KRISHNAPPA v. STATE OF KARNATAKA — 1995 DIGILAW 446 (KAR)

M. M. MIRDHE. J. ( 1 ) THIS appeal is preferred by the appellant-accused against the judgment dated 8th march, 1994, passed by the principal sessions judge, shimoga, in SC 38 of 1993, convicting the appellant-accused for the offence under Section 302, IPC and sentencing him to imprisonment for life. ( 2 ) WE have heard the learned counsel for the appellant-accused Sri G. Lakshmeesh Rao and the learned additional government pleader Sri G. M. Sreenivasa Reddy for the respondent-state fully and perused the records of the case. ( 3 ) THE case of the prosecution is as follows : that deceased puttamma was the wife of the appellant-accused-krishnappa and they were working at ayanur and residing in a hut belonging to nayar. The accused was accustomed to drinking liquor. He used to quarrel with his wife and beat her. On the night of 18/19-1-1993 there was a quarrel between the appellant and deceased puttamma and they went to the house of keshavan nayar with their complaint. But nayar told them that he would settle the matter next morning. On 19-1-1993 keshvan nayar went to the house of sharadamma, the elder sister of puttamma, who was staying with her husband and children at chamundipura and informed that puttamma was found dead in her hut. After receiving this information, sharadamma went to the hut of the accused and found the dead body of puttamma. She also noticed the finger of the right leg was crushed and bleeding and there were also marks on her neck. On enquiry, P. W. 2 shashikala the daughter of the deceased and the appellant informed that the accused assaulted puttamma on the leg and tied the leg, thrust cloth into the mouth and pressed her neck. On account of fear she slept in the house of muniyamma and in the morning she came and opened the door and found the dead body of her mother puttamma. On receiving this information from P. W. 2-shashikala, P. W. 4-sharadamma went to the police station and gave her complaint on that day at 10. 30 am which came to be reduced into writing and the police started investigation in the case and after completing the investigation, the police filed charge-sheet in this case. On receiving this information from P. W. 2-shashikala, P. W. 4-sharadamma went to the police station and gave her complaint on that day at 10. 30 am which came to be reduced into writing and the police started investigation in the case and after completing the investigation, the police filed charge-sheet in this case. The trial judge found that the evidence of P. W. 2 which is evidence of the prosecution case is safe to be relied and he relied upon that evidence and convicted the appellant. ( 4 ) THE contention of the learned counsel for the appellant is that P. W. 2 is a child witness. She has made many material improvements in her evidence and the conduct also as seen from her own evidence is unnatural and improbable. But the learned additional government pleader submitted that the trial court has properly assessed the evidence of the prosecution witnesses including the evidence of P. W. 2 and there are no grounds to take different view from the view taken by the trial court. ( 5 ) IT is the case of the prosecution that deceased putt ammadied a homicidal death. The evidence of P. W. 1-dr. Sunanda and her post mortem report goes to disclose that there were injuries found on the dead body of the deceased when she conducted the post mortem of the dead body and she has opined that injury nos. 1 to 3 found by her on the person could be caused with a pressure by a hard object and injury No. 5 could be caused by throttling and injury No. 4 could be caused by any other external object. She has opined that the death of deceased puttamma was due to asphyxia as a result of strangulation by throttling. In view of this evidence and also the inquest report proved through the evidence of P. W. 13, the trial court was justified in holding that the deceased died a homicidal death. ( 6 ) IT is not disputed in this case that deceased puttamma was the wife of the appellant and P. W. 2 is their daughter, P. W. 7 is their son and P. W. 4 the complainant is the elder sister of deceased puttamma. ( 6 ) IT is not disputed in this case that deceased puttamma was the wife of the appellant and P. W. 2 is their daughter, P. W. 7 is their son and P. W. 4 the complainant is the elder sister of deceased puttamma. It is also not disputed in this case that the deceased was working in the mill of nayar and she was staying with, her children and husband in a hut in that area. It is the case of the prosecution that the relationship between the accused and the deceased were not smooth and there used to be quarrels very often between them as the accused used to get himself drunk and beat the deceased. P. ws. 2, 4 and 7 have spoken on this aspect of the case. The prosecution evidence on this aspect of its case goes to show that the accused used to come drunk home and quarrel with his wife. Both the children of the deceased and the accused viz. , p. ws. 2 and 7 have given their evidence. Even P. W. 4, the elder sister of the deceased has corroborated it. Therefore, it can safely be inferred that the accused was not a man of virtue and he used to drink and quarrel with his wife. But, that does not appear to be an unusual feature, in view of the fact that P. W. 2 has admitted in her evidence that in their village many persons were consuming liquor. She has also