Page 1 Reportabl

e

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1366 OF 2007

Shivasharanappa and others ...

Appellants

Versus

State of Karnataka

..Respondent

With

CRIMINAL APPEAL NO. 508 OF 2007

Jagadevappa and others ...

Appellants

Versus

State of Karnataka and others ..Respondents

J U D G M E N T

Dipak Misra, J.

Page 2 The two appeals have been preferred by the

accused- appellants against the common judgment dated

28.10.2005 in Criminal Appeal No. 937/1999 by the High

Court of Karnataka at Bangalore whereby the Division

Bench has overturned the judgment of acquittal passed

by the learned Ist Addl. Sessions Judge, Gulbarga, in S.C.

No. 100/1995 acquitting all the accused persons of the

offences under Sections 143, 147, 448, 302, 201 read with

Section 149 of the Indian Penal Code (for short ‘IPC’) and

convicted the accused-appellants for the said offences. For

the offence punishable under Section 302 read with

Section 149 of IPC, each of them was sentenced to

undergo imprisonment for life, and to pay a fine of

Rs.5,000/-, in default of payment of fine, to undergo

rigorous imprisonment for a period of one year. In respect

of other offences, no separate sentence was imposed by

the High Court.

2.Sans unnecessary details, the prosecution case is

that the deceased, Karemma, was the wife of Mallinath,

son of Ningawwa. After the unfortunate demise of

Mallinath, dispute arose between Ningawwa, the mother-

2

Page 3 in-law of the deceased, and deceased Karemma, relating

to certain landed property, which initially stood in the

name of Mallinath, and subsequently, the entries were

made in name of deceased Karemma as she was in

possession. The dispute relating to property which is dear

to the human race as it stands in contradistinction to

poverty, which is sometimes perceived as a cause of great

calamity, eventually led, as alleged by the prosecution, to

morbid bitterness. In the intervening night of 12

th

and 13

th

June, 1994, accused- Ningawwa, along with her relatives

formed an unlawful assembly in front of the house of

Shankarappa, father of the deceased, with the common

object to commit the murder and in execution of the said

common object, they trespassed into the house of

Shankarappa during his absence where deceased

Karemma was sleeping with her daughter, Jagadevi. After

entering into the house, the accused persons assaulted

the deceased, threatened the eleven year old girl,

Jagadevi, and forcefully took the deceased away. After

the mother was forcibly removed from the house, Jagadevi

proceeded to inform her grandmother, Chandamma, who,

3

Page 4 at that juncture, was residing in the house of another

daughter. Being informed by the granddaughter,

Chandamma came to the house of the deceased, searched

for her daughter, but, eventually, it turned to be an

exercise in futility.

3. As the prosecution story would further uncurtain,

the accused persons committed murder of the deceased

Karemma and threw her dead body in a well situate at

Benur village. The dead body was found on 15.6.1994 and

thereafter, one Dasharath, PW-10, informed the fact at the

concerned police station. On 16.6.1994, the Investigating

Officer went near the well, removed the dead body of the

deceased from inside the well, held the inquest of the

dead body as per Ext. P-7, conducted the spot panchnama

vide Ext Nos. 8 and 10, seized certain articles, recorded

statements of certain other witnesses and, ultimately,

about 8.00 P.M., registered suo motu case forming the

subject matter of Crime No. 29/94 at Nelogi Police Station.

After completing the investigation, the prosecution

submitted the charge-sheet before the competent Court

4

Page 5 which, in turn, transmitted the same to the Court of

Session for trial.

4. The accused persons abjured their guilt on ground

of false implication and claimed to be tried.

5. In course of trial, the prosecution examined 17

witnesses, brought on record Exts. P-1 to P-17 and M.Os. 1

to 9. The defence chose not to adduce any evidence, but

got certain portion of the statements of PW-7 and PW-10

marked during the cross-examination. During the

pendency of the trial, the accused Ningawwa, the mother-

in-law of the deceased expired, as a consequence of

which, the trial abated against her.

6. The learned trial Judge framed four principal points

for consideration, namely, (i) whether the accused persons

formed an unlawful assembly with the common object to

commit the murder of Karemma; (ii) whether the accused

persons had trespassed into the house of Shankarappa;

(iii) whether the accused persons had thrown the dead

body into the well situate at Benur village for causing

disappearance of the evidence; and (iv) whether the

5

Page 6 accused persons had any motive to commit the murder.

