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CASE NO.: Appeal (crl.) 522  of 1999

PETITIONER: SURYANARAYANA

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT:       03/01/2000

BENCH: R.P.Sethi, K.T.Thomas

JUDGMENT:

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     SETHI, J.

     Ms.Saroja,   deceased  had   developed  intimacy   and extra-marital  relations with the appellant, as a result  of which  she  gave birth to a male child.  After the birth  of the  child  differences arose between the appellant and  the deceased.   The appellant started suspecting the deceased of having  illegal  connections  with other persons.   She  was subjected  to  cruelty and harassment.  Unable to  bear  the cruelty of the appellant, the deceased left the residence of the  appellant 8 days prior to her death and started  living in  the house of his brother Ravi (PW1).  On 22nd September, 1993  the  deceased accompanied by Bhavya (PW2), the  female child  of Ravi (PW1), who was about four years of age,  went to  the  village  tank  in the  afternoon  for  washing  the clothes.   While she was washing clothes, the appellant came and  stabbed  Saroja with knife inflicting injuries  on  her neck,  chest  and  other parts of the  body  causing  severe bleeding  resulting  in  her death.  Immediately  the  child Bhavya  (PW2)  rushed to the house and informed her  parents about  the  occurrence  specifically   mentioning  that  the appellant  had  stabbed the deceased.  On the  complaint  of Ravi  (PW1)  FIR  was registered against the  appellant  and investigation commenced.  The Tehsildar P.H.  Krishnappa (PW 14)  prepared  the inquest mahazar on the dead body  of  the deceased  and  in  that process recorded  the  statement  of Bhavya  (PW2).  She is stated to have made the deposition in Malyalam  which was translated to the Investigating  Officer in  Kannada.   During  the course of the  investigation  the appellant   made  voluntary  statement   Exhibit  P13.    In consequence   of  the  disclosure   statement  made  by  the appellant,  the  knife (MO1), shirt (MO5), Lungi  (MO6)  and Towel  (MO7)  were recovered at the instance of the  accused from  his  house.  After completion of the  investigation  a charge-sheet  was  submitted before the Judicial  Magistrate who committed the accused to the Sessions Court for standing trial  for  offences  under  Section 302 of  the  IPC.   The prosecution  examined 16 witnesses.  Upon the conclusion  of

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the  trial the Sessions Judge found the appellant guilty  of the  commission  of  offence  under   Section  302  IPC  and sentenced  him  to  undergo imprisonment  for  life  besides paying  a  fine of Rs.1000/-.  In default of the payment  of the  fine  the  appellant was directed  to  undergo  further imprisonment  of 30 days.  The appeal filed by the appellant was  dismissed by the High Court vide the judgment  impugned in  this  appeal by special leave.  Before appreciating  the rival contentions addressed at the Bar, it has to be noticed that  the whole of the prosecution case is mainly based upon the  statement  of child witness Bhavya (PW2).  The  witness was related both to the accused and the deceased.  Shardamma (PW3)  is  the  sister  of PW1 and wife  of  the  appellant. Deceased Saroja and Smt.Nalini are the other sisters of Ravi (PW1).   Bhavya (PW2) is the daughter of PW1.  The  deceased was  not  married and was earlier residing with her  parents who  died about 4 or 5 years before the date of  occurrence. After the death of her parents the deceased started residing in  the house of her sister Nalini.  For some time she  also resided  with  her brother Ravi (PW1).  While  deceased  was residing in the house of her sister Nalini, the accused took her  to his house where they developed intimacy as a  result of  which  a male child was born to the deceased.  Both  the courts below have concurrently held that deceased Saroja met with  homicidal death on 22nd September, 1993 at about  2.00 p.m.   near Keremane water tank of Village Kanoor.   Relying upon  the  testimony  of  PW2  it has  been  held  that  the appellant  had inflicted the fatal blows on the body of  the deceased  which resulted in her death.  The relationship  of the   witnesses  and  the   illicit  relations  between  the appellant  and the deceased have not seriously been disputed by  the  learned  counsel  who appeared  on  behalf  of  the appellant  as Amicus Curaie.  She has, however, stated  that it  would  not  be  safe  to base  conviction  on  the  sole testimony of the child witness.  She has also pointed out to certain discrepancies in the depositions of the said witness to  impress upon us that the prosecution has not proved  the case  against  the  appellant beyond all  reasonable  doubt. Relying  upon  the defence evidence led in the case  it  has been  argued  that as the relationship between the  deceased and  his  wife were cordial, there was no cause or  occasion for  the appellant to develop intimacy with the deceased and on alleged breaking of the relationship cause her death.  It is  to be noticed that Shardamma, sister of the deceased who was  initially  cited as a prosecution appeared  as  Defence witness  (DW1) besides appellant (DW2) himself.  Admittedly, Bhavya  (PW2), who at the time of occurrence was about  four years  of  age,  is the only solitary  eye-witness  who  was rightly  not  given  the oath.  The time and  place  of  the occurrence  and  the  attending circumstances  of  the  case suggest no possibility of there being any other person as an eye-witness.   The  evidence of the child witness cannot  be rejected  per  se, but the court, as a rule of prudence,  is required  to consider such evidence with close scrutiny  and only  on being convinced about the quality of the statements and  its  reliability,  base  conviction  by  accepting  the statement  of the child witness.  The witness of PW2  cannot be  discarded  only on the ground of her being of Teen  age. The  fact  of  being PW2 a child witness would  require  the court  to scrutinise her evidence with care and caution.  If she is shown to have stood the test of cross-examination and there  is no infirmity in her evidence, the prosecution  can rightly  claim a conviction based upon her testimony  alone. Corroboration  of the testimony of a child witness is not  a rule   but  a  measure  of   caution  and  prudence.    Some

