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Thursday, January 15, 2015

Sections 363/109/364-A of the Indian Penal Code, 1860 ('IPC' for short). the Division Bench has reversed the decision rendered by the learned Additional Sessions Judge (II), Jind wherein the learned trial Judge had acquitted the appellant and the co-accused, Joginder of the charges leveled against him under Sections 363/109/364-A of the Indian Penal Code, 1860 ('IPC' for short).- Apex court dismissed the appeal = CRIMINAL APPEAL NO. 1401 OF 2008 Vinod Kumar ... Appellant Versus State of Haryana ... Respondent

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1401 OF 2008



Vinod Kumar                                  ... Appellant

                                   Versus

State of Haryana                        ... Respondent




                               J U D G M E N T


Dipak Misra, J.


The present appeal is directed against the judgment of conviction and  order
of sentence recorded by the High Court of Punjab and Haryana  at  Chandigarh
in Criminal Appeal No.  245-DB  of  1998  whereby  the  Division  Bench  has
reversed the decision rendered by  the  learned  Additional  Sessions  Judge
(II), Jind wherein the learned trial Judge had acquitted the  appellant  and
the co-accused, Joginder of the charges leveled against him  under  Sections
363/109/364-A of the Indian Penal Code, 1860 ('IPC' for short).
2.    The facts which are requisite to be stated for disposal of the  appeal
are that Jaivir Singh, informant, PW-1, was residing jointly along with  his
two brothers at village Ikkas.  His younger brother, Jagbir  Singh,  was  an
employee at Railway Police.  The accused-appellant, Vinod Kumar, a  resident
of Bijwasan, had come to the village of PW-1 in the month of May,  1996  and
worked as a domestic help in the house of Jagbir Singh.   Jagbir  Singh  had
four children and he had employed two servants one of whom was  the  present
appellant.  After working for four months in  the  house  of  Jagbir  Singh,
Vinod Kumar, as the prosecution story unfurls,  kidnapped  Anand,  the  3
year old son of Jagbir Singh and Smt. Santosh, PW-2, on 24.09.1996.  He  was
seen along with Anand by Harpal, PW-3, who had  enquired  from  Vinod  Kumar
where he was proceeding with the child to which the reply was  that  he  had
to purchase shoes for  Anand  and  medicine  for  himself  from  Jind.   The
mother, PW-2, searched for the child but did  not  find  him,  but  found  a
letter, Exhibit P3, which was addressed to her father-in-law, Manphul.   The
said letter was written by Vinod informing that he  was  taking  Anand  with
him and would only release him on payment  of  ransom  of  Rs.1  lakh.   She
immediately brought the letter to the notice of her father-in-law  who  sent
Jaivir to the police station and Jaivir, in turn, lodged an FIR.  After  the
criminal law was set in  motion,  the  Investigating  Officer  proceeded  to
village Ikkas, where the house of Jagbir  Singh  is  situate,  prepared  the
site plan, seized two other letters, Exhibits P1 and P2, written  by  Vinod,
vide Memorandum Exhibit PB which was attested  by  Santosh,  PW-2,  and  her
father-in-law,  Manphul.   Thereafter,  the  investigating  team,  went   to
village Bijwasan in search of Vinod Kumar  but  did  not  find  him  in  the
village.  Thereafter, Jaivir informed the Investigating Officer  that  Vinod
Kumar had appeared in some examination at Village Beri.  From  the  teachers
of the school they came to know that Vinod Kumar was a student of  the  said
school but had not attended the school for  the  last  seven  months.   They
also came to know that father's name of Vinod Kumar was one Om Prakash,  who
is  a  resident  of  Village  Dhansa.   As  the  prosecution  story  further
undrapes, the investigating team proceeded to village Dhansa and  photograph
of Vinod Kumar was shown by Om Parkash and the said photograph was  that  of
the appellant who was employed by Jagbir as a servant.   On  the  next  day,
SHO  Police  Station,  Jind,  PW-13,  along  with  other  members   of   the
investigating team came to know that  Anand  had  been  recovered  from  the
custody of Vinod Kumar.  The  accused-appellant  was  formally  arrested  on
26.9.1996.  Eventually, he was produced before the learned Additional  Chief
Judicial Magistrate, PW-11, Jind along  with  the  letters  and  before  the
learned Magistrate, he admitted that the letters were written  by  him  and,
accordingly, his statement was recorded  by  the  learned  Magistrate.   The
Investigating Officer, after recording the  statements  of  other  witnesses
under Section 161 CrPC and completing the formalities, laid the  chargesheet
under Section 364-A read with Section  109  IPC  against  both  the  accused
persons, namely, Vinod Kumar and Joginder  before  the  learned  Magistrate,
who in turn, committed the matter to the Court of Session.
3.    Both the accused persons pleaded not guilty and claimed to  be  tried.

