Judgment :- 1. The brief facts of the case are as follows:- The complainant / Revenue Divisional Officer had stated that the Government had issued a G.O.(Ms)No.1375, (Public and Law and Discipline) Department, dated 22.11.1996 to the District Collector, Salem. As per G.O., the case has been proceeded with. The prosecution case was that on 30.01.1996, the president of the Karumapuram Panchayat Union, had filed a complaint before the Karipatti Police Station stating that a television was missing from the Union Office. After receipt of the said complaint, on 30.01.1996, the case has been registered in Crime No.109 of 1996 for the offence under Section 457 and 480 of I.P.C. The police personnel had arrested the witnesses viz., Palanivelu, Ramar, Arumugam and Manickam and brought them to the police station and physically tortured them in the police custody i.e., on 31.01.1996. The witnesses were physically tortured the whole night. Hence, the Karumapuram village people had appealed to the defacto complainant / Revenue Divisional Officer to take action against the erring police constable viz., the accused herein. Subsequently, the Revenue Divisional Officer had conducted enquiry and collected complaints from the village people and also obtained statements from the witnesses. The said Revenue Divisional Officer had also conducted enquiry with the police constables. The witness Palanivelu and police personnel came in a police jeep on 31.01.1996, at around 11 p.m., to Karumapuram and collected the key of village panchayat union office and opened the office. Subsequently, the police personnel had taken the said Palanivelu, Ramar, Arumugam and Manickam to the police station. On the very same night, at around 1 a.m., one Srinivasan, who is the clerk at the Panchayat Union came to the police station. At that time, the first accused / revision petitioner herein had beaten the witness Ramar with log wood on his leg and hands. The other witnesses Arumugam and Manickam had expressed that the witness Ramar had not committed any offence. In spite of this, the accused had removed all the dress of witnesses Palanivelu and Ramar and had asked them to have oral sex with one another. The same was refused by the said witnesses. Subsequently, both were taken to the Hospital, wherein Palanivelu was administered an injection. In spite of this, the accused had removed all the dress of witnesses Palanivelu and Ramar and had asked them to have oral sex with one another. The same was refused by the said witnesses. Subsequently, both were taken to the Hospital, wherein Palanivelu was administered an injection. On 01.02.1996, at about 10 a.m., the first accused took the witness viz., Palanivelu into the police jeep to the Salem Hospital, wherein bandage was fastened on his leg. Thereafter, the said Palanivelu was brought to the police station at about 1 p.m. At that time, the Sub-Inspector of Police came to the police station and released the four witnesses viz., Palanivelu, Ramar, Arumugam and Manickam from police custody. 2. The very next day, the said witness Palanivelu had undergone medical treatment at Salem Chellam Hospital, wherein he had spent a sum of Rs.30,000/- towards medical expenses. The witnesses Ramar, Arumugam and Manickam have submitted the evidence which was given by the said Palanivelu to the Revenue Divisional Officer along with copy of X-ray of the said Palanivelu. On the basis of the said report, the said case was filed under Sections 342, 323 and 355 of I.P.C. 3. On the strength of the evidence, statement of the witnesses, the prosecution had registered a case against the second accused / erring police constables. On the side of the prosecution, 10 witnesses were examined viz., P.W.1-Dakshinamoorthy, former Revenue Divisional Officer, P.W.2-Palanivelu, P.W.3-Manickam, P.W.4-Ganesha Udayyar, P.W.5-Srinivasan, P.W.6-Nanjappan, Ex-Constable, who was attached to Karipatti Police station, P.W.7-Somasundara Bharathi, Ex-Constable, who was also attached to the Karipatti Police Station, P.W.8-Bharathidasan, Ex-Revenue Divisional Officer, Salem, P.W.9-Dr.Chidambaranathan, attached to the Chellam Hospital and P.W.10-Mr.Doraisami, Former Inspector of Police of Karipatti Police Station. 4. On the side of the accused, no witnesses. On the side of the prosecution, twelve documents were marked viz., Ex.P1-a complaint sent by the Karumapuram Village people, Ex.P2-complaint lodged by P.W.2, Palanivelu, Ex.P3-the Revenue Divisional Officials letter to the Collector, Salem, Ex.P4-Government Order in G.O.