from home in the evening till midnight he was in police custody. It noted the Accident Death Report given by appellant on 28.10.1989 at 00.15 hours, where it notes very explicitly that death had been in police custody while accused was interrogated in connection to case under Section 379 IPC. 

It further said:

"There is no controversy of death in police custody. Accused themselves were in no position to deny the same. Custodial death was proved even by the police official documents...In the considered opinion of this Court, even if no one comes forward and depose of the custodial torture by the police, in the present case, the fact itself becomes self-explanatory that...died in police custody. There is no escape from that conclusion and it is an admitted fact on record. The case is registered on the ground of custodial death. Moreover, there is no denial to that proposition of law that even in custodial death, it is for the prosecution to establish beyond reasonable doubt a proper link between the accused and commission of crime"

The court noted that the charge against accused nos.1 to 7 was of bringing the victim for inquiry to extort confession and to compel him to return stolen money or to get information by force or to extort the confession which could lead to disclosure of the offence.

It said that with that common intention in furtherance thereof, the accused had beaten deceased with sticks and kick and fist blows, for voluntarily causing hurt were charged with Section 330 with Section 34 IPC.

Further, the multiple injuries caused by accused nos.1 to 7 was the cause of shock and hemorrhage leading to death and thus, were charged with Section 302 read with Section 34 IPC. 

The court observed that A2 to A7 were the police officers on duty at that time and they on the "oral order" of A-1 (appellant) had gone with him to bring the victim  to the police station for interrogation.

It said that the circumstances and conduct of each police accused as per the evidence of witnesses were pointing to their "harbouring the intention of aiding extortion of confession, considering directly/indirectly compelling" the victim to return the money with "custodial torture, which ended into custodial death". 

The court further said that the presence of accused nos.2 to 7 with the accused no.1 had been proved by oral evidence as eye-witness–brother and father of deceased victim.

It added:

"In the case on hand, the accused were charged with Section 302 read with Section 34 IPC, while deceased appellant as accused no.1 was convicted for offence under Section 304-II and 330 IPC. The offence against A-2 to A-7 was concluded by the Trial Court as not proved. The analysis of evidence by this Court as referred hereinabove with the law as pronounced under Section 34 in the judgments referred, makes all the accused liable for the acts of all and hence, all are liable for the death of..."

Thus the appeal was dismissed.

Case title: BHAVSING CHHAGANBHAI BILVAL SINCE DECEASED THROUGH HIS LEGAL HEIRS v/s STATE OF GUJARAT

Citation : 2025 LiveLaw (Guj) 133

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