“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)

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