{"id":162194,"date":"2004-10-15T00:00:00","date_gmt":"2004-10-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shashidhar-purandhar-hegde-and-vs-state-of-karnataka-on-15-october-2004"},"modified":"2017-12-09T14:13:47","modified_gmt":"2017-12-09T08:43:47","slug":"shashidhar-purandhar-hegde-and-vs-state-of-karnataka-on-15-october-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shashidhar-purandhar-hegde-and-vs-state-of-karnataka-on-15-october-2004","title":{"rendered":"Shashidhar Purandhar Hegde And … vs State Of Karnataka on 15 October, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shashidhar Purandhar Hegde And … vs State Of Karnataka on 15 October, 2004<\/div>\n
Author: Arijit Pasayat<\/div>\n
Bench: Arijit Pasayat, C.K. Thakker<\/div>\n
           CASE NO.:\nAppeal (crl.)  748 of 1999\n\nPETITIONER:\nShashidhar Purandhar Hegde and Anr.\n\nRESPONDENT:\nState of Karnataka\n\nDATE OF JUDGMENT: 15\/10\/2004\n\nBENCH:\nARIJIT PASAYAT & C.K. THAKKER\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT, J<\/p>\n
\tThe appellants faced trial for alleged commission of offences
\npunishable under Sections 363, 368, 506 and 507 read with Section 34 of
\nthe Indian Penal Code, 1860 (in short the ‘IPC’). The trial Court
\ndirected acquittal of the present appellants being of the view that the
\naccusations have not been established. In appeal by the State, by the
\nimpugned judgment the High Court held that the appellants were guilty
\nof offences punishable under Section 363 read with Section 34 IPC and
\nwere also liable to pay a fine of Rs.1,000\/-. Appellant No.1
\nadditionally was sentenced to undergo imprisonment for three months on
\neach count for the offences punishable under Sections 506 and 507 IPC.
\nIt was directed that in case the fine is paid, a sum of Rs.1,000\/- was
\nto be paid to Niranjan (PW-3) the victim. The appellants are described
\nas A-1 and A-2 hereinafter.\n<\/p>\n
\tThe background facts and the findings of the trial Court are as
\nfollows:\n<\/p>\n
\tNiranjan (PW-3) is the son of Sudhakar Kamat (PW-1) and was
\nstudying in St. Anthony’s school. PW-3 was a minor then. On 16.2.1989
\nat about 4.00 p.m. when Niranjan (PW-3) was in his class, his friend
\nSachin informed him that somebody wants to see him. Accordingly, PW-3
\nwent out of his class room and saw A-1 standing near a motor-bike. He
\ntold PW-3 that Dr. Prabhu who is PW-3’s brother-in-law had asked him to
\ntake PW-3 whereupon PW-3 told him that he could not go out without the
\npermission of his teacher. A-1 told him that he had already taken
\npermission from his class teacher. Thereafter, he was taken in his
\nmotor-bike as a pillion rider. When they reached the 5th Main Road, A-2
\nwas there. All the three of them went by motor-bike. Though PW-3
\nrequested them that he would keep his school bag in his house, A-1 did
\nnot agree and he was taken away. Thereafter, they went into a forest
\nfor about 2 furlongs where A-1 collected his phone number. When PW-3
\nenquired about his brother-in-law-Dr. Prabhu, A-1 told him that he
\nwould find out about his brother-in-law. At about 6.30 p.m. A-1 came
\nback and discussed something privately with A-2. Then A-2 told him that
\nhe had lost his ring and so saying he went to search for the lost ring.
\nHowever, PW-3 became suspicious and asked A-1 to take him to his house.
\nBut A-1 assured him that after A-2 returned, they would go. When PW-3
\ninsisted he threatened him saying that there was a ghost in that place
\nwhich made him to cry. At that time A-1 threatened him by showing a
\nknife saying that he would stab him.\n<\/p>\n
\tAfter some time one Nagapathy brought A-2 holding him. A-1
\ndragged PW-3 inside the forest and hid him covering his mouth with his
\nhands. PW-3 had made some sound with his legs as he heard the voice of
\nNarasimha Barakura (PW-5) who is his brother’s friend. Then they
\nflashed a torch light and saw that PW-3 was being held by A-1.
