1

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 631 OF 2012

Gandi Doddabasappa …Appellant

@Gandhi Basavaraj

Versus

State of Karnataka …Respondents

J U D G M E N T

A.M. KHANWILKAR, J

1.This criminal appeal arises from the judgment and final order

passed by the High Court of Karnataka dated 3

rd

June, 2011 in

Criminal Appeal No. 2259 of 2005. The High Court has set aside

the order of acquittal passed by the Sessions Court and instead

convicted the appellant (accused) for an offence punishable under

Section 304, Part I of the Indian Penal Code, 1860 ( ‘IPC’) and

2

sentenced him to undergo 10 (ten) years of rigorous imprisonment

for killing his daughter, Shilpa.

2.When this appeal was taken up for hearing on 8

th

September,

2016, the Court directed issuance of notice to the appellant

(accused) for enhancement of sentence. That notice has been duly

served on the appellant.

3.The factual circumstances leading to this appeal are as under:

a.One Ravi Kumar (PW16), from the Naik community and

Shilpa, from the Lingayat community, were in love. Being from

different castes and apprehending opposition to their marriage by

the family of Shilpa, they decided to elope and got married in 2002.

They got their marriage registered before the Sub-Registrar, Hospet

in 2003. Eventually, the couple returned to their village Taranagar

to stay with the parents of Ravi Kumar (PW16), PW17 and PW18.

When this marriage came to the knowledge of Shilpa’s father, the

accused, he bitterly opposed the same and reportedly berated PW16

and his family on several occasions, stating that they had brought

down the honour of his family and that he would “finish” his

daughter for marrying into a lower caste.

3

b.In the days leading up to the alleged incident, Shilpa was

pregnant (around nine months). She frequently used the public

toilet near to her place of residence, often accompanied by her

mother-in-law (PW18). On the fateful day i.e. on 3

rd

October, 2003,

at around 8 AM, Shilpa wanted to go to the toilet. At the relevant

time, PW18 was preparing ‘rotis’ for her husband (PW17) who was

getting ready to go to work. PW 18 told Shilpa that she would join

her as soon as she finishes that work. After finishing her task and

washing her hands, PW18 started walking towards the public toilet.

When she was near the house of one Hanumanthappa, she heard a

cry of Shilpa “Appa Beda Appa” (Father, don’t, father) coming from

the toilet. PW18 rushed towards the toilet. She saw the appellant

(accused) emerging from the toilet with a blood stained sickle. Upon

seeing PW18, the appellant (accused) threw the sickle into a

manure dung pit nearby and ran away. Hearing the commotion,

PWs1 to 4 soon arrived at the spot and along with PW18, entered

the public toilet. They found Shilpa lying on the ground, facing

upwards, in a pool of blood with a cut to her neck. PW18 then

lodged a complaint with PSI (PW24), who then registered the FIR.

4

The appellant absconded after the incident and was eventually

arrested 20 (twenty) days later. After the investigation was

complete, the appellant was charge sheeted for killing his daughter

Shilpa and committed to trial before the Sessions Court.

c.During the trial, prosecution led evidence of 25 (twenty five)

witnesses including the experts. The eye witnesses who had arrived

at the spot of the incident turned hostile with the exception of

PW18, whose testimony has been found to be truthful and reliable

by the High Court.

d.The Sessions Court, vide judgment dated 28

th

February, 2005,

acquitted the accused inter alia on the ground that mere intent on

the part of the accused to commit the crime was not sufficient to

record a finding of guilt. The Sessions Court discarded the evidence

of PW18. It held that the evidence of PW 18 was replete with

improvements on her previous statement and was unreliable.

Further, the circumstantial evidence was not enough to convict the

accused.

e.In appeal by the State, the High Court accepted the

prosecution’s case that the accused was a frustrated father because

5

of his daughter having married to Ravi Kumar (PW16) who belonged

to lower caste and was the motive to commit the crime. Further,

even if there was a little exaggeration of the events by PW18 during

her evidence, the same could be ignored and that the circumstantial

evidence was sufficient to convict the accused. The High Court also

relied on the post mortem report and serology report which inter

alia stated that blood stains on the sickle matched with those on

the clothes of the deceased. The High Court recorded a finding of

guilt against the appellant but went on to convict the appellant for

offence under Section 304 Part I of IPC and sentenced him to 10

years of imprisonment. This order of conviction and sentence has

been challenged by the appellant.

4.As aforesaid, when this appeal was heard on the earlier

occasion this Court issued a show cause notice to the appellant for

enhancement of sentence. At the commencement of hearing of this

appeal and on the show cause notice, Ms. Suri the learned senior

counsel for the appellant (accused), sought leave of the Court to

withdraw the appeal. She submits that as a consequence of

withdrawal of the present appeal against conviction filed by the

6

accused, the notice for enhancement of sentence (issued on 8

th

September 2016) would automatically get disposed of. As we

declined the prayer for withdrawal of appeal, the learned senior

counsel addressed us on the merits of the case.