admitted that neighbours were not coming to their house and they were not advising their father. It is because many of the persons themselves were consuming liquor and they could not have advised the accused who was also consuming liquor and quarrelling with his wife. From the proved fact that the accused was consuming liquor and quarrelling with ms wife it will be risky to raise an inference that the accused had strong motive to commit the murder of his wife. The drunkardness of the accused and the quarrels between the accused and the deceased had become a common feature of their life. But the prosecution has not shown by any evidence as to what was the motive for the accused to go to the extent of committing the murder of his wife on that night. The drunkardness of the accused and the quarrels between the accused and the deceased had become a common feature of their life. But the prosecution has not shown by any evidence as to what was the motive for the accused to go to the extent of committing the murder of his wife on that night. Hence, it will have to be held that there does not appear to be any such compelling strong motive on the part of the accused to cause the death of his wife. ( 7 ) THE case of the prosecution rests on the evidence of P. W. 2. p. w. 2 was a child witness at the time when she was examined in the court. She was aged 8 years then. The learned trial judge, after putting her the questions to ascertain her capacity to understand the questions and answer them, has recorded that she has no discretion as such and hence he has not administered oath to her. P. W. 2 has stated in her evidence that the deceased was her mother and the accused was her father and the accused used to consume liquor and come home and quarrel with the deceased. She has also stated that on that night she had gone to see a movie with muniyamma and she returned and went to the house of muniyamma and she came out to answer the call of nature and when she was returning back she saw through a "kindi" the accused sitting on the chest of her mother, putting a cloth into her mouth and pressing her neck. She claims to have seen this incident in the light of an electric light from a pole nearby. She has further deposed that she went back and slept in the house of muniyamma and on the next day morning she came to her house, opened the door, went inside and saw the dead body of her mother and thereafter she went and informed this to P. W. 4 her maternal aunt. This evidence has been believed by the trial court. It is not a Rule that a child witness should not be relied upon. This evidence has been believed by the trial court. It is not a Rule that a child witness should not be relied upon. But, the law has also held that it is also risky to rely on the evidence of a child witness unless it is found that the child witness is not tutored and that his or her evidence is corroborated by other pieces of evidence on record. No doubt the law does not insist on the plurality of the witnesses for the conviction of the accused. Section 134 of the Indian evidence ACT lays down that no number of witnesses are prescribed for proving a fact. Hence, even the evidence of solitary witness can be believed for the conviction of the accused. Even the evidence of the child witness can be a basis for the conviction of the accused provided the evidence of the witness is safe to be relied upon and it is free from such infirmities which will lead to the inference that the child has been tutored or that it will not be safe to rely upon such a witness. Though the trial court has quoted these principles in its judgment, it has failed to apply them properly while assessing the evidence of P. W. 2. P. W. 2 has stated at the beginning of her evidence itself as follows : "my father murdered my mother and threw into river". It is not the case of the prosecution that after the commission of the murder by the accused he threw the dead body into any river. But, P. W. 2 starts her evidence with this sentence. It has not been taken into consideration by the trial court. It goes to show that either the witness has not seen the incident or that witness has become confused as to what she should state before the court. Her evidence is that she saw the incident in the light of the electric pole which was having tubelight and that pole was situated in the backyard of their house. She has admitted in her evidence that if there were not to be any electric lights she could not have seen the incident. She admits that there were no lights in the hut and the hut was not fit for dwelling purpose. She admits that there were no lights in the house of muniyamma or in the house of ghouse. She has admitted in her evidence that if there were not to be any electric lights she could not have seen the incident. She admits that there were no lights in the hut and the hut was not fit for dwelling purpose. She admits that there were no lights in the house of muniyamma or in the house of ghouse. She has also admitted that if the electric tubelights were not there on that night she could not have seen the incident. The evidence of P. W. 13 discloses that this witness has stated before him that she saw the incident in that light. P. W. 13 has stated in his evidence that he has not drawn any separate mahazar of the scene of offence as the description of the scene of offence is contained in the inquest mahazar ex. P-4. The perusal of the ex. P-4 discloses that there is