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"Reportable"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 125-126 OF 2003
Indresh Kumar .... Appellant
Versus
Ram Phal & Ors. ......Respondents
J U D G M E N T
V.S. SIRPURKAR, J.
1. These appeals questions the judgment of the High Court
whereby the High Court allowed the appeal filed by one Ramphal
(respondent No. 1 herein), an Inspector of Police and acquitted him of
the offence punishable under Section 218, IPC. He was also
acquitted of the other offences punishable under Sections 342 and
323, IPC. He was convicted by the Court of Additional Sessions
Judge, Kaithal wherein as many as seven persons were tried for
these offences. His other six co-accused were, however,
acquitted by the Trial Court while Inspector Ramphal who
is now arrayed as the first respondent, was convicted.
This judgment was challenged by him before the High
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Court. The acquittal of Ramphal from other offences as also the total
acquittal of other six accused persons came to be challenged by
Indresh Kumar, the original complainant and the appellant herein by
way of a criminal revision. The High Court in its common judgment
has allowed the appeal filed by the respondent No. 1 herein and has
awarded him the verdict of total acquittal. At the same time, the
revision filed by appellant Indresh Kumar was dismissed. Appellant
Indresh Kumar now has come up before us challenging the acquittal
of all the accused persons including Ramphal (respondent No. 1-
accused) who was acquitted by the High Court.
2. This case has a long history as well as political overtones. The
appellant-complainant Indresh Kumar who was originally examined
as PW-8 came to know about the illegal detention of his father
Chaman Lal Saraf and his two brothers by the Police of Kaithal. He
was ordinarily residing in Jammu where he was working as a full time
preacher of an organisation, namely, Rashtriya Swamsewak Sangh.
On coming to know about the illegal detention he reached Kaithal on
25.06.1992 and went to the city Police Station, Kaithal where
Ramphal (respondent No. 1-accused) was the Station House Officer.
He had gone there along with two of his friends. On being asked
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about the illegal detention of his father and the brothers, Ramphal not
only took him in custody but he was beaten up with stick not only by
Ramphal but by other Police Officials also (the other six accused
persons) on the asking of Ramphal. He was then taken from place to
place in a Police jeep. On the next day, after the medical
examination, he was produced before the Executive Magistrate
where he learnt that a total false case under Section 107/151 Cr.P.C.
was registered against him on the allegations that he had fought and
created ruckus at the residence of one Anil Kumar S/o Prem Chand.
He was initially directed to submit a bond of his good behaviour,
however, later on the Magistrate dropped the proceedings against
him. Appellant Indresh Kumar then met the Superintendent of Police
and Deputy Commissioner, Kaithal where he filed the complaint
against Ramphal (respondent No.1-accused) and his co-accused.
He, thereafter, returned to Jammu. However, he returned to Kaithal
on 11.07.1992 and again got himself examined where on his
radiological examination, a fracture was found on his left foot.
3. On demonstrations by a political party about the alleged police
atrocities, the District and Sessions Judge, Kurukshetra was
appointed as the inquiry officer to inquire into the offence on
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10.07.1992. He submitted his report on 31.07.1992 wherein it was
reported that Ramphal (respondent No.1-accused) and other co-
accused were guilty of offences. On the basis of this report, a case
was registered at the city Police Station, Kaithal in February, 1996.
The case also got reinvestigated. Ultimately, all the accused persons
were charged under Sections 367, 420, 468, 471, 218, IPC and
120B, IPC. The case was tried by the Additional Sessions Judge,
Kaithal where as many as 22 witnesses came to be examined.
However, the Trial Court acquitted six accused persons while
convicting respondent Ramphal alone for the offence punishable
under Sections 323, 218 and 342, IPC. We have already pointed out
that Ramphal’s appeal before the High Court was allowed and he
was acquitted while the revision filed against his acquittal from the
other offences and the total acquittal granted to other six accused
persons was dismissed. That is how Indresh Kumar (appellant-
complainant) is before us in this appeal.
