IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2019 PRESENT :
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE DR.JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No.1207/2013 BETWEEN:
Sri. Hanumanthappa S/o Basavarajappa, Aged about 32 years, Occupation: Coolie, Bhovi by caste, Resident of Venkateshapura Bhovi Colony, Holalkere Taluk, Chitradurga District.
(By Sri. Srinivas N., Advocate) AND:
State of Karnataka by Holalkere Police Station, Chitradurga District.
(By Sri. Vijay Kumar Majage, Addl. SPP) …Appellant …Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment of conviction and sentence dated 25.10.2013 passed by the Prl. District and Sessions Judge, Chitradurga in S.C.No.145/2012 – convicting the appellant/accused for the offence punishable under Section 302 of IPC and sentencing to undergo imprisonment for life and pay fine of Rs.5,000/-, in default to pay fine, he shall undergo S.I. for a period of 1 year for the offence punishable under Section 302 of IPC.
This Criminal Appeal coming on for Hearing this day, Dr.H.B. PRABHAKARA SASTRY, J., delivered the following:
J U D G M E N T The Court of the Principal District and Sessions Judge, Chitradurga (hereinafter referred to as “Trial Court” for brevity) in its judgment dated 25.10.2013 passed in S.C.No.145/2012, convicted the present appellant who was an accused before it for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for brevity) and sentenced him accordingly.
Challenging the said judgment of conviction, the appellant/accused has preferred this appeal seeking to acquit him of the aforesaid offence.
2. The summary of the case of the prosecution is that on 15.08.2012 at 12.00 noon, PW.1 Murthappa, who is said to be the father of the deceased Bhagyamma lodged a complaint with the respondent-Police stating that his daughter who was married to the appellant/accused herein about 12 years back was residing with her husband in a hut at Venkateshapura Village. On 15.08.2012 in the morning at about 4’O clock, one Sri.Puttappa, the brother of the accused- Hanumanthappa telephoned to one Sri. Srinivasa, the second son of the complainant stating that Bhagyamma having lost breathing has fallen unconscious. The complainant told them to lay her down nearby the temple. On the same day in the morning at 7.30 when these people went to Venkateshapura Village, they saw the dead body of Bhagyamma, which was placed on a platform (katta) of in-law’s house of the deceased. He noticed a blackish mark on the neck portion of the deceased. When inquired, the son of the deceased told that on the previous night, the accused who is the father of the said child was quarrelling with his wife i.e., deceased and at about 3’O clock in the morning, stuffing a lungi (a plain cloth like dress material) in the mouth of the deceased, throttled her neck. Seeing this, the child rushed to its grand parents’ house (parents of the accused), whose house was nearby. When all of them went to that house, they saw Bhagyamma was dead. The child also told the complainant that thereafter the dead body was laid down on the platform (katta) of the house of the parents of the accused. The complainant has also stated that since the deceased was questioning her husband of his addiction to liquor, the accused has throttled her causing her death. After registering the said complaint in Crime No.366/2012 against the accused for the offence punishable under Section 302 of IPC and conducting investigation, the respondent-Police filed charge sheet against the accused for the offences punishable under Sections 302 and 201 of IPC.
3. Charges were framed. Since the accused pleaded not guilty, trial was held, wherein the prosecution in order to prove the alleged guilt against the accused, examined PWs.1 to 12 and got marked documents from Exs.P-1 to P-13 and Material Objects from MOs.1 to 3.
4. After hearing both the sides, the Trial Court by its impugned judgment convicted the accused (appellant herein) for the offence punishable under Section 302 of IPC and sentenced him accordingly.
5. It is against the said judgment of conviction, the accused has preferred this appeal.
6. Lower Court Records were called for and the same are placed before this Court.
7. Heard the arguments of the learned counsel for the appellant (accused) and the learned Additional State Public Prosecutor on behalf of the respondent - Police.