(Ms)No.1375, (Public and Law and Discipline) Department, dated 22.11.1996, for proceeding in the prosecution case against the accused, Ex.P5-Dr.Bhakthavatsalam's medical report to the R.D.O., Ex.P6-medical analysis report, Ex.P7-wound certificate of P.W.2, Ex.P8-Chellam Hospital's message to Karipatti Police Station, Ex.P9-P.W.2's confessional statement to R.D.O., Ex.P10, Ex.P11 and Ex.P12, Ramar's, Arumugam's and Manickam's confessional statement to R.D.O., Salem respectively. On the side of the defence, two documents were marked, which are as follows:- Ex.R1-a compromise deed signed by P.W.2, Palanivelu and Ex.R2-F.I.R. in Crime No.109 of 1996 on the file of Karipatti Police Station. 5. P.W.2, Palanivelu had adduced evidence stating that he was doing T.V. repair at Panchayat Union Office, Karumapuram. The said T.V. had been handed over to P.W.5. One key of the Panchayat Union Office was possessed by P.W.2 and another key was in the possession of P.W5. Under the circumstances, in the year 1996, one Anbu had informed to P.W.2, stating that the T.V. owned by the Karumapuram Village Panchayat Office was missing. Further the said Anbu had informed P.W.2 that the Panchayat Union Office lock was broken into and that both had jointly gone to the Karumapuram Panchayat Office, wherein they noticed that there was no lock and the room was opened and the T.V. which was kept on the table in the office room was missing. The same was informed to P.W.5., viz., Srinivasan, the Panchayat Union Clerk. Then, both P.W.2 and P.W.5 went to Karipatti Police Station and lodged a complaint regarding the missing T.V. 6. P.W.6, Nanjappan formerly Constable of the Karipatti Police Station had adduced evidence stating that from 17.07.1995 onwards, he was working as a Head Constable at Karipati Police Station and at that time one Duraisami was the Inspector of Police. On 31.01.1996 he came at 8.30 p.m., to the police station for attending a case relating to prohibition matter. At that time, the first grade constable, one Anbazhagan was in the Station. P.W.6, enquired with him about station position. Then the said Anbazhagan has stated that he had received a complaint from Commissioner, Ayodhya Pattinam Union regarding theft of T.V. The said Anbazhagan further informed P.W.6 that the message was communicated to the Inspector of Police through phone. On the very same day, at about 10 p.m., the said Inspector of Police had ordered P.W.6 to go to the occurrence place and conduct enquiry. As such, P.W.6, the first grade constable, Anbazhagan, Kulandaivelu and Pachamuthu all went to Karumapuram Panchayat Office, wherein P.W.6 had conducted enquiry with one Manickam. The said Manickam had replied that he does not know anything. Further, the said Manickam had stated that the key of T.V. room was in the possession of Palanivelu. As such, P.W.6, the first grade constable, Anbazhagan, Kulandaivelu and Pachamuthu all went to Karumapuram Panchayat Office, wherein P.W.6 had conducted enquiry with one Manickam. The said Manickam had replied that he does not know anything. Further, the said Manickam had stated that the key of T.V. room was in the possession of Palanivelu. Then P.W.6 and P.W.3, Manickam went to P.W.2's place, where they enquired him about the key. P.W.2 had replied that for the past two months, the T.V. was not functional and that the room key was also misplaced. Further, Palanivelu i.e., P.W.2 informed to P.W.6 that if the enquiry is conducted with Arumugam and Ramar of the Village, the truth will come out. Therefore, P.W.6 had taken the four persons to the police station. P.W.6, had conducted enquiry in the station regarding the theft. They had replied that they did not know anything about the theft. Further they had informed P.W.6 that if he enquires from P.W.5, Srinivasan, the truth would come out. Then P.W.2, enquired with P.W.5, Srinivasan. Then, the said Srinivasan had informed P.W.6 that he would give a written complaint in the morning. Therefore, all the four persons were handed over to the second accused, Kanjamalai, who was on night duty. Further P.W.6 informed the second accused that they were called for enquiry as witnesses and hence should not be kept in the police lock-up and to put them outside of the station. 7. P.W.4, Ganesha Udayyar, who is the father of P.W.2, stated that all the five persons were taken to the police station; that he went to the police station the very next day at 7.30 a.m., and found his son, viz., P.W.2 sitting inside the station; that on enquiring his son, his son had replied that the police personnel had beaten him and that both the accused had taken P.W.2 to Dr. Chidambaranathan, who was examined as P.W.9. P.W.4 further stated that he had taken his son P.W.2 to the Chellam Hospital, Salem for further treatment. 