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1993 DIGILAW 260 (KER)

State of Kerala v. Sadanandan

1993-06-08

L.MANOHARAN, M.M.PAREED PILLAY

body1993
Judgment :- Pareed Pillay, J. State has filed the appeal against the acquittal of accused 1 and 2 (respondents 1 and 2). A-1 and A-2 were charged under S.302 read with S.34 of the Indian Penal Code for having caused the death of Lalitha, wife of A-1. Learned Additional Sessions Judge found them not guilty and acquitted them. 2. A-2 is the mother of A-1. Lalitha (deceased) was the wife of A-1. Three children were born in the wedlock, P.W.7, Manoj is the eldest of the children. A-1, A-2, deceased and children were residing in the same house. Prosecution case is that on 3-9-1986 A-1 came back to the house after work, that he, his wife (deceased) and children had supper, that at the instigation of his mother (A-2) he assaulted the deceased by holding her scalp hair and smashing her head against the wall, that the deceased abused A-2, that A-2 beat the deceased with M.O.I wooden piece, that she fell on the mat unconscious, that P.W.7 cried, that A-l locked P.W.7 in the adjacent room, and that seeing the deceased unconscious A-1 and A-2 carried her and put her in the punja field. On getting information about the incident P.W.I, brother of the deceased lodged Ext. P-1 first information statement to P.W.18 Head Constable. Crime was registered as unnatural death. Investigation was done by C.W.26, Circle Inspector and C.W.27 Dy. S.P. They were examined on the defence side as D.Ws. 2 and 1 respectively. Subsequently Crime Branch undertook the investigation. P.W.22 completed the investigation and laid the charge before the Court. 3. Prosecution mainly relied on the testimony of P.Ws. 7,9 and 10. P.W.7 is the son of A-1 and the deceased. He is, a child witness. The learned Additional Sessions Judge did not place any reliance on his testimony. 4. P.W.7 stated that at the instigation of his grand mother (A-2) his father (A-1) assaulted his mother (deceased) and hit her head against the wall and blood oozed out from her mouth and nostril. It is also stated by him that A-2 hit the deceased with M.O.1 wooden piece on her head and she fell down on the mat with blood oozing out from her mouth and nostril. According to P.W.7 he was locked up in a room by his father when he cried. 5. It is also stated by him that A-2 hit the deceased with M.O.1 wooden piece on her head and she fell down on the mat with blood oozing out from her mouth and nostril. According to P.W.7 he was locked up in a room by his father when he cried. 5. The Additional Sessions Judge held that the evidence of P. W.7 that his mother was assaulted by A-1 and A-2 cannot be believed as there is no corresponding injury on the body of the deceased. We have examined M.O.1. It is fairly a heavy wooden piece. In all likelihood any hit with M.O.1 would cause some injury on the victim. Explanation given by the Public Prosecutor is that there was no injury on the head in view of thick scalp hair. That is not a plausible explanation in view of the evidence of P.Ws.5 and 14 doctors. P.W.5 doctor who conducted autopsy deposed that M.O.1 weapon is comparatively heavy one and hit with it on the head in all probability would cause corresponding external injury over that portion. He stated that inspite of the thick scalp hair a forcible blow by M.O.1 is likely to cause some external injury. It is also his evidence that if the victim's head was smashed against the wall possibility of external injury will be there. P.W.14 doctor's opinion is also identical. The absence of any external injury on the head of the deceased is a tell-tale circumstance to view the evidence of P.W.7 with suspicion. 6. that accused 1 and 2 had carried the deceascd that accused 1 and 2 had carried the deceased and put her in the water. Then he stated that he did not see it. The statement recorded by D.W.2 does not mention any assault which is spoken to by P.W.7 before the Court. P.W.7 has admitted that soon after the death of his mother he was taken by his Uncle, P.W.1 to his house. It is admitted by him that he had told D.W.1 as instructed by others. He himself stated that what he had told D.W.1 is not true. As rightly held by the learned Additional Sessions Judge P.W.1's evidence shows that he was amenable to tutoring. Additional Sessions judge highlighted several aspects of the evidence of P.W.7 to hold that his evidence is not free from suspicion. 7. He himself stated that what he had told D.W.1 is not true. As rightly held by the learned Additional Sessions Judge P.W.1's evidence shows that he was amenable to tutoring. Additional Sessions judge highlighted several aspects of the evidence of P.W.7 to hold that his evidence is not free from suspicion. 