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PETITIONER:

STATE OF TAMIL NADU

Vs.

RESPONDENT:

KARUPPUSAMY AND ORS.

DATE OF JUDGMENT31/03/1992

BENCH:

MOHAN, S. (J)

BENCH:

MOHAN, S. (J)

AHMADI, A.M. (J)

CITATION:

1993 SCR (2) 415 1993 SCC Supl. (1) 78

JT 1992 (2) 451 1992 SCALE (1)747

ACT:

Penal Code, 1860-Sections 34, 354, 302-Appeal against

acquittal by High Court-Appreciation of evidence by High

Court-Erroneous and resulting in miscarriage of justice.

HEADNOTE:

The prosecution's case was that on 28.7.1976 at about

4P.M., P.W.1, aged 22 years was grazing her sheep in the

field. Accused 1 and 2 (the respondents) and one Selvaraj

were also grazing their sheep nearby. The accused persons

approached P.W.1. When Accused 1 pushed P.W.1 down and

pulled up her saree in order to outrange her modesty, the

other two stood on either side of her. P.W.1 managed to

escape and ran towards the road. The respondents (Accused 1

and 2) were armed with aruvals (sickles).

P.W.1's paternal uncle (the deceased) was passing by on

his bicycle carrying his 11 year old daughter (P.W.2) from

the School. On hearing the shouts of P.W.1, her uncle got

down from his bicycle. When P.W.1 was narrating the

incident to the deceased, the accused reached there, the

accused persons threatened the deceased with dire

consequences, when he questioned the accused and told them

that the matter would be reported to the Village Panchayat.

Accused 2 caught hold of the right hand of the deceased

while Accused 1 cut the hand. When the deceased attempted

toward off the cut the hand, the thumb and the fingers were

severed. Receiving cuts form the Accused 1 on the left

hand, head, neck and right shoulder, the deceased fell down.

Then the Accused cut off his head with his aruval.

When P.W.1 cried on seeing the ghastly sight, P.Ws. 4

and 5 and one Sarvanan came running to the place of

occurrence. Accused 2 ran away throwing his aruval and

Accused 1 also ran away carrying the head of the deceased

and his aruval. Though P.W.5 and one Sarvanan were chasing

Accused 1, were returned when they were threatened by the

Accused 1. P.W.4 chased Accused 2 but could not catch him.

416

At about 5.30 P.M., P.W.1 reported to the P.W.6 (the

Village Munsif) about the occurrence, which was written down

by P.W.6. He went to the place of occurrence. Along with

his own report, he sent the P.W.1's Written Statement to the

Police Station, sending copies of the same to the local

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Magistrate. P.W. 10 (the Sub-Inspector) registered a case

u/ss.302 and 354 IPC and commenced investigation. The

accused-respondents were tried before the Sessions Judge.

The defence denied the charges.

The Session Judge convicted both the accused-

respondents. But they were acquited by the High Court,

against which this appeal was filed by the State, by special

leave.

The appellant-State contended that the High Court had

completely misdirected itself with regard to the

appreciation of evidence, by lightly dealing with the

evidence of the four eye-witnesses, P.Ws. 1, 2, 4, and 3;

that merely because P.W.1 a rustic village Woman did not

know the names of P.Ws.4 and 6 it did not mean her evidence

was liable to be rejected; that the High Court erred in

holding that the evidence of P.W.1 was unreliable, merely on

the ground that she was not able to identify P.Ws.4 and 5

and she could not name them properly; that the evidence of

P.W.2, a child witness, who was having no motive against the

accused, ought to have been accepted; that the evidence of

P.Ws.4 and 6 was rejected on the ground that they did not

mention the accused severing the head and carrying the head

away; and that the failure of P.W.11 to note the presence of

sheep or goats around the scene of occurrence was

immaterial.

The respondents contended that unless the appreciation

of evidence by the High Court was perverse, this Court

normally would not interfere against an order of acquittal;

that in this case it could not be contended that the

appreciation of the evidence by the High Court was perverse,

and that it was the duty of the prosecution of establish the

guilt beyond all reasonable doubt, which was not established

in this case; hence this Court's intereference not

warranted.