8. P.W.2 had further stated that five police personnel had taken Arumugam, Ramar, Manickam and Palanivelu to the Police Station; that after reaching the police station, between 10 p.m. and 1 a.m., both the accused had asked Ramar and P.W.2, herein to have oral sex with one another. Both refused to do the same. Hence, both the accused had beaten P.W.2 with lathi. Both refused to do the same. Hence, both the accused had beaten P.W.2 with lathi. In the result, he had sustained grievous injuries. Immediately P.W.2 had been taken to the R.M.B. Doctor, viz., Koothayee. She had given treatment to P.W.2. 9. P.W.9, Dr. Chidambaranathan had stated that he is an Ortho Specialist and that he had examined the P.W.2, Palanivelu on 03.02.1996 at 10 p.m., He had stated that P.W.2's left leg joint was broken and there were severe contusions on his left hand shoulder and he had marked wound certificate as Ex.P7. 10. P.W.2 further stated that, without proper enquiry, the police personnel had taken him and others to the police station and tortured them in the police custody. Knowing the same, the village people, organized a road roko. Immediately, on 06.02.1996, P.W.8, Revenue Divisional Officer viz., Bharathidasan, rushed to the spot and made enquiry with the village public. Then P.W.8, went to the police station and verified the general diary. Thereafter, P.W.8 had made an appeal to the village public, consisting of about 200 members and then they were dispersed. 11. P.W.1, Dakshinamoorthy took charge as Revenue Divisional Officer, Salem. His predecessor P.W.8 had already made a report to the District Collector. On the basis of the report, Government had granted permission to proceed against the accused. 12. P.W.7, Somasundara Bharathi had adduced evidence that he was working as a first grade constable in the Karipati Police Station and that he was on duty on 31.01.1996, up to 8 p.m. During this period, the two para constables were also working and excepting them, no other police personnel were in the station. P.W.10, Doraiswamy, who was the Inspector of Police attached to the Karipatti Police Station adduced evidence stating that both the accused had worked in the station on 31.01.1996. He further stated that he came to know that a police personnel went to the Karumapuram Panchayat Union regarding T.V. theft and that they had brought a few persons to the police station for enquiry and that a case also had been registered against the witnesses. He further stated that he had not ordered for further enquiry regarding T.V. theft. The entire incident was known to him only after the village people resorted to road roko. 13. P.W.4, father of P.W.2, had further adduced evidence that he had spent a sum of Rs.70,000/- for his son's medical treatment. He further stated that he had not ordered for further enquiry regarding T.V. theft. The entire incident was known to him only after the village people resorted to road roko. 13. P.W.4, father of P.W.2, had further adduced evidence that he had spent a sum of Rs.70,000/- for his son's medical treatment. He had also received Rs.10,000/- from the Chief Minister's fund. 14. The accused, on being questioned about their guilt, denied the same and hence the case was proceeded with. 15. On recording the evidence of the witnesses, and on perusing the marked documents, the learned judge had observed that P.W.6, Nanjappan had brought P.W.2 to the police station for enquiry and that at that time he was in good health but on the very next day, P.W.2 had become unwell. So, in the intervening period, while he was in police custody, both the accused had beaten P.W.2 with lathi and misused the police power. Further, the learned judge had observed that both the accused had stripped P.W.2 naked. Hence, the learned judge had come to a conclusion that both the accused are guilty of offence under Sections 342, 323, 325 and 355 of I.P.C. For the offence under Section 342, the learned judge, imposed a fine of Rs.1,000/- on each of the accused, and in default they are to undergo a period of simple imprisonment for one month; For the offence under Section 323, a fine of a sum of Rs.1,000/- was imposed on each of the accused and in default, they were to undergo one month simple imprisonment; For the offence under Section 325, each of the accused was imposed a fine of a sum of Rs.1,000/- and in default they were to undergo one month simple imprisonment and for the offence under Section 355 of I.P.C., each of the accused was imposed a fine of Rs.1,000/- and in default they were to undergo one month simple imprisonment. 