8. Perused the materials placed before us, including the Lower Court Records.
9. Learned counsel for the appellant in his arguments mainly forwarded four points. The first of it being that the prosecution has failed to establish the exact place of the alleged incident. Learned counsel submitted that the evidence of prosecution witnesses itself go to show that they are referring to three places, wherein the first is the house of the accused, second is a temple called Ajjaiah temple in Venkateshapura Village and third is the platform in the house of parents of the accused. The second point of argument of learned counsel for the appellant is about disputing the alleged nature of death. According to him, there is no clear and cogent evidence to establish that the death was a culpable homicide amounting to murder. Thirdly, learned counsel also submitted that the non-examination of the neighbours of the alleged place of incident by the Investigating Officer during the course of investigation also creates doubt in the case of prosecution.
Lastly and more vehemently, learned counsel submitted that PW.11 – Manikanta admittedly being a minor boy aged about 9½ years as on the date of the incident is a child witness and also a tutored witness. As such, even after careful scrutiny of the evidence of the said witness, the same does not inspire any confidence to believe in its version. However, the trial Court has committed an error by merely believing the evidence of PW.11 in pronouncing the judgment of conviction of the accused. With this, he prayed for allowing the appeal by acquitting the accused.
10. Learned Additional State Public Prosecutor in his arguments submitted that a conjoint reading of the evidence of PWs.11 and 12 clearly go to show that the place of incident is a hut in Venkateshapura Village, wherein the accused and the deceased were living together. Though there is mentioning of other two places like Ajjaiah temple and the platform in the house of parents of the accused, but they are not the place of incident.
Learned Additional State Public Prosecutor also submitted that the inquest panchanama at Ex.P-3, the evidence of medical Doctor as PW.7, who has conducted autopsy on the dead body of Bhagyamma clearly go to show that the death is homicidal. The evidence of PW.11, who is the lone eye witness of the incident and whose evidence inspires confidence to believe, clearly go to show that it was a culpable homicide amounting to murder, as such, there is no ambiguity in the nature of the death of Bhagyamma.
Learned Additional State Public Prosecutor also submitted that merely because the alleged neighbours are said to have not examined by the Investigating Officer, would by itself neither take away the case of prosecution nor weakens it. On the other hand, a conjoint reading of the evidence of PW.1, 4 and 11 makes it very clear that it is the accused and accused alone who has committed the alleged offence.
With respect to the evidence of PW.11, learned Additional State Public Prosecutor submitted that merely because PW.11 is a child witness, there is no reason to disbelieve the same, provided the evidence of child witness inspires confidence to believe in it. He submitted that a reading of the evidence of PW.11 in its entirety inspires confidence to believe the evidence of the child that he has seen the incident and witnessed his father committing murder of the deceased, who is the mother of the child. With this learned Additional State Public Prosecutor, submitted that the judgment under appeal does not warrant any interference at the hands of this Court.
11. The accused has not disputed the fact that the deceased Bhagyamma is the daughter of PW.1 and was married to the accused about 12 years prior to the incident. It is also not in dispute that out of their wedlock, deceased Bhagyamma and accused got PW.11 – Manikanta born to them. It is in the light of these admitted facts, the evidence of prosecution witnesses are required to be looked into.
12. Among 12 witnesses examined by the prosecution, PW.1 – Murthappa, is the father of the deceased, so also the complainant in the case. He has stated that the accused had no specific avocation to lead his family. Though he had established a petty provision store for the accused to eke out his livelihood, still the accused could not run the same. The accused was in the habit of consuming liquor and was neglecting his family, which had made him (PW.1) to bring his daughter, Bhagyamma and her child to his place for some time and to take their care. However, since his son-in-law i.e., the accused decided to take his wife back to his village, Venkateshapura, she was sent along with the accused. As such, after their return to Venkateshapura, the accused and his wife by putting up a hut in Venkateshapura were residing there.
