State Of Karnataka vs Shantappa Madivalappa Galapuji & Ors

State of Karnataka ...Appellant

Versus

Shantappa Madivalappa Galapuji and Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is by the State of Karnataka to the judgment

of a Division Bench of the Karnataka High Court allowing the appeal filed

by the respondents. Four respondents faced trial for alleged commission of

offences punishable under Sections 302 and 201 read with Section 34 of the

Indian Penal Code, 1860 (in short the `IPC') and were sentenced by learned

II Additional Sessions Judge, Belgaum. The High Court by the impugned

judgment has set aside the conviction.

2. The prosecution version as unfolded during trial is as follows:

The complainant is the native of Biraladinni village in

Basavanabagewadi Taluk in Bijapur District and he is residing at Bijapur.

He owned landed and house properties. His father and younger brother are

looking after the agriculture. The complainant though is residing in Bijapur,

visits Biraladinni village once every week. He has got two younger sisters

and one brother. Annapurna is one of the sisters. The marriage of

Annapurna took place with Shantappa (A.1). The said Annapurna after the

marriage went to the house of A.1 to lead marital life. She gave birth to

three children. The brother of A.l who is A.2 is residing in Ainapur Village

since 10 years and he is residing in Gubbimaddi land after erecting a hut.

Along with him A.3 and A.4 are also residing. A.1 is addicted to bad vices

2 like drinking liquor and he always used to pick up quarrel with the

complainant's sister i.e., Annapurna. About one year prior to the death of

Annapurna, A.1 had brought the deceased Annapurna and her children to

Beeraladinni and left them in her parents' place. About three months prior

to the incident, A.1 had come to Beeraladdinni village and requested the

complainant and his family members that he will take his wife and children

and he will look after them properly. He also told them that he will take

them to Ainapur Village. Then he took the deceased Annapurna and his son

Suresh to Ainapur. On 31.12.1994 i.e., on Saturday as it was a holiday, the

complainant had come to Beeraladinni Village. At about 8 p.m, on that day,

one Siddappa of their village came to the complainant and told him that he

had gone to Dhavalagi Village on that day and there A.2 had met him and

told him that on 29.12.1994 at about 11 p.m., Annapurna had died. He has

also told him that A1 was to be informed. After hearing this, the com-

plainant, on the next morning, along with Siddappa went to Ainapur Village

and went to the hut where the accused were residing and asked the accused

as to how his sister had died and as the accused did not give any satisfactory

answer, he asked his sister's son i.e., Suresh about the incident. He was

about 9 years old then. Suresh told him that on that day i.e., on 29.12.1994

after taking food, his mother was making preparations to sleep. At about 11

3 p.m., his father P.1 picked up a quarrel stating that she is having illicit

relations with somebody and also said that she should leave such habits. At

that time, his mother Annapurna said that she has not acted like that. A.1

went inside the house and brought other accused and also brought a rope

and after that all the accused made the deceased Annapurna lie on the

ground and meanwhile A.3 and A.4 caught hold of her hands. A.2 held both

the legs of the deceased and then A.1 tying the rope to the neck of the

deceased pulled it and then the deceased died on the spot, Then A.1 took

Suresh inside the house and threatened him not to tell the fact to anybody

and thereafter, the dead body of the deceased was taken away and it was

burnt. After hearing this from Suresh, the complainant went to Biraladdinni

Village and informed the said fact to the parents and others and on the next

day morning he went to the police station and filed his written complaint

against the accused and the A.S.I, who was incharge of the police station,

received the complaint and registered a case in Cr.No.2/95 under Sections

302, 201 read with Section 34 I.P.C. and then sent F.I.R. to the court and

thereafter, took up further investigation and visited the scene of offence,

drew panchanama of the scene of offence as shown by Suresh and thereafter

three accused were arrested. After completion of investigation charge sheet

was filed.

4 Since the accused persons pleaded innocence trial was held. The

trial Court placed reliance on the evidence of the PWs and directed

conviction. By the impugned judgment the High Court held that the

prosecution version is not established and the evidence of the witnesses

cannot be termed as credible.

