Full Judgment Text
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CASE NO.:
Appeal (crl.) 748 of 1999
PETITIONER:
Shashidhar Purandhar Hegde and Anr.
RESPONDENT:
State of Karnataka
DATE OF JUDGMENT: 15/10/2004
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J
The appellants faced trial for alleged commission of offences
punishable under Sections 363, 368, 506 and 507 read with Section 34 of
the Indian Penal Code, 1860 (in short the ’IPC’). The trial Court
directed acquittal of the present appellants being of the view that the
accusations have not been established. In appeal by the State, by the
impugned judgment the High Court held that the appellants were guilty
of offences punishable under Section 363 read with Section 34 IPC and
were also liable to pay a fine of Rs.1,000/-. Appellant No.1
additionally was sentenced to undergo imprisonment for three months on
each count for the offences punishable under Sections 506 and 507 IPC.
It was directed that in case the fine is paid, a sum of Rs.1,000/- was
to be paid to Niranjan (PW-3) the victim. The appellants are described
as A-1 and A-2 hereinafter.
The background facts and the findings of the trial Court are as
follows:
Niranjan (PW-3) is the son of Sudhakar Kamat (PW-1) and was
studying in St. Anthony’s school. PW-3 was a minor then. On 16.2.1989
at about 4.00 p.m. when Niranjan (PW-3) was in his class, his friend
Sachin informed him that somebody wants to see him. Accordingly, PW-3
went out of his class room and saw A-1 standing near a motor-bike. He
told PW-3 that Dr. Prabhu who is PW-3’s brother-in-law had asked him to
take PW-3 whereupon PW-3 told him that he could not go out without the
permission of his teacher. A-1 told him that he had already taken
permission from his class teacher. Thereafter, he was taken in his
motor-bike as a pillion rider. When they reached the 5th Main Road, A-2
was there. All the three of them went by motor-bike. Though PW-3
requested them that he would keep his school bag in his house, A-1 did
not agree and he was taken away. Thereafter, they went into a forest
for about 2 furlongs where A-1 collected his phone number. When PW-3
enquired about his brother-in-law-Dr. Prabhu, A-1 told him that he
would find out about his brother-in-law. At about 6.30 p.m. A-1 came
back and discussed something privately with A-2. Then A-2 told him that
he had lost his ring and so saying he went to search for the lost ring.
However, PW-3 became suspicious and asked A-1 to take him to his house.
But A-1 assured him that after A-2 returned, they would go. When PW-3
insisted he threatened him saying that there was a ghost in that place
which made him to cry. At that time A-1 threatened him by showing a
knife saying that he would stab him.
After some time one Nagapathy brought A-2 holding him. A-1
dragged PW-3 inside the forest and hid him covering his mouth with his
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hands. PW-3 had made some sound with his legs as he heard the voice of
Narasimha Barakura (PW-5) who is his brother’s friend. Then they
flashed a torch light and saw that PW-3 was being held by A-1.
Immediately they apprehended A-1. Thereafter, all the persons came to
the house of PW-1 and subsequently they produced him before police. (So
the evidence of PW-3 gives a clear picture as to how these accused
persons kidnapped him and held him in the forest.) In the meantime, PW-
1 had been informed over the phone by A-1 that he had kidnapped his
child and he would be killed if he failed to pay Rs.3 lakhs. The fact
that A-1 had telephoned at about 4.30 p.m. is spoken to by Rajendra
(PW-7) who is a rice mill owner and also P.V. Hegde (PW-11) who is
working as a manager in the shop. According to PW-11 at 6.00 p.m. A-1
telephoned to some one. It is no doubt true both PWs 7 and 11 could not
know what he had spoken or to whom he had telephoned. But the fact
remains that he had telephoned and those calls were received by PW-1
who is none other than the father of PW-3. He had clearly stated that
the person who had spoken over the telephone had demanded a lump sum of
Rs.3 lakhs for returning his child, lest he would be killed. PW-1 was
also informed that he had to keep the money in a place where kumkum and
lemon were placed and he had also mentioned the place where exactly
that rock was located. He was also threatened that if he reported the
matter to the police, he would be done to death. Therefore, he could
not immediately inform the matter to the police. However, he mustered
courage and telephoned his nephew Sri Prakash who came to him with his
friend Narasimha Barakura (PW-5). Thereafter, they all went to the
school and enquired from one teacher and also the friends of PW-3. They
learnt as to what had happened to PW-3. Therefore, this fact was
informed to these witnesses and they went to the indicated place and
verified where they found the ’kumkum’ and lemon kept near a rock.