PW.1 has further stated that on the alleged date of incident, the younger brother of the accused by name Puttappa telephoned to his second son Srinivasa informing him that Bhagyamma was not well and she has been put in the temple since she is not breathing. Immediately, he (PW.1) joined by his wife and one Sri. Rangappa, a well wisher to their family who resides in the same village, went to Venkateshapura in the morning between 7.00 to 7.30 a.m. They saw the dead body of Bhagyamma laid down on the platform of the house of the parents of the accused, however, the accused was not found there. When he inquired his grand son i.e., Manikanta, he was told by his grand-son that on the same day, early morning at about 3.00 a.m., the accused stuffed the mouth of his wife (deceased) and was throttling, despite the child asking him not to do it. The child rushed to its grand parents’ house (parents of the accused) to bring them and the moment they all returned to the house of the accused, he had run away from the place and had thrown the dead body of deceased Bhagyamma in the bath room. The witness has further stated that after hearing the details from the grand son, he went to police station joined by PW.4 and filed a complaint as per Ex.P-1. He was subjected to a detailed cross-examination, wherein he adhered to his original version. But, at one place he has stated that after receiving a telephone call in the midnight, while coming to Venkateshapura he had brought his grand son along with him.
13. PW.2 – Meese Halkurappa, has stated that he has subscribed his signature to the scene of offence panchanama and has seen a boy showing the place to the Police where the panchanama was drawn. He has identified the scene of offence panchanama as Ex.P-2.
14. PW.3 – D.T. Hanumanthappa has stated that he has seen the dead body of Bhagyamma which was laid on the platform of the house of the parents of the accused in Venkateshapura and has also seen reddish long mark on the neck of the deceased. He was a pancha witness for the inquest panchanama drawn on the dead body, which he has identified at Ex.P-3.
15. PW.4 – Rangappa, has stated that he is a known person to the family of PW.1 – Murthappa and he knows about his family. He has stated that after marriage of Bhagyamma with accused, she started residing in Bhovi Colony of Venkateshapura Village in her husband’s house. The accused being husband of Bhagyamma was addicted to liquor and subjected her to ill treatment. In that connection panchayaths were held wherein he had also participated for four to five times. Though the accused was assuring that he would take care of his wife (Bhagyamma) in those panchayaths, but still continued to subject her to cruelty. An year prior to the incident, father-in-law of the accused i.e., PW.1 got a petty provision store established for the accused in his village, however, the accused could not manage the same and took his wife back to his village Venkateshapura.
The witness has further stated that on the date of incident, which was Independence Day, the younger brother of the accused telephoned to PW.1 – Murthappa intimating that Bhagyamma was not well. Immediately, said Murthappa joined by his wife and himself (PW.4), went to Venkateshapura Village only to see the dead body of Bhagyamma placed on the platform of the house of the parents of the accused. He noticed a mark around the neck of the dead body. When inquired with Manikanta, child of the deceased, he was told by the child that his father i.e., the accused after assaulting his mother, has strangulated her with a lungi. After hearing the details from the child, himself (PW-4) joined by PW.1 – Murthappa went to police station and lodged a complaint, for which he was a scribe. He had identified the complaint as Ex.P-1.
The witness further stated that after registering the complaint, the Police came to Venkateshapura and drew inquest panchanama and recorded his statement. This witness was also subjected to a detailed cross- examination, wherein he adhered to his original version.
16. PW.5 – Venkateshappa and PW.6 Hanumanthappa, though were examined by the prosecution projecting them as pancha witnesses of the alleged recovery panchanama at Ex.P-5, wherein the accused is said to have produced the said cloth before these panchas, however, both these witnesses have not supported the case of prosecution. Even after treating them hostile, the prosecution could not get any support from them.
17. PW.7 – Dr. Chowdappa, Specialist Doctor, General Hospital, Holalkere, has stated that he conducted post mortem examination on the dead body of deceased Bhagyamma on the request of respondent-Police on 15.08.2012 between 4.00 p.m. to 6.00 p.m. He has stated that he noticed a ligature mark over the neck of the dead body extending from right occipital region to left side of occipital region measuring about 26 cms. in length and right side width about 3 cms., more prominent mark and redness was seen over right side of the neck and also stated that the ligature was oblique in the upper part of the neck. According to him, on dissecting the neck he noticed the fracture of thyroid cartilage and hyoid bone. The Doctor has opined that according to him, death was due to asphyxia as a result of strangulation and stating that he has issued post mortem report, he has identified the same at Ex.P-6. In his cross-examination, suggestions were made to show that his conclusion as to the death was not correct. However, the witness adhered to his original version with regard to the nature of death of the deceased.
