INDRESH KUMARversusRAM PHAL AND ORS.

                     [2010] 1 S.C.R. 185

                      INDRESH KUMAR                               A
                               v.
                   RAM PHAL AND ORS.
           (Criminal Appeal Nos.125-126 of 2003)
                      JANUARY 6, 2010
                                                                  B
       [V.S. SIRPURKAR AND DR. MUKUNDAKAM
                    SHARMA, JJ.]

    Appeal against acquittal: Conviction of appellant by trial
court - Other six co-accused acquitted - High Court acquitted     C
appellant - Revision against the acquittal of other co-
accused, dismissed - On appeal against acquittal, held: High
Court did not consider the evidence of witnesses in proper
perspective· - Revision against acquittal of other co-accused,
dismissed without giving reasons - Matter remanded to High        D
Court for consideration afresh - Penal Code, 1860 - ss.218,
342, 323.

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 125-126 of 2003.
                                                                  E
    From the Judgment & Order dated 17. 7.2002 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 196-SB of 2001 and Criminal Revision No. 1018 of 2001.

     Sushil Kumar, Navin Chawla, Rakesh Pandey, Sanjay            ·F
Jain, Manjit Singh (for Kamal Mohan Gupta), K.C. Rajput (for
l.M. Nanavati Associates) for the appearing parties.

    The Judgment of the Court was delivered by

    V.S. SIRPURKAR, J. 1. These appeals questions the             G
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
                             185                                  H
    186     SUPREME COURT REPORTS                 [2010] 1 S.C.R.


A 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
B as the first respondent, was convicted. This judgment was
  challenged by him before the High Court. The acquittal of
  Ramphal from other offences as also the total acquittal of other
  six accused persons came to be challenged by lndresh Kumar,
  the original complainant and the appellant herein by way of a
c 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 lndresh Kumar was dismissed.
  Appellant lndresh Kumar now has come up before us
  challenging the acquittal of all the accused persons including
0
  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 lndresh Kumar who was
E 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
F 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 about the illegal detention of his father and the
G brothers, Ramphal not only took him in custody but he was
  beaton 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
H produced before the Executive Magistrate where he learnt that
     INDRESH KUMAR v. RAM PHAL AND ORS.                      187
              [V.S. SIRPURKAR, J.]
a total false case under Section 107/151 Cr.P.C. was                A
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 lndresh Kumar then met the       8
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                c
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 10.07.1992. He submitted his report on 31.07.1992 wherein        D
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,            E
420, 468, 471, 218, IPC and 1208, 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,        F
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 lndresh Kumar            G
(appellant-complainant) is before us in this appeal.

     4. On the basis of the evidence of Dr. 8.8. Kakkar (PW-
6) that he had examined lndresh Kumar on 26.06.1992 at 6.05
a.m. and issued medical report as Exhibit PD, the High Court        H
    188     SUPREME COURT REPORTS                [2010) 1 S.C.R.


A found that in the said medical report, it was mentioned that
  lndresh Kumar had suffered the 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 Metatarsal bone of the left foot of lndresh Kumar. From
B 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 lndresh Kumar had given
c before the Superintendent of Police, Kaithal on 26.06.1992
  itself. It, therefore, came to the conclusion that it could not
  presume that lndresh 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
D Anil Kumar s/o Prem Chand had moved an application on
  25.06.1992 against lndresh 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
E (respondent No.1-accused) was injured at the hands of Anil
  Kumar due to which both lndresh Kumar (appellant herein) as
  well as Anil 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 lndresh Kumar
F might have felt insulted and in order to take revenge against
  Ramphal and other six co-accused persons, lndresh Kumar
  might have invented a false story. The High Court also viewed
  suspiciously that injured lndresh Kumar went to Jammu on
  26.06.1992 itself without getting himself radiologically examined
G only to return from there on 11.07.1992 to get the confirmation
  about his fracture in the subsequent examination. It was held
  that lndresh 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
H false case under Section 107/151 Cr.P.C. against lndresh
      INDRESH KUMAR v. RAM PHAL AND ORS.                       189
               [V.S. SIRPURKAR, J.]
Kumar and it had further failed to produce Anil Kumar in order         A
to rebut the contention of Ramphal that he had taken action
against lndresh 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
lndresh Kumar in a case under Section 107/151 Cr.P.C. relating         B
to the earlier incident of beating the accused. The High Court
also found fault with the late lodging of the First 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).                                              c
      5. Very significantly there is not even one word about the
six other accused persons whose acquittal was also challenged
by the appellant lndresh 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               D
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 lndresh Kumar (appellant herein), Shri            E
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 lndresh Kumar to the effect        F
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 Kumar as well as
appellant lndresh Kumar as per the version of Ramphal                  G
(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        H
    190       SUPREME COURT REPORTS                  (2010] 1 S.C.R.


A passed an order against lndresh 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
B 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 lndresh Kumar (appellant herein) and Anil Kumar
  and had arrested them. It is true that Ramphal (respondent No.1-
C accused) claims to have picked up Anil Kumar along with
  lndresh 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 lndresh Kumar had
  gone to the house of Anil Kumar and had fought with him and
  it was during that physical altercation that lndresh Kumar got
0
  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
E before us the original certificate by which lndresh 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
F 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:-
G
        "There is overwriting in injury No.1 regarding the foot of
        lndresh 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".
H         9. The learned counsel for the appellant further argues, that
     INDRESH KUMAR v. RAM PHAL AND ORS.                       191
              [VS. SIRPURKAR, J.]
while the High Court discussed this aspect of the transfer of        A
fracture from right foot to left foot, the High Court has not
bothered to look into the 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          B
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 lndresh Kumar (appellant herein) is
shattered, at least prima facie.

     10. The Counsel further rightly contends that the High Court    C
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 lndresh       D
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          E
correctness of the story given by the accused that lndresh
Kumar and Anil Kumar were arrested at the house of Anil
Kumar and the injury suffered by lndresh Kumar was due to
physical altercation.
                                                                  F
      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 G
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 lndresh Kumar suffered H
    192      SUPREME COURT REPORTS                 [2010] 1 S.C.R.


A fracture as also the correctness of the version of Ramphal
  (respondent No.1-accused) that there was an altercation
  between Anil Kumar and lndresh Kumar on 26.06.1992 and in
  that altercation, he suffered injuries.

B       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 lndresh Kumar against the
  other six-accused persons also vide Criminal Revision No.
C 1018 of 2001, except dismissing the same.

       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,
D 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
E 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
F 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,
G 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.

H         15. We cannot come to the definite conclusion that the High
       INDRESH KUMAR v. RAMPHAL AND ORS.                     193
                [V.S. SIRPURKAR, J.]
Court has taken possible view as the High Court has not             A
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            B
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         c
is set aside in terms stated above.

D.G.                                          Appeals allowed.