After verifying this, they came back and collected some fake currency
notes and put it in a bag and returned to the same spot where this
kumkum and lemon was kept, they left the bag there and kept watch on
the ground. At about 6.30 p.m. A-2 came to the spot and he was
attempting to take the bag kept by these witnesses. In the meantime,
these persons caught hold of him and on enquiry he revealed that A-1
was holding PW-3. Accordingly, all of them took A-2 to that place and
apprehended A-1 who was holding PW-3 as stated above. Information was
lodged with police and the apprehended accused persons were handed over
to police. After investigation was completed, charge sheet was filed.
Accused persons pleaded innocence. The above version was unfolded
during trial.
Learned Judge was satisfied that they have stated the true facts
as to what had happened. However, he found fault with the manner in
which they had dealt with the matter. According to the learned
Magistrate, these petitioners should have taken police assistance
before apprehending the accused. He therefore directed acquittal. State
filed an appeal before the High Court. Stand of the State was that
acting on surmises and ignoring vital evidence, the trial Court had
directed acquittal. Accused persons supported the trial Court’s order.
High Court held that PW-1 was already threatened that if he
informed the matter to the police, he would be done to death and that
his men were near his house, etc. Besides that they were interested to
save the child and if they ventured to go to the police station, they
could not visualize the consequences that would happen to the child. It
held that the learned Magistrate instead of commending their good work
found fault with PWs 2, 4, 5 and 6 who saved the life of the child in
their own way. Though in the evidence of these witnesses there were
minor discrepancies here and there, duty of the Court is to find out
whether their evidence in totality can be accepted. From a careful
scrutiny of the evidence, the High Court was fully satisfied that their
evidence is most natural and they had absolutely no axe to grind
against A-1 and A-2 and they have no ill will against them. PW-3 who
is a victim has given a clear picture as to how he was kidnapped and
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how he was confined in the forest and how they contacted his father PW-
1. A-1 had used their telephone between 4.30 and 6.00 p.m. which would
indicate that he had contacted PW-1. In addition to that nothing could
be elicited as to why their evidence cannot be accepted. Therefore,
the learned Judge was of the considered view that evidence of these
witnesses is worthy of acceptance. The learned Magistrate had found
some discrepancies in the evidence of PWs 8, 12 and 22 who were the
classmates and friends of PW-3. They had stated as to what they had
seen on that particular day and also the manner in which A-1 came to
meet PW-3. PW-9 had stated that A-1 had purchased kumkum from his shop.
PW-10 was examined to show that A-1 had purchased lemon from his shop,
but he turned hostile. This would not in any way demolish the case of
the prosecution. The presence of ’kumkum’ at the place of incident and
also the lemon were spoken to by the witnesses and it is not in
dispute. A-1 and A-2 are not strangers. PW-3 went on the motor bike of
A-1 without knowing his bad intention and believing his representation.