\nImmediately they apprehended A-1. Thereafter, all the persons came to
\nthe house of PW-1 and subsequently they produced him before police. (So
\nthe evidence of PW-3 gives a clear picture as to how these accused
\npersons kidnapped him and held him in the forest.) In the meantime, PW-
\n1 had been informed over the phone by A-1 that he had kidnapped his
\nchild and he would be killed if he failed to pay Rs.3 lakhs. The fact
\nthat A-1 had telephoned at about 4.30 p.m. is spoken to by Rajendra
\n(PW-7) who is a rice mill owner and also P.V. Hegde (PW-11) who is
\nworking as a manager in the shop. According to PW-11 at 6.00 p.m. A-1
\ntelephoned to some one. It is no doubt true both PWs 7 and 11 could not
\nknow what he had spoken or to whom he had telephoned. But the fact
\nremains that he had telephoned and those calls were received by PW-1
\nwho is none other than the father of PW-3. He had clearly stated that
\nthe person who had spoken over the telephone had demanded a lump sum of
\nRs.3 lakhs for returning his child, lest he would be killed. PW-1 was
\nalso informed that he had to keep the money in a place where kumkum and
\nlemon were placed and he had also mentioned the place where exactly
\nthat rock was located. He was also threatened that if he reported the
\nmatter to the police, he would be done to death. Therefore, he could
\nnot immediately inform the matter to the police. However, he mustered
\ncourage and telephoned his nephew Sri Prakash who came to him with his
\nfriend Narasimha Barakura (PW-5). Thereafter, they all went to the
\nschool and enquired from one teacher and also the friends of PW-3. They
\nlearnt as to what had happened to PW-3. Therefore, this fact was
\ninformed to these witnesses and they went to the indicated place and
\nverified where they found the ‘kumkum’ and lemon kept near a rock.
\nAfter verifying this, they came back and collected some fake currency
\nnotes and put it in a bag and returned to the same spot where this
\nkumkum and lemon was kept, they left the bag there and kept watch on
\nthe ground.  At about 6.30 p.m. A-2 came to the spot and he was
\nattempting to take the bag kept by these witnesses. In the meantime,
\nthese persons caught hold of him and on enquiry he revealed that A-1
\nwas holding PW-3. Accordingly, all of them took A-2 to that place and
\napprehended A-1 who was holding PW-3 as stated above. Information was
\nlodged with police and the apprehended accused persons were handed over
\nto police. After investigation was completed, charge sheet was filed.
\nAccused persons pleaded innocence. The above version was unfolded
\nduring trial.\n<\/p>\n
Learned Judge was satisfied that they have stated the true facts
\nas to what had happened. However, he found fault with the manner in
\nwhich they had dealt with the matter.  According to the learned
\nMagistrate, these petitioners should have taken police assistance
\nbefore apprehending the accused. He therefore directed acquittal. State
\nfiled an appeal before the High Court. Stand of the State was that
\nacting on surmises and ignoring vital evidence, the trial Court had
\ndirected acquittal. Accused persons supported the trial Court’s order.\n<\/p>\n
High Court held that PW-1 was already threatened that if he
\ninformed the matter to the police, he would be done to death and that
\nhis men were near his house, etc. Besides that they were interested to
\nsave the child and if they ventured to go to the police station, they
\ncould not visualize the consequences that would happen to the child. It
\nheld that the learned Magistrate instead of commending their good work
\nfound fault with PWs 2, 4, 5 and 6 who saved the life of the child in
\ntheir own way. Though in the evidence of these witnesses there were
\nminor discrepancies here and there, duty of the Court is to find out
\nwhether their evidence in totality can be accepted. From a careful
\nscrutiny of the evidence, the High Court was fully satisfied that their
\nevidence is most natural and they had absolutely no axe to grind
\nagainst A-1 and A-2 and they have no ill will against them.  PW-3 who
\nis a victim has given a clear picture as to how he was kidnapped and
\nhow he was confined in the forest and how they contacted his father PW-\n<\/p>\n
1. A-1 had used their telephone between 4.30 and 6.00 p.m. which would
\nindicate that he had contacted PW-1. In addition to that nothing could
\nbe elicited as to why their evidence cannot be accepted.  Therefore,
\nthe learned Judge was of the considered view that evidence of these
\nwitnesses is worthy of acceptance. The learned Magistrate had found
\nsome discrepancies in the evidence of PWs 8, 12 and 22 who were the
\nclassmates and friends of PW-3. They had stated as to what they had
\nseen on that particular day and also the manner in which A-1 came to
\nmeet PW-3. PW-9 had stated that A-1 had purchased kumkum from his shop.