18. PW.8 – Lokesh, has stated about he taking few photographs of the alleged place of occurrence of the offence and also while the accused was leading Police to a hillock for the alleged recovery, which photographs he has identified at Exs.P-7 to 10.
19. PW.9 – Venkatesh, another Police Constable is a carrier of FIR at Ex.P-11 to the Magistrate.
20. PW.10 – Ramesh, the then Police Sub- Inspector, Holalkere Police Station, has stated that on 15.08.2012, he received a complaint as per Ex.P-1 lodged before him by PW.1 and registering the same in their station Crime No.366/2012, he prepared FIR as per Ex.P- 11 and sent to the Court through PW.9 – Venkatesh.
21. PW.11 – Manikanta, a boy aged about 10 years as on the date of his evidence in the Court was permitted to give his evidence after observing by the trial Court that he was able to understand the questions put to him and to give rational answers to them.
The said witness apart from stating that the accused is his father and deceased Bhagyamma is his mother, has stated that while he was in Venkateshapura, he was attending for third standard in a school there. His school timings was between 9.30 a.m. to 4.00 p.m. and thereafter he used to be at home. His mother was attending to coolie work and was returning at 5.00 p.m., so also the returning hours of his father was 6.00 p.m. He has stated that frequent quarrels were taking place between his father and mother, wherein his father addicting to liquor was demanding money from her and assaulting her. On all these occasions, he was bringing his grand parents to the said place, who were asking his son as to why he was ill treating his wife.
The witness has further stated that his mother’s native place is Hoyhole . His grand father is Murthappa. On the alleged date of incident, which was an year back, in the midnight, he saw his father sitting on the chest of his mother and causing her death by throttling her. The witness has stated that, then he was at Venkateshapura, again he has stated that he was at Hoyhole, however, once again stated that he was at Venkateshapura Village. The witness has stated that immediately he rushed to his grand parents’ house and brought them to the house, by which time the accused had run away from the place. When they came, his mother was no more. The witness has categorically stated that he has seen his father sitting on the chest of his mother and throttling her. This witness was subjected to a detailed cross-examination from the side of accused, wherein the witness adhered to his original version stating that he has seen the alleged incident.
22. PW.12 – K.B. Sridhara, the Investigating Officer, has stated about the investigation conducted by him in the matter and also about filing charge sheet against the accused.
23. From the evidence of prosecution witnesses, the fact which is not in dispute is that, deceased who is the wife of accused has met an unnatural death in the early hours of 15.08.2012 in a village called Venkateshapura. However, the accused seriously dispute the exact place of the alleged death of the deceased Bhagyamma. The first reference to the place of the death can be noticed in the evidence of PW.11, the child. According to the said child, death of his mother has taken place in the hut at Venkateshapura, where they were residing. PW.2, who is a signatory to the scene of offence panchanama though has stated that he has seen a child showing some place to Police and describing them about the incident, but he has not specifically and clearly stated as to what that place was. According to him, the place which the child was explaining to the Police was the hut at Venkateshapura. However, the witness in the course of his evidence has stated that he had been to the said hut which was the place of murder. Thus, from the evidence of PW.2, it can be inferred that the witness has understood the said hut at Venkateshapura as the place of the incident.
PW.12, the Investigating Officer has also stated that the place of alleged incident was the hut which was shown to them by PW.11, the child of the deceased. It is at that place he has drawn scene of offence panchanama as per Ex.P-2 in the presence of PW.2 and other panchas.