4.    The prosecution, to substantiate  its  case,  examined  13  witnesses.
The principal witnesses are Jaivir Singh, PW-1,  who  had  lodged  the  FIR;
Smt. Santosh, PW-2, the mother of Anand; Harpal,  PW-3,  who  had  seen  the
accused taking Anand in a three-wheeler  towards  Jind;  Mahipal,  the  Head
Constable, GRP, PW-5, who had recovered Anand from the custody of  Vinod  at
Old Delhi railway station and had arrested  the  accused;  Sri  Dharam  Pal,
Additional Chief Judicial Magistrate, Jind, PW-11, before whom  the  accused
had made the statement that he had written  the  letters;  Datta  Ram,  ASI,
Investigating  Officer,  PW-12.   The  other  witnesses,  namely,   Baljeet,
Shakti, Rampal, Raisingh, Devanand, Balwant Singh and SHO,  P.S.  Jind  PWs-
4,6,7,8,9,10 and 13 respectively who are basically formal witnesses.
5.    The accused-appellant, in his statement under Section  313  CrPC  took
the plea that he was falsely implicated in the crime  as  he  had  expressed
his unwillingness to work in the house of  Jagbir  Singh  and  demanded  his
salary.  It was his further stand that the  employer  had  refused  to  make
payment and involved him in the false case.  Explaining the letters  it  was
his plea that his signatures were obtained forcibly  and  the  letters  were
got written by him under the  pressure  of  police.   However,  the  defence
chose not to adduce any evidence.
6.    The learned trial Judge, on the  basis  of  the  evidence  brought  on
record, came to hold that the prosecution had not  been  able  to  establish
any case  against  the  accused  Joginder  inasmuch  as  his  name  was  not
mentioned in the FIR and none of the witnesses had implicated him  and  from
the disclosure statement of accused Vinod Kumar, nothing was revealed  which
could be  considered  against  Joginder  under  Section  27  of  the  Indian
Evidence Act,  and  accordingly  acquitted  him.   As  far  as  the  present
appellant is concerned, the  learned  trial  Judge  found  that  though  the
accused Vinod Kumar had worked in the house of the in-laws  of  the  brother
of PW-1 for some time and on his recommendation he had come to work  in  the
house of the husband of PW-2 and alleged  to  have  worked  there  for  four
months, yet nobody had bothered to find out his  parentage;  that  from  the
evidence of PW-4 and 5, it was difficult to come to  a  definite  conclusion
that Anand was recovered from the custody of accused Vinod  Kumar;  that  as
regards time of kidnapping of  Anand  and  registration  of  the  case,  the
evidence of PWs 1, 3 and 12 are discrepant and, therefore,  their  testimony
could not be given credence to; that there was discrepancy  with  regard  to
the name of the father of the accused,  for  at  some  places  he  had  been
described as son of Suraj Bhan whereas he is actually  son  of  Om  Prakash;
that the letters, Exhibit P1 to P3, which were the foundation  of  the  case
of the prosecution, could not be placed reliance upon inasmuch as had  there
been any truth in the said letters, the police  could  have  waited  at  the
relevant place till that  time  which  was  mentioned  for  the  purpose  of
collection of ransom and further the investigating agency had not taken  any
steps to effect the arrest  of  the  accused  at  the  place  given  in  the
letters; that there was doubt with regard to the existence of letters  prior
to 24.9.1996 i.e. the date of lodging of the  FIR;  that  the  plea  of  the
accused that the letters were got written  from  him  by  the  police  under
pressure created a dent in the prosecution version and  that  apart  it  was
difficult to give credence to the letters when  it  is  appreciated  in  the
backdrop of the evidence in toto; that there  was  material  discrepancy  in
the statements of PWs 1, 2 and 12 regarding  bringing  back  of  Anand  from
Delhi to Ikkas; that the PWs 1 and 4 had deposed about the  facts  in  their
own manner without bothering about the actual facts of  the  case  and  they
are interested witnesses; and that the  statements  of  PWs  4  and  5  were
liable to be disbelieved as they had stated  different  particulars  of  the
person from whom Anand was recovered.   Being  of  this  view,  the  learned
trial Judge acquitted both the accused persons.
7.     The  prosecution,  being  dissatisfied  with  the  said  judgment  of
acquittal, sought leave to appeal before the High  Court.   The  application
for leave against Joginder was declined as there was no evidence  whatsoever
against him and, the prayer for grant  of  leave  was  restricted  to  Vinod
Kumar.
8.    It was contended before the High Court by the prosecution  that  Anand
was seen in the company of the accused Vinod Kumar while going towards  Jind
in a three-wheeler; that there was no warrant or  justification  to  discard
the letters Exhibit P1 to  P3,  which  were  recovered  by  the  police  and
written by the accused; that the plea advanced that  the  letters  were  got
written from him by police under pressure was nowhere suggested  to  any  of
the witnesses; that  the  learned  trial  Judge  had  given  undue  emphasis
relating to the name of the father of the appellant while there is  material
on record to show that he had disclosed his father's  name  as  Suraj  Bhan,
resident of Bijwasan; that the discrepancies which had been  highlighted  by
the trial court were minor in nature and could not have been  considered  to
discard the otherwise irreproachable testimony of the  witnesses;  and  that