\nPW-10 was examined to show that A-1 had purchased lemon from his shop,
\nbut he turned hostile. This would not in any way demolish the case of
\nthe prosecution. The presence of ‘kumkum’ at the place of incident and
\nalso the lemon were spoken to by the witnesses and it is not in
\ndispute. A-1 and A-2 are not strangers. PW-3 went on the motor bike of
\nA-1 without knowing his bad intention and believing his representation.
\nSrinivasa Verneker (PW-8) knows A-1 by name as his father used to take
\npetrol from his petrol bunk. He had even seen A-1 taking PW-3 in his
\nred motor-bike. Sumanth (PW-12) has stated that A-1 had gone to his
\nschool on that day in his red motor-bike. Fernandese (PW-13) the school
\nteacher of PW-3 stated that when he was in the class, someone wanted to
\nmeet PW-3 and therefore he asked PW-3 to talk to him. He also stated
\nthat he saw A-1 talking to PW-3. Ariyan (PW-17) is the Head Mistress of
\nPW-3. She has stated that no one had taken permission to take away PW-3
\nfrom the school. Therefore, it is clear that PW-3 was removed from the
\nschool without the prior permission of the Head Mistress (PW-17) or PW-
\n13, the teacher of PW-3. Janardhan (PW-20) is working as the clerk in
\nthe shop of PW-1. He had seen PW-1 speaking over the phone on 16.2.1989
\nin Hindi and PW-1 looked scared. PW-1 told him that his son was
\nkidnapped and the kidnapper was demanding Rs.3 lakhs to release his
\nson, which payment would have to be made near Kerki. This evidence
\ncoupled with the fact that A-1 and A-2 were apprehended at the place,
\ncorroborates the case of the prosecution. He also deposed that PW-1
\ntelephoned to Prakash Kamath. PW-21 is the owner of the motor bike
\nwhich was borrowed by A-1 to kidnap PW-3 on 16.2.1989. An attempt was
\nmade to show that he had borrowed the motor bike at about 7.00 p.m. but
\nthe time factor is not very material when there was sufficient material
\nto show that the said motor bike was used for taking away the victim
\nboy. Sachin (PW-21) also speaks about A-1 going to his school and
\nenquiring about PW-3 and thereafter taking PW-3 along with him. He also
\nsays that A-1 had come on a red motor bike. PW-23 Seetharam had seen A-
\n1 with others near Kerki and he learnt that PW-3 was kidnapped by A-1.
\nPW-24 Mahadev, ASI has received the complaint and registered the case
\non 16.2.1989 at about 11.45 p.m. and prepared the FIR. Narasimha
\nBakakura, Lateef and Govind produced before him the accused and also
\nPW-3. He searched the person of A-1 and found one hand bag and a shirt.
\nInside that there was a bag which had small ropes and a knife. He has
\nidentified all the M.Os. marked in this case which were seized from the
\nA-1 as per Mahazar (Ex.P-3). He also produced Niranjan (PW-3) to the
\nCourt and thereafter the Court had given the custody of the victim boy
\nto his parents. Therefore, this evidence also clearly discloses that
\nthere is sufficient material to show that A-1 and A-2 are responsible
\nfor kidnapping PW-3 and also they demanded ransom from PW-1. They had
\nalso threatened PWs 1 and 3. After having carefully scrutinized the
\nevidence as indicated above, the learned Judge was fully satisfied that
\nthe learned Magistrate had committed an error in rejecting the evidence
\nof these witnesses. These witnesses have given a true picture and there
\nmay be some discrepancies which would not go to the root of the case.