After analyzing the evidence on record, the learned trial

Judge came to hold that the death was homicidal in

nature; that from the complaint Ext. P-6 lodged by PW-10,

Dasharath, nothing was relatable how the deceased had

fallen into the well; that it was not safe to record a

conviction on the sole testimony of Jagadevi, PW-9, since

there were number of circumstances due to which her

version could not be given credence to; that the conduct

of Chandamma, PW-7, could not be accepted to be in

conformity with the expected normal human behaviour

and, in fact, was quite unnatural since she did not intimate

anyone about the incident after coming to know about it

from her granddaughter; and that it was not safe to

convict the accused persons for the offences alleged,

regard being had to the totality of circumstances and,

accordingly, acquitted them of all the charges.

7. The High Court, after entertaining the appeal,

opined that there was a property dispute in existence

between the deceased and her mother-in-law; that motive

for commission of the crime had been brought home by

6

Page 7 the prosecution; that at the time of occurrence, Jagadevi,

daughter of the deceased, was staying with the deceased;

that the father of the deceased, Shankarappa, had left the

village along with his son and was residing at Sholapur

during the relevant time of the incident; that Chandamma,

the wife of PW-6, who had been staying in the house of

another daughter at the relevant time was informed about

the occurrence by PW-9; that the learned trial Judge had

erred by discarding the testimony of PW-7 on the ground

that she had not informed about the incident to anyone in

the village; that at the time when the deceased was

removed forcibly from the house, PW-7 could not have

anticipated that the deceased would be done to death

and, therefore, they kept on searching for the deceased;

that PW-9 had the occasion to see the accused persons as

there was source of light which had been inappositely

disbelieved by the learned trial Judge; that Jagadevi, an

eleven year old girl, could not have raised hue and cry

because of the threat given by the accused persons; that

the evidence of PW-9 deserved to be given total credence

and, hence, could safely be relied upon; that there was no

7

Page 8 reason on the part of PW-9 to falsely implicate the

accused persons including her paternal grandmother

Ningawwa; that the reactions of PW-7 and PW-9 should not

have been regarded as unnatural by the trial Court

because every person reacts to a situation in a different

manner, for human behaviour differs and varies from

person to person depending upon the situation; that as

PW-7 and PW-9 were terrified of the accused persons, they

could not lodge the complaint against them and it got

support from the fact that only after the recovery of the

dead body, the Investigating Officer registered a suo motu

case; that though there had been some delay in recording

the statements of certain witnesses by the Investigating

Officer, yet that should not have been regarded to have

created a dent in the prosecution case; and that the

appreciation and analysis of the evidence by the learned

trial Judge was not correct and the view expressed by him

not being a plausible one deserved to be reversed. Being

of this view, the High Court unsettled the judgment,

convicted the accused-appellants and imposed the

sentence as has been stated hereinbefore.

8

Page 9 8. We have heard Mr. P.R. Ramasesh, learned

counsel for the appellants, and Ms. Anitha Shenoy, learned

counsel for the respondent-State.

9. The first submission of Mr. Ramasesh, learned

counsel for the appellants, is that the High Court has

erroneously unsettled the decision of the trial court by

holding that the view expressed by the learned trial Judge

is unreasonable. It is his further submission that the High

Court has reviewed the entire evidence in an unusual

manner which is impermissible. Ms. Anita Shenoy, learned

counsel for the State, would contend that the appellate

power of the High Court against a judgment of acquittal

cannot be curtailed if the finding based on appreciation of

evidence is totally perverse. It is urged by her that the

evidence of the sole eye witness, Jagadevi, PW-9, has

been rightly relied upon by the High Court.

10. At this juncture, we may refer with profit to the

dictum in Shivaji Sahebrao Bobade and another v.

State of Maharashtra

1

, wherein a three-Judge Bench

has opined thus: -

1

AIR 1973 SC 2622

9

Page 10 “.....there are no fetters on the plenary power of

the Appellate Court to review the whole

evidence on which the order of acquittal is

founded and, indeed, it has a duty to scrutinise

the probative material de novo, informed,

however, by the weighty thought that the

rebuttable innocence attributed to the accused

having been converted into an acquittal the

homage of our jurisprudence owes to individual

liberty constrains the higher court not to upset

the finding without very convincing reasons and

comprehensive consideration.”

11. Similar view has been expressed in Girija Prasad

(dead) by LRs. v. State of M. P .

2

and State of Goa v.

Sanjay Thakran

3

.

