Vadamalai Vs. Syed
Thastha Keer  INSC 285 (11 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 342 OF 2002
Vadamalai ...Appellant Versus Syed Thastha Keer ...Respondent
Dr. ARIJIT PASAYAT,
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.
complainant went to the Police Station.
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
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 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.
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
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 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
(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.
5 (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:
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 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
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
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."
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."
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.
(Dr. ARIJIT PASAYAT)