Thus, the evidence of PWs.2 and 12 shows that the alleged place of incident is the hut, where the accused is said to be residing at Venkateshapura. However, a reading of the complaint at Ex.P-1 would go to show that it was his second son Srinivasa received the telephonic information from Puttaraju, the younger brother of the accused, stating that Bhagyamma had fallen unconscious. However, the complainant is shown to have stated to lay her down near the temple. Thus, the complaint at Ex.P-1 when independently does not give any specific place of the alleged incident, however the very same complainant in his evidence as PW.1 has stated that the telephonic information received by his son has given them information that Bhagyamma was laid down in the temple. Thus, according to PW.1 when telephonic information was given to them, it was told to them that Bhagyamma was laid in the temple at Venkateshapura Village, however, when PW.1 joined by his other family members and PW.4 proceeded to Venkateshapura, they saw the dead body of the deceased neither in the hut of the accused nor in or near the temple at Venkateshapura, but on the platform (katta) of the house of the parents of the accused in the same village. However, further evidence of PW.1 where he has narrated the details about the incident as stated to him by PW.11 reveals that he was given information by PW.11 that the alleged incident has taken place in the house of the accused at Venkateshapura.
In the above varying statements of three different prosecution witnesses in three different manner, it was necessarily required of the Investigating Officer to investigate into the aspect of the reason as to why the dead body was said to have been placed near the temple and then on the platform of the house of the parents of the accused. In that regard, the important witnesses which the Investigating Officer could have examined were, Puttappa, the younger brother of the accused who was said to be the informant to the son of the complainant over phone and one Srinivasa, the second son of the complainant who received the phone call made by Puttappa. However, for the reasons best known to him, the Investigating Officer has not attempted to examine these two witnesses. Thus, the exact place of the alleged incident when considered in the light of the evidence of PWs.1, 2 and 12 remains unclear. The only person who speaks about the alleged place of incident being PW.11, who is a child, unless its evidence appears to be convincing and trust worthy, it cannot be held that the place of the incident was the house of the accused.
24. The second point of argument of learned counsel for the appellant/accused is regarding the nature of death of the deceased. According to learned counsel for the appellant, the prosecution is not clear in its case that the death was a culpable homicide amounting to murder or for that matter it was homicidal. It is the argument of learned counsel for the appellant that the evidence of the Doctor, i.e., PW.7 is not convincing to show that the death was homicidal one.
Per contra, learned Additional State Public Prosecutor submits that apart from inquest panchanama and the evidence of PWs.1 and 4, the convincing evidence of PW.7 makes it very clear that the nature of injury found on the deceased cannot be self inflicted and the said strangulation being due to the act of a third person, as such, it is homicidal. He continued stating that the evidence of PW.11 makes it further clear that said homicidal death has been caused by none else than the accused himself.
PW.11, the child though has stated that he has seen the occurrence of the incident wherein his father i.e., the accused has caused the death of his mother i.e., the deceased, but the said evidence has to be thoroughly scrutinized before believing the said child witness. As such, the only witness remains who can medically speak about the death of the deceased is the one who had conducted autopsy on the body of the deceased.
As already observed above, the said witness (PW.7) after observing the presence of ligature mark of about 26 cms. in length running on the neck extending from right occipital region to left side of occipital region and also fractures of thyroid cartilage and hyoid bone, has opined that the death was due to asphyxia as a result of strangulation. The post mortem report at Ex.P-6 issued by him also says that the Doctor has opined that the death was due to strangulation.
The said witness has further stated in his evidence that a piece of cloth if tightly tied around the neck and if two ends are pulled there is possibility of occurrence of death.
The said PW.7 was subjected to detailed cross- examination from the side of the accused, where it was suggested to him that when a person sits on the chest of the deceased and attempts to strangulate the latter, fracture of the ribs and struggle injuries would cause. PW.7 though has not denied the said suggestion, but has only stated that there is likelihood of such injuries on the latter. However, the said witness denied the suggestion that ligature mark found on the deceased was due to hanging. By making such categorical statement even in his cross-examination, the Doctor has made it very clear that the death was due to strangulation and it was not self-inflicted in any manner including hanging, as such, the only inference that can be drawn from the evidence is that the death is not just homicidal, but it is culpable homicide.
25. The only question then remains to answer is, whether the prosecution has proved beyond reasonable doubt that the said death of Bhagyamma was caused by the accused and accused alone. In that regard, the star witness around whom the entire case of prosecution revolves is PW.11. Even though PWs.1 and 4 have stated that it was the accused who has committed the murder of his wife, but even according to them, the said knowledge as to the culprit was given to them by none else than one Manikanta, who is admittedly the child of the deceased as well the accused.
