What is effect of absence of cross examination on any point?

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-
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.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1401 OF 2008
Vinod Kumar

Versus
State of Haryana
Dated;JANUARY 08, 2015.
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
Page 1
2
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 1⁄2
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,
Page 2
3
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
Manphul.
by
Santosh,
PW-2,
and
her
father-in-law,
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
Page 3
4
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
Page 4
5
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
Page 5
6
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
Page 6
7
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
Page 7
8
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.
Page 8
9
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-
Page 9
1
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
Page 10
1
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,
interference by this Court.
therefore,
it
warrants
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
Page 11
1
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
Page 12
1
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.P 1 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
Page 13
1
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
Damodarprasad
has
been
Chandrikaprasad
expressed in
V. of
State
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
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
3
Page 14
1
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.
Page 15
1
(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 1⁄2 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
Page 16
1
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
Page 17
1
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
Page 18
1
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 1⁄2 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
Page 19
2
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
Page 20
2
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
14
15
(1985) 1 SCC 505
(1999) 8 SCC 649
(1988) Supp SCC 241
Page 21
2
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
Page 22
2
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
Page 23
2
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
Page 24
2
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
Page 25
2
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-
Page 26
2
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 Singh 16, 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
Page 27
2
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
Page 28
2
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.
Page 29
3
26. Tested from the aforesaid angles, we are disposed to
think that the judgment of reversal by the High Court is
absolutely
defensible
interference.
and
does
not
warrant
any
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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