New Delhi: The death of the victim was an ‘act of murder’, the Gujarat High Court observed last week, as it upheld the life sentence and murder conviction of former India Police Service (IPS) officer Sanjiv Bhatt and former police constable Pravinsinh Zala, in a 1990 custodial torture and death case.
In June 2019, a Jamnagar sessions court convicted and sentenced Bhatt to life imprisonment in the custodial torture and murder case of Prabhudas Vaishnani — one of 133 people arrested on 10 October, 1990, following communal violence in Gujarat’s Jamjodhpur.
According to court documents seen by ThePrint, Vaishnani was admitted to a hospital after being in police custody, citing kidney problems, pelvic pain and trouble while urinating and died after he was released from custody. A First Information Report (FIR) was then filed based on Vaishnani’s brother’s complaint, accusing Bhatt, Zala and other accused policemen of torturing and killing his brother.
Charges were framed in the case only in November, 2012. During the trial, the prosecution examined a total of 32 witnesses while the defence examined only one.
In July 2019, Bhatt challenged his sessions court conviction before the Gujarat High Court. The state government had also filed appeals challenging the acquittal of five other accused in the case.
Rejecting his appeal on 9 January, the bench comprising Justices Ashutosh Shastri and Sandeep N. Bhatt refused to accept the argument that the accused were not given a fair trial, observing that the contention is “not acceptable”, and that “at every stage, the opportunity was given sufficient enough”.
Asserting that Vaishnani’s death was “an act of murder”, the court observed: “Even after extensive cross-examination of different doctor witnesses on the score of injuries and cause of death of Prabhudas bhai, medical evidence fully inspires confidence in the case of prosecution and is found to be credible and trustworthy.”
The judgment was made public late last week. Referring to the evidence on Vaishnani’s cause of death by different doctors, the high court observed, “doctors have fully testified that due to Prabhudasbhai being made to do repeated excessive sit-ups, he felt extremely tired and suffered exertion, which ultimately led to damage to his kidney leading to acute renal failure.”
As for the lack of sanction to prosecute the accused, the court asserted that the police officers’ act of picking up injured people and others from their houses, bringing them to the police station, and making them do sit-ups cannot be considered as discharging their official duties. Section 197 of the Code of Criminal Procedure (CrPc) requires sanction from the government to prosecute any public servant, in case the alleged act was done by them while discharging their official duty.
It observed that sanction to prosecute them was not required because the “acts committed are found to be serious offences committed by different accused persons”.
Upholding the convictions, the court observed: “In addition to the aforesaid critical analysis of evidence assessed by the learned trial Judge, we also on our independent look, perusal, and scrutiny of evidence found that the conclusion arrived at by the learned trial judge in passing an order, impugned in this proceeding, is in consonance with material on record and in accordance with law and there is no element of perversity of any nature.”
The court also rejected the appeals filed by the state government against the acquittal of the five accused.
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‘Government is biased’
Among other things, Bhatt’s lawyer had contended that according to the postmortem report of the victim, the cause of death was “acute renal failure as a result of rhabdomyolysis”. He then said that there could be several reasons for causing rhabdomyolysis — a condition that leads to the breakdown or disintergration of muscle tissue and eventually, death.
He also submitted that all the accused in the case were police personnel who were deputed in the area to control the riots. Since the incident allegedly occurred after they arrested people in the course of their duty, Bhatt submitted that sanction under Section 197 of the CrPc, 1973, should have been obtained to prosecute them.
Bhatt’s lawyer also told the court that the government is “biased” against him. He had further contended that the proceedings conducted before the trial court were “not fair”, and told the court: “The Special Public Prosecutor has posed himself as persecutor. Out of 330 witnesses he examined 18 injured witnesses”.
He also pointed out that the police officers who had carried out the investigation were not examined, and other important witnesses were also dropped. This, he said, makes it “crystal clear that deliberate attempt is made by the prosecution to see that accused should not get any opportunity to defend himself properly (sic)”.
What HC court said
In its judgment, the high court took note of witness statements. For instance, it noted that one of the witnesses, Dineshbhai Karabhai Vachchani— who was also arrested that day — said that the arrested people were made to do sit-ups, crawl, and were beaten by sticks and butts of rifles. He also told the trial court that he also saw Vaishnani being beaten up and made to crawl.
He further told the court that the police had threatened all those arrested to not say anything against them when they were taken to the doctor or the court. Vaishnani, he claimed, was unable to walk in jail without other people’s help.
According to the HC judgment, similar statements were given in the trial court by a few other people who were arrested on the same day as Vaishnani.
The high court held that the evidence of these injured eyewitnesses needs to be appreciated differently from any other eyewitnesses “as injured witnesses do not have tendency to falsely implicate innocent persons, more particularly, when injured witnesses have no enmity with the accused”.
It noted that in this case, more than 70 people were injured, of which the prosecution examined 18 as witnesses. It found that the evidence of these witnesses was “inspiring confidence in the case of prosecution” and that their evidence has remained “unshaken, creditworthy and trustworthy”.
‘Not discharging official duty’
The Gujarat HC also ruled that the evidence from the doctor who treated Vaishnani and the doctor who performed the postmortem, “established that death ensued from the intentional bodily injury and harm caused to him, which is found to be sufficient to cause death”.
It further rejected the argument that the accused were not given a fair trial, asserting: “Even from the record, it appears that as per the direction of Hon’ble Supreme Court, learned Presiding Officer was directed to complete the trial of the main case within a stipulated period and when such directions were being processed we don’t see any reason that accused did not have any fair trial in fact at every stage, the opportunity was given sufficient enough and as such the issued relating to fair trial not been provided, is not acceptable”.
The court also ruled that in the facts and circumstances of this case, “(the) requirement of obtaining sanction is legally not warranted”.
It observed: “The facts of (the) present case are grave and serious and cannot be considered as an act committed by police persons while discharging their official duty”. The court, therefore, upheld the convictions, observing that the submissions by the convicts were “misconceived”, and ruled that the trial court had “not committed any error” in convicting them.
(Edited by Uttara Ramaswamy)
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