IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE B. A. PATIL CRL.A. NO.1765/2016 (C) BETWEEN 1. SMT. PARVATHI NOW AGED 60 YEARS W/O BHATTAPPA NAIKA 2. RAVISH NOW AGED 43 YEARS S/O BHATTAPPA NAIKA BOTH ARE R/O APPERI PADEMANE VITTALA KASBA VILLAGE BANTWAL TALUK DAKSHINA KANNAGA DIST – 574 211 ... APPELLANTS (BY SRI. VISHWANATHA POOJARY K., ADV.) AND THE STATE OF KARNATAKA BY CIRCLE INSPECTOR OF POLICE VITTLA POLICE STATION BANTWAL CIRCLE, REP. BY SPP HIGH COURT OF KARNATAKA AT BENGALURU, HIGH COURT BUILDING, BENGALURU – 560 001 ... RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 12.08.2016 PASSED BY THE I ADDL. DIST. AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU IN S.C.NO.57/2011-CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT Appellants are Accused Nos. 1 & 2 before the 1st Additional District and Sessions Judge, D.K. Mangaluru in SC No.57/2011. Both the accused were convicted for the offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5000/- each in default to undergo further imprisonment for a period of three months.
2. The brief factual matrix of the case as unfolded are that, Accused No. 1 & 2 and also the deceased Saraswathi along with the child of Saraswathi and the wife of Accused No.2 were all residing in house No.547 Apperi Pade, Ukkada, Vittla, Kasba Village, Bantwal Taluk, belonging to PW.8-Krishnappa Naika. It is the allegation that the accused persons wanted to sell that house property to PW.9-Kasim @ Abdul Kasim, which was objected by the deceased Saraswathi. It is also the case of the prosecution that the accused persons were suspecting the fidelity and conduct of the deceased. On the above said grounds, they wanted to eliminate the lady Saraswathi. In this context, it is alleged that, on 17.02.2011 in the morning hours at about 8.00 a.m., the appellants/accused: 1-Parvathi & 2-Ravish taking advantage of the situation, have assaulted the deceased with swords (Kathhis) and caused severe injuries on her. Due to the severe injuries, the deceased Saraswathi succumbed to the injuries on the spot itself. This incident was seen by the child- Rohitashwa (PW.22).
3. On receiving complaint from PW.1-Poovappa Naik, the father of the deceased as per Ex.P1, the police have registered a case in Crime No.30/2011 for the offence punishable under Section 302 r/w. 34 of IPC and investigated the matter and laid the charge sheet against the accused persons for the above said offence.
4. After securing the presence of the accused particularly after committal, the trial Court has framed charges against the accused persons for the aforesaid offence and as the accused pleaded not guilty, the trial was taken up by the Sessions Court.
5. The prosecution in order to bring home the guilt of the accused, examined as many as 23 witnesses and got marked the documents-Exs.P1 to P21 and 11 material objects as MOs. 1 to 11. The accused was also examined under Section 313 of Cr.PC. and they were also called upon to enter any defence evidence on their side but, they did not choose to do so.
6. After hearing the parties on both sides, the trial Court after appreciating the oral and documentary evidence has arrived at a conclusion that, the prosecution has proved the case beyond all reasonable doubts. Being aggrieved the said judgment of conviction and order of sentence, the appellants are before this court.
7. Sri. K. Vishwanatha Poojary, the learned counsel for the appellants (A1 & A2) has strenuously contended before this court that, except the evidence of child witness (PW.22), absolutely there is no evidence available against the accused persons. The so-called allegations regarding motive and recovery of the incriminating articles at the instance of the accused have not been established before the court beyond reasonable doubt. He also contends before the court that, the child was aged four years at the time of the incident and with all probabilities the child could not have given such a statement vividly regarding the alleged incident. Even the evidence given before the court is not credible and trust-worthy for acceptance. Therefore, in the absence of any corroboration to the evidence of the sole witness, that too child witness, it would be hazardous to convict the accused persons for the above said offence. The trial Court, in fact has not bestowed its attention sofar as these aspects are concerned. Hence, the learned counsel for the appellants (A1 & A2) pleaded for acquittal of the accused.
