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.
-----------------------
[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
-----------------------
30
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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