Srinivasa Verneker (PW-8) knows A-1 by name as his father used to take
petrol from his petrol bunk. He had even seen A-1 taking PW-3 in his
red motor-bike. Sumanth (PW-12) has stated that A-1 had gone to his
school on that day in his red motor-bike. Fernandese (PW-13) the school
teacher of PW-3 stated that when he was in the class, someone wanted to
meet PW-3 and therefore he asked PW-3 to talk to him. He also stated
that he saw A-1 talking to PW-3. Ariyan (PW-17) is the Head Mistress of
PW-3. She has stated that no one had taken permission to take away PW-3
from the school. Therefore, it is clear that PW-3 was removed from the
school without the prior permission of the Head Mistress (PW-17) or PW-
13, the teacher of PW-3. Janardhan (PW-20) is working as the clerk in
the shop of PW-1. He had seen PW-1 speaking over the phone on 16.2.1989
in Hindi and PW-1 looked scared. PW-1 told him that his son was
kidnapped and the kidnapper was demanding Rs.3 lakhs to release his
son, which payment would have to be made near Kerki. This evidence
coupled with the fact that A-1 and A-2 were apprehended at the place,
corroborates the case of the prosecution. He also deposed that PW-1
telephoned to Prakash Kamath. PW-21 is the owner of the motor bike
which was borrowed by A-1 to kidnap PW-3 on 16.2.1989. An attempt was
made to show that he had borrowed the motor bike at about 7.00 p.m. but
the time factor is not very material when there was sufficient material
to show that the said motor bike was used for taking away the victim
boy. Sachin (PW-21) also speaks about A-1 going to his school and
enquiring about PW-3 and thereafter taking PW-3 along with him. He also
says that A-1 had come on a red motor bike. PW-23 Seetharam had seen A-
1 with others near Kerki and he learnt that PW-3 was kidnapped by A-1.
PW-24 Mahadev, ASI has received the complaint and registered the case
on 16.2.1989 at about 11.45 p.m. and prepared the FIR. Narasimha
Bakakura, Lateef and Govind produced before him the accused and also
PW-3. He searched the person of A-1 and found one hand bag and a shirt.
Inside that there was a bag which had small ropes and a knife. He has
identified all the M.Os. marked in this case which were seized from the
A-1 as per Mahazar (Ex.P-3). He also produced Niranjan (PW-3) to the
Court and thereafter the Court had given the custody of the victim boy
to his parents. Therefore, this evidence also clearly discloses that
there is sufficient material to show that A-1 and A-2 are responsible
for kidnapping PW-3 and also they demanded ransom from PW-1. They had
also threatened PWs 1 and 3. After having carefully scrutinized the
evidence as indicated above, the learned Judge was fully satisfied that
the learned Magistrate had committed an error in rejecting the evidence
of these witnesses. These witnesses have given a true picture and there
may be some discrepancies which would not go to the root of the case.
The learned Magistrate had also taken a serious note of certain
inconsistent statements made by the witnesses in regard to approaching
PW-3 and also PWs 2, 4, 5 and 6 apprehending these accused. But PW-3’s
evidence is directly on the point.
The High Court held that the approach of the trial Court was
clearly erroneous. The cogent and credible evidence of PW-3 and PW-1,
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the father was not considered in the proper perspective; there was
nothing to doubt the roles played by PWs 2, 4, 5 and 6 which the trial
Court erroneously came to hold to be suspicious and not in conformity
with law. Accordingly the judgment of the trial Court was set aside
and the appellants were convicted as afore-noted.
In support of the appeal, Mr. Sushil Kumar, learned senior
counsel submitted that the trial Court had analysed the evidence in
great detail and had come to the right conclusion about the fallacies
in the prosecution evidence. It has been clearly established that the
witnesses were not speaking the truth. Though the criminal antecedents
of a witness are not always sufficient to discard his evidence, yet the
trial Court acted not only on the antecedents but also on the
improbabilities highlighted by the defence. There are many suspicious
circumstances as to when the FIR was lodged to the police. There are
unexplained contradictions on that score. The class-mates of the
alleged victim (PW-3) were also not consistent as to the manner in
which the victim was supposedly taken from the school. If in reality A-
2 was caught by the these persons as claimed there was no reason as to
why the police was not informed thereafter and the witnesses took upon
themselves the task of capturing A-1. The evidence shows as if A-2 was
taken to the police station first and the evidence of PWs. 2, 4, 5 and
6 contradicts each other. Since the trial Court recorded a view which
is a possible view, the High Court without compelling reasons should
not have upset it.
In response, learned counsel for the State submitted that the
scenario as projected by the prosecution has been clearly established
by the evidence of the witnesses. Most important is the testimony of
PW-3, the victim. In spite of detailed and incisive cross examination
nothing material has been brought out to discard his evidence. It has
also been established that a telephonic call was made regarding demand
to PW-1. Merely because the witnesses themselves went out to catch A-1
that does not affect the credibility of their evidence. Mere fact that
they did not inform the police, the reason for which has also been
indicated, the trial Court had erroneously directed acquittal
discarding the credible prosecution version.