8. Per contra, the learned additional SPP has submitted that, the motive factor is not at all established before the court. Even if the motive factor is taken into consideration by this court, it is clear that, on over all analysis of the entire evidence, even in the absence of any such motive, it is trust-worthy for acceptance to lay its hands to convict the accused. He further contended that the evidence of the child witness withstood the cross-examination and answered all the questions put to him very coherently. The cross- examination of the child witness clearly discloses that, whatever the child witness-PW.22 (Rohitashwa) knew he has candidly deposed before the court, therefore, such evidence cannot be brushed aside easily by the court. Of course, it should be very carefully examined. Hence, he pleaded that, absolutely there is no room to interfere with the impunged judgment passed by the trial Court and hence, the appeal is liable to be dismissed.
9. Having heard the above submissions on both the sides and after going through the entire oral and documentary evidence on record, we have to examine, as to whether the judgment of conviction and order of sentence passed by the trial Court, in any manner, is liable to be interfered with.
10. Before adverting to the evidence of the material witnesses examined before the trial Court, it is just and necessary to bear-in-mind and have a cursory look at the evidence recorded in this particular case.
10.1 PW.1-Poovappa Naik is the father of the deceased. He lodged a complaint (Ex.P1) and he has spoken about the motive and he identified MOs. 3 to 7, as that of the clothes of the deceased.
10.2 PW.2-Smt.Rathna is the neighbourer of the deceased and accused, and she saw the dead body of the deceased. Though she (PW.2) was cited as an eye- witness, she turned hostile so far as the incident is concerned.
10.3 Similarly, PW.3 –Smt. Girija, who was cited as an eye-witness to the incident, who turned hostile.
10.4 PW.4-Smt. Baby the mother of the deceased, is a hear-say witness so far as the incident is concerned. She supported the case so far as the motive factor is concerned.
10.5 PW.5-Smt. Girija is the sister of the deceased Saraswathi, who saw the dead body and also she spoken about the motive.
10.6 PW.6-Mohan Das Ukkuda is the village panchayath member, who is a witness to inquest (Ex.P6), who has observed injuries on the dead body and identified MOs. 1 to 7.
10.7 PW.7-Smt. Usha is a village panchayath member, who was also a witness to Ex.P6.
10.8. PW.8- Krishnappa Naika, and PW.9 Kasim who have seen the dead body of the deceased and examined to establish the motive factor. But, they turned hostile.
10.9 PW.10-Kui Alias Abdul Kui is the contractor working in the house of the accused. He was also a hear-say witness. Earlier he was suspected by the police, but subsequently they found that the accused are the culprits.
10.10 PW.11 –Kishor was examined to establish the motive. It is alleged that PW.11 has actually having illicit intimacy with the deceased. He has supported the case of the prosecution that, the accused were suspecting the illegal intimacy with this witness. There is absolutely no cross-examination so far as this witness is concerned so as to disbelieve him.
10.11 PW.12-Babu Rai is a panch witness to Ex.P9.
10.12 PW.13- Gopala Krishna is a photographer.
In his statement he has stated that, on 18.02.2011 the police have recorded videographic statement of the child witness – Rohitashwa as per Ex.P10 (Compact Disc), which was produced before the court.
10.13 PW.14.—Dr. Vedavathi who has conducted post-mortem examination on the dead body of the deceased, who has stated that the deceased had sustained 18 injuries. Further, she has also examined MO.1 & 2 -Sickles (Kathi) and gave her opinion that the death was due to hemorrhagic shock due to multiple injuries and those injuries could be caused by using weapons like MOs. 1 & 2.
10.14 PW.15-Prakash is a panch witness to Ex.P.12 and Ex. P.13 under which the police alleged to have recovered one sari and one blouse of Accused No.1, which are marked at MOs. 8 & 9 and under Ex.P13, the police have recovered a Shirt and Lungi marked at MOs. 10 & 11 of Accused No.2. He has also spoken about the seizure of the clothes of the deceased under Ex.P14.
