THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1622 OF 2004 ORDER: This appeal at the instance of the State is directed against the acquittal of the accused in S.C.No.30 of 1998 by the Assistant Sessions Judge, Nellore on 22.03.2002. The respondents/accused were prosecuted for the offences under Sections 307, 326, 342 and 392 IPC alleging that on 21.09.1993 at about 9.00 A.M when P.W.1 Bapanapalli Chandrasekhar was discussing along with his friends Manchikalapati Hari Prasad Singh, Vinukollu Doraswamy and Yarajerla Mallikarjuna Rao, near Ravichettu Centre in Fathekhanpet, Nellroe, accused No.1 came in a police jeep, picked him up forcibly and took him to the IV town police station, Nellore. By then, accused No.2 was present in the police station. Accused NO.2 asked accused No.1 to do away his life as he is a rowdy and undesirable element. Immediately, accused No.1 started beating P.W.1 with a stout lathi all over his body indiscriminately, as a result of which he fell down. Thereupon, accused No.1 kicked him with his booted leg on the chest and beat him on the right foot with his lathi, causing bleeding injuries. Then accused No.2 insisted P.W.1 to effect compromise in the case in between Uma, his cousin brother, and one Pindi Suresh and others of Fathekhanpet, Nellore, relating to an offence of attempt to murder, Pasupuleti Vijayakumar, who is a close associate of accused No.2. But P.W.1 did not agree for the same. Thereupon, accused No.2 directed accused No.1 to kill him if he did not accept for the compromise. Thereafter, accused No.1 beat P.W.1 with his lathi and took away the gold chain of 2 sovereigns and gold ring of 1 sovereign from P.W.1 and he was confined in the lockup room of IV Town Police Station, Nellore, by the accused. In the meantime, the father and brother of P.W.1 rushed to the police station and protested against the highhanded acts of the accused. Upon which, accused No.1 took him out and threw him on the ground, tied his legs below the knees by using his pant and beat him on both the soles, with a lathi for 20 times and again thrown him into the lockup room. At about 3.00 P.M. on 21.09.1993, accused No.1 had sent for one Sundara Reddy of Fathekhanpet, Nellore and obtained a report form him against P.W.1 and others, with false allegations and framed a charge. As there is no possibility of getting release of P.W.1, the father of P.W.1 sent a telegram to accused Nos.1 and 2 on the night of 21.09.1993, complaining of the said incident. On 22.09.1993 P.W.1 was not produced before the Court. Thereupon, P.W.2 filed a complaint under Section 97 Cr.P.C. and the Court issued a notice to the accused to appear before the Court on 23.09.1993. P.W.1 was finally produced before the learned Magistrate in Crime No.145 of 1993 of IV Town Police Station at her residence at 9.30 P.M. and upon the directions of the learned Magistrate, P.W.1 was produced on 23.09.1993 at 10.30 A.M. before the Court. The accused shown the arrest of accused at 10.00 P.M. in Crime No.145 of 1993. When P.W.1 was produced before the Magistrate, he reported about the torture caused by accused Nos.1 and 2, then the learned Magistrate directed the Superintendent, District Jail, Nellore to get him immediately treated for his injuries in the Government Headquarters Hospital, Nellore and send a report while remanding him to Judicial custody. In the District Jail, Nellore, P.W.1 was treated by the prison doctor and he was detained in the jail for want of police escort from 23.09.1993 to 30.09.1993. P.W.1 was released on bail on 20.10.1993. Since the prospect of prosecuting accused Nos.1 and 2 are very meager, as they being the police officers, P.W.1 has filed a complaint before the II Additional Judicial Magistrate of First Class, Nellore for the offences under Sections 307, 326, 342 and 392 IPC. The said case was committed to the Court of Sessions for trial. The learned Assistant Sessions Judge has framed the charges under Section 342 IPC against accused Nos.1 and 2, under Section 307 IPC against accused No.1, under Section 307 read with 34 IPC against accused No.2, under Section 392 IPC against accused Nos.1 and 2 and they pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined 9 witnesses i.e. P.Ws.1 to 6 and got marked Exs.P.1 to P.13. During the course of 313 Cr.P.C. examination, accused Nos.1 and 2 have given their explanation and examined D.W.1 and got marked Exs.D.1 to D.14. The learned Assistant Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused not guilty for the said charges and acquitted them. Aggrieved by the said acquittal, the State has preferred the present appeal. The learned Additional Public Prosecutor has pleaded that from the evidence of P.Ws.1 to 3, it is established that P.W.1 was unlawfully confined by accused Nos.1 and 2 in the IV Town police station, Nellore and the evidence of P.Ws.4 to 6 establishes the injuries sustained by P.W.1 during his unlawful custody. Accused No.1 himself has deposited the gold ornaments of P.W.1 in the Court shows that they were taken forcibly from P.W.1 while he was in unlawful custody and the learned Additional Sessions Judge erred in coming to the conclusion that the charges framed against the accused were not proved. The respondents’ counsel on the other hand has pleaded that the explanation given by accused Nos.1 and 2 during 313 Cr.P.C. examination clearly shows that accused arrested the P.W.1 in Crime No.145 of 1993 and to avoid his arrest, telegrams were sent