Allowing the appeal of the State, this court,

HELD :1.01. Only a tutored witness can depose in a

parrot-like fashion. On the contrary, a natural witness is

bound to commit mistakes. In the instant case the mistakes

are so inconsequential and immaterial when she mentions the

name of Muthu wrongly instead of Deiveegan. On

417

that score it should not be held that her evidence does not

inspire confidence. The presence of absence of the sheep or

goats, whether noted or not, can have no hearing on the case

of the prosecution. Therefore, the failure of P.W.11 to

note their presence would not affected the case of the

prosecution. [422F-G]

1.02. P.W.2 being a child of tender age witnessed a

ghastly murder where her father himself was killed. One

cannot brush aside the agitated mood and the mind in which

the tender child would have been. It must have been the

rudest shock of her life. To expect her in that situation

to give the details as to who chased Accused 1 or 2 or to

expect her to go to the scene of occurrence on that very

night would be asking for too much. After all, she did

state the two persons chased the accused. That should be

enough. [423F-G]

1.03. P.W.2's failure to inform her mother is not a

factor which would make her evidence not credit-worthy,

because by then the mother had come to know of the murder.

[422H-424A]

1.04. Normally in a village no woman would come

forward, unless it is true, with a plea that her modesty was

outraged, by such statement, her very honour was at stake.

Coming as she does from a cloistered society her whole

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future would become bleak. P.W.1 does not inspire confidence

as the High Court has held, seems to be wrong. [422H-423A]

1.05. On the evidence of P.Ws.1 and 2 alone that the

prosecution has fully established its case. Besides, there

is the evidence of P.Ws.4 and 6. The appreciation of the

evidence by the High Court is erroneous and has resulted in

miscarriage of justice. [424B, F]

State of Jammu & Kashmir v. Hazara Singh & Anr., [1980]

Supp. SCC 641 at page 644 (para 10), Distinguished.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

688 of 1980.

From the Judgment and Order dated 20.2.1978 of the

Madras High Court in Crl. Appeal No. 306 of 1977.

K.V. Venkataraman and K.V. Vishwanathan (N.P.) for the

Appellant.

418

R.K. Garg and V.J. Francis for the Respondents.

The Judgement of the Court was delivered by

MOHAN, J. The respondents were accused 1 and 2. They

were tried by the learned Session Judge of the

Tiruchirapalli Division in Sessions Case No.73 of 1976. Both

the accused along with a juvenile Selvaraj were tried for

using criminal force to Anjali (P.W.1) with the intention of

outraging her modesty at about 4.30 P.M. on 28th July, 1976

at Pullambadi Village, an offence punishable under Section

354 I.P.C. The first accused Karuppusamy was also tried for

the offence of murder of one Muthusamy of Thappai Village on

the same day and at the same time and place, in that, he cut

him with an aruval (sickle) and severed his head, an offence

punishable under Section 302 I.P.C. The second accused

Natarajan was also tried under Section 302 read with Section

34 I.P.C. In that the murder of Muthuswamy was committed by

the first accused, in furtherance of the common intention of

both the accused.

The first accused was also tried for an effence of

causing disappearance of evidence. In that, the severed

head of Muthusamy was concealed in bush, an offence under

section 201 I.P.C.

Juvenile Selvaraj who was present at the time of

outraging the modesty of Anjali (P.W.1) was also tried for

an offence under Section 354 I.P.C.

The learned Sessions Judge found the first accused

guilty of the offence punishable under Section 354, 302 and

201 I.P.C. Accordingly he was convicted and sentenced to

undergo rigorous imprisonment for three months under section

354 I.P.C., imprisonment for under Section 302 I.P.C. and

rigorous imprisonment for two years under Section 201 I.P.C.

The sentences were to run concurrently.

The second accused was acquitted of the charge under

Section 354 I.P.C. However, he was found guilty under

Section 302 read with Section 34 I.P.C. and was convicted

and sentenced to undergo imprisonment for life.

The juvenile accused was acquitted.

Aggrieved by the conviction and the sentence accused 1

and 2 took up the matter in appeal to the High Court of

Madras in Criminal Appeal

419

No. 306 of 1977. Both the accused were acquitted by the

High Court holding that the prosecution had not proved the

case against any of the accused satisfactorily and beyond

all reasonable doubt.