16. Aggrieved by the said conviction and sentence passed in C.C.No.101 of 2004, on the file of the Chief Judicial Magistrate, Salem, the accused had filed an appeal in Crl.A.No.38 of 2009, on the file of Additional District and Sessions Judge, Fast Track Court-I, Salem. 16. Aggrieved by the said conviction and sentence passed in C.C.No.101 of 2004, on the file of the Chief Judicial Magistrate, Salem, the accused had filed an appeal in Crl.A.No.38 of 2009, on the file of Additional District and Sessions Judge, Fast Track Court-I, Salem. The learned judge, after hearing the arguments of the learned counsels on both sides and on perusing the impugned judgment of the trial Court observed that P.W.2 had admitted that his father knew about the compromise effected between him and one Dr. P.G. Ganesan, whose vehicle had dashed against him on 02.02.1996 at about 9 p.m. and that subsequently for the said medical treatment, the said Dr. Ganesan had agreed to settle the expenses for a sum of Rs.24,000/-. It is also seen that the original compromise deed was lost in the complainant's office The learned judge further observed that from the compromise deed, it is seen that P.W.2, Palanivelu had suffered fracture injuries in his right knee, only in a road accident, and that the offending vehicle number was bearing Registration No.MDB 8831. Therefore, the learned appellate judge held that the conviction of both the accused under Section 325 cannot be sustained. 17. The learned judge further observed that as per the statements marked in Ex.P9, given by P.W.2, the second accused Kanjamalai was only a mute spectator and there was no specific overt act alleged against him. Further, the second accused is only a Grade I Constable responsible for duty in the police station at the relevant point of time and date. Therefore, he cannot be convicted for any of the offences charged under Section 342, 323 and 355 I.P.C. Despite some contradictions and lapses in the prosecution case, there is a clear evidence that P.W.2, Palanivelu was illegally detained at Karipatti Police Station on the night of 31.01.1996, beaten in an inhuman manner by the first accused. Therefore, conviction recorded against the first accused, viz., Pachamuthu under Section 343, 323 and 355 of I.P.C. cannot be found fault with and hence the learned appellate judge confirmed the sentence imposed under those sections alone. As such, the appeal was partly allowed. 18. Aggrieved by the said judgment passed by the appellate Court, the above revision has been filed. 19. As such, the appeal was partly allowed. 18. Aggrieved by the said judgment passed by the appellate Court, the above revision has been filed. 19. The learned counsel for the revision petitioner / accused submitted that P.W.2 had executed a compromise deed which had been signed by him stating that he had met with an accident and that he had sustained fracture injures on his right knee and that the offending vehicle bearing Registration No.MDB 8831. The said deed had been marked on the side of the defence evidence. The learned counsel further submitted that as per prosecution case, the P.W.3 Manickam had been taken to the police station along with P.W.2. As such, he was also in the picture, from the beginning, and he had turned hostile. Therefore, the whole prosecution case has become vitiated. 20. The learned counsel further submitted that P.W.5, Srinivasan, who was in charge of the Panchayat Union Office, was also present from the time of occurrence and he had also turned hostile. Therefore, the prosecution case has lost its strength because both the above witnesses were prime witnesses / eye witnesses. So, the case has not been proved beyond doubt. P.W.4, father of P.W.2 had stated that he had spent Rs.70,000/-towards medical expenses of P.W.2. The treatment was only given in private hospitals and he had not been treates, under police memo, from any Government Hospital. P.W.2 had stated that he had undergone treatment under a siddha doctor, but she had not been examined. The evidence of P.W.6, former constable of Karipatti Police Station and P.W.7, Constable of Karipatti Police Station are inconsistent. However, there is a serious allegation against the accused that P.W.2 and Ramar were asked by the accused to have oral sex. But, the said Ramar had not been examined. Further, Arumugam, who had accompanied P.W.2 was also not examined. Initially, the case was registered against two persons in Crime No.109 of 1996; the co-accused was acquitted from the said criminal case, for the same charged levelled against him, and as such