5.On merits, Ms. Suri first submits that the prosecution has

failed to prove the intent of the accused in committing the crime.

Merely because the accused was unhappy about his daughter’s

inter-caste marriage, that by itself cannot be the basis to infer

motive to commit the crime. Besides, the witnesses who have

deposed about the threats given by the accused to PW16 and his

family, have turned hostile. PW 17 (father of Ravi Kumar (PW 16)),

during his cross examination, has stated that the accused and he

were on good terms and that it was not true that he had been

warned about the accused planning to kill the deceased. The

evidence of PW18’s (mother of Ravi Kumar (PW 16)), is the only

incriminating evidence in this regard and there is nothing to

corroborate the same. PW17’s evidence is hearsay. Additionally,

none of the witnesses have spoken about any pre-planning on the

part of accused to commit the alleged crime. The accused never

7

kept relations with his daughter nor did he even meet her after she

returned to the village post-marriage. The accused never filed any

complaint against PW16 and his family nor did he seek to hold any

panchayat in respect of the inter-caste marriage. The accused could

not have known when the deceased would go to the toilet nor could

he have known that, on the date of the incident, she alone will visit

the toilet. Finally, there was nothing to show that the accused had

procured the sickle (which is a common household object) for the

sole purpose of killing the deceased. Thus, there is nothing to show

that there was any intent on the part of the accused to commit the

alleged crime.

6.Ms. Suri further submits that the entire case of the

prosecution rests on the evidence of PW18. There are material

contradictions, inconsistencies and omissions in the evidence given

by PW18 which led the trial court to record that she was not an eye

witness and that the case has to be considered on circumstantial

evidence. The evidence shows that PW18 exaggerated her case in a

bid to secure the conviction of the accused. Ms. Suri points out that

in the FIR (Exh. P-18) filed immediately after the incident, PW18

8

has alleged that she merely saw the accused coming out of the toilet

with a blood stained sickle in his hand whereas in her deposition

stated that she actually saw the accused cutting Shilpa’s neck with

a sickle. This clearly shows an attempt of PW18 to improve her

case. However, the High Court erred by terming such discrepancy

as a “little exaggeration” when it is infact a material improvement.

This is further substantiated by reading the evidence of Doctor (PW

21), where he states that the cause of Shilpa’s death was

cardio-pulmonary arrest due to severe haemorrhaging and that the

death may have occurred 5-10 minutes after the actual assault due

to bleeding. This is contrary to the version of PW18 that when she

reached near the toilet, she saw the accused attack Shilpa. There

was no way that Shilpa would have bled to death by the time PW18

reached the toilet, considering the distance between the toilet and

from where PW18 allegedly witnessed the incident. This only proves

that PW18 did not actually witness the accused committing the

crime since Shilpa was already dead when PW18 reached the spot

and that the alleged crime would have happened some time before.

PW18 tried to cover up this discrepancy in her evidence by stating

that Shilpa was still alive after the attack and that she gave her

9

some water in a tumbler, whereafter she died. The presence of this

tumbler was never mentioned prior to her giving evidence. This

change in stance cannot be accepted in absence of corroborating

evidence. Further, the distance from Hanumathappa’s house, from

where PW18 allegedly witnessed the incident or heard the

deceased’s cries, was atleast 1 furlong (200 metres) from the toilet.

PW18 could not possibly have seen the accused committing the

crime from such a distance. Even the fact that PW18 heard the

deceased scream “Appa Beda Appa” or “Father, don’t, father” is

unbelievable. Whereas, PW16 states in evidence that PW18 told him

that the deceased screamed “Ooh I am pregnant please don’t do

anything to me”, thus clearly indicating a discrepancy in PW18’s

evidence. Finally, PW18’s evidence that she was alone when she

saw the accused commit the crime is directly contradicted by

PW16’s evidence when he states that at the time of the incident, the

toilet would have a queue outside it. Thus, the testimony of PW 18

is not fully reliable and cannot be accepted without corroboration.

7.Ms. Suri further submits that evidence of PW 17 would reveal

that a false FIR was registered against the accused merely on

10

suspicion of PW18. Additionally, the FIR was filed by PW18 in

consultation with one Rudrappa, a political rival of the accused.

This is substantiated by the fact that while the incident occurred at

8 AM, the FIR itself was registered only around 10:30 AM and the

inquest held between 11:30PM to 1:30PM. Further, the evidence of

PW 18 that the police did not register the FIR at the first instance is

directly contradicted by PW 25, who states that the FIR was indeed

recorded at the first instance. There is reason to believe that PW18

took time to consult Rudrappa before registration of FIR. The

evidence of PW18 is wholly unreliable. The allegations in the FIR

registered at the instance of PW18 are based on suspicion and

motivated.