10.15 PW.16-Balakrishna is the person who carried the FIR to the jurisdictional Court.
10.16 PW.17-SMt. Sowmya is the lady Police, who after Post Mortem of the dead body and collected the dead body from the hospital and handed over the dead body to PW.1. She has also spoken about the production of the clothes of the deceased before the Investigating Officer as per MOs. 3 & 4.
10.17 PW.18-Udaya Gowda, who carried the incriminating articles to the Forensic Science Laboratory at Mangaluru.
10.18 PW.19.Dr. Geethalakshmi P., is a Scientific Officer, who has given opinion that, all the incriminating articles examined by her were stained with ‘A’ Blood Group.
10.19 PW.20-Chandravathi is the younger sister of the deceased, who has spoken about the motive and she has seen the injuries on the dead body of the deceased and she has also categorically stated that, she was very much present when the Police have recorded the statement of PW.22-Rohitashwa by videographic method.
10.20 PW.21-Smt. Pushpalatha is the ASI, who has received the complaint (Ex.P21) and registered a case in Crime No. 30/2011 and dispatched the FIR as per Ex.P16. she deposed that, he has apprehended Accused Nos. 1 & 2 on 17.02.2011 at 7.30 p.m. and she recorded the videographic statement of PW.22 (CW.4) as per Ex.P10.
10.21 PW.22-Master Rohitashwa is a star witness to the prosecution. We would like to discuss the evidence of PW.22 little later.
10.22 PW.23 –Nanjunde Gowda is the Investigating Officer, who after completion of the investigation, laid charge sheet against the accused.
11. The prosecution case revolves around the eyewitness version and the motive and lastly the recovery of incriminating articles at the instance of the accused and connection of those materials with the crime.
12. As could be seen from the entire evidence noted above, there is absolutely no dispute with regard to the death of the deceased Saraswathi which occurred in front of the house of Accused Nos. 1 & 2 on the relevant date and time ie. 17.02.2011 at about 8.00 am. It is also not in dispute that the deceased died due to sustaining of severe injuries to her body. As we have referred above the evidence of the inquest witnesses and the evidence of the Doctor clearly discloses that the injured has sustained as many as 18 injuries as per Ex.P11 (PM Report). The Doctor has also opined that the death was due to hemorrhagic shock due to multiple injuries. Therefore, when the death is not disputed and the nature of the injuries sustained are also not disputed. That clearly go to show that the prosecution has established the homicidal death of the deceased.
13. The next question that arises is, who is responsible for the homicidal death of the deceased. There is no specific defence taken by the deceased. Even through-out the cross-examination of the witnesses, they have taken up contentions that, they were all coolie workers and regularly they used to go to coolie work in the morning and coming back in the evening. On the date of incident, also as usual all of them had been to coolie work and they came to know about the death of the deceased at 11.00 am. Except this defence, it appears no other defence has been taken by the accused.
14. In this background, the court has to examine the motive factor, whether the prosecution has placed any material so far as this particular aspect is concerned. The evidence of PW.1-Poovappa Naika and the relatives of the deceased viz., PW.4-Baby (Mother), PW.5-Girija (wife of Babu Naika), the elder sister of the deceased and PW.11-Kishor and PW.20-Chandravathi show that they have categorically deposed that, the accused persons were suspecting the fidelity and conduct of the deceased. These witnesses have categorically stated that, the deceased was informing them often that the accused persons were not taking care of that lady and they are ill-treating and harassing her and they were suspecting her conduct and fidelity. In this context, there was galata in the house of the accused often. Therefore, the incident perhaps happened on the above said motive.