making false allegations against accused Nos.1 and 2 and in the remand report, it is clearly mentioned that P.W.1 sustained some abrasions on his body and he refused for medical examination since they are simple in nature and they have mentioned in arrest Panchanama about the seizure of personal property of P.W.1 and deposited the same in the Court and the same were received by P.W.1 subsequently, clearly establishes that no offence was made out against the accused as alleged by the prosecution. According to the prosecution that P.W.1 was taken into custody by accused No.1 on 21.09.1993 at about 9.00 A.M when he was discussing along with his friends at Ravichettu centre and brought to the police station and at the instigation of accused No.2, he beat him severely and pressurized him to compromise the case in between Uma and one Pindi Suresh and others of Fathekhanpet, Nellore relating to attempt to murder of Pasupuleti Vijayakumar, who is close associate of accused No.2 and when he refused, accused No.2 directed accused No.1 to kill him and they have snatched away the gold ring and gold chain from P.W.1 and when a petition was petition was filed under Section 97 Cr.P.C., P.W.1 was produced before the Magistrate on 22.09.1993 at 9.30 P.M. showing his arrest at 10.00 A.M on 21.09.1993. When P.W.1 was produced before the Court on 23.09.1993 at 10.30 A.M. as directed by the Magistrate, P.W.1 disclosed about the torture made by accused Nos.1 and 2 and the Magistrate directed the Superintendent, District Jail, Nellore to get him medically treated for his injuries in the Government Head Quarters Hospital, Nellore. P.W.1 is the victim and injured has stated that on 21.09.1993 at 9.00 A.M. while himself, Hari Prasad Singh, Doraswamy, Mallikharjuna Rao were at Ravichettu centre in Fathekhanpet, Nellore, accused No.1 along with 4 or 5 constables of IV Town Police Station, Nellore came in a jeep and high-handedly dragged him into the jeep and after roaming about in the town for about half-an-hour, they took him to IV Town police station, Nellore. Accused No.2 was present in the police station and accused No.1 informed accused No.2 that he brought the person wanted by him, thereupon accused No.2 instructed accused No.1 to kill him by beating. Then accused No.1 beat him with a hand stick on his back, on his legs and kicked him with his booted leg on the right chest and on his lips. He further stated that accused No.2 wanted him to effect a compromise in a case relating to an attempt to murder, involving one Pindi Suresh and his followers as assailants, against one Uma Shankar, who is a cousin of P.W.1, for which P.W.1 did not agree. Thereupon, accused No.2 stated that he would not heed to his words, accused No.1 beat him with a hand stick on his back and on his legs and accused No.1 took away forcibly his gold chain and gold ring. In the meantime, P.Ws.2 and 3 came to the police station and asked accused No.1 as why P.W.1 was brought to the police station high-handedly. According to P.W.1 by that time, he was being beaten in the police station and the police did not allow P.Ws.2 and 3 to enter into the police station. Therefore, the motive for the commission of offence by accused Nos.1 and 2 is that accused No.2 asked P.W.1 to compromise the case relating to attempt to murder involving one Pindi Suresh and his followers against one Uma Shankar, but no material was produced by the prosecution to establish the registration of the case of attempt of murder. Moreover when accused No.1 is a Sub-Inspector of police and accused No.2 is Additional Superintendent of police, there is no necessity to compel P.W.1, who is allegedly a rowdy sheeter to affect the compromise. Thus, as rightly observed by the learned Assistant Sessions Judge, the prosecution has failed to establish the motive for the offence. With regard to the commission of offence, even though P.W.1 has stated that he was unlawfully taken into custody on 21.09.1993 while he was along with his friends Hari Prasad Singh, Vinukollu Doraswamy and Y.Mallikarjuna Rao at Ravichettu centre in Fathekhan pet, Nellore, but none of the said persons were examined before the court even though cited as witnesses to the incident. Therefore, the prosecution could not establish about accused No.1 taking P.W.1 into the custody on 21.09.1993 at about 9.00 A.M. On the other hand, according to accused No.1 he arrested P.W.1 on 21.09.1993 at 9.30 P.M at old check-post, Nellore as he was accused in crime No.145 of 1993 under Section 307 IPC of IV Town police station, Nellore and he was produced before the Magistrate on 22.09.1993 at 9.30 P.M and as per her directions produced in the Court on 23.09.1993 at 10.30 A.M. and the same was supported by the documentary evidence produced by D.W.1. With regard to the injuries caused by the accused to P.W.1; according to P.W.1 while he was beaten in the police station, P.Ws.2 and 3 came to the police station along with others, but they were not allowed into the police station. According to him by 10.00 or 10.30 A.M, P.Ws.2 and 3 came to the police station after coming to know that he was taken to the police station. It is also the version of P.Ws.2 and 3 that they came to the police station at about 10.00 A.M. According to P.W.1, they came to the police station while he was being beaten in the police station. According to the complaint Ex.P.1 given by P.W.1, he was kept in the lockup of IV town police station at about noon time and in the meantime P.Ws.2 