8.Ms. Suri further submits that the description of injuries on the

deceased’s body were lacerated wounds. That was not possible by

sickle allegedly used in the commission of crime by the appellant.

Further, during cross examination, the doctor who prepared the

medical report deposed that such laceration wounds could be

caused by a fall on a rough surface. The doctor also deposed that

sharp weapon such as sickle generally cause incised wounds but in

11

the present case, the injury was a lacerated wound. An injury

caused by a sharp weapon such as a sickle would always be oblique

and not perpendicular. Most pertinently, the injury found on the

deceased was not mentioned to be an oblique injury. Additionally,

the medical report did not find any fingerprints of the accused on

the sickle, raising doubt as to whether the said sickle was used at

all much less by the accused. Further, PW18 clearly states in her

evidence that she did not see any blood stains on the clothes of the

accused nor did she herself have any blood stains on her clothes. If

the accused had used the sickle to cause injury to Shilpa, then

obviously there would have been sprinkling of blood on his clothes

but PW18 herself negates this possibility.

9.Ms. Suri further submits that while the serology report

discloses blood on the sickle belonging to “B” Group, there is no

evidence on record to show that either the victim’s blood or the

accused’s blood was “B” Group. This has not been explained by the

prosecution. Further, after the sickle was seized, the same was

sealed by the SHO and signed by PWs12 and 13. There was no

mention of distinguishing signs to differentiate the sickle in

12

question from any other sickle. Since PW12 and 13 turned hostile,

the only identifying factor left was the seal and the fact that the

sickle was kept in proper custody is not established. This too is

challenged as the sickle was seized on 3

rd

October, 2003 but sent to

the forensic lab on 16

th

October, 2003, without a whisper as to its

location during the intervening period. Further, the sickle was sent

to the lab by an unauthorised person who was not examined.

Additionally, the serologist who received the sickle was not

examined to prove that the sickle he received was the same one

with the SHO’s seal on it. After the sickle was sent to PW21 for

further examination, PW21 opened the same when he was alone in

the OPD and then resealed the same with his personal seal. This

personal seal was not identified by the witness during evidence.

Thus, the High Court could not have relied on the serology report

because the prosecution failed to prove that the sickle identified by

PW18 was the same sickle seized by the police. Thus, it could not

be proved beyond reasonable doubt that the accused had used the

sickle or that the sickle was the instrument used to cause Shilpa’s

death.

13

10.Ms. Suri also submits that the clothes of the deceased were

seized after the incident but not sealed in the hospital. The clothes

were brought to the police station by PW19 and sealed by the

inspector, PW25 along with pancha PW14. However, evidence of PW

14 reveals that he did not know the contents of the said

panchnama.

11. Ms. Suri submits that the High Court could not have

interfered with the judgment of the Sessions Court since the

Sessions Court had considered the entire evidence on record. Even

if the High Court was of the opinion that two reasonable views were

possible from the evidence on record, it has failed to record how the

finding of the Sessions Court was untenable.

12. In summation, Ms. Suri submits that evidence of PW 18

should be disregarded. In which case, there is no other direct

evidence to establish the involvement of the accused in the

commission of the crime. The circumstantial evidence available is

weak and the prosecution has failed to complete the chain of

circumstantial evidence. The intent of the accused to commit the

death of his daughter has not been established beyond reasonable

14

doubt. Thus, the accused cannot be convicted on the basis of either

the ocular evidence or the circumstantial evidence. Therefore, the

High Court judgment must be set aside.

13. In reply Mr. Kamat, submits that the crime in question is a

clear case of honour killing and that in Vikas Yadav v. State of

UP,

1

this Court has held that strictest punishment must be given

in case of honour killings.

14. Mr. Kamat fairly submits that the case rests on circumstantial

evidence. He submits that motive of the accused would be crucial

in proving his guilt. There is sufficient material on record to

establish that accused had intention to commit the crime. Mr.

Kamat pointed out from the evidence of PW18 that after the

marriage of PW16 and Shilpa, the accused never came to meet the

couple at the house of PW18 as they belonged to lower caste.

Further, the accused repeatedly threatened PW16 and 17 that he

would finish his daughter as she had ruined the family name. PW18

would always accompany Shilpa when she went to the toilet as she

1

(2016) 9 SCC 541

15

feared that the accused would make good on his threats. All this

goes to show that there was a clear motive behind the accused’s

actions. The High Court has found that the accused was frustrated

because his daughter abruptly left him to marry PW16. Resultantly,

the bottled up emotion and turmoil erupted on the day of the

incident. If the accused had not committed the crime, he would not

have absconded for 20 (twenty) days after the incident.