15. Particularly the evidence of PW.11-Kishore he has stated that, he was often visiting the house of the accused. The deceased was also talking with him over phone. Even prior to her death, she has telephoned to him and told that, the other accused persons were unnecessarily causing harassment to her and quarrelling with her. In the course of cross-
examination, a suggestion was made to him that, the deceased did not tell anything before this person. But, there is no denial as such with regard to the conversation that has been taken place between this witness and the deceased. In the entire cross- examination of this witness, as we have carefully perused, it is only the suggestions made to this witness denying such allegations made by this witness against the accused on the motive factor. Except suggestions nothing worth has been elicited from the mouth of any of the witnesses. Of course, the relationship between PW.11-Kishor and the deceased has not been spoken to by any of the witnesses. But, all the witnesses have stated about the suspicion in the mind of the accused persons so far as the deceased is concerned. Therefore, in our opinion, the prosecution has placed some materials to show that, all was not well in the house of the accused with reference to the deceased. There is ample material to show that the accused and deceased were quarrelling with each other for various reasons. PW.1 has also deposed that, the accused were contemplating to alienate their house property and the deceased was objecting for the same. Though there is some discrepancy pointed out by the learned counsel in Ex.P1 and evidence of PW.1, but all other witnesses have stated particularly PW.9 and PW.10 have stated that, the accused persons were contemplating to alienate the said property and PW.10 was the person who wanted to purchase the property through a mediator ie., PW.9. Therefore, it is clear that, the accused have not denied this particular aspect that the accused persons were contemplating to alienate the property, but the deceased was obstructing for the same. This was also one of the motive projected by the prosecution and some materials are placed before the court. We have gone through the same. But, we can not say that, there was no motive at all on the part of the accused persons. Though motive is not so strong enough, but the existence of some motive cannot be brushed aside. In this background we have to examine the other circumstances.
16. Now, we will proceed to consider the recovery and thereafter, we would like to discuss the evidence of the child witness so far as the recovery is concerned. According to the evidence of the Investigating Officer (PW.23), he has categorically stated that on 18.02.2011 the accused persons were arrested at about 8.30 p.m. on that particular date and produced before this witness (PW.23). He has recorded the voluntary statement of Accused Nos. 1 & 2 as per Exs.P.18 & P.19. It is the evidence of the Investigating Officer that the accused themselves have produced the blood stained clothes ie.. Accused No.1 has produced one nighty and one petticoat and they were recovered under mahazar (Ex.P12) and Accused No.2 has also produced one Shirt as well as one Lungi and they were also recovered under Ex.P13. The person, who apprehended the accused is PW.21-Pushpalatha. She has categorically deposed before the court that she was deputed to apprehend the accused persons and on 18.02.2011 and at about 7.30p.m., the accused persons were found near a place called Kallina Gudda and they were apprehended and brought to the Police Station at 8.30 pm. and produced before the Investigating Officer. It is not the case of this witness that, when she apprehended the accused, the clothes worn by the accused were stained with blood. and in the same condition the the accused persons were produced before the Investigating Officer. The Investigating Officer also does not say that, whether he made any arrangement for removal of the clothes worn by the accused persons and thereafter, the said clothes were produced by the accused persons. Neither the Investigating Officer nor this witness has stated that, after apprehension, the accused persons had any occasion to go out to bring those clothes and produce before the Investigating Officer. It is nowhere stated in the evidence that, from where the accused brought these clothes and produced before the Investigating Officer. Merely saying that the accused had produced those articles before the Investigating Officer without there being any basis, in our opinion, such recovery is bereft of any logic or reasons, therefore, the court cannot expect such recovery as it is baldly stated by PW.21 and as well as the Investigating Officer. The way in which the said clothes were recovered by the Investigating Officer, in our opinion, is not in accordance with the recognized principles or rules prevailing under the Police Act.
Therefore, under the above circumstances, we have no hesitation to hold that the prosecution has not proved the so-called recovery of the above said incriminating articles at the instance of the accused. Though the clothes worn by the accused were stained with blood, which tallies with the blood group of the deceased, in our opinion, in the absence of any such proof with regard to recovery of the connecting materials, such recovery will not in any manner help the prosecution case. Under these circumstances, we are of the opinion that the prosecution has not proved this particular circumstance of recovery and connectivity of the material objects with that of the crime.
