1. This is an appeal by the complainant against acquittal of the four respondents in a case under S. 342/109 I.P.C.

2. On the relevant date respondent No. 1 Ram Swarup was the Head Constable while the remaining three respondents were constables posted at the Police Station Kairana, district Muzaffarnagar. The complainant is a Homoeopath practising at Kairana. His case was that on 15-10-1961 at about 1 P.M. the respondents unlawfully put him under arrest and took him to the thana where he was detained till 7 A.M. the next day when he was sent to the District Jail, Muzaffamagar, and was released on bail on the evening of 16-10-61. Proceedings under S. 107/117 CrPC. were taken against him which remained pending till 8-12-61 when they were dropped for want of evidence. Twenty - three days later, the complainant lodged a complaint on 1-1-62 with the allegations that without any rhyme or reason he had been put under arrest and detained under unlawful custody. He, however, admitted that the accused persons had no previous enmity with or ill will against him. The complainant further admitted that his uncle had gone to the thana that very day (15-10-1961) at about 3 P.M. but he was turned away by a police constable. However, no explanation has been furnished as to why any telegram or information about his unlawful detention was not sent to the District Magistrate, the Superintendent of Police or to higher authorities.

3. All the accused persons admitted that they had effected the arrest of the complainant appellant on 15-10-1961. But, they denied that the compliant was arrested at his shop. According to the defence, the complainant was arrested in the market place where he was found publicly inciting communal feelings on the ground that the Hindus of Aligarh and Baraut had committed acts of atrocity upon the members of the Muslim community. One of the accused respondents, namely Ram Swamp Head Constable, stepped into the witness box as D.W. 2 in support of the defence version and stated that soon after effecting the arrest of the complainant he took him to the thana and lodged a report there, which is Ext. Kha. 1 on the record.

4. The complainant besides examining himself produced Jagdish Prasad, Rahim Buz, Raghunath Prasad (P.Ws. 2, 3 and 4), who all deposed that the complainant was arrested from his Matab. P.W. 1 Mohammad Ali did not give any satisfactory explanation as to why he had filed the complaint so late. He also admitted that he did not maintain any register of his patients. He further admitted that he had no enmity with or ill - will against the accused persons. It is, therefore, not believable that the accused persons would have arrested him without any rhyme or reason. In this connection it may be noted that P.Ws. Jagdish Prasad and Rahim Baz, were the patients of the complain ant. P.W. Rahim Baz had also business dealings with P.W. Jaddish Prasad. On the other hand. P.W. Raghunath Prasad was mere chance witness, whose house lay one furlong away from the Matab of the complainant, Some time ago he had also taken medicine for his child from the complainant. It may further be mentioned that P.W. Jagdish Prasad who is said to be running a shop in the neighborhood and from whose shop P.W. Raghunath Prasad was alleged to be making purchases of cloth, was not produced as a prosecution witness, The last P.W. Satya Prakash only states that he had seen the complainant being taken by the accused persons at about mid - day on 15-10-61 His evidence does not help the prosecution case.

5. However, the fact remains that the complainant was admittedly arrested on 15-10-61 at about 1 P.M. As already stated above, Head Constable Ram Swamp accused actually had made an application under S. 342 - A. CrPC. for being allowed to appear as a witness for the defence, which was granted by the Magistrate. He accordingly appeared as defence witness No. 2. According to him, the complainant was shouting in the market of Kairana near Kathara Dharamsthala