15. Mr. Kamat further submits that the High Court was right in

discarding the discrepancy/improvement in the evidence of PW18 of

having seen the accused assaulting his daughter. Even if the

improvements in PW18’s evidence are discarded, the chain of

circumstances clearly establish the link of the accused to the crime.

In addition to PW18’s evidence, the High Court has relied upon the

chain of circumstances including the strong motive of the accused

to commit the crime. It is well established that a conviction can be

secured on the basis of circumstantial evidence.

16. Mr. Kamat further submits that the defence has not

challenged PW18’s evidence that she saw the accused coming out

from the public toilet with a blood stained sickle in his hand and

16

throwing it in the nearby dung pit on seeing PW 18. PW18’s

evidence that she was just behind the public toilet, near

Hanumanthappa’s house when she heard Shilpa’s screams, has not

been challenged. Hanumanthappa’s house was behind the public

toilet and not at a distance of 1 furlong. Hence, the evidence of

PW18, that she heard Shilpa screaming and saw the accused

coming out of the toilet with a blood stained sickle, is credible

evidence.

17. Mr. Kamat further submits that the defence has failed to

challenge PW18’s statement that she saw the accused with a sickle

in his hand and that he threw it into a nearby dung pit and ran

away, which fact is corroborated by retrieval of the blood stained

sickle from the dung pit. Even the trial court has accepted the

prosecution case, of seizure of blood stained sickle from the spot as

proved.

18. Mr. Kamat then refuted the plea of the accused that the

nature of wounds inflicted upon the deceased could not have been

caused by a sickle. Mr. Kamat took us through the doctor’s

17

evidence (PW21) and pointed out the description of external

injuries:

“1) Lacerated wound on the neck on left side on anterior part

measuring about 6 cm x 3 x 3cm., blood was lost, blood

vessels and muscles are seen and veins were injured and the

blood was lost from the wound.

2) Lacerated wound over the left shoulder joint on superior

part about 7x3x8cm., no bleeding from the wound.

3)Lacerated wound on the right cheek, about 2 cm x 0.5 cm.,

no bleeding

4) Lacerated wound on the right forearm on the lower 13 on

lateral aspect about 5cm x 3cm x 2cm., bones and tendon are

exposed. Blood was lost from the wound.”

Mr. Kamat submits that in light of the aforesaid statement, it is

clear that the injury suffered by the deceased was not a lacerated

wound as loosely stated by the doctor but rather a deep and incised

wound. Mr. Kamat submits that a lacerated wound can be caused

by forceful application of blunt weapon to the body surface or due

to fall from a height. In contrast, an incisive wound is caused when

soft tissue is struck or pressed by a weapon or instrument having a

sharp and pointed edge, resulting in bleeding. In the present case,

the evidence clearly shows that the wound was deep and the

underlying veins, tendons and bones of the deceased could be seen.

That itself is sufficient to prove that the wound inflicted upon the

18

deceased was an incised wound and inflicted by the sickle in

question. Further, the doctor has deposed that the injuries inflicted

by the sickle in question could have caused death of the deceased.

19. Mr. Kamat further submits that the evidence also shows that

the blood found on the sickle matched with the blood group on the

deceased’s clothes. Even if there was no report to prove the blood

type of the deceased, the evidence that the blood on the sickle was

the same as that found on Shilpa’s clothes proves beyond

reasonable doubt that the sickle found in the pit was used in the

commission of crime. He submits that the appeal filed by the

accused be dismissed and the notice for enhancement of sentence

be made absolute.

20.We would first deal with the request of the appellant to permit

him to withdraw this appeal. We have no hesitation in saying that

this Court after hearing the parties and having been prima facie

convinced, issued show cause notice to the appellant for

enhancement of sentence. In this backdrop, we cannot permit the

appellant to withdraw the appeal. We say so because the show

cause notice issued to the appellant (accused) in terms of the order

19

dated 8

th

September, 2016, will have to be taken to its logical end

being substantive proceedings ascribable to the jurisdiction of the

Appellate Court under Section 386 or read with Sections 397 and

401 of the Criminal Procedure Code, 1973 (CrPC) and, in this case,

plenary jurisdiction of the Supreme Court. The show cause notice

for enhancement of sentence must proceed on the principle

underlying the exposition of law in Khedu Mohton and Ors Vs.

State of Bihar

2

. In that case, the complainant died during the

pendency of appeal against acquittal before the High Court and

therefore, it was urged by the accused that the said appeal had

abated. This Court rejected that plea of the accused, having found

that the appeal abates only on the death of the accused. The Court

then observed that once an appeal against acquittal is entertained

by the High Court, it becomes the duty of the High Court to decide

the same irrespective of the fact the appellant does not choose to

prosecute it or is unable to prosecute it for one reason or the other.