4. On the basis of the evidence of Dr. B.B. Kakkar (PW-6) that he
had examined Indresh Kumar on 26.06.1992 at 6.05 a.m. and issued
medical report as Exhibit PD, the High Court found that in the said
medical report, it was mentioned that Indresh Kumar had suffered the
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injury to his right foot. Whereas when examined by Dr. S.K. Singhal
(PW-7) on 11.07.1992 in the Civil Hospital, Kaithal, Dr. Singhal he
had found fracture of fifth Metatorsal bone of the left foot of Indresh
Kumar. From these, the High Court came to the conclusion that the
prosecution had not given the truthful version of the story inasmuch
as a fracture of right foot could not travel to the left foot within a
period of 20 days. The High Court then found fault with the absence
of application which Indresh Kumar had given before the
Superintendent of Police, Kaithal on 26.06.1992 itself. It, therefore,
came to the conclusion that it could not presume that Indresh Kumar
had moved the police authorities on 26.06.1992 against the torture
allegedly suffered by him at the hands of Ramphal. The High Court
also noticed that one Anil Kumar s/o Prem Chand had moved an
application on 25.06.1992 against Indresh Kumar, the photocopy of
which was produced by accused as Exhibit-DA. From this, the High
Court deduced that the story put forth by the Police that Ramphal
(respondent No.1-accused) had gone to the residence of Prem
Chand and had created a ruckus there and during that Ramphal
(respondent No.1-accused) was injured at the hands of Anil Kumar
due to which both Indresh Kumar (appellant herein) as well as Anil
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Kumar were produced before the Executive Magistrate in the
morning, must be taken to be a true story. From this the High Court
further deduced that Indresh Kumar might have felt insulted and in
order to take revenge against Ramphal and other six co-accused
persons, Indresh Kumar might have invented a false story. The High
Court also viewed suspiciously that injured Indresh Kumar went to
Jammu on 26.06.1992 itself without getting himself radiologically
examined only to return from there on 11.07.1992 to get the
confirmation about his fracture in the subsequent examination. It was
held that Indresh Kumar got the wrong foot X-rayed. It was also held
that the prosecution had not proved that Ramphal had forged the
application on behalf of Anil Kumar and had registered a false case
under Section 107/151 Cr.P.C. against Indresh Kumar and it had
further failed to produce Anil Kumar in order to rebut the contention of
Ramphal that he had taken action against Indresh Kumar on the
application moved by Anil Kumar. It was also held that prosecution
had failed to prove that Ramphal had concocted a story in order to
falsely implicate Indresh Kumar in a case under Section 107/151
Cr.P.C. relating to the earlier incident of beating the accused. The
High Court also found fault with the late lodging of the First
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Information Report and that is how the High Court allowed the appeal
and set aside the conviction and the sentence of Ramphal
(respondent No.1 herein).
5. Very significantly there is not even one word about the six other
accused persons whose acquittal was also challenged by the
appellant Indresh Kumar by filing a separate revision against their
acquittal. It is only in the operative part, the High Court mentions, `the
petition is dismissed. See detailed judgment in Criminal Appeal No.
196-SB/2001′. Very significantly not even one word has been
mentioned by the High court in the said judgment.
6. On behalf of Indresh Kumar (appellant herein), Shri Navin
Chawla, learned counsel appeared and pointed out as to how the
whole judgment of the High Court was perverse. Shri Chawla
produced before us, firstly, the photocopy of the document in the
case which was allegedly initiated on the basis of the report by Anil
Kumar against Indresh Kumar to the effect that he had come to his
house and had fought with him wherein they had physical altercation.
It is significant to note that on the basis of this report, the police
allegedly came to the residence of Anil Kumar and arrested both Anil
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Kumar as well as appellant Indresh Kumar as per the version of
Ramphal (respondent No.1-accused). It is then on that basis that
they were produced in the morning after their medical examination
before the Executive Magistrate dealing with the Chapter cases under
Sections 107 and 151 Cr.P.C.
7. According to the police though the Magistrate had first passed
an order against Indresh Kumar, he later on dropped the
proceedings. Shri Chawla pointed out to us on the basis of the
photocopies of the documents, that before the Magistrate, Anil Kumar
had given a statement that he was picked up at 3 a.m. in the night
and was kept in the police custody and he also went out to ask in the
Court as to why he was taken away. The argument is that this
document, if accepted, would completely falsify the story of Ramphal
(respondent No.1-accused) that he had picked up Indresh Kumar
(appellant herein) and Anil Kumar and had arrested them. It is true
that Ramphal (respondent No.1-accused) claims to have picked up
Anil Kumar along with Indresh Kumar from the house. However, if
Anil Kumar has disputed this very statement then the whole story put
forth by Ramphal (respondent No.1-accused) that Indresh Kumar had
gone to the house of Anil Kumar and had fought with him and it was
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during that physical altercation that Indresh Kumar got injured,
becomes a suspected story according to the Counsel. Unfortunately,
the High Court has not adverted to this aspect at all.
8. Shri Navin Chawla, learned counsel then produced before us
the original certificate by which Indresh Kumar was referred to Dr.
Kakkar and pointed out to us that in that certificate there is a clear cut
overwriting and the words `LT’ have been changed by writing `R’ over
the letter `L’. Therefore, the original words suggesting that the
fracture was on the left side left foot appears to have been changed
by overwriting `R’ on the letter `L’. Dr. Kakkar who was examined as
PW-6, in his evidence undoubtedly relied on this medical certificate
and was cross-examined on this aspect. The following admissions in
the evidence were noted:-
“There is overwriting in injury No.1 regarding the foot of
Indresh Kumar but I cannot say how it occurred. I cannot
say whether that overwriting was done by me or someone
else but the same does not contain initials”.