\nThe learned Magistrate had also taken a serious note of certain
\ninconsistent statements made by the witnesses in regard to approaching
\nPW-3 and also PWs 2, 4, 5 and 6 apprehending these accused. But PW-3’s
\nevidence is directly on the point.\n<\/p>\n
\tThe High Court held that the approach of the trial Court was
\nclearly erroneous. The cogent and credible evidence of PW-3 and PW-1,
\nthe father was not considered in the proper perspective; there was
\nnothing to doubt the roles played by PWs 2, 4, 5 and 6 which the trial
\nCourt erroneously came to hold to be suspicious and not in conformity
\nwith law.  Accordingly the judgment of the trial Court was set aside
\nand the appellants were convicted as afore-noted.\n<\/p>\n
\tIn support of the appeal, Mr. Sushil Kumar, learned senior
\ncounsel submitted that the trial Court had analysed the evidence in
\ngreat detail and had come to the right conclusion about the fallacies
\nin the prosecution evidence.  It has been clearly established that the
\nwitnesses were not speaking the truth. Though the criminal antecedents
\nof a witness are not always sufficient to discard his evidence, yet the
\ntrial Court acted not only on the antecedents but also on the
\nimprobabilities highlighted by the defence. There are many suspicious
\ncircumstances as to when the FIR was lodged to the police. There are
\nunexplained contradictions on that score. The class-mates of the
\nalleged victim (PW-3) were also not consistent as to the manner in
\nwhich the victim was supposedly taken from the school. If in reality A-
\n2 was caught by the these persons as claimed there was no reason as to
\nwhy the police was not informed thereafter and  the witnesses took upon
\nthemselves the task of capturing A-1. The evidence shows as if A-2 was
\ntaken to the police station first and the evidence of PWs. 2, 4, 5 and
\n6 contradicts each other. Since the trial Court recorded a view which
\nis a possible view, the High Court without compelling reasons should
\nnot have upset it.\n<\/p>\n
\tIn response, learned counsel for the State submitted that the
\nscenario as projected by the prosecution has been clearly established
\nby the evidence of the witnesses. Most important is the testimony of
\nPW-3, the victim. In spite of detailed and incisive cross examination
\nnothing material has been brought out to discard his evidence. It has
\nalso been established that a telephonic call was made regarding demand
\nto PW-1. Merely because the witnesses themselves went out to catch A-1
\nthat does not affect the credibility of their evidence. Mere fact that
\nthey did not inform the police, the reason for which has also been
\nindicated, the trial Court had erroneously directed acquittal
\ndiscarding the credible prosecution version.\n<\/p>\n
\tThe evidence of the witnesses cannot be discarded merely because
\nthey first made attempt to find out whether the place where the kumkum
\nand lemon were kept was the place where the accused persons had hidden
\nPW-3  The class mates of the victim have given proper identification of
\nthe accused by their description.  This clearly corroborates the
\nevidence of PW-3 and since his evidence is cogent and credible the
\ntrial Court had erroneously directed acquittal of the accused persons
\nand the High Court has rightly directed the conviction.\n<\/p>\n
The respective stands need careful consideration.  There is no
\nembargo on the appellate Court reviewing the evidence upon which an
\norder of acquittal is based.  Generally, the order of acquittal shall
\nnot be interfered with because the presumption of innocence of the
\naccused is further strengthened by acquittal. The golden thread which
\nruns through the web of administration of justice in criminal cases is
\nthat if two views are possible on the evidence adduced in the case, one
\npointing to the guilt of the accused and the other to his innocence,
\nthe view which is favourable to the accused should be adopted. The
\nparamount consideration of the Court is to ensure that miscarriage of
\njustice is prevented. A miscarriage of justice which may arise from
\nacquittal of the guilty is no less than from the conviction of an
\ninnocent. In a case where admissible evidence is ignored, a duty is
\ncast upon the appellate Court to re-appreciate the evidence where the
\naccused has been acquitted, for the purpose of ascertaining as to