Applying the same analogy to a suo motu show cause notice for

enhancement of sentence issued by this Court after hearing both

2

1970 (2) SCC 450

20

sides, it will be the duty of this Court to decide the same

irrespective of the fact the accused does not want to prosecute his

appeal against conviction. It may be apposite to also refer to the

decision of this Court in Deo Narain Mandal v. State of U.P.

3

In

paragraph 5 of the reported decision, this Court opined that since

notice of enhancement of sentence was issued it is but proper in

law that the court should hear the accused on merits of the case

also even though the accused had not pressed his appeal on merits

before the High Court. In that case, the accused had preferred

appeal against reduced conviction before this Court. It is well

established position in law that during the hearing of notice for

enhancement of sentence, as held by this Court in Pilot U.J.S.

Chopra Vs. The State of Bombay

4

, the accused will have the right

also to show cause against his conviction when showing cause why

his sentence should not be enhanced. Realising this position, the

counsel for the appellant vehemently argued for acquittal of the

appellant.

3

2004 (7) SCC 257 (Para 5)

4

1955 (2) SCR 94 (3 Judges)

21

21.That takes us to the merits of the finding of guilt recorded by

the High Court against the appellant. The High Court opined that

the conclusion reached by the trial court regarding the sufficiency

of evidence against the appellant is founded on flimsy grounds. The

High Court, however, analysed the entire evidence afresh and found

that even though the prosecution’s case would rest solely on the

evidence of the sole witness (PW 18), yet considering the other

circumstances which corroborate her evidence a finding of guilt

against the appellant can be safely recorded. In that, the

prosecution has established the circumstance of PW 18 having seen

the accused (appellant) coming out of the public toilet with a blood

stained sickle and throwing the said sickle in the nearby dung pit

after seeing PW18. The High Court held that the evidence of PW 18

was otherwise truthful and credible. Additionally, the High Court

has taken into account the evidence about the conduct of the

accused and his strong motive to commit the crime, as revealed by

the other prosecution witnesses. The High Court also noted that the

evidence of blood stains found on the sickle matches with the blood

group B found on the clothes worn by the deceased Shilpa, as is

substantiated from the serology report. The High Court also took

22

notice of the inquest panchnama (Exh. P-6) proved by PW 25;

seizure of articles (Mos. 4 to 6) proved by PW 25; seizure

panchnama of sickle (Exh. P8) proved by PWs 18 and 25; seizure of

blood stained clothes and pair of Chappals of deceased Shilpa (Ex.

P-9) proved by PWs 25, 14 and 19; and the evidence of PW 21 and

also PW 25 who proved the panchnama (Exh. 21) regarding showing

of sickle to PW21 Dr. Ramasetty.

22.The High Court held that the chain of events and the

circumstances clearly established the involvement of accused in the

commission of crime. The High Court found the evidence of PW18

was truthful and credible to record finding of guilt against the

appellant, applying the principle expounded by the Supreme Court

in Vadivelu Thevar Vs. State of Madras

5

. The High Court also

considered the evidence of PW 21 and the postmortem report to

conclude that the sickle recovered was used to commit the crime

and the injury caused to Shilpa was possible by use of such weapon

and resulting in her death. Accordingly, the High Court did not

agree with the conclusion of the trial court to acquit the appellant

5

AIR 1957 SC 614

23

by giving him benefit of doubt. Instead, the High Court recorded

finding of guilt against the appellant for the murder of his daughter

Shilpa (who at the relevant time was in the advanced stage of

pregnancy) out of vengeance and frustration. The High Court,

however, proceeded to convict the appellant under Section 304 part

I of the I.P.C. on the finding that the crime was committed by the

appellant who was a frustrated father as his daughter married a

boy from the lower caste, which frustration he could not contain

and had erupted on the day of incident when he assaulted his own

daughter. The correctness of this view will be considered a little

later.

23.We shall first examine the correctness of the finding of guilt

recorded by the High Court. Before that, we must advert to the

approach of the trial court in giving benefit of doubt to the

appellant. The trial court found that the inquest panchanama

(Exh.P-6) was proved by PW 25. Even the seizure panchanama

(Exh.P-7) regarding articles (Mos. 4 to 6), namely, blood stained

earth, plain earth and 6 bangle pieces respectively, is proved by

PW25. The seizure panchanama (Exh. P-8) regarding blood stained

24

sickle from the manure pit near the public toilet where the dead

body of Shilpa was lying, has been proved by PW25 and PW18. The

trial court also found that the prosecution has proved the seizure of

articles (Mos. 1 to 3) under panchanama (Exh. P-9) of nighty, petty

coat and pair of Hawai Chappals respectively found on the dead

body of Shilpa. The trial court also found that the sealing of blood

stained sickle under (Exh. P-21) and identification thereof by PW 21

has been proved by the evidence of PWs 21 and 25. The trial court

did not find any infirmity in the prosecution evidence, in particular

of PWs 18, 16 and 17, that the appellant was belligerent with his

daughter Shilpa for having married to PW 16 and wanted to finish

her. The trial court, however, opined that even though all these

circumstances were to be accepted as proved, even then the same

were not sufficient to record a finding of guilt against the appellant.

