Gujarat High Court Suspends Sentence Of Three Former Air Force Officers In 1995 Murder Case

Observing that the judgment of the trial court suffers from patent infirmities, the Gujarat High Court has suspended the sentence of three former Air Force officers in a 1995 murder case. 

The division bench of Justice S.H.Vora and Justice S.V. Pinto said that the applicants stand a fair chance of acquittal and ordered their release during the pendency of their appeal. 

"The judgment of the trial Court suffers from patent infirmities and the findings are erroneous and based on presumptions and assumptions. Even, at the cost of repetition, we may say that without re- examining and re-analyzing the evidence, we find that the order of conviction and sentence recorded on the basis of assumption and presumptions inconsistent with the evidence on record seems prima facie erroneous and warrants an order of suspension of sentence and grant of bail to the applicants," said the court.

The court was hearing the application for suspension of sentence filed by the three accused former Air Force officers namely Mahender Singh, Anoop Sood, and Anil Kattundy Narayanan, who were sentenced to life imprisonment and convicted under Section 302, 331, 348 and 177 r/w Section 120B of Indian Penal Code, last year.

Background

It was the prosecution's case that in 1995, following an FIR lodged for the theft of 94 liquor bottles from the Air Force canteen, Air Force officers searched the residence of the deceased cook Girija Rawat, where they seized suspected illegal possession of bottles. A total of 12 Air Force officials of different ranks participated in the search. During the search, one broken glass bottle was seized from the outside compound of the deceased's residential quarter.

The deceased was brought to the Main Guard Room by Air Force Police for further queries. Thereafter, Shakuntala Devi, the wife of the deceased Girija Rawat, visited the Main Guard Room a couple of times and requested the release of her husband. However, the Air Force officials replied that Rawat would be released only after the completion of the interrogation.

The next day, late at night, Rawat was taken to the Station Sick Quarter (SSQ) in Jamnagar. However, the Duty Medical Officer at the SSQ checked Rawat and declared him brought dead.

The wife of the deceased lodged an FIR with the local police on the same day, naming Air Force officials of different ranks in her complaint. The post-mortem report of the deceased highlighted a number of internal and external ante-mortem injuries found on the body of Rawat. The cause of death was mentioned as “shock and hemorrhage on account of thoraco-abdominal injuries caused by hard and blunt objects”.

Initially, a chargesheet was filed by Jamnagar City ‘B’ Division Police Station in the case. However, the High Court in 2012 transferred the case to the CBI for further investigation. The CBI filed Supplementary Chargesheet in the matter against total 8 accused including one absconding accused for the offence punishable u/s 120-B r/w 302, 331, 348 and 177 of I.P.C.

The Sessions Court framed against seven accused persons and meanwhile, one of the accused passed away. At the end of trial, the trial court found the accused guilty for the aforesaid offences and convicted the three applicants accused, while acquitting the other three extending benefit of doubt to them.

Appeal

Pending hearing of the appeal, the applicants preferred the applications for suspension of sentence, principally on the ground that the findings recorded by the learned Trial Judge are "absolutely erroneous and illegal and there is no direct, indirect or circumstantial evidence brought by the prosecution agency to convict the applicants."

The counsel for the applicants, Mahendra Singh and Anil Kattundy, argued that according to the evidence presented by the prosecution, they had taken the deceased to SSQ. However, the evidence of the prosecution did not show that the applicants were members of the search party or were on duty at the time of the interrogation of deceased Rawat, they said.

It was further contended the trial court has not considered the deposition of the wife of deceased, wherein even though in the examination-in-chief, she has named the applicants Singh and Kattundy; but during the cross-examination she has stated that she did not know the applicant-accused and their names were mentioned to her by neighbour.

However, that neighbour has not been examined by the prosecution and the identity of the present applicants has not been established on record beyond reasonable doubt, the counsel submitted. There is nothing on record to even minutely suggest that the applicants were part of the interrogation team or were present at the time when Rawat was brought to the main guard room, the counsel contended.

The counsel for applicant Anoop Sood argued that the applicant accused had left the guard room in the evening when the deceased was fit. It was further contended that Sood was put under polygraphic test and even in that test, it was certified that he was completely unaware about the incident and he had never assaulted the deceased nor has instructed any of the staff to do so.

The counsel appearing for the CBI, while opposing the applications, mainly submitted that the applicants had no right to make any inquiry of a civilian and have no power to arrest or detain any civilian. The counsel further submitted that the FIR for the theft of 97 liquor bottles was registered with the Jamnagar City B-Division Police Station. However, the applicant-accused Anoop Sood insisted on a search warrant, and even after the search was carried out, the local police were never intimated, the CBI counsel said.

He further that the search warrant was merely for the search of the house and not for detention of the suspect. The raiding party illegally detained the deceased and kept him in the main guard room without any authority which act of the applicants is illegal, he added.

The court said that that pending trial, the applicants-accused were on bail and there was no breach reported against any of them. It noted that Mahendra Singh and Anil Kattundy were not with the search team at the time of the search of deceased Rawat’s residence and Kattundy did not bring Rawat on his motorcycle to the Main Guard Room. It also noted that as per the Panchnama, the weapons like sticks and uniform belt were not seized from any of the applicants.

The court also accepted the submission that Anoop Sood had left the guard room in the evening itself when the deceased was fit.

“The accused have been sentenced for the offence under Section 313, 348 and 177 read with Section 120-B of the IPC; but there is no evidence to show the presence of the applicants at the Main Guard Room and no witness who deposes that they have seen the applicants near the Main Guard Room trying to exhort confession from Mr.Girija Rawat to compel restoration of the liquor bottles,” it observed.

The court also said that there is no evidence as to the “meeting of minds” of the applicants along with the other co-accused at any point of time to suggest any conspiracy.

"We find that as per the case presented by the prosecution and accepted by the learned trial court, the applicants stand a fair chance of acquittal and the conviction recorded under sections 302, 348, 177 read with Section 120-B of IPC is apparently erroneous and the conviction may not be sustainable and therefore, we deem it fit to allow the present applications, pending hearing of conviction appeal by imposing suitable conditions," it said.

Case Tile: Mahendra Singh Sherawat & ors v. State of Guj.

Case Citation: 2023 Livelaw (Guj) 83

Appearance: Yogesh Lakhani Senior Counsel with Nimity Shukla (8338) & Mr. Nandish H Thackar & A S Timbalia for petitioners.

RC Kodekar(1395) for the Respondent(s) No. 2

Tirtharaj Pandaya App for the Respondent No.1

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