REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 342 OF 2002
Vadamalai ...Appellant
Versus
Syed Thastha Keer ...Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Aggrieved by the judgment of a learned Single Judge of the Madras
High Court allowing the appeal filed by the complainant- the respondent
herein, this appeal has been filed.
2. By the impugned judgment the High Court found that the two
accused persons were guilty of offences punishable under Sections 323 and
342 of the Indian Penal Code, 1860 (in short the `IPC’). The conviction as
recorded by learned Judicial Magistrate, Chinglepet, was set aside by first
Appellate Court i.e. learned Second Additional Sessions Judge, Chennai
Division. There were two appellants involved. Ranganathan (A-1) was Sub-
Inspector of Police and the present appellant (A-2) was Head Constable. It
was alleged that they had committed offences punishable under Sections
323, 342, 384, 386 and 388 read with Section 34 IPC. The trial Court
convicted them for offences punishable under Sections 323, 324 and 342
IPC and in appeal their conviction was set aside and the first Appellate
Court directed their acquittal.
3. Background facts in a nutshell are as follows:
The complainant was running a Gilt Shop in Madurantakam. On
10.5.1988 around 12.00 noon, Vadamalai (A2), the Head Constable, the
present appellant came to the shop and asked the complainant to come to the
Police Station, as he was wanted by the Sub-Inspector of Police.
Accordingly, the complainant went to the Police Station.
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In the Police Station, Ranganathan (Al), the Sub Inspector of Police
enquired from a woman by the name Selvi in the Police Station about the
complainant. Then the Sub Inspector of Police asked the complainant as to
what happened to the jewels sold by the said Selvi to him. The complainant
said he neither received nor purchased any jewels from her. Then, Al beat
him with lathi on the back of his neck, back, etc. and A2 also beat him with
lathi on his left thigh, back etc. Thereupon, as directed by Al, A2 put marble
on the palm of the complainant and the same was pressed with force.
Despite the torture, the complainant maintained that he was innocent. He
was detained in the Police Station for about four days illegally.
In the meantime, telegrams were sent to the higher police officials
about the conduct of these police officers. On 13.5.1988, the complainant
was paraded hand-cuffed in the streets of Madurantakam. He was made to
stand near the Mosque. He was asked by Al to admit his having received the
jewels from the said Selvi. The complainant still pleaded innocence stating
that it being the month of Ramzan, he would not utter lies.
Thereafter, he was brought back to the Police Station. On knowing
this, his other three brothers came to the Police Station and requested Al to
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release him. Al stated to them that unless the jewels were returned, the
complainant would not be released and they would also be detained. On that
day also, the complainant was beaten.
Unable to bear the cruelty and humiliation, his brothers went to the
house of the complainant and obtained the jewels like Jemikki, tops, etc., of
the complainant’s wife and delivered the same to Al on
13.5.1988. Then, the complainant was released.
Thereafter, the complainant got admitted in the Madurantakam
Government Hospital on 14.5.1988 and for ten days, he was hospitalised.
Despite report to the higher officials about the incident, no action was taken
against the accused officers. Therefore, the complainant filed a private
complaint against the accused.
Though the complaint was filed for various offences, charges were
framed against Al for the offences under Sections 342 IPC and 324 IPC
against A2 for the offences under Sections 342 and 323 IPC. The trial Court
convicted them and sentenced Al to undergo RI for three months for the
offence under Section 342 IPC and to undergo RI for 3 months with a fine
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of Rs.500/- for the offence under Section 324 and sentenced A-2 to undergo
RI for three months for the offence under Section 342 and RI for 2 months
with a fine of Rs.100/- for the offence under Section 323. The appellate
Court set aside the same and acquitted the appellant.
Challenging the order of the trial Court the appeal was filed and the
appellate Court directed acquittal of the appellant and the co-accused. The
appellate Court recording the following findings to direct acquittal:
(1) Telegrams Exts. P-1 to P-4 though were sent on
12.5.1988 do not refer about the illegal detention of the
complainant in the police station.
(2) According to the defence, on the complaint for
theft registered on 14.4.1988 the complainant was
interrogated on being identified by Selvi, the accused in
that case at his shop and he voluntarily gave the gold
ingot and the same was recovered from him in the
presence of mahazar witnesses and as such there is no
torture. This is the submission of A1 who was examined
himself as DW1.
(3) Though it is the case of the complainant
prosecution that he was detained from 10.5.1988 at the
Madurantakam Police Station, PW 4 the father of the
complainant sent telegrams only on 12.5.1988. There is
no reason as to why he did not send such telegram
immediately.