For, the evidence of PW18 was not trustworthy. The trial court

noted that PW18 was the sole witness who claimed to have seen the

accused coming out of the public toilet with the blood stained sickle

in his hand and throwing the same in the nearby dung pit. That

evidence, however, was not corroborated by any independent

witness. More so, PW18 improved or exaggerated her version by

25

deposing to have actually seen the accused (appellant) assaulting

his daughter Shilpa (Daughter-in-law of PW18). On this reasoning,

the evidence of PW18 was not accepted by the trial court in its

entirety. This approach of the trial court has been found to be

flimsy by the High Court. The High Court, however, found that on

proper scrutiny of the evidence of PW18 she proved the clinching

circumstance against the appellant of having seen him coming out

of the public toilet where his daughter Shilpa was found dead, with

a blood stained sickle in his hand and throwing that sickle in the

nearby dung pit after seeing PW18 and running away from the spot.

24.The moot question, therefore, is whether the approach of the

trial court or that of the High Court with reference to evaluation of

evidence of PW18 is correct. After having gone through the evidence

of PW18, we have no hesitation in accepting the finding of the High

Court that the entire version of PW18 cannot be treated as

untruthful. Her evidence that she had heard the cries of her

daughter in law Shilpa from the public toilet “Appa Beda Appa” and

thereafter she saw the accused coming out of the public toilet with

a blood stained sickle in his hand and throwing that sickle in the

26

nearby dung pit after seeing PW18 when she asked him to stop and

then running away from the spot, is reliable and truthful. There is

no tangible reason to doubt this version of PW18. On accepting the

same, it would necessarily follow that the accused alone was

responsible for the killing of Shilpa, which fact is reinforced by his

strong motive to do so. Further, this version of PW18 stands

corroborated from the other prosecution evidence including the

seizure of blood stained sickle from the spot and the matching of

blood group “B” on the sickle and on the clothes of deceased Shilpa.

The conclusion reached by the High Court and in particular the

finding of guilt against the appellant (accused) is the correct view.

We agree with the High Court that the trial court assigned flimsy

reason to discard the evidence of PW18 in its entirety. The High

Court was also right in applying the principle expounded in the

decision of this Court in the case of Vadivelu Thevar (Supra)

which has held that the prosecution can rest its case on the basis of

sole witness in certain situations. The High Court relied on the

following observations from the said decision:

“(11) In view of these considerations, we have no hesitation in

holding that the contention that in a murder case, the Court

27

should insist upon plurality of witnesses, is much too broadly

stated. Section 134 of the Indian Evidence Act, has

categorically laid it down that “no particular number of

witnesses shall, in any case, be required for the proof of any

fact.” The legislature determined, as long ago as 1872,

presumably after due consideration of the pros and cons, that

it shall not be necessary for proof or disproof of a fact, to call

any particular number of witnesses. In England, both before

and after the passing of the Indian Evidence Act 1872, there

have been a number of statutes as set out in Sarkar’s ‘Law of

Evidence’ – 9

th

Edition, at pages 1100 and 1101, forbidding

convictions on the testimony of a single witness. The Indian

Legislature has not insisted on laying down any such

exceptions to the general rule recognized in s.134 quoted

above. The section enshrines the well recognized maxim that

‘Evidence has to be weighed and not counted’. Our Legislature

has given statutory recognition to the fact that administration

of justice may be hampered if a particular number of

witnesses were to be insisted upon. It is not seldom that a

crime has been committed in the presence of only one witness,

leaving aside those cases which are not of uncommon

occurrence where determination of guilt depends entirely on

circumstantial evidence. If the Legislature were to insist upon

plurality of witnesses, cases where the testimony of a single

witness only could be available in proof of the crime, would go

unpunished. It is here that the discretion of the presiding judge

comes into play. The matter thus must depend upon the

circumstances of each case and the quality of the evidence of

the single witness whose testimony has to be either accepted

or rejected. If such a testimony is found by the Court to be

entirely reliable, there is no legal impediment to the conviction

of the accused person on such proof. Even as the guilt of an

accused person may be proved by the testimony of a single

witness, the innocence of an accused person may be

established on the testimony of a single witness, even though

a considerable number of witnesses may be forthcoming to

testify to the truth of the case for the prosecution. Hence, in

our opinion, it is a sound and well established rule of law that

the court is concerned with the quality and not with the

quantity of the evidence necessary for proving or disproving a

fact. Generally speaking, oral testimony in this context may be

classified into three categories, namely:

(1)wholly reliable

(2)wholly unreliable

(3)neither wholly reliable nor wholly unreliable.