26. PW.11 Manikanta admittedly was aged about 9½ years as on the date of the incident, which was on 15.08.2012. Thus, he is a child witness. Our Hon’ble Apex Court in the case of State of U.P. Vs. Ashok Dixit and Another reported in (2000) 3 Supreme Court Cases 70, in a case falling under Section 302 and 307 of IPC which also involves the evidence of a child witness was pleased to observe that 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 upon. It is keeping this guideline of the Hon’ble Apex Court, the evidence of PW.11 – Manikanta, is required to be assessed very carefully.
27. The trial Court before proceeding to record the evidence of the child has put few Court questions to it to ascertain that the child witness could able to understand the question put to it and to give rational answers. It is only after satisfying that the witness could able to understand the questions put to it and to give rational answers, the Court has permitted the prosecution to examine the said witness. It is thereafter the prosecution has proceeded to examine the witness.
PW.11 in his brief examination-in-chief has stated that he was an eye witness to the incident and on the night when the incident has taken place which was in their hut at Venkateshapura, he saw his father i.e., the accused sitting on the chest of his mother Bhagyamma and killing her by throttling her, however, the evidence of witness has not stopped only to that extent. In the very next sentence after narrating about he witnessing the incident, the witness has stated that he was at Venkateshapura at that time and again stated that he was at Hoyhole and thereafter without any break and in the same breath has once again stated that he was at Venkateshapura. It is thereafter the witness further stated that by the time he rushed to his grand parents’ house and bring them, his father had already run away from the place. However, he reiterated that he has seen his father sitting on the chest of his mother and throttling her.
28. When the evidence of PW.11 is analysed confining it to its examination-in-chief, it can be noticed that the witness is not by himself very clear and certain as to in which place he was as on the night of the alleged incident, whether he was at Venkateshapura or at Hoyhole. In the very beginning sentence of its examination-in-chief, the child has stated that he was going to school while he was at Venkateshapura and was studying third standard, however, at Hoyhole. As already observed, the date of evidence of this witness was one year after the date of the incident. Thus, the child cannot be studying in the same standard at two different places on the very same day. Therefore, the very first sentence in his examination-in-chief as well in his cross-examination itself being contradictory to each other and the child is not making itself clear as to in which place and in which standard he was studying, it creates doubt as to whether the child could able to clearly and specifically answer the questions put to it.
29. Secondly, even though the child, PW.11 has stated, at the time of he alleged to have witnessed the incident, he was at Venkateshapura, but in the same breath and without any break, he has stated that he was at Hoyhole. In continuing the same and without any break, again the child has said that he was at Venkateshapura. That means, the confusion that the child had undergone by itself did not stop in the beginning itself, but it continued further even after the child narrating about the alleged incident, which he claims that he has witnessed it. PW.1, who is admittedly the grand father of the child, whose evidence that the said child was with him is not disputed from either side totally gives a different picture. PW.1 in his cross-examination has categorically stated that after they receiving telephone call in the midnight, taking their grand son who was in their house, they went to Venkateshapura. In the evidence of prosecution, reference to said grand son is only to PW.11 and none else. Thus, it is clear from the undisputed evidence of PW.1 that after receiving phone call, he brought his grand son i.e., PW.11 from his place i.e., Hoyhole to Venkateshapura along with him. When that is the evidence placed by the prosecution that PW.1 has made it clear that PW.11 was brought with him to Venkateshapura after hearing about the incident, the question of the said boy, PW.11 being at Venkateshapura as at the time of alleged incident remains highly skeptical.