the appreciation of the evidence on record  was  basically  fallacious  and,
therefore, the view expressed could not be remotely treated as  a  plausible
one.
9.    The contentions put forth by the prosecution  before  the  High  Court
was controverted  by  the  accused-respondent  on  the  bedrock  of  reasons
ascribed by the trial Judge.
10.   The High Court, as we notice, has scrutinized the evidence  on  record
in detail and come to hold that Vinod Kumar was seen by Harpal Singh,  PW-3,
who had made queries from him as to where he was going with the grandson  of
Manphul; that on 24.9.1996 along with the complaint a  letter  was  produced
before the police which gave rise to the lodgment of the  formal  FIR;  that
the recovery of the boy Anand from the custody of Vinod Kumar at  Old  Delhi
railway station had been fully proven by the prosecution; that acquittal  of
Joginder could not be a factor to be taken into consideration for  recording
acquittal of Vinod Kumar; that the trial court had given undue  emphasis  on
the name of the father of the accused Vinod Kumar, for there is evidence  on
record to show that he himself had stated before the witnesses  that  he  is
son of Suraj Bhan; that  there  is  nothing  on  record  to  disbelieve  the
writing in Exhibit P1 to P3 on the ground that they  have  been  written  at
the instance of Joginder or under the police  pressure.   On  the  basis  of
aforesaid findings, the High Court has opined that  the  view  expressed  by
the learned trial Judge is absolutely untenable, and, in  fact,  based  upon
total  erroneous  appreciation  of  facts  and   certain   conjectures   and
accordingly has dislodged the judgment of acquittal.
11.   We have heard Mr. Rajiv Singh, learned counsel for the  appellant  and
Mr. Vikas Sharma, learned counsel for the respondent.  It  is  submitted  by
learned counsel for the appellant that while  overturning  the  judgment  of
acquittal and recording a conviction, it  is  the  obligation  of  the  High
Court to give adequate reasons and to meet every aspect but in the  impugned
judgment there is no discussion for reversing the same  and,  therefore,  it
warrants interference by this Court.  It is contended by him that  the  High
Court has erroneously, in a cryptic manner, observed that the  discrepancies
are minor in nature, though they really cast  a  doubt  in  the  prosecution
version which has been appositely appreciated by the  learned  trial  Judge.
Learned counsel would contend that the  High  Court  has  erroneously  noted
that the accused has not stated a word that the  letters  were  got  written
from him by Joginder or  the  letters  were  got  written  by  police  under
pressure, for there is a definite stand  in  the  statement  recorded  under
Section 313 CrPC that  the  letters  were  written  under  pressure  by  the
police.  It is further submission that it is  a  case  where  the  appellant
should have been extended the benefit of  doubt  regard  being  had  to  the
discrepancies pertaining to time  and  place  and  the  plea  taken  in  the
statement recorded under Section 313 CrPC and the discrepancies with  regard
to the recovery of kidnapped boy.
12.   Mr. Vikas  Sharma,  learned  counsel  appearing  for  the  State,  per
contra, would contend that the discrepancies  pointed  out  by  the  learned
trial Judge are absolutely minor in nature and under no  circumstances,  can
discredit the testimony of the witnesses.  It is put forth by him  that  the
plea of the accused that the letters were  written  under  the  pressure  by
police deserves to be rejected because the defence had really not asked  any
question to the witnesses relating to the letters except a  bald  suggestion
given to   PW-12.  Learned  counsel  would  contend  that  though  the  said
aspect has been slightly erroneously understood by the High Court, but  that
would not make the judgment of conviction  fallible.   Additionally,  it  is
submitted by him that the prosecution  has  proven  to  the  hilt  that  the
accused-appellant was arrested in Delhi and put in Tihar jail and  from  his
custody the kidnapped boy was  recovered.   Learned  counsel  would  further
urge that the High  Court  has  rightly  interfered  with  the  judgment  of
acquittal and, therefore, there is no justification  to  dislodge  the  view
expressed by the appellate court.
13.   Before we dwell upon the factual score  whether  the  prosecution  has
proven the case to warrant a conviction, we think  it  apt  to  recapitulate
the principles  relating  to  the  jurisdiction  of  the  High  Court  while
deciding the appeal against  acquittal.   In  this  context,  reproducing  a
passage from Jadunath Singh v. State of U.P[1] would be profitable:
"This Court has consistently taken  the  view  that  in  an  appeal  against
acquittal the High Court has full power to review at large all the  evidence
and to reach the conclusion that upon that evidence the order  of  acquittal
should be reversed. This power of the appellate court in an  appeal  against
acquittal was formulated by the Judicial Committee of the Privy  Council  in
Sheo Swarup v. King Emperor[2] and Nur Mohammad  v.  Emperor[3].  These  two
decisions have been consistently referred to in the judgments of this  Court
as laying down the true scope of the power of an appellate court in  hearing
criminal appeals (see Surajpal Singh v. State[4] and Sanwat Singh  v.  State
of Rajasthan[5])."