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The case of the prosecution can be briefly stated as

under:

On 28th of July, 1976 at about 4 P.M., P.W.1 Anjali,

aged 22years was grazing her sheep in the fields of

Pullambadi. Accused 1 and 2 and juvenile Selvaraj were also

grazing their sheep nearby. They came near P.W.1. Accused

1 suddenly pushed her down. The other two stood on either

side of P.W.1. Accused 1 pulled up her saree in order to

outrage her modesty. However, she managed to escape and ran

towards the road between Thappi and Pullambadi. Accused 1

was armed an aruval (sickle) (M.O.2), while accused 2 had

also an aruval (M.O.3). At that time the deceased

Muthusamy, paternal uncle of P.W.1 was going on a bicycle.

His 11 year old girl P.W.2 Rajamani was carried by Muthusamy

on the carrier of the bicycle as she was returning from the

school. On hearing the shouts of P.W.1 the deceased got

down from the bicycle. P.W.1. narrated the incident. By

then the accused also came there. Thereupon the accused

were questioned and the deceased Muthusamy told the accused

that he would report the matter of the Village Panchayat.

The accused became defiant and threatened the deceased only

if he were left alive he would be able to report the matter

to the Panchayat. At that time one Daiveegan from Thappai

Village came along the road. He advised them to go to their

village and went away. Accused 2 caught hold of the right

hand of the deceased. Accused 1 cut the hand. The deceased

warded off the cut with his left hand. In that process, the

thumb and the fingers were severed. Accused 1 cut the

deceased on the left hand, head, neck and right shoulder.

The deceased fell down. Then Accused 1 cut off his head

with his aruval. When P.W.1 cried on seeing this ghastly

sight P.Ws. 4 and 5 and one Sarvanan came running to the

place. Accused 2 ran away throwing his aruval (M.O.3).

Accused 1 also ran away carrying the head of the deceased

and his aruval (M.O.2). When P.W.5 and Sarvanan chased the

first accused he threatened them with dire consequences.

Therefore, they returned. P.W.4 also chased Accused 2 for

some distance but could not catch him. He also returned. In

the meanwhile, P.W.1 ran shouting to the Village, P.W.2,

the daughter of the deceased who was at the scene of

occurrence was taken to her house by some of her classmates.

At about 5.30P.M., P.W.1 gave a report to P.W. 6 (the

Village Munsif). That statement was reduced to writing

under Ex.P-1. He went to

420

the scene of occurrence. Then he sent Ex. P-1 with his own

report (Ex.P-5) to the Kallaikudi Police Station. Copies of

the same report were sent to the Magistrate at Lalgudi. Sub-

Inspector (P.W.10) registered a case acting on Ex. P-1 at

7.30 P.M. under Section 302 and 354 I.P.C. Immediately he

sent express report to his superiors and proceeded to the

scene of occurrence at 8.45 P.M. Thereafter he went in

search of accused.

The Inspector (P.W.11) came to the scene of occurrence

at 11.30 P.M. and took up investigation. He prepared an

observation mahazar (Ex.P-7). He held an inquest at which

P.Ws. 1, 2, 4 and 5, Sarvanan, Deiveagan and others were

examined. He recovered blood-stained earth and the aruval

dropped by Accused 2 and the cycle on which the deceased was

proceeding (M.O.5) under mahazar (Ex.P-8).

The next morning P.W.11 arrested Accused 1. In the

presence of P.W.6 the Village Munsif Karnam, Accused 1 gave

a confessional statement. Acting on that statement the

Inspector recovered the head of the deceased from a bush as

well as aruvel (M.O.2) from another place which was rolled

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up Accused 1's underwear (M.O.7). On the same day the

Inspector examined P.W.7 from whom the details relating to

the hiring of the bicycle were gathered.

P.W.3(the doctor) conducted the post-mortem at 4.00

P.M. and fond the head and the body belonged to the same

person. The head had been completely severed by cutting

through the third and forth vertebra. He also found the

incised injuries on the right and the left side of the neck,

on the right shoulder, on the middle of the left forearm, on

the left hand exposing bones and muscles of the hand. He

opined that the death was due to shock and haemorrhage. He

further opined that the injuries could have been caused by

an aruval like (M.O.3).

The respondents were tried before the learned Sessions

Judge of Tiruchirapalli on four charges. The defence was

one of denial. According to accused 1 who filed the written

statement the deceased saw him talking and laughing with

P.W.1. On that account he became very angry, abused accused

1 and beat P.W.1. He denied that he either molested P.W. 1

or cut the deceased and the case was foisted on him. Though

as stated above the learned Sessions Judge convicted both

the accused the High Court acquitted them. Special Leave

was granted by this Court on 22nd of October, 1980. Hence

the present appeal by the State.