3. In support of the appeal, learned counsel for the appellant-State

submitted that the High Court has by a cryptic and non-reasoned order set

aside the judgment of conviction. Since the judgment of acquittal was

challenged, and none appeared for the respondents, Ms. Vibha Datta

Makhija was appointed as Amicus Curiae. It is to be noted that there were

16 witnesses examined. PW-1 who was younger brother of the deceased

spoke as to what PW-2 had narrated to him. PW-2 is a child witness who

was the son of the deceased. He categorically stated the facts of incident and

had identified the rope used during the incident. PW-3, the neighbour of the

accused stated that he had attempted to bury the dead body as per the

custom while the same was to be burnt. PW-4 stated that the accused told

him that the deceased had died of heart attack. PW-7 is the person who

informed PW-1 about the death of the deceased. He also spoke about PW-2

narrating the incident to him. PWs 10 and 11 spoke about frequent quarrels

5 between the deceased and A-1. The only reason which apparently weighed

with the High Court to discard the evidence of PW-2 is that PW-1 was an

Advocate and PW-2 was staying with him and therefore his evidence

appeared to be tutored. It also noted about the delay in filing F.I.R.

4. The so called delay in lodging the FIR was also explained by PW-1. It

is to be noted that out of 19 typed pages of the order, forming special leave

petition 18 pages have been devoted to recital of the evidence of witnesses

and thereafter there is an abrupt conclusion to discard the evidence of PW-2

on the presumption that he was tutored as his uncle PW-1 was an advocate.

It is also observed that it is not known what the learned Additional Sessions

Judge asked the child witness to test his knowledge. Unfortunately, the

High Court failed to notice that the learned Additional Sessions Judge has

referred to all relevant aspects in detail. It has been recorded that when the

Court put preliminary questions to the child who appeared to be of tender

age, it was revealed that the witness was capable of understanding the

questions put to him and was capable of giving rational answers to those

questions. He knew the difference between the truth and the falsehood and

knew that only truth has to be deposed before the Court. He also knew the

6 consequences of deposing falsely. Therefore, the Court was of the opinion

that the witness was competent to testify before the Court.

5. The position in law relating to the evidence of child witness has been

dealt with by this Court in Nivrutti Pandurang Kokate and Ors. v. State of

Maharashtra (2008 (12) SCC 565), and Golla Yelugu Govindu v. State of

Andhra Pradesh (2008 (4) SCALE 569).

6. The Indian Evidence Act, 1872 (in short "the Evidence Act") does not

prescribe any particular age as a determinative factor to treat a witness to be

a competent one. On the contrary, Section 118 of the Evidence Act

envisages that all persons shall be competent to testify, unless the court

considers that they are prevented from understanding the questions put to

them or from giving rational answers to these questions, because of tender

years, extreme old age, disease -- whether of mind, or any other cause of

the same kind. A child of tender age can be allowed to testify if he has

intellectual capacity to understand questions and give rational answers

thereto. This position was concisely stated by Brewer, J. in Wheeler v.

United States (159 US 523). The evidence of a child witness is not required

to be rejected per se, but the court as a rule of prudence considers such

7 evidence with close scrutiny and only on being convinced about the quality

thereof and reliability can record conviction, based thereon. [See

Suryanarayana v. State of Karnataka (2001 (9) SCC 129)]

7. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC

341] it was held as follows: (SCC p. 343, para 5):

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."

The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary

8 because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.

8. The above position was highlighted in Ratansingh Dalsukhbhai

Nayak v. State of Gujarat (2004(1) SCC 64). Looked at from any angle the

judgments of the trial court and the High Court do not suffer from any

infirmity to warrant interference.

9. In view of the foregoing conclusions without even indicating as to

how conclusions of the trial Court were in any manner deficient or

insufficient, the High Court ought not to have, on abrupt conclusions,

directed acquittal.

10. In the circumstances we deem it proper to set aside the impugned

judgment and remand the matter to the High Court to consider the matter

afresh and dispose of the appeal indicating reasons.

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11. The appeal is allowed.

........................................J. (Dr. ARIJIT PASAYAT)

........................................J. (ASOK KUMAR GANGULY) New Delhi, April 20, 2009

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