7. P.W.7 is definite that there was blood on the mat and that the police also saw the same. Ext. P-5 scene mahazar does not show the presence of any drop of blood at the alleged place of occurrence. P.W.7's earlier version was that the wooden frame of a coconut scrapper was used by A-2 to assault the deceased. He has given a version before the Court falling in line with the prosecution case that the weapon used was M.0.1 wooden piece, on going through the entire evidence of P.W.7 it is not possible to come to a different conclusion from that of the Additional Sessions Judge. 8. Evidence given by a child witness will have to be viewed with extreme care and caution. It is true that version given by a child witness is normally free from embellishment, exaggeration or deliberate falsehood. But there is danger in accepting the testimony of a child witness if it is found that he is subjected to influence. It is easy to coach a child witness to say before the Court in a particular manner. While appreciating the evidence of a child witness the Court has necessarily to guard itself of such a danger. Even in a case where the solitary evidence is that of a child witness and if the evidence given by that witness has withstood the test of cross-examination and if there is no infirmity in that evidence it cannot be discarded merely on the ground that the evidence is given by a child witness. In other words, there is no universal rule that the evidence given by a child witness has to be accepted as gospel truth that it cannot be given any weight at all. The evidence of such witness depends upon its worth in each case., If the evidence is found acceptable there is no question of rejecting the same on the ground that it is given by a child witness. While appreciating the evidence of a child witness it has to be a scrutinised with a great c are and caution. 9. The evidence of such witness depends upon its worth in each case., If the evidence is found acceptable there is no question of rejecting the same on the ground that it is given by a child witness. While appreciating the evidence of a child witness it has to be a scrutinised with a great c are and caution. 9. Evidence of P.W.9 is that he heard the cry of a child while going to his duck farm, that he took his cane near the house of the accused and when he peeped into the house he saw the deceased lying in the room on a mat. He stated that blood was oozing from her mouth and nose.. The presence of the accused in the room is stated by him. Though P.W.9 knew P.W.21 (C.W.12) for a long time and though they are neighbours he did not care to inform the latter about what he had seen. This conduct of P.W. 9 is highly improbable. Though P.W.9 stated before the Court that he saw blood oozing from the mouth and nose of the deceased his version before the police was that he saw only froth coming out from the mouth of the deceased. His evidence that he did not consider it necessary to take the deceased to hospital or to inform P.W.1 and P.W.21 who are closely related to the deceased cast suspicion on his testimony. 10. P.W.10 stated before the police that it was on his way to his uncle's house that he happened to see the accused holding a woman on the door step of their house. In the Court his version is that it was when he was returning from his uncle's house that he happened to see it. His version before D.W.1 (C.W.27) is that he saw A-1 and A-2 carrying a woman from the court yard to the house. The case diary contradiction has been marked as Ext. D.8(a). On going through the evidence of P.W.10 the learned Sessions Judge was justified in not placing any reliance on it. It is also significant to note that though P.W.10 was there for about half an hour after seeing the dead body at 7 a.m. he did not care to tell any one including P.W.21 thusband of deceased's elder sister) anything about what he had seen during the previous night. 11. It is also significant to note that though P.W.10 was there for about half an hour after seeing the dead body at 7 a.m. he did not care to tell any one including P.W.21 thusband of deceased's elder sister) anything about what he had seen during the previous night. 11. The postmortem certificate reveals that there was no evidence of any violence on the body. P.W.S's opinion is that the findings were consistent with death due to drowning. In view of the aforesaid findings in Ext. P-3 postmortem certificate and also in view of the unsatisfactory evidence on the side of the prosecution to prove its case it is not in any way possible to hold that the Additional Sessions Judge went wrong in acquitting the accused. On going through the entire evidence we hold that no interference is warranted against the judgment of the Court below acquitting A-1 and A-2. In the result the Criminal Appeal is dismissed.