14.   Similar view has been expressed in  Damodarprasad  Chandrikaprasad  V.
State   of   Maharashtra[6],   Shivaji   Sahabrao   Bobade   V.   State   of
Maharashtra[7], State of Karnataka V. K.  Gopalakrishna[8],  Anil  Kumar  V.
State of U.P.[9], Girja Prasad V. State of M.P.[10] and S. Ganesan  V.  Rama
Raghuraman[11].
15.   In this regard, we may  fruitfully  remind  ourselves  the  principles
culled out in Chandrappa v. State of Karnataka[12] :
"42. From the  above  decisions,  in  our  considered  view,  the  following
general principles regarding powers of the  appellate  court  while  dealing
with an appeal against an order of acquittal emerge:

(1)  An  appellate  court  has  full  power  to  review,  reappreciate   and
reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction  or
condition on exercise of such power and an appellate court on  the  evidence
before it may reach its own conclusion, both on questions  of  fact  and  of
law.

(3) Various expressions, such  as,  'substantial  and  compelling  reasons',
'good and  sufficient  grounds',  'very  strong  circumstances',  'distorted
conclusions',  'glaring  mistakes',  etc.  are  not  intended   to   curtail
extensive powers of an appellate court in an appeal against acquittal.  Such
phraseologies are  more  in  the  nature  of  'flourishes  of  language'  to
emphasise the reluctance  of  an  appellate  court  to  [pic]interfere  with
acquittal than to curtail the power of the court to review the evidence  and
to come to its own conclusion.

(4) An appellate  court,  however,  must  bear  in  mind  that  in  case  of
acquittal, there is double presumption in favour of  the  accused.  Firstly,
the presumption of innocence is  available  to  him  under  the  fundamental
principle of criminal jurisprudence that every person shall be  presumed  to
be innocent unless he  is  proved  guilty  by  a  competent  court  of  law.
Secondly, the accused having secured his acquittal, the presumption  of  his
innocence is further reinforced, reaffirmed and strengthened  by  the  trial
court.