421

The learned counsel appearing for the State of Tamil

Nadu Mr. K.V. Venkataraman urged that the High Court had

completely misdirected itself with regard to the

appreciation of evidence. In this case there are four eye-

witnesses P.Ws. 1, 2, 4 and 5. Their evidence has been

lightly dealt with. Merely because P.W.1 did not know the

names of P.Ws.4 and 5 it does not mean her evidence is

liable to be rejected. She being a rustic woman, ignorance

of names would not matter. She has graphically spoken as to

what actually happened prior to the murder and about the

murder as well. When her modesty was about to be outraged

she escaped and came to the road and narrated the incident

to the deceased. Normally, in a village no woman would come

forth with such a plea since by that statement her honour

itself would be at stake.

The High Court erred in holding that the evidence of

P.W.1 is thoroughly unreliable, merely on the ground that

she was not able to identify P.Ws. 4 and 5 she could not

name them properly.

As regards evidence of P.W.2 she being a child witness

and having no motive against the accused her evidence ought

to have been accepted. So long as the trial court had found

that she was in a position to discern as to what was truth

and what was falsehood the failure to administer oath would

be of no consequence. To expect a child of that tender age

to come to the scene of occurrence during night is to ask

something unnatural. Where P.Ws.1 and 2 were in an agitated

mood after witnessing a gruesome murder they could not be

expected to behave in a calm and collected way.

The evidence of P.Ws. 4 and 5 have been rejected solely

on the ground that they did not mention the accused severing

the head and carrying the head away. As regards

identification also to characterise it, as force, is not

correct. The failure of P.W. 11 to note the presence of

sheep or goats around the scene of occurrence is immaterial.

Thus looking from any point of view the acquittal, as

ordered by the High Court, is unsupportable.

Mr. R.K. Garg, learned counsel for the defence would

submit first and foremost on the basis of a decision of this

Court in State of Jammu & Kashmir v. Hazara Singh & Anr.,

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[1980] Supp. SCC page 641 at 644 para 10 that unless the

appreciation of evidence by the High Court is perverse this

Court normally would not interfere against an order of

acquittal. In this case it cannot be contented that the

appreciation of the evidence by the High Court is perverse.

P.Ws. 4 and 5 from the

422

age of her discretion. Therefore, normally speaking, she

should have had no difficulty in mentioning their names and

properly identifying them. That she should mention the name

of Deiveegan as Muthu is rather strange. Even the case of

prosecution is that Deiveagan advised the parties to

amicably go away from the scene of occurrence. Such a

person cannot be mistaken for Muthu. It is against all

probability that she would return home without even caring

for the sheep or the goats which she was grazing. Equally,

for very valid reasons the evidence of P.W.2 had to be

rejected by the High Court. P.Ws. 4 and 5 have been

purposely introduced in order to bolster up the case of the

prosecution. There is also a good deal of doubt as to

whether P.W.11 prepared the report on that day or later.

Whatever it be, if it is an axiomatic principle that it is

the duty of the prosecution to establish the guild beyond

all reasonable doubt that has not been so established in

this case. Hence no interference is warranted.

We will now proceed to examine the merits of the

respective contentions. The learned trial judge has held

that in appreciating the evidence of P.Ws. 1 and 2 one has

to take into account their state of mind, at that time, when

they saw a ghastly murder in that, the head of the deceased

was completely severed. Unfortunately, this important

factor has not been properly appreciated by the High Court.

From the evidence of P.W.1 it is clear that she

graphically gave an account as to the happenings. Being a

rustic woman, in that agitated mood she might have committed

one or two mistakes in the actual identification or as to

who chased Accused 1 or Accused 2. These, in our considered

view, are bound to happen. Only a tutored witness can

depose in a parrot-like fashion. On the contrary, a natural

witness is bound to commit mistakes. In the instant case

the mistakes are so inconsequential and immaterial when she

mentions the name of Muthu wrongly instead of Deiveegan. We

are unable to see as to how on that score it should be held

that her evidence does not inspire confidence. Equally, we

are of the view that the presence or absence of the sheep or

goats whether noted or not can have no bearing on the case

of the prosecution. Therefore, the failure of P.W. 11 to

note their presence would not affect the case of the

prosecution.

The characterisation that the evidence of P.W.1 does

not inspire confidence as the High Court has held, seems to

be wrong. Normally, in a village no woman would come

forward, unless it is true, with a plea that her modesty was

outraged. As rightly contended by the learned counsel for

423

the State, by such statement, her very honour was at stake.