17. Last but not least, the important aspect in this particular case is the evidence of the eye-witnesses ie., the child witness-PW.22 (Rohitashwa). Learned counsel for the appellants/accused has in fact relied upon various decisions in this regard. We briefly, quote some of the decisions cited by the learned counsel as under, as these decisions guide the Courts as to how and in what manner, the courts have to appreciate the evidence of child witness. There is no dispute that PW.22 (Rohitashwa) is the child witness, who was aged about four years at the time of incident and he was nine years at the time of giving evidence.
18. In a decision reported in (1997) 5 SCC 341 [Dattu Rama Rao Sakhare and others Vs.
State of Maharashtra, the Hon’ble Apex Court has observed that,-
“As a rule of prudence, the court can seek corroboration- On facts, evidence of the child witness is amply corroborated from other evidence of other witnesses, medical evidence and recovery of incriminating articles at the instance of the appellants.”
19. In another ruling reported in 2000(3) SCC 70 between State of U.P. Vs. Ashok Dixit & Another, the court has cautioned, the trial Courts and the appellate courts while considering the testimony of child witness. The relevant portion reads as under:-
“The evidence of a Child witness must be evaluated carefully as a child may be swayed by what others tell him and is an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on.
19.1 In the said case, the court has further observed that,-
“… Though at the time of occurrence there was no electricity, identifying both the accused in court – Held, the evidence not acceptable – Identification”
19.2 From the above, it is clear that, it does mean to say that, even if the evidence of child witness was so credible because, at the time of occurrence, if there was no electricity, the identification of the accused itself was doubtful and even there was no identification parade, in such an eventuality, such witness is not acceptable.
20. In another decision reported in AIR 2003 S C 1088 between Bhagawan Singh and. others Vs. State of M.P., the Hon’ble Apex Court has observed that,-
S.300 of IPC- Murder – Evidence of child witness – Child, son of deceased, six years of age alleged to has seen the occurrence – Omission of prosecution in not holding test identification parade after child witness named three assailants before Police – Prosecution also failed to examine a person to whom the child first met after incident ….”
Therefore, in the said case, the court has observed that, the child witness was aged six years and the Investigating Agency has not conducted any Test Identification Parade, as the accused were strangers. In such a situation, the evidence of the child witness should be evaluated carefully with the other evidence in the case, to ascertain whether the evidence of the child witness is not so trust worthy for acceptance.
21. Last but not least, in another decision reported in (2013) 11 SCC 150 between Hamza Vs. Muhammedkutty @ Mani & Others, has observed that when the case revolves around the sole testimony of child witness and whose evidence has failed to inspire the confidence of the court, in such circumstances, the sole evidence of the child witness should not be based without there being any adequate corroboration to support the case of the Child Witness. The relevant portion of which reads as under:-
“…. On the sole testimony of PW.1 child witness, whose evidence failed to inspire confidence, acquittal recorded by the High Court which was not perverse or unreasonable, held, does not call for interference – Acquittal, upheld – Evidence Act, 1872- S. 118 r/w S.157 -Testimony of child witness not inspiring confidence and not adequately corroborated – not inspiring confidence and not adequately corroborated – Not safe to base conviction on such testimony – Criminal Trial – Witness – Tutored/Pressurised witness.”
22. In the above context, in our opinion, it is also worth to refer a decision of the Hon’ble Apex Court reported in 1981(2) SCC 569 between Suresh and State of UP, wherein the court had an occasion to deal with the evidence of five year old child witness. The court observed that, -
“The prosecution case is based solely on the basic evidence of the deceased’s surviving son of five years, who was a person at the time and place of occurrence and he was also injured by the accused. The statement of such witness recorded twenty days after the incident owing to his state of mind and injuries sustained by him.- On facts, held, testimony of such witness reliable and can be acted upon as regards conviction, but not as regards imposition of death sentence.”
22.1 From the above it is clear that, if the child witness has sufficient maturity of mind and is able to understand the questions put to it and answer the same in coherent manner, in such an eventuality and otherwise also believable, if the court finds credibility and trust worthiness in such evidence of the child witness, without seeking any corroboration, can be relied upon even if it is the sole witness available.
