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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.