(4) PW-5 doctor would state that the complainant
(PW-1) told him that he was attacked by two persons on
13.5.1988 evening. Therefore, the complainant did not
tell the doctor that he was tortured from 10.5.1988
onwards.
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(5) Though there are materials that he was taken to the
police station and beaten, it has not been established that
the complainant was detained and tortured at the police
station from 10.5.1988 onwards.
(6) Even though the complainant was released on
13.5.1988 he did not get immediate treatment from the
hospital and according to PW-1 he got admitted in the
hospital only on 14.5.1988. Therefore, the reason for the
delay in getting treatment has not been properly
explained.
In appeal filed by the complainant the High Court took the view that
even if the informant has not sustained injuries on 10.5.1988 yet he was
taken to the police station and beaten up on 13.5.1988. The High court felt
that the reasoning of the Appellate Court was erroneous and directed
conviction as noted above.
4. In support of the appeal, learned counsel for the appellant submitted
that the first Appellate Court at para 9 had recorded as follows:
“…Moreover, in his evidence about the time he was sent
out of Police Station, PW-1 has given contradictory
statement. In his complaint he stated that he was let out
only in the evening of 13.5.1988 but in his evidence he
said only at 11 p.m. on 13.5.1988 he was let out. If he
was let out in the evening of 13.5.1988 there was no
restriction for him to go to the hospital and take6
treatment in the evening itself. But, in his statement he
stated that in the night at 11 O’clock he went to the
hospital and since the doctor was not there, he was lying
on the verandah and the next day 8 O’clock he met the
doctor. This statement is not acceptable one. Because the
house of PW-1 is in the same town and if his statement is
to be true that doctor was not available at 11 p.m. he
could not have come to his house and stayed the night
and the next day morning he could have gone to the
hospital. Had he said like that it could have been
accepted. Instead in spite of his house in the same place,
he stayed in the verandah of the hospital is not believable
one. Moreover, PW-6 during his cross examination
stated that when PW-1 went to the hospital the next day,
he also accompanied him. Hence, PW-1 visited the
hospital on 14.5.1988 is the statement of witness No.6.
So the statement of witness No.1 that he went on
13.5.1988 in the night at 11 O’clock to the hospital and
since the doctor was not there he stayed there and met
the doctor the next day is proved to be false. If the
statement of PW-1 is true that he was attacked by
accused Nos. 1 and 2 and other policemen, the moment
he was let out, he could have gone to the doctor for
treatment. So on the basis of the evidence of PW-6 that
on 13.5.1988 no injury was inflicted on him is seen
clearly.”
5. Similarly, in para 10 it was held as follows:
“so the offences against the accused under
Sections 323, 324 IPC and offence under Section 342
IPC were not proved beyond reasonable doubt. Hence, I
decide the allegations against the appellants have not
been proved beyond reasonable doubt.”
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6. It is submitted that there was no mention of beating by the appellant.
In fact right from the beginning such a stand was taken. The High Court’s
conclusions are primarily based on surmises. It appears that the first
Appellate Court’s order was erroneously read as recorded in para 17 of High
Court’s order is concerned.
7. It is pointed out that the Appellate Court found that the appellant was
taken to custody on 13.5.1988 and, therefore, the question of taking him in
prison on 10.5.1988 does not arise. It is to be noted that no effort was made
to analyse this aspect in detail. As rightly submitted, the factors which
weighed with the First Appellate Court cannot be stated to be without
substance. High Court in para 20 observed as follows:
“20. On the materials available on record, even as per
the finding of the appellate Court, which acquitted the
accused, that the complainant was taken to the Police
Station on 13.5.1988 and he was beaten in the Police
Station by these accused on 13.5.1988 and thereafter he
was released.”
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8. Aforesaid finding of the High Court is wrong. The First
Appellate Court only stated that even if it is true that on 10.5.1988,
PW1 was taken to Police Station, there is no sufficient evidence to
show that he was kept for four days in the police station. It also
recorded that the telegrams sent on 12.5.1988 did not refer to any
illegal detention. The complainant got admitted to hospital on
14.5.1988.
9. Learned counsel for the respondent has submitted that the co-accused
has not preferred an appeal though he was then a high official. There is no
reason to treat the same as a factor against the appellant. There may be
several reasons for which A-1 had not preferred an appeal but that does not
in any event take away the right of A-2 to file an appeal. In the
circumstances, the conviction as recorded by the High Court cannot be
maintained. The appellant be set at liberty forthwith. The appeal filed by the
appellant is allowed and the conviction as recorded stands set aside. The
bail bonds executed to give effect to the order dated 8.3.2002 stands
discharged.
………………………………
……J.
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(Dr. ARIJIT PASAYAT)
……………………………………J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
February 11, 2009
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