28

(12)In the first category of proof, the court should have no

difficulty in coming to its conclusion either way – it may convict

or may acquit on the testimony of a single witness, it is found

to be above reproach or suspicion of interestedness, in

competence or subornation. In the second category, the court

equally has no difficulty in coming to its conclusion. It is in the

third category of cases, that the court has to be circumspect

and has to look for corroboration in material particulars by

reliable testimony, direct or circumstantial. There is another

danger in insisting on plurality of witnesses. Irrespective of the

quality of the oral evidence of a single witness, if courts were

to insist on plurality of witnesses in proof of any fact, they will

be indirectly encouraging subornation of witnesses. Situations

may arise and do arise where only a single person is available

to give evidence in support of a disputed fact. The court

naturally has to weigh carefully such a testimony and if it is

satisfied that the evidence is reliable and free from all taints

which tend to render oral testimony open to suspicion, it

becomes its duty to act upon such testimony. The law reports

contain many precedents where the court had to depend and

act upon the testimony of a single witness in support of the

prosecution. There are exceptions to this rule, for example, in

cases of sexual offences or of the testimony of an approver;

both these are cases in which the oral testimony is, by its very

nature, suspect, being that of a participator in crime. But,

where there are no such exceptional reasons operating, it

becomes the duty of the court to convict, if it is satisfied that

the testimony of a single witness is entirely reliable. We have

therefore, no reasons to refuse to act upon the testimony of the

first witness, which is the only reliable evidence in support of

the prosecution.”

In the present case, the evidence of PW18 has been corroborated by

other circumstances and prosecution evidence. That leaves no

manner of doubt that the accused not only had strong motive to kill

his daughter but was responsible for doing so and excludes the

probability of someone else being responsible for the death of

29

Shilpa. The counsel for the appellant no doubt attempted to

persuade us to discard the evidence of PW 18 in its entirety, as has

been done by the trial court. However, we are not inclined to accept

that argument. We find that the view taken by the High Court

about the efficacy of evidence of PW18, keeping in mind other

proved circumstances and evidence of other prosecution witnesses,

appears to be the only possible view and is the correct approach in

the matter. We have no hesitation in rejecting the argument of the

appellant to disbelieve the seizure panchnama and recovery of the

articles. For, even the trial court has opined that the same have

been proved by the prosecution witnesses.

25. In view of the external injuries on the body of Shilpa, the trial

court opined that it was a case of homicidal death, but gave benefit

of doubt to the appellant on the finding that there was no

substantive evidence to indicate his complicity in the commission of

offence. In that sense, there is no challenge to the finding reached

by the trial court that the death of Shilpa was homicidal.

Considering the finding of guilt recorded by the High Court and

upheld by us, it must necessarily follow that it is a case of culpable

30

homicide amounting to murder. An attempt was made to challenge

the opinion of PW 21, that the injuries cannot be attributed to the

sickle recovered from the scene of offence and in any case, the

injuries were not inflicted with the intention to cause death of

Shilpa. The High Court has dealt with similar argument advanced

before it, but has negatived the same and in our opinion rightly.

26.The High Court has found that the fatal injuries suffered by

deceased Shilpa were established from the contents of the

postmortem report proved by the doctor (PW 21). Further, PW 21

opined that the injury found on the body of Shilpa can be attributed

to the sickle recovered from the scene of offence. He has further

opined that the injuries were sufficient to cause her death.

Although the counsel for the appellant was at pains to persuade us

that the description of the injuries by PW 21 were merely lacerated

wounds, but on close scrutiny of the inquest panchnama, the

postmortem report and the evidence of PW 21, it is evident that the

injuries were incised injuries and which resulted in loss of blood

due to cutting of veins. Further, the description of the injuries itself

shows that bones were exposed because of the injury. That means

31

it was a case of incised wound and not lacerations or superficial

injury. The court cannot blindly accept the expression “lacerated”,

when pitted against the nature and depth of the cut injury as

described in the report. The use of sickle during the assault,

fortifies the conclusion reached by the Courts below about

homicidal death and including that the injuries resulted in instant

death of Shilpa.

27.Taking overall view of the matter, we are of the considered

opinion that the finding of guilt recorded against the accused

(appellant) by the High Court is unexceptionable and does not

warrant any interference.

28.The next question is: whether the conviction recorded by the

High Court under Section 304 Part I of the IPC can be sustained.

The High Court considered that issue in paragraphs 20, 21 and 22

which reads thus:

“20.If the Court is convinced about the truth of the

prosecution story, conviction has to follow. The question of

sentence has to be determined, not with reference to the

volume or character of the evidence adduced by the

prosecution in support of the prosecution case but with

reference to the fact whether there are any extenuating

circumstances which can be said to mitigate the enormity of

32

the crime. If the Court is satisfied that there are such

mitigating circumstances, only then, it would be justified in

imposing the lesser of two sentences provided by law. In

other words, nature of the proof has nothing to do with the

character of the punishment. The nature of the proof can

only bear upon the question of conviction – whether or not

the accused has been proved to be guilty. If Court comes to

the conclusion that the guilt has been brought home to the

accused & conviction follows.