\nwhether any of the accused really committed any offence or not. [See
\nBhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme\n<\/p>\n
567). The principle to be followed by appellate Court considering the
\nappeal against the judgment of acquittal is to interfere only when
\nthere are compelling and substantial reasons for doing so.  If the
\nimpugned judgment is clearly unreasonable and relevant and convincing
\nmaterials have been unjustifiably eliminated in the process, it is a
\ncompelling reason for interference. These aspects were highlighted by
\nthis Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra
\n(AIR<\/a> 1973  SC 2622), Ramesh Babulal Doshi v. State of Gujarat<\/a> (1996 (4)
\nSupreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320),
\nRaj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152),
\nState of Punjab v. Karnail Singh<\/a> (2003 (5) Supreme 508 and State of
\nPunjab v. Pohla Singh and Anr.<\/a> (2003 (7) Supreme 17).\n<\/p>\n
\tIn the instant case it is to be noted that the discrepancies
\nwhich were highlighted by learned counsel for the appellants are merely
\ntrivial in nature. Minor discrepancies cannot be termed as
\ncontradictions unless it   affects the credibility of the evidence
\ntendered by a witness.\n<\/p>\n
\tThe word  ‘contradiction’  is of a wide connotation which takes
\nwithin its ambit all material omissions and under the circumstances of
\na case a court can decide whether there is one such omission as to
\namount to contradiction. [(See State of Maharashtra v. Bharat Chaganlal
\nRaghani and Ors.<\/a> (2001 (9) SCC 1),  Raj Kishore Jha v. State of Bihar
\n(JT (2003) Supp (2) 354)].  The Explanation to Section 162 of the Code
\nof Criminal Procedure, 1973 (in short the ‘Code’) is relevant.
\n‘Contradiction’ means the setting of one statement against another and
\nnot the setting up of a statement against nothing at all. As noted in
\nTahsildar Singh v. State of U.P. (AIR 1959 SC 1012) all omissions are
\nnot contradictions. As the Explanation to Section 162 of the Code
\nshows, an omission to state a fact or circumstance in the statement
\nreferred to in sub-section (1) may amount to contradiction if the same
\nappears to be significant or otherwise relevant having regard to the
\ncontext in which the omission occurs. The provision itself makes it
\nclear that whether any omission amounts to contradiction in the
\nparticular context is a question of fact.\n<\/p>\n
\tIt is of great relevance that the evidence of PW-3 has not been
\nshakened.  Added to that is the evidence of PW-1 the father. Merely
\nbecause some of the witnesses are involved in criminal cases that may
\nat the most warrant a close scrutiny of their evidence but not total
\nrejection.  The High Court has as noted above analysed the evidence in
\ngreat detail and arrived at the correct conclusions. Unfortunately, the
\ntrial Court did not examine the evidence in proper perspective.\n<\/p>\n
\tInterference is called for when instead of dealing with intrinsic
\nmerits of the evidence the Court brushes aside the same on surmises and
\nconjectures and preponderance of improbabilities which in fact did not
\nexist. The intrinsic and probative value of the evidence was clearly
\nover-looked by the trial Court and, therefore, the High Court was
\njustified in interfering with the judgment of the trial Court. The
\nanalysis done by the High Court is correct. That being so, the impugned
\njudgment does not suffer from any infirmity to warrant our
\ninterference. The appeal fails and is dismissed.  The accused-
\nappellants shall surrender to custody forthwith to serve the remainder
\nof sentence.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shashidhar Purandhar Hegde And … vs State Of Karnataka on 15 October, 2004 Author: Arijit Pasayat Bench: Arijit Pasayat, C.K. Thakker 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-162194","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShashidhar Purandhar Hegde And ... vs State Of Karnataka on 15 October, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shashidhar-purandhar-hegde-and-vs-state-of-karnataka-on-15-october-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shashidhar Purandhar Hegde And ... vs State Of Karnataka on 15 October, 2004 - 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