REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 342  OF 2002

Vadamalai   …Appellant

Versus

Syed Thastha Keer …Respondent

J U D G M E N T

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  take

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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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