no mention about therebeing any electric light nearby the incident. The assistant engineer P. W. 12, who drew the mahazar sketch of the scene of the offence has also not shown any electric light nearby the place of the incident. Even P. W. 13 has admitted that in the rough sketch ex. P-7 he has not shown the street lights in the front or the backyard of the hut. P. W. 3 who is the person residing in that area and who is alleged to have heard the quarrel between the accused and the deceased has also admitted that there was no electric light just adjacent to the hut either in front or in the back of the hut. Therefore, the evidence of P. W. 2 that she saw the incident in the light of an electric light cannot be taken at its face value. She has further stated that she returned from the cinema and when she had gone for answering the call of nature from the house of muniyamma she saw this incident, according to this witness, she alone went and saw this incident and came back and slept in the house of muniyamma without disclosing about this incident to anyone. But P. W. 3 contradicts this witness as she has stated that she, her daughter and shashikala went outside together to pass urine and together came back to her house. But P. W. 3 contradicts this witness as she has stated that she, her daughter and shashikala went outside together to pass urine and together came back to her house. P. W. 3 does not say that either they stood together or that P. W. 2 remained there while returning to their house. The evidence of P. W. 3 clearly rules out the possibility of P. W. 2 alone going for answering the call of nature and witnessing the incident. P. W. 2 has further stated that when she saw the incident through the 'kindi' she was her father sitting on the chest and putting a cloth from an old bed-sheet into the mouth of her mother and pressing her neck. She has not deposed before the police about her seeing the accused person putting a cloth from the old bed-sheet into the mouth of her mother. She has also not stated that she saw the accused sitting on the chest of the deceased. The old bed-sheet cloth was also not seized by the police. P. W. 2 hap! Further deposed that after seeing the incident she came back to the bouse of muniyamma and slept there without disclosing the incident to anyone and on the next day morning she went to the hut, opened the door and saw the dead body of her mother. From her evidence itself it can be seen that the hut was not situated in any deserted place. There were the huts of ghouse, muniyamma and others in the near vicinity of that hut. The mill of nayar was also situated within a distance of 20' from that hut. The houses of the workers working in that mill were also situated there. P. W. 2 has also admitted that if a shout is raised it would attract the attention of the persons residing there. If that were to be so, it would not have been difficult for P. W. 2 to raise hue and cry so as to make the other people residing in the round about vicinity to come and save her mother. ; but she has not done so. If that were to be so, it would not have been difficult for P. W. 2 to raise hue and cry so as to make the other people residing in the round about vicinity to come and save her mother. ; but she has not done so. The case of the prosecution is that a girl of eight years saw the cold-blooded murder of her mother committed by her father and that the girl without raising hue and cry came back quietly and slept in the hut of muniyamma without disclosing anything to anyone except P. W. 4-sharadamma to whom it is alleged that she informed the incident next day morning. This conduct that emerges from the evidence of P. W. 2 appears highly unnatural of a daughter seeing the murder of her mother committed by her father. The learned trial judge relying upon a Supreme Court ruling has held that the evidence of a particular witness cannot be rejected if he has not reacted in a particular manner. The proposition of law is that the evidence of a particular witness cannot be rejected if he has not reacted in the manner in not going to the rescue of the victim or similar such acts. But when it is the question of a daughter seeing the murder of her mother committed ,by her father before her, her not raising hue and cry and her not disclosing this incident to anyone till the next day morning and her coming quietly and sleeping in the hut of muniyanima is the conduct which is so unnatural that no reasonably prudent person would be expected to behave in which P. W. 2 is alleged to have behaved. Therefore, the trial court has not properly assessed the evidence of this witness. The assessment of the evidence of this witness by the trial court is improper and unreasonable. If this evidence is found to be unworthy of acceptance, there is not other piece of evidence on the basis of which the trial court could have convicted the appellant for the offence with which he was charged. Hence, we proceed to pass the following Order : the appeal is allowed. The judgment of the trial court is set aside. The appellant is acquitted of the offence with which he has been charged and he is directed to be set at liberty forthwith in this case. Hence, we proceed to pass the following Order : the appeal is allowed. The judgment of the trial court is set aside. The appellant is acquitted of the offence with which he has been charged and he is directed to be set at liberty forthwith in this case. --- *** --- .