Coming as she does from a cloistered society her whole

future would become bleak. After all, what was the motive

for her to say this against the accused. It has not been

brought out in cross-examination that there was any enmity

between P.W. 1 on the one hand and the accused on the other.

She would not even implicate a juvenile accused.

Her failure to state in the report (Ex. P-1) the

details should not make the court reject her evidence.

The doubt raised by the High Court that Ex. P-1 was not

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prepared on that day seems unwarranted when it contains the

initials bearing the time and date as 9.30 P.M. and

28.7.1976. The learned Sessions Judge was fully satisfied by

summoning the production of the despatch register of

Kallakudi Police Station that Exs. P-1 and P-5 were received

on that day in the station. The suggestion by the defence

that the learned magistrate had obliged the police to put

the date as 28.7.76 and the time as 9.30 P.M. was rightly

rejected as an extreme contention by the learned Sessions

Judge which unfortunately was doubted by the High Court.

The line of reasoning adopted by the High Court in

appreciating the evidence of P.W.2 is not correct.

According to the High Court her failure to mention the names

of P.Ws. 4 and 5 and Sarvanan in the course of

investigation, her failure to come to the scene of the

occurrence during the night and her going to the scene of

occurrence only the next day along with her mother are all

factors on which the evidence of this child witness was

rejected. We hardly find any justification to reject the

evidence of P.W.2. The learned Sessions Judge has

appreciated that she had a discerning mind as to what was

truth and what was falsehood. Therefore, the failure to

adminster oath is of no consequence. We have cautioned

ourselves of the possibility of tutoring, she being a child

of tender age. She witnessed a ghastly murder where her

father himself was killed. One cannot brush aside the

agitated mood and the mind in which the tender child would

have been. It must have been the rudest shock of her life.

To expect her in that situation to give the details as to

who chased Accused 1 or 2 or to expect her to go to the

scene of occurrence on that very night would be asking for

too much. After all, she did state the two persons chased

the accused. That should be enough as was rightly held by

the learned Sessions Judge.

Then again, her failure to inform her mother is not a

factor which would make her evidence not creditworthy,

because by then the mother

424

had come to know of murder. If it was a false case being

foisted on the accused we do not think that such natural

imperfections would have surfaced. Merely because W.P. 2

did not give details as to whether the deceased caught hold

of the hair of the first accused etc. does not give rise to

any doubt as to the occurrence. It will be too much to

expect from a child to give such intricate details. It will

be too much to expect from a child to give such intricate

details. Therefore, we conclude on the evidence of P.Ws. 1

and 2 alone that the prosecution has fully established its

case. Besides, there is the evidence of P.Ws. 4 and 5. We

are not in a position to appreciate the finding of the High

Court that they have been introduced to strengthen the case

of the prosecution. The learned Sessions Judge has rightly

accepted their evidence.

One important factor, in our considered opinion, was

missed by the High Court. Pursuant to the confessional

statement of the first accused, the recovery of the severed

head and M.O.2 would be an admissible piece of evidence.

After the arrest the first accused took P.W.11 and P.W.6 to

a bush in a place one mile north of Thappai village and

produced the head. At that place an inquest was held in

which the Inspector examined P.Ws. 1, 2, 4 and 5. Then, the

first accused took them to another bush in the burial ground

of S.P.G. Mission Church, from where M.O. 2 had been

recovered concealed in the underwear (M.O.7). This aruval,

according to the analyst's report, contained human blood.

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The dhoti worn by the accused M.O.8 which was seized from

him also contained human blood. This part of the confession

which led to the recovery of the severed head and M.O.2, is

clearly Admissible under Section 27 of the Indian Evidence

Act. This goes a long way to corroborate the case of the

prosecution. In the whole we are satisfied that the

appreciation of the evidence by the High Court is erroneous

and has resulted in miscarriage of justice. Therefore, we

find no scope for the application of the ratio laid down at

para 10 of page 644 in State of J & K (supra) on which

reliance has been placed by Mr. R.K. Garg, learned counsel

for the defence.

In the result, we set aside the judgment of the High

Court acquitting the accused (the respondents). We restore

the conviction and sentence imposed by the learned Sessions

Judge and the accused shall serve their sentences. Appeal

will stand allowed accordingly.

V.P.R. Appeal allowed.

425