he is also entitled to get the same relief. P.W.2 had adduced evidence that he was treated by one Koothayee R.M.P. doctor, but she had also not been examined. The Revenue Divisional Officer is not an eye witness but only a hearsay witness. P.W.2 had adduced evidence that he was treated by one Koothayee R.M.P. doctor, but she had also not been examined. The Revenue Divisional Officer is not an eye witness but only a hearsay witness. The learned counsel further submitted that as per prosecution case, police personnel consisting of five members went to the occurrence place of Karumapalayam Panchayat Union and they had taken the P.W.2, Ramar, Arumugam and Manickam to the police station. Out of five police constables, only two police constables were charged under the said crime. The learned counsel further submitted that the prosecution case was that the revision petitioner had beaten P.W.2 with lathi. The said lathi was not seized and produced before the Court for establishing the prosecution case. P.W.6 and P.W.10 are Ex-Constable and Ex-Inspector of Police of the Karipatti Police Station and their evidence are also vague and inconsistent. 21. The learned counsel for the revision petitioner had cited the below mentioned judgments in support of his contentions:- (i)Kolaudaivelu In re. reported in 1974 LW (Crl) 147 "Criminal Trial, Evidence - Reasonable doubt, what is - Probabilities of the case Consideration of evidence of the witnesses - Principles - First Information Report Sending of, to the Magistrate - Delay in - Probabilities of concoction - Duty of Court Criminal P.C., S.378 - Hearing of appeal before the High Court -Difference of opinion between two judges - Reference to Third judge -Crl.P.C., S.236 and 237 and I.P.C., Ss.34, 109 and 30 - Single act of series of acts giving rise to doubt as to which offence they constitute - Consideration." (ii) Harchand Sing and another Vs. State of Haryana reported in 1974 CRI.L.J.366 (V80 C 131) "Evidence Act (1 of 1872), S.3 -In a case where the prosecution leads two sets of evidence, each one of which contradicts the order, it is difficult to determine the conviction of the accused." (iii) Badri v. State of Rajasthan reported in1976 CRI.L.J.496 "(A) Evidence Act (1 of 1872) S.145 - Criminal P.C. (5 of 1898), S.162 - Statement made by witness to police - Court not allowing cross-examination of witness by defence with reference to that statement - legality." (iv) Harish Chandra and another v. State of U.P reported in 1991 CRI.L.J.2815 "(A) Evidence Act (1 of 1872), S.114 - Adverse inference - Non-production of documentary evidence even when it was available -Adverse presumption that if produced would have been derogatory, can be drawn." (v)P. Johnson and others v. State of Kerala reported in 1998 CRI.L.J.3651 "(A) Penal Code (45 of 1860), S.321, S.326 - Offence of voluntarily causing hurt Lodging of F.I.R.-Suppression of facts -Accused, injured and witnesses belonged to same locality - No question of mistaken identity thereby -Prosecution witnesses before Head Constable stating that they were assaulted by all accused persons -During course of investigation, names of other accused brought in -FIR, however, showing name of some accused only - This leads to inference that what was narrated to Head Constable had been suppressed by prosecution - Prosecution case becomes doubtful." (vi)RAGHUNATH v. STATE OF HARYANA reported in (2003) 1 SCC 398 "A. Penal Code, 1860 - Ss.302, 148, 323, 325, 452, 436, 427 r/w S.149 -Group clash resulting in death of one person -Prosecution case that accused persons entered the house of deceased and one of them inflicted the fatal lathi-blow on the head of deceased and others inflicted injuries on the members of the deceased party - Defence case that one of the members of the accused party was kidnapped and severely beaten by complainant party and in an effort to rescue the injured by the accused party, a mob fight ensued in which deceased and others had sustained injuries in the melee -No explanation given by prosecution with regard to the injuries suffered by the said member of the accused party - Prosecution evidence consisting of interested or inimical witnesses and defence version also competing in probability -Inconsistencies and contradictions found in respect of material facts found in prosecution evidence which rendered the prosecution case unreliable and unbelievable - Held, prosecution suppressed the material facts and failed to establish its case beyond reasonable doubt Defence version being equally possible the same must be accepted - Hence, accused entitled to acquittal." (vii) State