23. On over all looking to the principles laid down in the above said cases it is clear that, the law has recognized the child as a competent witness, but a child particularly at tender age, who is unable to form a proper opinion or information about the nature of the incident because of its immaturity of understanding, then only the court has to consider the evidence of that witness very carefully. The evidence of such a child is required to be evaluated meticulously because he is an easy prey to tutoring. Therefore, in such eventuality, the court has to look for corroboration from other evidence to the child’s testimony. The age of the child is not a criteria, but the capacity and competency of the child to depose or answer before the court to the question that has to be adverted to by the court, before accepting the evidence of the child witness. Therefore, the evidence of the child witness is not to be rejected per-se, but only the rule of prudence demands subject the same to close scrutiny. If on close scrutiny, the court finds it reliable, even conviction can be based on the sole testimony of a child witness.
24. Bearing in mind the above said principles, now we would like to proceed to consider the evidence of the child witness and the other evidence sofar as connecting the evidence of the child witness. There is no doubt that the Investigating Officer has recorded the statement of the child witness by means of vediographic method which is marked at Ex.P10, which has been produced before the court. However, we are not assisted by the said Ex.P-10 (Compact Disc) because the said compact disk which was relied upon by the Trial Court is completely damaged and broken and we had no opportunity to look into Ex.P-10.
Nevertheless, it goes without saying that, it is only a statement recorded under Section 161 of Cr.P.C., of the said child witness by means of video graphic method. When once the witness has been examined before the Court, Section 161 statement looses all its sanctity unless any contradiction or omission is elucidated during the course of cross-examination of such witness. If it is admitted that a statement has been given by a person under Section 161, Cr.P.C., if no contradictions or omissions are elucidated, that statement becomes a scrap and it is not a substantive evidence that can be relied upon by the Court as against the substantive evidence recorded of that particular witness, by the Court.
25. The Investigating Officer has deposed that he has recorded the statement of the said child witness in the presence of two witnesses. In this context, it is seen that PW-12 – Babu Rai and PW-13 - Gopalakrishna coupled with the evidence of PW-20 - Chandravathi, they have unequivocally stated before the Court that after the death of Saraswathi, they all went to the spot and seen the dead body. It is categorically stated that on the next day itself, the police have secured the presence of PW-20 along with PW-22 – Master Rohithashwa and the Investigating Officer has recorded the statement of PW-22 by video graphic method and in the presence of these witnesses, he has categorically stated with regard to the accused persons assaulting the deceased and committing her murder. In the course of cross-examination of these witnesses, nothing worth has been elicited even except putting suggestion that the said child has not stated before them with regard to the commission of offence by the accused. The said suggestion has been denied by these witnesses. The above aspect goes to show that there was an opportunity to the accused to cross examine all these witnesses, so far as the recording of the statement of the child witness by means of video graphic method. They have in fact cross-examined these witnesses about the contents of Ex.P-10 stating that, the witness has not given such statement before these witnesses. Ex.P-10 only contains Section 161 of Cr.P.C., statement. But the evidence of these witnesses which operate as a substantive evidence, wherein they have categorically stated that the child witness has stated before them also that, the accused persons have committed such an offence by assaulting the deceased with choppers or kathis and his mother sustained injuries. Therefore, though these witnesses appears to be here-say witnesses but immediately after the incident, they received the information from PW-22, therefore it is admissible, under Section 6 of the Indian Evidence Act, as the facts arisen out of the same transaction and that has been taken place immediately after the incident. There was absolutely no time gap between the disclosure of the said fact by the child witness before these witnesses and also there is no delay in recording the statement of the child witness. Therefore, the evidence of these witnesses also show that the child witness was competent and he has stated so before these witnesses and before the Police. There is no strong reason to disbelieve these witnesses.
26. Now we would like to discuss the evidence of the child witness. Master Rohithashwa was aged 9 years when examined before the Court. Though a separate pre-examination has not been made by the learned Judge, but he was satisfied with regard to the capacity and competency of the said witness in giving evidence before the Court. However, the Court observed that the witness does not seem to be knowing the importance of oath, therefore, oath was not administered. It is not sine qua non that without administration of oath, a witness cannot be examined so far as the child witnesses are concerned. The Court also observed that, the witness was talking in Kannada language, but not so fluently, but it was giving answers in one or two sentences. The Court has put some questions and satisfied itself with regard to the competency as contemplated under Section 118 of the Indian Evidence Act, of the said witness and then proceeded to examine the evidence of the child witness.