12. From the aforesaid authorities, it is clear as day

that while dealing with an appeal against acquittal, the

High Court has a duty to scrutinize the evidence and

sometimes it is an obligation on the part of the High Court

to do so. The power is not curtailed by any of the

provisions of the Code of Criminal Procedure. It is also

worthy to note that while reappreciating and reconsidering

the evidence upon which the order of acquittal is based,

certain other principles pertaining to other facets are to be

2

(2007) 7 SCC 625

3

( 2007) 3 SCC 755

10

Page 11 borne in mind. The said aspects have been encapsuled in

Chandrappa v. State of Karnataka

4

as under: -

“(4) An appellate court, however, must

bear in mind that in case of acquittal,

there is double presumption in favour of

the accused. Firstly, the presumption of

innocence is available to him under the

fundamental principle of criminal

jurisprudence that every person shall be

presumed to be innocent unless he is

proved guilty by a competent court of

law. Secondly, the accused having

secured his acquittal, the presumption

of his innocence is further reinforced,

reaffirmed and strengthened by the trial

court.

(5) If two reasonable conclusions are

possible on the basis of the evidence on

record, the appellate court should not

disturb the finding of acquittal recorded

by the trial court.”

Quite apart from the above, the High Court is

required to see that unless there are substantial and

compelling circumstances, the order of acquittal is not

required to be reversed in appeal. It has been so stated in

State of Rajasthan v. Shera Ram @ Vishnu Dutta

5

.

13. From the analysis of the High Court, it is

discernible that it has not accepted the appreciation of

evidence made by the learned trial Judge pertaining to the

4

(2007) 4 SCC 415

5

(2012) 1 SCC 602

11

Page 12 testimonies of PWs-7 and 9 and has further based its

reasoning on the bedrock that there was a property

dispute between the deceased and her mother-in-law

which provided motive for commission of the crime. The

High Court has also expressed the view that conviction

can be recorded on the basis of the sole testimony of a

child witness. It is not in dispute that PW-9, Jagadevi, was

eleven years old at the time of the occurrence. In Dattu

Ramrao Sakhare and others v. State of

Maharashtra

6

, while dealing with the reliability of witness

who was ten years old, this Court opined that a child

witness, if found competent to depose to the facts and

reliable, such evidence could form the basis of conviction.

The evidence of a child witness and the credibility thereof

would depend upon the circumstances of each case. The

only precaution which the court should bear in mind while

assessing the evidence of a child witness is that the

witness must be a reliable one and his/her demeanour

must be like any other competent witness and there is no

likelihood of being tutored. Thereafter, the Court

proceeded to lay down that there is no rule or practice

6

(1997) 5 SCC 341

12

Page 13 that in every case the evidence of such a witness should

be corroborated before a conviction can be allowed to

stand but, as a rule of prudence, the court always finds it

desirable to seek the corroboration to such evidence from

other dependable evidence on record.

14. In Panchhi and others v. State of U.P.

7

, it has

been held thus: -

“Courts have laid down that evidence of a child

witness must find adequate corroboration

before it is relied on. It is more a rule of

practical wisdom than of law (vide Prakash v.

State of M.P.

8

, Baby Kandayanathil v. State of

Kerala

9

, Raja Ram Yadav v. State of Bihar

10

and

Dattu Ramrao Sakhare v. State of Maharashtra

(supra).”

15. Similar view has been expressed in State of U.P.

v. Ashok Dixit and another

11

.

16. Thus, it is well settled in law that the court can rely

upon the testimony of a child witness and it can form the

basis of conviction if the same is credible, truthful and is

corroborated by other evidence brought on record.

Needless to say, the corroboration is not a must to record

7

(1998) 7 SCC 177

8

(1992) 4 SCC 225

9

1993 Supp (3) SCC 667

10

(1996) 9 SCC 287

11

(2000) 3 SCC 70

13

Page 14 a conviction, but as a rule of prudence, the court thinks it

desirable to see the corroboration from other reliable

evidence placed on record. The principles that apply for

placing reliance on the solitary statement of witness,

namely, that the statement is true and correct and is of

quality and cannot be discarded solely on the ground of

lack of corroboration, applies to a child witness who is

competent and whose version is reliable.