of U.P v. Nandu Viswakarma reported in (2010) 1 MLJ (Crl) 1001 (SC) "Indian Penal Code (45 of 1860), Section 302 read with Section 34 and Section 367 read with Section 34 - Conviction and sentence by trial Court - Acquittal by High Court Statement of P.W.2 contradictory to statement made by P.W.1, her husband - other vital contradictions in P.W.2's deposition noted by High Court -Statement of P.W.3 also contradictory to statements of P.W.1 and P.W.2 -High Court has given detailed reasons for acquitting accused - Two possible views taken by Courts below - One taken by trial Court and other taken by High Court - View taken by High Court being plausible view No interference with order of acquittal passed by High Court- Appeal dismissed" 22. The learned counsel for the State would submit that both the accused and the other three constables went to the Karumapuram Village to make enquiry regarding T.V. theft. After enquiry, four persons were taken to the police station for interrogation. While the interrogation was conducted, the revision petitioner had stripped P.W.2 and Ramar and had commanded them to do oral sex. The same was resisted by them. Hence, the revision petitioner / accused had beaten them severely. In the result, P.W.2 had sustained multiple injuries including bone fracture. In order to hide the illegal activities, the accused had taken P.W.2 to the private hospital and given treatment. Therefore, a police memo had not been preferred for giving the said treatment to the victim viz., P.W.2. This is the factual position. The accused had taken police power in their hands and had violently attacked P.W.2. Knowing this fact, the village people comprising of about 200 members assembled and resorted to road roko. After a prima facie case was made out, then the Government had issued G.O. to proceed with the case against the accused. Adequate evidence has been recorded by the learned trial judge and after marking relevant documents, the learned trial judge was convinced and hence he had punished the accused. 23. Per contra, the learned counsel for the revision petitioner submitted that none of the persons, who had allegedly taken part in the road roko, were examined. Actually, the mob was mobilized and gathered together in order to protect actual thief and the village public had only assembled in order to defeat the theft case. As per prosecution case, P.W.5 Srinivasan was the defacto complainant, but he had turned hostile. Therefore, the foundation of the prosecution case has been loosened. 24. On verifying the facts and circumstances of the case and arguments submitted by the learned counsel for the revision petitioner and the learned counsel for the State and on perusing the impugned judgment and conviction passed in C.A.No.38 of 2009, on the file of Additional District and Sessions Judge, Fast Track Court-I, Salem, dated 18.03.2011, this Court finds irregularities in the said impugned order. Regarding the offence, three persons viz., Arumugam Ramar and Manickam were taken along with P.W.2 to the Police Station, and these three persons were present through out the interrogation of P.W.2. P.W.3, Manickam was examined and he had turned into a hostile witness. Regarding the offence, three persons viz., Arumugam Ramar and Manickam were taken along with P.W.2 to the Police Station, and these three persons were present through out the interrogation of P.W.2. P.W.3, Manickam was examined and he had turned into a hostile witness. As such, his confessional statement given before the Revenue Divisional Officer has become null and void. As per prosecution case, Ramar and Arumugam had also given confessional statements to the Revenue Divisional Officer, but they were not examined on the side of the prosecution. The other evidences are subsequent evidences and their evidence are not substantial ones in support of the prosecution case. Therefore, the conviction and sentence passed in C.A.No.38 of 2009, on the file of Additional District and Sessions Judge, Fast Track Court-I, Salem, dated 18.03.2011, is set-aside. The revision petitioner is discharged from the entire criminal proceedings. Therefore, this Court directs the trial Court to return the fine amount paid by him, forthwith. 25. Resultantly, the above revision is allowed. Consequently, the judgment and conviction passed in C.A.No.38 of 2009, on the file of Additional District and Sessions Judge, Fast Track Court-I, Salem, dated 18.03.2011, modifying the conviction and sentence passed in C.C.No.101 of 2004, on the file of Chief Judicial Magistrate, Salem, dated 28.04.2009 is set-aside. Accordingly ordered.