and 3 came there and accused No.2 was in the same police station for about an hour or one and half hours and left the police station at about 11.00 A.M. or 11.30 A.M. According to P.W.1, he was kept in the lockup up to noon time, by that time, accused No.2 left the police station. Thereafter, accused No.1 was removed his gold chain and gold ring from him and taking him out of the lock up and thrown him on the ground and beat him. According to the complaint, P.Ws.2 and 3 came to the police station at 12.00 noon. P.W.2 has stated that by the time, he came to the police station along with P.W.3, accused No.2 was sitting in the seat of the sub-inspector of police and accused No.1 was beating P.W.1 and P.W.1 shouted “Nannu Champa Kandi”. According to P.W.3 when thy reached the police station at about 10.00 A.M, he heard the cries of P.W.1 and when they tried to enter the police station, accused No.1 did not allow them. P.W.3 requested accused No.1 not to kill his son. Thus, there is variance in the evidence of P.Ws.2 and 3 and the averments made in the complaint with regard to the alleged incident of beating. According to P.W.2, he returned back his house at 11.00 A.M as they were chased away from the police station. According to P.W.3, he was moving near the police station up to 1.00 P.M. Therefore, P.Ws.2 and 3 have not seen that accused No.1 beating P.W.1, but they only heard the cries of P.W.1 from the police station. Therefore, their evidence with regard to accused No.1 beating and kicking P.W.1 cannot be believed. Moreover, they have not spoken the same in their sworn statement recorded by Magistrate before committal. Thus, the only evidence available on record with the regard to beating is the evidence of P.W.1. P.W.1 in his cross-examination gone to the extent of denying the contents of Ex.P.1. Moreover, he has not complained to the Magistrate about the ill-treatment caused by accused No.1 when he was produced before the Magistrate on 22.09.1993, but he made allegations on 23.09.1993 at 10.30 A.M when he was produced into the Court. P.W.1 was examined by the Doctor P.W.6 on 30.09.1993 at 12.30 P.M. and found the following injuries. 1) A healed wound on the lower part of right chest 3” X 3”. 2) A eliptical healed wounds on the lateral part of the upper 3rd left upper arm 2 ½” X 1” 3) A healed wound on lateral part of the middle of the left upper arm 1” X ½” elliptical in shape. 4) Oblique healed wound on the left shoulder blade – 3” X 1/2” elliptical in shape. 5) Swelling of the right big toe. According to P.W.6 the injures would haves been caused 7 or 10 days prior to his examination. The said injuries were healed up without giving any treatment. In order to establish the injury to the toe, Dr. S.M. Basha, the Radiologist was examined as P.W.4. According to him, they have taken initially X-ray on 01.10.1993 of the right foot and found no fracture to his right toe. But when another X-ray was taken on 06.10.1993, he found fracture of great-toe. But he has not given any explanation whey they could not find out the fracture when the X-ray was taken on 01.10.1993 but only found on 06.10.1993. Therefore, it creates a doubt with regard to P.W.1 sustaining fracture to his right toe. On the other hand, in the remand report Ex.D.13 in Crime No.145 of 1993 of IV Town Police Station, it was mentioned that P.W.1 has some abrasions on his both shoulders and on his back and accused No.1 wanted to send him to the hospital, P.W.1 bluntly refused on the plea that the injuries are simple in nature. With regard to snatching gold ring and gold chain from P.W.1, the description of the said properties mentioned in the notices issued under Sections 50 and 51 Cr.P.C. in Crime NO.145 of 1993 and the said property was seized from the possession of P.W.1 in Crime NO.145 of 1993 and deposited the same in the Court. Subsequently, P.W.1 received the same from the Court. According to P.W.1, when there is no possibility of his releasing from illegal custody, his father has lodged a complaint under Section 97 Cr.P.C. before the Court on 22.09.1993. Admittedly, P.Ws.2 and 3 knows about the confinement of the accused in the police station on 21.09.1993. According to them, he was taken into custody on 21.09.1993 at about 9.00 A.M, but no explanation was forthcoming as to why they have not filed any complaint on the same day except issuing telegram on the night of 21.09.1993. By the time of filing the complaint under Section 97 Cr.P.C. accused No.1 has arrested the accused in Crime No.145 of 1993 of IV Town police station. Therefore, it is evident that only after coming to know about the arrest of accused in the above said crime, they have filed the petition under Section 97 Cr.P.C. to involve the accused No.1 in this case. Moreover, as per the evidence of P.Ws.1 to 3, accused No.2 was not present in the police station when P.W.1 was allegedly beaten by accused No.1. Since P.W.1 was arrested in crime No.145 of 1993 as pleaded by the accused, in order to escape from the above said crime, P.W.1 has lodged a false complaint against the accused. Therefore, in the above circumstances, the lower Court has rightly recorded the finding that the prosecution has failed to establish the wrongful confinement of P.W.1, attempt to commit murder and robbery against the accuse and the said finding does not warrant any interference by this Court in the appeal. In the result, the appeal is dismissed. _______________________ P.DURGA PRASAD, J 25th November, 2011 Ksp