17. The trustworthiness of the version of PWs-7 and 9

are to be tested on the aforesaid touchstone and it is to be

seen whether the other circumstances do support the

prosecution case or to put it differently, whether the

evidence brought on record proves the guilt of the

accused persons beyond reasonable doubt. PW-9, the

daughter of the deceased, has testified to have witnessed

the accused appellants being exhorted by her paternal

grandmother, Ningawwa, who had trespassed into the

house and forcibly took out her mother. She had, as is

reflected, immediately rushed to the house of her

maternal grandmother and disclosed it to her. It has been

elicited in the cross-examination that her maternal

14

Page 15 grandmother was staying with her another married

daughter and both the daughter and son-in-law were at

home. She did not choose it appropriate to inform them

about the incident. It is manifest, the grandmother, PW-7,

came with her granddaughter, PW-9, to the house of the

deceased and tried to search for her. Despite the search

becoming a Sisyphean endeavour and non effective, she

chose to remain silent and did not inform any one. The

High Court has accepted the version of these two

witnesses on two counts, namely, that the daughter was

threatened and both of them were in state of fear. The

learned trial Judge, on the contrary, had found the

aforestated conduct of both the witnesses to be highly

unnatural. In Gopal Singh and others v. State of

Madhya Pradesh

12

, this Court did not agree with the

High Court which had accepted the statement of an

alleged eye witness as his conduct was unnatural and

while so holding, it observed as follows: -

“We also find that the High Court has accepted

the statement of Feran Singh, PW 5 as the eye

witness of the incident ignoring the fact that his

behaviour was unnatural as he claimed to have

12

(2010) 6 SCC 407

15

Page 16 rushed to the village but had still not conveyed

the information about the incident to his

parents and others present there and had

chosen to disappear for a couple of hours on the

specious and unacceptable plea that he feared

for his own safety.”

18. In Rana Partap and others v. State of

Haryana

13

, while dealing with the behaviour of the

witnesses, this Court has opined thus: -

“Every person who witnesses a murder reacts in

his own way. Some are stunned, become

speechless and stand rooted to the spot. Some

become hysteric and start wailing. Some start

shouting for help. Others run away to keep

themselves as far removed from the spot as

possible. Yet others rush to the rescue of the

victim, even going to the extent of counter-

attacking the assailants. Every one reacts in his

own special way. There is no set rule of natural

reaction. To discard the evidence of a witness

on the ground that he did not react in any

particular manner is to appreciate evidence in a

wholly unrealistic and unimaginative way.”

19. In State of H.P. v. Mast Ram

14

, it has been

stated that there is no set rule that one must react in a

particular way, for the natural reaction of man is

unpredictable. Everyone reacts in his own way and,

hence, natural human behaviour is difficult to prove by

credible evidence. It has to be appreciated in the context

13

(1983) 3 SCC 327

14

(2004) 8 SCC 660

16

Page 17 of given facts and circumstances of the case. Similar view

has been reiterated in Lahu Kamlakar Patil and anr. v.

State of Maharashtra

15

.

20. Thus, the behaviour of witnesses or their reactions

would differ from situation to situation and individual to

individual. Expectation of uniformity in the reaction of

witnesses would be unrealistic but the court cannot be

oblivious of the fact that even taking into account the

unpredictability of human conduct and lack of uniformity

in human reaction, whether in the circumstances of the

case, the behaviour is acceptably natural allowing the

variations. If the behaviour is absolutely unnatural, the

testimony of the witness may not deserve credence and

acceptance. In the case at hand, PW-9 was given a threat

when her mother was forcibly taken away but she had the

courage to walk in the night to her grandmother who was

in her mid-fifties. After coming to know about the

incident, it defies commonsense that the mother would

not tell her other daughter and the son-in-law about the

kidnapping of the deceased by her mother-in-law. It is

15

2012 (12) SCALE 710

17

Page 18 interesting to note that the High Court has ascribed the

reason that PW-7 possibly wanted to save the reputation

of the deceased-daughter and that is why she did not

inform the other daughter and son-in-law. That apart, the

fear factor has also been taken into consideration.

Definitely, there would have been fear because, as

alleged, the mother-in-law had forcibly taken away the

deceased, but it is totally contrary to normal behaviour

that she would have maintained a sphinx-like silence and

not inform others. It is also worthy to note that she did

not tell it to anyone for almost two days and it has not

been explained why she had thought it apt to search for

her daughter without even informing anyone else in the

family or in the village or without going to the police

station. In view of the obtaining fact situation, in our

considered opinion, the learned trial Judge was absolutely

justified in treating the conduct of the said witnesses

unnatural and, therefore, felt that it was unsafe to convict

the accused persons on the basis of their testimony. It

was a plausible view and there were no compelling

circumstances requiring a reversal of the judgment of

18

Page 19 acquittal. True it is, the powers of the appellate court in

an appeal against acquittal are extensive and plenary in

nature to review and reconsider the evidence and

interfere with the acquittal, but then the court should find

an absolute assurance of the guilt on the basis of the

evidence on record and not that it can take one more

possible or a different view.

21. In view of the aforesaid premises, the appeals are

allowed and the judgment of conviction passed by the

High Court in Criminal Appeal No. 937 of 1999 is set aside

and the accused-appellants are acquitted of the charges.

As the appellants are already on bail, they be discharged

of their bail bonds.

……………………………… .J.

[K. S. Radhakrishnan]

….………………………….J.

[Dipak Misra]

New Delhi;

May 07, 2013.

19