Gujarat High Court Acquits Cop In 50-Year-Old Custodial Torture Case Citing State's Failure To Prove Illegal Confinement & Assault

The Gujarat High Court acquitted a police officer convicted by trial court in 2003 in a custodial torture and illegal confinement FIR lodged in 1976, holding that the prosecution failed to establish that the complainant was tortured wherein the allegations were not supported by reliable medical or corroborative evidence.

Justice Gita Gopi observed:

“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 [he] was arrested and produced before the Magistrate in [the] case under the Arms Act… The judgment [of the Trial Court], 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.”

The Court was hearing cross appeals filed by the State seeking enhancement of sentence and by the accused officer challenging his conviction under Sections 331 (grievous hurt to extort confession), 348 (wrongful confinement to extort confession), 352 (assault) and 365 (kidnapping) IPC.

As per the prosecution version, on 07.10.1976, the complainant Merag Haja was searched at his house at Village Sutrej and was thereafter taken to Porbandar Police Station. The allegation was that on 08.10.1976, he was beaten in custody by four police officers to extort a confession regarding illegal weapons, resulting in grievous injuries, including a fracture to his femur. The complainant later pursued a private complaint, which ultimately culminated in a Sessions Case and a conviction in 2003.

The Sessions Court in 2003 convicted the appellant police officers under Sections 331, 348, 352 and 365 IPC, sentencing him to rigorous imprisonment. The accused appealed this conviction while the State sought enhancement of sentence before the High Court.

Accused no.2 – P.A. Raol had died during the course of the trial; and during the pendency of the appeal before the high court accused no.3 – Bhupatsinh Devubha Vaghela and the accused no.4 – Rampalsingh Hardansinh Pawa had also passed away. Thus the appeal was considered only with respect to accused no.1 –S.S. Khandwawala.

Appearing for the accused, Senior Advocate Jal Unawala contended that the complaint was an “afterthought”, pointing to the prosecution's own timeline: the alleged incident was of 07.10.1976, but the complainant approached the Magistrate only on 02.11.1976, which, according to him, showed that the complaint was filed “with a view to protect himself from the offence under the Arms Act” or for other ulterior motives.

He further argued that the complainant's story of “kidnapping” and “illegal confinement” could not stand because the complainant was lawfully arrested under the Arms Act, and the alleged injuries were not corroborated by medical evidence.

Opposing the accused's appeal and pressing for enhancement, APP Jyoti Bhatt submitted that the trial court ought to have imposed maximum sentence, asserting that the complainant became unconscious due to beating and suffered a femur fracture, and that due to the “inhuman act” of a “high-ranking police officer”, the victim had become “lame forever”. Bhatt also argued that the prosecution relied on the evidence of doctors, the complainant, his advocate, and medical papers. In fact, the complainant being taken to the hospital by police personnel, after a Vaidhya was called, “itself proves the police torture in the custody.”

However, the High Court found significant deficiencies in the prosecution's case, particularly in the medical evidence.

The Court observed, “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… This treatment by the police [of calling the Vaidhya and taking the complainant to the hospital] … does not show that the act of the police was inhuman… Along with Merag Haja, there were Bhikha Deva and Jusab Habib… [and they] have not made any complaint of police torture in custody to extort any confession. All the three were in the same room.”

The Court further noted that if custodial torture had occurred, the accused ought to have exercised his right under Section 54 of the CrPC to request the Magistrate for a medical evaluation when he was produced before him.

Further, while the doctor had stated that it was “possible” that his injuries could have been caused by custodial torture, “no such complaint was made by the patient to him.”

Resultantly, the Court allowed the accused's appeal and set aside the conviction and sentence.

Case Title: State of Gujarat v. Shabbirhusein Shekhadam Khandvawala & Ors.

Case No.: R/Criminal Appeal No. 1509 of 2003 with R/Criminal Appeal No. 1195 of 2003

Appearance: Ms. Jyoti Bhatt, APP for the State; Mr. Jal Unwala, Senior Advocate assisted by Mr. Nandish H. Thackar for Respondent/Accused.

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