9. The learned counsel for the appellant further argues, that while
the High Court discussed this aspect of the transfer of fracture from
right foot to left foot, the High Court has not bothered to look into the
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evidence. We feel the High Court was bound to consider not only the
overwriting over Exhibit PD but was also bound to take into
consideration the evidence of Dr. B.B.Kakkar (PW-6). There is not
even a mention of all these things in the High Court’s order.
Therefore, the basis of the High Court’s order about the prosecution
story being false in respect of the injury suffered by Indresh Kumar
(appellant herein) is shattered, at least prima facie.
10. The Counsel further rightly contends that the High Court has
also not considered the other evidence like the evidence of Raj
Kumar, DSP who specifically deposed regarding the documents in
the case before the Executive Magistrate and there is no mention in
the whole order regarding the way in which and the reason for which
the proceedings against Indresh Kumar were dropped. It is also seen
from the High Court’s order that on this subject, the evidence of
Jagbir Singh (PW-19), Assistant in the office of Inspector General of
Police Rohtak has also not been taken into consideration which is
rather surprising. The High Court was bound to consider the
correctness of the story given by the accused that Indresh Kumar and
Anil Kumar were arrested at the house of Anil Kumar and the injury
suffered by Indresh Kumar was due to physical altercation.
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11. Not only was the evidence of Jaswant Singh (PW-20) totally left
out of consideration which was very relevant to test the story of the
appellant about the incident on 26.06.1992, the High Court has also
not bothered to consider the evidence of Triloki Nath (PW-21), who
specifically spoke and proved the hand writing and signature of Anil
Kumar on the document wherein Anil Kumar had specifically
complained that he was picked up at 3 O’clock in the night. He did
not know as to why he was arrested. The whole basis of the High
Court’s order was the falsity regarding the foot on which Indresh
Kumar suffered fracture as also the correctness of the version of
Ramphal (respondent No.1-accused) that there was an altercation
between Anil Kumar and Indresh Kumar on 26.06.1992 and in that
altercation, he suffered injuries.
12. Once it is found that the High Court has not taken into
consideration any of these vital pieces of evidence, it becomes
difficult to uphold the order of the High Court. This is apart from the
fact that the High Court has not uttered one word about the criminal
revision which was filed by Indresh Kumar against the other six-
accused persons also vide Criminal Revision No. 1018 of 2001,
except dismissing the same.
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13. However, Shri Chawla stated that it was not possible for the
High Court to convert the acquittal against Ramphal (respondent
No.1-accused) in a criminal revision. He, therefore, did not pursue
the matter against the six accused persons who were acquitted by
the Trial Court and whose acquittal was challenged by the appellant
in a criminal revision in the High Court. However, the High Court
ought to have given some reasons regarding the acquittal of those six
persons before dismissing the criminal revision.
14. Shri Sushil Kumar, learned Counsel for the respondents tried to
support the acquittal order pointing out that Ramphal (respondent
No.1-accused) is now retired. He also pointed out that once there
was an acquittal of all the accused from the charge of criminal
conspiracy then there would be no question of proceeding even
against the present accused Ramphal. The contention is clearly
incorrect for the simple reason that individual role of Ramphal is
being highlighted by the prosecution and not his role as a conspirator.
Therefore, even if the charge of conspiracy failed and, if the individual
act is established, the accused would still be guilty. It was also
suggested that the possible view of acquittal was taken by High Court
and, therefore, we should not interfere with the acquittal.
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15. We cannot come to the definite conclusion that the High Court
has taken possible view as the High Court has not considered the
evidence which it was bound to consider. In that view, we would
remand the matter back to the High Court for fresh consideration.
We, however, make it clear that since the learned Counsel for the
appellant was not interested in proceeding against the other six
accused for the obvious difficulties, the High Court will do well in
considering only the case against accused Ramphal without being
influenced by any of our observations against the other co-accused
persons. The High Court shall be free to consider the matter afresh.
The appeals, therefore, succeed. The judgment of the High Court is
set aside in terms stated above.
……………………………..J.
(V.S. Sirpurkar)
……………………………..J.
(Dr. Mukundakam Sharma)
New Delhi,
January 6, 2010.
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Digital Performa
1. Case No. : Criminal Appeal Nos. 125-126 of 2003
2. Cause title : Indresh Kumar
Versus
Ram Phal & Ors.
3. Judgment heard by : Hon'ble Mr. Justice V.S. Sirpurkar
Hon'ble Dr. Justice Mukundakam Sharma
4. Judgment reserved by : Hon'ble Mr. Justice V.S. Sirpurkar
5. Date of C.A.V. : 24.11.2009
6. Date of pronouncement of
Judgment : 06.01.2010 (Wednesday)