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Reportable

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

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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 ½  

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,  

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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  

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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  

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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  

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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  

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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  

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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.    

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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-

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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  

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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  

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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  

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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.P1 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  

1 (1971) 3 SCC 577

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against acquittal was formulated by the Judicial  Committee of the Privy Council in  Sheo Swarup  v.  King  Emperor2 and  Nur  Mohammad  v.  Emperor3.  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.  State4 and  Sanwat Singh v. State of Rajasthan5).”

14. Similar  view  has  been  expressed  in  

Damodarprasad  Chandrikaprasad  V.  State  of  

Maharashtra6,  Shivaji Sahabrao Bobade V. State of  

Maharashtra7,  State  of  Karnataka  V.  K.   

Gopalakrishna8,  Anil Kumar V. State of U.P.9,  Girja  

Prasad V. State of M.P.10 and  S. Ganesan V. Rama  

Raghuraman11.

15. In  this  regard,  we  may fruitfully  remind ourselves  

the  principles  culled  out  in  Chandrappa  v.  State  of  

Karnataka12 :

“42. From the above decisions, in our considered  view, the following general principles regarding  

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

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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 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.

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(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 ½ 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  

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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  

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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  

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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  ½  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  

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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  

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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. Anthony13, Rammi v. State of M.P.14 and  

Appabhai V. State of Gujarat15]

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  

13  (1985) 1 SCC 505 14  (1999) 8 SCC 649 15  (1988) Supp SCC 241

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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  

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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  

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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  

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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  

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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-

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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 Singh16,  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.

16  (1998)  3 SCC 561

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14. The  oft-quoted  observation  of  Lord  Herschell,  L.C.  in  Browne v.  Dunn17 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-

17 (1893) 6 R 67

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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.  

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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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