27. On careful perusal of the evidence of the child witness, which is virtually and completely reiterated in the judgment by the Trial Court, the child has categorically stated that himself, accused Nos.1 & 2 and deceased Saraswathi were in the said house where the incident had occurred on that particular day and accused Nos.1 & 2 who are the grandmother and father, respectively, of the witness have assaulted the deceased in the morning near their house with choppers, and thereafter, PW-1 and his wife came to the spot. He has specifically identified accused Nos.1 & 2 before the Court as the culprits. No much cross- examination has been made so far as this witness is concerned. It is elicited that the child after the death of the deceased was residing with her matrimonial grandparents i.e., PW-1 and his wife. It is also elicited that what was the nature of the said house in which the incident happened and also whether the child was going to school at the time when the incident happened and whether he was tutored by anybody and whether he had gone to the police station, etc. For all these, questions the child has very candidly without any doubt answered these questions.
28. Learned Counsel for the appellant has submitted that, there is chances of this child being tutored because after the death of the deceased, the child was residing in the house of the maternal grandparents. Merely because the child was living with the matrimonial grandparents, it cannot be inferred by the Court without there being any evidence to that effect, that the child being tutored by anybody and he has not given evidence before the Court on his own. It is not the first time the child has stated so against the accused persons as we have already referred to the evidence of the other witnesses who have corroborated the evidence of the child witness by stating that, the child has stated before them earlier in the presence of the police about the incident. Though it is argued that the police have persuaded the child by offering chappals, cycle, chocolate, etc., which is admitted by the child, and therefore, such evidence of the child cannot be believed. But here, it is not elicited when actually child was offered with these aspects. In this context, the evidence of PW-20 – Chandravathi, plays a dominant role. In the course of cross-examination of this witness, at paragraph 7, it is suggested that PW-22 was not in a position to speak at that particular point of time and the police have questioned him by offering him chappals, cycle or chocolate, etc. But the said suggestion has been denied. Therefore, it is not that when the child was brought to the Court and examined, at that time any offer was made to the child or the child was tutored. It may be at the time of recording the statement of witness, the police might have offered the child. It does not mean to say that the said articles were offered by the police for the purpose of eliciting any facts which were foreign to the incident. The Court should not give much importance to this aspect because, to create a congenial, homely and fearless atmosphere to the witness, such offers might have been made. It cannot be a ground to reject the evidence of the child unless it is established that those offerings were made to elicit the false facts from the child, to implicate the accused. On the other hand, in fact, the evidence of other witnesses before the court and what the child has spoken to about the incident, might be fully corroborated with each other. Therefore, even if such offerings were there, it cannot be stated that because of that offerings only, the child irrespective of the incident has deposed falsehood before the Court.
29. One more thing has to be looked into by the Court. Accused No.2 is none other than the father of the child and accused No.1 is the grandmother. In the absence of eliciting any deliberate cause between the accused persons and the witnesses, it cannot be concluded that the child has been tutor and only because of the tutoring the child has stated so. Further, added to it, the deceased was the mother of the child. Therefore, under the peculiar facts and circumstances of this case and even after careful and meticulous evaluation of the evidence of the child witness, we are of the opinion that the child was so stubborn, candid and meticulous in explaining the incident on that day in short words. The child has stated and rightly stated as to how the incident has occurred.
30. In the above circumstances, we are of the opinion that we do not find any strong reasons to discard the evidence of the child witness. Though the sole evidence of the child is available and the circumstances under which the child’s statement was recorded, though hear-say, as we have observed, is also supported by the evidence of other witnesses. Hence, we do not find any reason to interfere with the judgment of conviction and sentence passed by the Trial Court. Hence, we proceed to pass the following:
ORDER The appeal is devoid of merit and is liable to be dismissed. Accordingly, the appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE KGR/KK*