In custodial death cases, all involved in the torture share liability under Section 34 IPC regardless of direct participation, as joint culpability is established by shared common intention.

JUDGMENT :

GITA GOPI, J.

1. The trial of custodial death was against seven accused, in Sessions Case no.37 of 1990 before the learned Additional Sessions Judge, Bhavnagar Camp, Mahuva. The learned Additional Sessions Judge, Bhavnagar on 30.11.2000 convicted accused no.1-Bhavsingbhai Chhaganbhai Bilval, PSI, Savarkundla Town Police Station for the offence under Section 304-II of IPC, sentencing him to seven years rigorous imprisonment and fine of Rs.15,000/- with the default clause on non-payment, to further suffer one year simple imprisonment.

1.1 For the offence under Section 330 IPC, accused no.1 was sentenced for three years rigorous imprisonment and Rs.10,000/- fine, in default of payment of fine, six months simple imprisonment.

1.2 Both the sentences to run concurrently. The benefit of set off under Section 428 of the Criminal Procedure Code (Cr.P.C.) was granted. The amount of compensation of Rs.25,000/- was ordered to be given to the legal heirs of the victim, deceased Kanudo @ Bhoplo Vallabhbhana Waghri of Maninagar Vaghrivas, Savarkundla.

1.3 Aggrieved by the judgment and order of conviction, accused no.1 as appellant filed the present Criminal Appeal no.1138 of 2000 under Section 374(2) of Cr.P.C.

1.4 During pendency of the appeal, the appellant–Bhavsing Chhaganbhai Bilval died. Thus, in accordance to the proviso to sub-section (2) of Section 394 of Cr.P.C., the daughters and sons 1/1 to 1/6 as the heirs of the deceased were permitted to continue the appeal. Proviso under sub-section (2) has given a right to the near relatives of the accused who is convicted and sentenced to death or of imprisonment and who dies during the pendency of the appeal to continue the appeal by making an application to the Appellate Court within 30 days of the death of the appellant. This proviso is made to cover those exceptional cases, where the interest may, apart from being merely sentimental may be pecuniary also. The object in adding this proviso is to remove any stigma that may attach to the relatives of the accused by continuing the appeal. Where the legal heirs of the accused do not prosecute the appeal, otherwise as provided under sub-section (1) of Section 394, every appeal under Section 377 or Section 378 of Cr.P.C. shall finally abate under death of the accused.

2. Learned advocate Mr. H.B. Shethna has raised a legal issue about the sustainability and legality of the conviction of the sole deceased appellant-accused under Section 34 IPC, where the other six co-accused as police personnel came to be acquitted.

2.1 Learned advocate Mr. Shethna referring to the judgment of Javed Shaukatli Qureshi v. State of Gujarat, (2023) 9 SCC 164, a case under Sections 396, 307, 445, 201 read with 149 IPC, submitted that when the similar identical evidence of eye- witnesses 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. Learned advocate Mr. Shethna submitted that criminal court should decide like cases alike and in such cases, as observed in Javed Shaukatali Qureshi (supra) submitted that the Court cannot make distinction between two accused which would amount to discrimination. Thus, stressing on the benefit of parity, learned advocate Mr. Shethna submitted that the deceased appellant is required to be declared as acquitted.

3. On 27.10.1989, accused no.1 was discharging his duty as PSI in Savarkundla Police Station, Bhavnagar between 6.00 p.m. and 0.15 a.m. on 28.10.1989, accused no.2 to 7 were discharging their duty in the same Police Station. Accused no.2 was unarmed Police Head Constable, while accused nos.3 and 7 were unarmed Police Constables, accused nos.4, 5 and 6 were armed Police Constables.

3.1 The charge framed below Exh.5 during the trial was to the effect that one Vinubhai Vaghaji Patel gave his complaint of theft in Savarkundla Police Station. In the matter of that complaint, deceased Kanudo was called for inquiry. In order to extort conf