21.In the case on hand, we notice that the accused is a

frustrated father. The deceased is none other than his

daughter. The father brings up his daughter with all love

and affection. But however, one fine morning she leaves

him to marry another person. It is no doubt true that every

grown up daughter is required to go out of the house after

marriage. But however, the way, how it is down or

performed is one factor, which is required to be taken into

consideration.

22.In the case on hand both the deceased as well as

PW16 were in love since their school days. She elopes and

gets married before a Sub-Registrar. Indeed, any father

would certainly be frustrated with such a situation and the

emotions and the turmoil, which he undergoes, are bottled

up. Thus, we are of the view that all those bottled up

emotions have erupted on the day of the incident and he

took the extreme step of killing his daughter. We are of the

view that the case of the prosecution can be brought under

Section 304 Part I of Indian Penal Code.”

From the extracted portion of the impugned judgment, it is evident

that the High Court has made no attempt to explain as to how the

case on hand would be covered by one of the five exceptions given

33

in Section 300 of IPC. Unless the case falls under one of the

specified exception, it cannot be brought under first part or second

part of Section 304 of IPC (see Harendra Nath Mandal Vs. State

of Bihar

6

). The first exception will be attracted only if it is possible

to hold that the accused whilst deprived of the power of self-control

by grave and sudden provocation, caused death. From the

established facts on record, it is seen that the appellant followed his

daughter Shilpa into the women’s public toilet of the village and

assaulted her. The fatal injuries resulted in her instant death. The

first exception, therefore, will have no application. The second

exception will be attracted in cases where the accused, in the

exercise in good faith of the right of private defence, exceeds the

power given to him by law and caused injuries resulting in death of

the victim without premeditation and without any intention of doing

more harm than is necessary for the purpose of such defence. Even

this exception will have no application to the fact situation of the

present case. The third exception will be attracted in case of a

public servant or person aiding a public servant acting for the

6

(1993) 2 SCC 435

34

advancement of public justice. This exception has no application to

the present case. The fourth exception is attracted when the crime

is committed without premeditation in a sudden fight in the heat of

passion upon a sudden quarrel and without the offender having

taken undue advantage or acted in a cruel or unusual manner.

Even this exception has no application to the fact situation of the

present case. The fifth exception is attracted when the person

whose death is caused, being above the age of 18 years, suffers

death or takes the risk of death with his own consent. Significantly,

the defence of the appellant as evinced from his statement under

Section 313 of Cr.P.C. is of complete denial and being falsely

implicated.

29.Suffice it to observe that none of the exceptions in Section 300

of IPC is attracted in the present case. It would necessarily follow

that the accused (appellant) committed murder of his daughter

Shilpa who was in the advanced stage of pregnancy and for which

he was liable to be punished with either imprisonment for life or

death under Section 302 of IPC alone. In the peculiar factual

35

background of this case, we do not find it a fit case to impose death

penalty.

30.A fortiori, the appeal preferred by the appellant deserves to be

dismissed; and the show cause notice issued by this Court for

enhancement of sentence is made absolute – thereby convicting the

appellant (accused) for offence punishable under Section 302 of IPC

and sentencing him to undergo imprisonment for life.

31.Accordingly, appeal filed by the accused is dismissed and the

show cause notice for enhancement of sentence is made absolute by

recording conviction of the appellant under Section 302 of IPC and

imposing sentence of imprisonment for life.

………………………… .J.

(Kurian Joseph)

………………………… .J.

(A.M.Khanwilkar)

New Delhi,

Dated: February 28, 2017

ITEM NO.1A COURT NO.2 SECTION IIC

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 631/2012

GANDI DODDABASAPPA @ GANDHI BASAVARAJ Appellant(s)

VERSUS

STATE OF KARNATAKA Respondent(s)

Date : 28/02/2017 This appeal was called on for judgment today.

For Appellant(s) Mr.S.J. Amith, Adv.

Dr. (Mrs.) Vipin Gupta, AOR

For Respondent(s) Mr. V. N. Raghupathy, AOR

Hon'ble Mr. Justice A.M. Khanwilkar pronounced the judgment of

the Bench consisting of Hon'ble Mr. Justice Kurian Joseph and His

Lordship.

The appeal filed by the accused is dismissed in terms of the

signed reportable judgment and the show cause notice for

enhancement of sentence is made absolute by recording conviction of

the appellant under Section 302 of IPC and imposing sentence of

imprisonment for life.

(Gulshan Kumar Arora) (H.S. Parasher)

Court Master Court Master

(Signed reportable judgment is placed on the file)