(5) If two reasonable conclusions are possible on the basis of the  evidence
on record, the appellate court should not disturb the finding  of  acquittal
recorded by the trial court."

16.   On the bedrock of aforesaid settled principles, it is  our  obligation
to scrutinize the judgment of the High Court  whether  it  withstands  close
scrutiny within the parameters stated hereinabove or a conviction  has  been
recorded solely because a different view can be taken.  At the very  outset,
we are obligated to state that the learned counsel  for  the  parties,  with
lot of pains, have taken us through the evidence on record.  On  a  scrutiny
of the evidence, we find that the appellant was working as a servant in  the
house of husband of PW-2, Santosh, who was the first to notice that her  son
Anand, a 3  year old boy, was missing.   She  had  also  found  the  letter
regarding kidnapping of Anand and demand of ransom by the  accused  and  had
shown it to her father-in-law, Manphul.   Jaivir,  PW-1,  had  gone  to  the
police station wherein he had submitted an application Ex. PA  annexing  the
letter on the  basis  of  which  the  FIR  was  lodged.   The  Investigating
Officer, Data Ram, PW-12 had proceeded to the house of Santosh wherefrom  he
had recovered two letters, Exhibit P1 and P2.  They were kept  at  different
places in the house.  The letters were seized in presence  of  two  persons,
namely, Manphul and Santosh.  Thereafter, he had proceeded  to  the  village
Bijwasan where he came to know that Vinod  Kumar  did  not  belong  to  that
village.  Being told by  Jaivir  that  Vinod  Kumar  had  appeared  in  some
examination from the school at Beri, the Investigating Officer had  gone  to
the school where he learnt that one Vinod Kumar was studying there  and  had
remained absent for last seven months.   On  further  investigation  it  was
found that the accused was son of Om Prakash who had  shown  the  photograph
of Vinod Kumar that matched with the identity of  the  man  working  in  the
house of the husband of Santosh.  While the investigation was proceeding  in
this way, Vinod Kumar was apprehended by Mahipal, PW-5, the  Head  Constable
in GRP, along with Anand.  He was arrested and sent to Tihar  jail.   It  is
in the evidence of PW-12 that on 26.9.1996  he  had  moved  application  Ex.
PH/1 before the learned Magistrate for issuance of warrant of production  of
accused Vinod and vide order Ex. PH/2 the  ACJM  Jind  being  the  concerned
Magistrate had ordered for issuance of production warrant of  accused  Vinod
with direction to execute the warrant upto  30.9.96.   It  is  also  in  his
testimony that he  took  the  warrant,  Ex.  PH/3,  to  the  Superintendent,
Central Jail, Tihar, Delhi and sought the custody of  accused  Vinod  Kumar,
but he was informed by the jail authorities that they would  not  hand  over
the custody of accused Vinod to  him  without  the  formal  order  of  Chief
Metropolitan Magistrate, Delhi.  Thereafter he moved an  application  before
the Chief Metropolitan Magistrate, Delhi who passed  the  order,  Ex.  PH/5,
allowing him to take the custody of accused Vinod from the  jail  whereafter
he could bring Vinod jail to Jind and  formally  arrested  him  on  27.9.96.
The High  Court  has  appreciated  this  aspect  with  proper  scrutiny  and
clarity.
17.   It is apt to note here that the High Court  has  taken  note  of  four
aspects, namely, (i) that the accused was working as a servant in the  house
of Jagbir, husband of Santosh, and had himself stated to  be  son  of  Suraj
Bhan, resident of Bijwasan and that his photograph was shown by Om  Prakash;
(ii) that the letters written to the parents of Anand have duly been  proven
by the prosecution and the plea that the letters were written  under  police
pressure was not acceptable; (iii) that the  discrepancies  which  had  been
highlighted by the learned trial Judge are  minor  and  on  that  score  the
reliable evidence of the witnesses could not  have  been  thrown  overboard;
and (iv) that acquittal of Joginder, other co-accused, could  not  have  any
impact on the role played by Vinod Kumar.
18.   It is imperative to state here that the learned trial Judge has  posed
two questions, namely, whether accused Joginder abetted accused Vinod  Kumar
to kidnap Anand, a 3  years old boy of Jagbir Singh for ransom and  whether
accused Vinod Kumar kidnapped Anand for ransom and wrote letters  Ex  P1  to
P3 on  having  been  abetted  by  accused  Joginder.   After  analyzing  the
evidence and arriving at the conclusion that Joginder could  not  have  been
convicted, for there  was  no  evidence  on  record,  he  has  proceeded  to
scrutinize the evidence against  the  appellant.   One  of  the  facets  for
arriving at the conclusion that Vinod Kumar could not  be  found  guilty  as
the case set forth by the prosecution against Joginder has no legs to  stand
upon, is absolutely unacceptable.  It was the case of the  prosecution  that
Joginder had abetted in the crime  as  he  had  instigated  Vinod  Kumar  to
kidnap the child.  We perceive no reason how his acquittal would affect  the
case of Vinod  Kumar.   The  High  Court  has  rightly  discarded  the  said
reasoning of the learned trial Judge.
19.   The next facet relates to the discrepancies in  the  evidence  of  the
witnesses.  The learned trial Judge has found discrepancies with  regard  to
the handing of letter by Santosh to Manphul; the discrepancies  relating  to