30. Thirdly, the presence of PW.11 as at the time of alleged incident in Venkateshapura Village and he witnessing the incident leads to suspicion also for the reason that according to PW.1 when he went to Venkateshapura Village and saw the dead body of his daughter Bhagyamma and inquired his grand son he was told by the grand son that it was the accused who throttled Bhagyamma by pressing her neck (with his hands). The said informant child i.e., PW.11 in his examination-in-chief also has stated that while he was seeing his father sitting on the chest of his mother, throttled her by pressing her neck and caused her death. PW.1 has reiterated the very same statement once again in his examination-in-chief. However, the case of prosecution is that the accused has made use of lungi in strangulating the deceased. According to PW.12, the Investigating Officer based upon the alleged voluntary statement of the accused, which he has marked at Ex.P-13, the accused led him and the panchas to the place where the said piece of cloth was said to have been hidden by him and produced it, in which regard they drew a seizure panchanama also. The witness has also identified Exs.P- 8, 9 and 10 as the photographs of the alleged recovery. Even though PWs.5 and 6 who were projected as the panchas to the alleged recovery panchanama of the said cloth at MO.3 have turned hostile, but the prosecution case is that the said cloth was used in the commission of the crime and that too for strangulating the deceased. Had really the said cloth was used by the accused in strangulating the deceased, the said cloth should have been used to press the neck of the deceased by the accused, in which event PW.11, the child should have necessarily said that his father either tied a cloth around the neck of the deceased or pressed her neck against the ground by making use of a cloth. There is no whisper in the evidence of child in that regard.
31. These factors in the evidence of the child makes it clear that the said child as PW.11 itself was not clear as to where he was on the date of alleged incident and what he was studying. Though he claims at one place that seeing his father throttling his mother, he ran to his grand parents’ house and by the time they returned, his mother was dead and the accused was not in place, but in the next breath he has stated that he saw his father killing his mother and after he killed, he ran to his grand parents’ house. Thirdly, in the absence of child referring to cloth at MO.3 and the prosecution not showing the said cloth to the child and eliciting any details from the child regarding nexus of the said cloth to the death of the deceased, it has to be inferred that it is not safe to rely solely upon the evidence of the child.
32. Once it is noticed that the evidence of PW.11 is not safe to rely upon, then the case of prosecution requires some corroboration to the evidence of the child witness. Admittedly in the present case, except the child (PW.11) there are no other eye witnesses to the incident or any other witnesses who could speak about they seeing the deceased lastly in the company of the accused on that night. In such a situation, when the prosecution has failed to lay any corroborative evidence in support of the evidence of the child, it is not safe to solely rely upon the evidence of the child to come to conclusion that it was the accused and accused alone who has committed the murder of his wife. In such a situation, the benefit of doubt that has crept in the case of prosecution is invariably required to be extended to the accused. However, the trial Court even though has appreciated the evidence of the witnesses in detail, but has considered that discrepancy in the evidence of the child regarding his presence in Venkateshapura as on the date of incident is only due to the stress under which the child was due to departing of his mother.
However, the above analysis clearly go to show that when the statement of the child was recorded two days after the alleged incident and its evidence was recorded one year after the incident, the child is required to be presumed to be free from such stress or grief. Thus, when the evidence of the child has proved to be not safe to believe and in the absence of any corroborative evidence placed by the prosecution, the extension of benefit of doubt in favour of the accused is the only way for which this Court can come to an opinion about. As such, the finding given by the trial Court holding the accused guilty of the alleged offence deserves to be set aside and extending the benefit of doubt in favour of the accused, the accused deserves to be acquitted of the alleged offence.
Accordingly, we proceed to pass the following:
O R D E R The Appeal is allowed. The judgment of conviction and order on sentence dated 25.10.2013, passed by the learned Principal District and Sessions Judge, Chitradurga, in S.C.No.145/2012, is set aside. The accused - Hanumanthappa S/o Basavarajappa, resident of Venkateshapura Bhovi Colony, Holalkere Taluk, Chitradurga, is acquitted of the offence punishable under Section 302 of Indian Penal Code.
The fine amount of `5,000/- paid by the accused, if any, to be refunded to him in accordance with law.
Since the accused is in judicial custody, the Registry is directed to communicate the operative portion of this judgment to the concerned Jail authorities forthwith.
The accused be released forthwith, in case if he is not required to be continued in judicial custody in any other case.
The Registry is directed to transmit a copy of this judgment along with Lower Court Records to the trial Court.
Sd/- JUDGE Sd/- JUDGE Bmc