The evidence of the witnesses cannot be discarded merely because
they first made attempt to find out whether the place where the kumkum
and lemon were kept was the place where the accused persons had hidden
PW-3 The class mates of the victim have given proper identification of
the accused by their description. This clearly corroborates the
evidence of PW-3 and since his evidence is cogent and credible the
trial Court had erroneously directed acquittal of the accused persons
and the High Court has rightly directed the conviction.
The respective stands need careful consideration. There is no
embargo on the appellate Court reviewing the evidence upon which an
order of acquittal is based. Generally, the order of acquittal shall
not be interfered with because the presumption of innocence of the
accused is further strengthened by acquittal. The golden thread which
runs through the web of administration of justice in criminal cases is
that if two views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his innocence,
the view which is favourable to the accused should be adopted. The
paramount consideration of the Court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may arise from
acquittal of the guilty is no less than from the conviction of an
innocent. In a case where admissible evidence is ignored, a duty is
cast upon the appellate Court to re-appreciate the evidence where the
accused has been acquitted, for the purpose of ascertaining as to
whether any of the accused really committed any offence or not. [See
Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme
567). The principle to be followed by appellate Court considering the
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appeal against the judgment of acquittal is to interfere only when
there are compelling and substantial reasons for doing so. If the
impugned judgment is clearly unreasonable and relevant and convincing
materials have been unjustifiably eliminated in the process, it is a
compelling reason for interference. These aspects were highlighted by
this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra
(AIR 1973 SC 2622), Ramesh Babulal Doshi v. State of Gujarat (1996 (4)
Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320),
Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152),
State of Punjab v. Karnail Singh (2003 (5) Supreme 508 and State of
Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17).
In the instant case it is to be noted that the discrepancies
which were highlighted by learned counsel for the appellants are merely
trivial in nature. Minor discrepancies cannot be termed as
contradictions unless it affects the credibility of the evidence
tendered by a witness.
The word ’contradiction’ is of a wide connotation which takes
within its ambit all material omissions and under the circumstances of
a case a court can decide whether there is one such omission as to
amount to contradiction. [(See State of Maharashtra v. Bharat Chaganlal
Raghani and Ors. (2001 (9) SCC 1), Raj Kishore Jha v. State of Bihar
(JT (2003) Supp (2) 354)]. The Explanation to Section 162 of the Code
of Criminal Procedure, 1973 (in short the ’Code’) is relevant.
’Contradiction’ means the setting of one statement against another and
not the setting up of a statement against nothing at all. As noted in
Tahsildar Singh v. State of U.P. (AIR 1959 SC 1012) all omissions are
not contradictions. As the Explanation to Section 162 of the Code
shows, an omission to state a fact or circumstance in the statement
referred to in sub-section (1) may amount to contradiction if the same
appears to be significant or otherwise relevant having regard to the
context in which the omission occurs. The provision itself makes it
clear that whether any omission amounts to contradiction in the
particular context is a question of fact.
It is of great relevance that the evidence of PW-3 has not been
shakened. Added to that is the evidence of PW-1 the father. Merely
because some of the witnesses are involved in criminal cases that may
at the most warrant a close scrutiny of their evidence but not total
rejection. The High Court has as noted above analysed the evidence in
great detail and arrived at the correct conclusions. Unfortunately, the
trial Court did not examine the evidence in proper perspective.
Interference is called for when instead of dealing with intrinsic
merits of the evidence the Court brushes aside the same on surmises and
conjectures and preponderance of improbabilities which in fact did not
exist. The intrinsic and probative value of the evidence was clearly
over-looked by the trial Court and, therefore, the High Court was
justified in interfering with the judgment of the trial Court. The
analysis done by the High Court is correct. That being so, the impugned
judgment does not suffer from any infirmity to warrant our
interference. The appeal fails and is dismissed. The accused-
appellants shall surrender to custody forthwith to serve the remainder
of sentence.