the place and time pertaining to various aspects  stated  by  witnesses  and
the identity of the accused at the time of arrest.  The discrepancies  which
have been  noted  are  absolutely  minor.   The  High  Court  has  correctly
observed that the minor discrepancies like who met whom, at  what  time  and
who was dropped and at whose place and at what time, etc.  have  been  given
unnecessary emphasis.  It is well settled in law  that  minor  discrepancies
on trivial matters not touching the core of the case or  not  going  to  the
root of the matter could not result  in  rejection  of  the  evidence  as  a
whole.  It is  also  well  accepted  principle  that  no  true  witness  can
possibly escape from making some discrepant details, but  the  Court  should
bear in mind that it is  only  when  discrepancies  in  the  evidence  of  a
witness are so incompatible with the credibility  of  his  version  that  it
would be justified in jettisoning his  evidence.   It  is  expected  of  the
Courts to ignore the discrepancies which do not shed the  basic  version  of
the prosecution, for the Court has to call into aid its vast  experience  of
men and matters in different  cases  to  evaluate  the  entire  material  on
record. [See State of U.P. V. M.K. Anthony[13], Rammi v. State  of  M.P.[14]
and Appabhai V. State of Gujarat[15]]
20.   Tested on the touchstone of the aforesaid principles, we are  inclined
to concur with the opinion expressed by the  High  Court  that  the  learned
trial Judge has really given undue emphasis on the discrepancies  which  are
minor in nature.  To elaborate, emphasis has been laid on the fact that  the
arrest memo indicates Vinod Kumar son of  Suraj  Bhan.   The  learned  trial
Judge has failed to appreciate that Vinod Kumar has been describing  himself
as son of Suraj Bhan.  There is no dispute with regard to the fact  that  he
was found along with boy Anand.  There is no  dispute  with  regard  to  his
identity or the fact that he was working in the  house  of  the  husband  of
Santosh.  It has also been brought in evidence that Harpal, PW-3,  had  seen
him taking Anand and on a query being made, he answered that he  was  taking
the child to Jind to buy shoes for the boy and medicine for  himself.   That
apart, Vinod Kumar has not taken the  plea  that  he  was  not  employed  by
Jagbir.  Thus, the hypertechnical approach of the learned  trial  Judge  has
correctly not been accepted by the High Court.
21.   The next aspect which is required to be  scrutinised  is  whether  the
letters vide Exhibit P1 to P3 are to be ignored on the  basis  of  the  plea
advanced by the accused.  The learned  trial  Judge  has  delved  into  this
facet in a slightly peculiar manner.  His reasoning is to the effect that  a
perusal of the letters, Ex. P1 to P3, go to show that  the  accused  was  to
receive the amount of ransom at Rohtak near the  post  office  and  the  bus
stand on 26.9.96 early in the morning and hence, had there  been  any  truth
in these letters the police must have waited till the time mentioned in  the
letters and must have made arrangement for the arrest of the accused at  the
place mentioned in the letters; that in those  circumstances  there  was  no
necessity to run immediately for the arrest of the accused  particularly  in
the circumstances when the correct address of the  accused  were  not  there
with the complainant or the police.  Exception has been taken to the  action
of the investigating agency not taking any steps to  effect  the  arrest  of
the accused at the place given  in  the  letters  and  on  that  bedrock,  a
conclusion has been arrived at that the letters were  not  in  existence  on
24.9.96.  That apart,  it  has  weighed  in  his  mind  that  there  was  no
necessity to write three letters at the same time and,  therefore,  reliance
on the letters was an afterthought.  He has also observed that the  bringing
of such type of letters into existence is not impossible for the police  and
hence, as the accused had taken the stand that the  said  letters  were  got
written from him by the police under pressure, no  much  reliance  could  be
placed on the letters.
22.   To appreciate the  aforesaid  reasoning,  it  is  first  necessary  to
understand the plea  of  the  accused.   He  has  stated  in  his  statement
recorded under Section 313 CrPC that these letters were  written  under  the
pressure of police. When he was produced  for  the  first  time  before  the
Additional  Chief  Judicial  Magistrate,  PW-11,   he   had   admitted   his
signatures.  It has come in evidence of the said witness that he had  showed
the letters to the accused who has admitted  before  him  that  the  letters
were written by him.  Letters were read over and explained  to  him  and  he
had admitted the  correctness.   The  accused  had  not  stated  before  the
learned ACJM that the letters were got written from him by the police  under
pressure.  Keeping that in  view,  his  statement  under  Section  313  CrPC
should be appreciated.  In question no.2 and the answer thereto are  to  the
following effect:
"Q.No.2     That while leaving Ikkas for Jind, you left letters  Ex.  P1  to
Ex. P3 in the house of Jabir.  You addressed those  letters  to  Jagbir  and
Manphul that you had kidnapped Anand for ransom.   If  they  wanted  to  get
release Anand, they were asked to pay a sum of Rs. One  lac  on  26.9.96  in
between 2 to 4 p.m. at a place situate  near  post  office  near  bus  stand
Rohtak.

