Shashidhar Purandhar Hegde
and Anr Vs. State of
Karnataka
[2004] Insc 648 (15 October 2004)
Arijit Pasayat & C.K.
Thakker 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 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 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, 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 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.
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