Ans.: It is incorrect".
      Question No.9 and the reply given in that regard are as follows:
"Q.No.9      That  on  28.3.96  in  police  station  Sadar,  Jind  you  were
interrogated in the presence of witnesses by PW-12 and you  made  disclosure
statement Ex.PC leading to the involvement of your  co-accused  Joginder  in
the case.  You informed the police that accused Joginder instigated  you  to
kidnap Anand and got written letters Ex. P1 to Ex. P3 from you and then  you
kidnapped Anand and took him to Rohtak for ransom.  You  also  admitted  the
contents of Ex. P1 to Ex. P3 and signed your disclosure statement Ex.PC.

Ans.        It is incorrect.  I never made disclosure  statement  Ex.PC  and
never admitted the contents of Ex. P1 & P2.   My  signatures  were  obtained
forcibly and these letters were got written from me under  pressure  by  the
police".

23.   We have referred to the statement in detail as the High Court  in  the
impugned judgment has observed that when examined  under  Section  313  CrPC
the accused did not state a word that the letters were got written from  him
by Joginder or the letters were got written by police under pressure.   Such
an observation is in consonance with  the  answer  to  question  no.2.   The
other answer makes a slight departure, for the question that was put to  him
was with regard to the  disclosure  statement  and  the  letters  have  been
written at the instance of Joginder.  Be that as it may, even assuming  that
it was a plea in the statement recorded under Section 313 CrPC that  he  had
written the letters being pressurized by the police,  the  said  stand  does
not deserve to be accepted on two grounds, namely, i) he had not  made  that
allegation when the letters were  shown  to  him  by  the  Additional  Chief
Judicial Magistrate, PW-11, and in fact he had admitted the  correctness  of
the letters and ii) that in the cross-examination of the  witnesses  barring
a bald question to PW-12, nothing has been put with regard to  the  letters.
 It is apt to be stated here that the Additional Chief  Judicial  Magistrate
has been examined as PW-11 by the prosecution and has  unequivocally  proven
the fact that  the  letters  were  produced  before  him  and  the  accused-
appellant had identified the letters and admitted  his  signature.   Nothing
has been elicited in  the  cross-examination.   Similarly,  there  has  been
really no cross-examination of any of the witnesses that  the  letters  were
written under pressure of police.
24.   In this context, we may usefully refer to the authority  in  State  of
U.P. V. Nahar Singh[16], wherein the Court has  dealt  with  the  effect  of
absence of cross-examination.  True it is, the factual matrix was  different
therein, but the observations are salient.  In the said case,  it  has  been
held:
13. ......In the absence of cross-examination on the explanation  of  delay,
the evidence of PW 1 remained unchallenged and ought to have  been  believed
by the High Court. Section 138 of the Evidence Act confers a valuable  right
of cross-examining the witness tendered in evidence by the  opposite  party.
The scope of that provision is enlarged by Section 146 of the  Evidence  Act
by allowing a witness to be questioned:

(1)  to test his veracity,
(2) to discover who he is and what is his      position in life, or
(3) to shake his credit by injuring his character, although  the  answer  to
such questions might tend directly  or  indirectly  to  incriminate  him  or
might expose or tend directly or indirectly to expose him to  a  penalty  or
forfeiture.

14. The  oft-quoted  observation  of  Lord  Herschell,  L.C.  in  Browne  v.
Dunn[17] clearly elucidates the principle underlying  those  provisions.  It
reads thus:
"I cannot help saying, that it seems to me to  be  absolutely  essential  to
the proper conduct of a cause, where  it  is  intended  to  suggest  that  a
witness is not speaking the truth on  a  particular  point,  to  direct  his
attention to the fact by some questions  put  in  cross-examination  showing
that that imputation is intended to be made, and not to  take  his  evidence
and pass it by as a matter altogether unchallenged, and  then,  when  it  is
impossible for him to explain, as perhaps he might have been able to  do  if
such questions  had  been  put  to  him,  the  circumstances  which,  it  is
suggested, indicate that the story he tells ought not  to  be  believed,  to
argue that he is a witness unworthy of  credit.  My  Lords,  I  have  always
understood that if you intend to impeach a witness, you  are  bound,  whilst
he is in the box, to give an opportunity of making any explanation which  is
open to him;  and,  as  it  seems  to  me,  that  is  not  only  a  rule  of
professional practice in the conduct of a case, but it is essential to  fair
play and fair dealing with witnesses."

      Be it stated in  the  said  case,  this  Court  did  not  approve  the
conclusion of the High Court that the explanation for the delay was  not  at
all convincing and the said view  was  expressed  as  there  was  no  cross-
examination.  In the instant case, in the absence  of  cross-examination  of
the witness, barring a bald suggestion to PW-12, we  are  inclined  to  hold
that the appellant was the author of the  letters  and  the  same  were  not
written under any pressure.
25.   Apart from what we have stated hereinabove, it is also important  that
kidnapped boy was  recovered  at  railway  station.   The  accused  has  not
explained  how  the  child  could  be  brought   to   Delhi.    Harpal   has
categorically deposed that he had seen Anand with Vinod Kumar.  The  learned
trial Judge has noted certain discrepancies in the evidence of  Harpal,  but
without any justifiable reason.  The learned trial Judge has really  niggled
on unimportant and unnecessary details.  It is quite natural on the part  of
Harpal to pose a question to Vinod Kumar as he was slightly anxious  to  see
a domestic help taking a child.  This  is  inherent  in  human  nature  and,
therefore, the version  of  Harpal  could  not  have  been  ignored.   These
aspects, in our view, weigh quite heavily against the accused.
26.   Tested from the aforesaid angles, we are disposed to  think  that  the
judgment of reversal by the High Court is  absolutely  defensible  and  does
not warrant any interference.  Resultantly,  the  appeal,  being  devoid  of
merit, stands dismissed.

                                  ........................................J.
                             [DIPAK MISRA]



                                  ........................................J.
                                        [N.V. RAMANA]
NEW DELHI
JANUARY 08, 2015.
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[1]    (1971) 3 SCC 577
[2]    AIR 1934 PC 227
[3]    AIR  1945 PC 151
[4]    AIR 1952 SC 52
[5]    AIR 1961 SC 715
[6]     (1972) 1 SCC 107
[7]     (1973) 2 SCC 793
[8]     (2005) 9 SCC 291
[9]     (2004) 13 SCC 257
[10]    (2007) 7 SCC 625
[11]    (2011) 2 SCC 83
[12]   (2007) 4 SCC 415
[13]    (1985) 1 SCC 505
[14]    (1999) 8 SCC 649
[15]    (1988) Supp SCC 241
[16]    (1998)  3 SCC 561
[17]   (1893) 6 R 67

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