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discrepancies  in the statement of a child witness cannot be made  the basis for discarding the testimony.  Discrepancies in  the  deposition, if not in material  particulars,  would lend credence to the testimony of a child witness who, under the  normal  circumstances,  would like to mix up  what  the witness saw with what he or she is likely to imagine to have seen.  While appreciating the evidence of the child witness, the  courts are required to rule out the possibility of  the child  being  tutored.   In the absence  of  any  allegation regarding  tutoring or using the child witness for  ulterior purposes  of the prosecution, the courts have no option  but to  rely  upon  the confidence inspiring testimony  of  such witness  for  the purposes of holding the accused guilty  or not.  This Court in Panchhi & Ors.  v.  State of U.P.  [1998 (7)  SCC  177] held that the evidence of the  child  witness must   be   evaluated  more   carefully  and  with   greater circumspection  because a child is susceptible to be  swayed by  what others tell him and thus an easy prey to  tutoring. The  evidence  of  the  child  witness  must  find  adequate corroboration  before  it  is  relied upon as  the  rule  of corroboration  is  of  practical wisdom than  of  law  (vide Prakash   v.   State  of  M.P.    1992  (4)  SCC  225,  Baby Kandayanathi  v.   State  of Kerala 1993 Supp (3)  SCC  667; Raja  Ram Yadav v.  State of Bihar, 1996 (9) SCC 287;  Dattu Ramrao  Sakhare v.  State of Maharashtra 1997 (5) SCC  341). To  the  same  effect is the judgment in State of  U.P.   v. Ashok  Dixit & Anr.  [2000 (3) SCC 70].  In this case Bhavya (PW2) when appeared before the trial court was of 6 years of age.   After  questioning  the witness, the  Sessions  Judge found, "though the girl is 6 years old she is active and she understands  everything".  Without administering the oath to the  witness her statement was recorded wherein she  stated: "I  know Saroja, I call her as Ammayi, she is my aunt.   The person  sitting  in the court Box is my uncle.  His name  is Suryanarayana.  Since I call him as uncle, he is my uncle.

     My  aunt  Saroja  is now dead.  I know  how  she  died several days back after taking luch My Ammayi i.e.  any aunt Saroja  and  myself went to lake to wash the clothes and  to take  bath.  On that day, my uncle Saryanarayana sitting  in the  court  pierced  with knife to stomach and  neck  to  my ammaye.   Hence  she suffered injuries and her  entire  body covered  with blood.  My ammaye while running after injuries fell down, I screamed.  Immediately I ran and told my father and  mother  that  uncle killed the aunt.  If the  knife  is shown  I can identify (a white cloth bag sealed was opened), I  have  seen  a knife now.  In the same knife that  day  my uncle  pierced my Ammaye this was marked as Ex.P-0I on  that day  police asked me as to what happened, I have told  every thing to police."

     In  her  cross-examination  the  witness  stated  that before  the date of occurrence the deceased was living  with her  (witness)  parents.   At  the time  of  occurrence  the witness  used to go to Aaganwadi School.  The witness denied the  suggestion  that she had not gone with the deceased  to wash  the  clothes.  Nothing favouring the defence could  be extracted  out of her in the cross-examination.  She  denied the  suggestion  that "my uncle did not pierce my aunt  with the knife.  It is not correct that I have not seen the knife in  the hands of my uncle".  The trial court as well as  the High  Court accepted her testimony as no inherent defect was pointed  out by the defence.  We also find no reason to take a  contrary  view.  The mere fact that her mother  had  told

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that she did not know any other language except Malyalam and that  the  words spoken to by her were not in that  language cannot  be  used as a ground to reject her  testimony.   The child  and  her  parents conversed in Malyalam  language  at their  residence  which was explained to  the  Investigating Officer  in the language which was understood by him.  There is  no  ground of doubting the veracity of the testimony  of this  child witness as we find that her name is mentioned in the  FIR  which is proved to have been recorded  immediately after  the  occurrence.   PH Krishnappa, the  Tehsildar  who prepared  the inquest report is also proved to have recorded the  statement of this child witness wherein she is shown to have  made  similar  disposition.  Otherwise also  there  is sufficient   corroboration  on  record  to  rule   out   the possibility  of  PW2  being  tutored or  used  for  ulterior purposes by some alleged interested persons.  In the absence of  any inherent defect we do not find any substance in  the plea  to  reject the testimony of this child  witness.   The statement  of PW2 shows that the deceased and the  appellant were  living  together as husband and wife and she  used  to address them uncle and aunt.  Her testimony to the effect of deceased living with PW1 is sufficiently corroborated by the other  evidence  led  in the case.  The factum  of  deceased having  received  stabbed wound with knife is proved by  the medical evidence.  The recovery of the knife at the instance of  the appellant in consequence of his disclosure statement leaves  no  doubt  to believe her statement.  The  place  of occurrence  being near the water tank has not been seriously disputed.   The report received from FSL as per Exhibit P-15 shows  that Blouse (MO2), Towel (MO3) and the bangle  pieces (MO4)  of the deceased and the knife (MO1) which was used in the  commission  of the crime, the towel (MO7), Lungi  (MO6) and  shirt  (MO5) of the appellant were found to be  stained with blood.  Dr.Ram Dass (PW12) has opined that the injuries found  on the dead body of the deceased could be caused with a weapon like MO1.  On appreciation of evidence in the light of various pronouncements the High Court rightly held:  "The version  of  PW2 Bhavya is so truthful that it  was  rightly believed by the court below.  The criticism levelled against the  evidence  of PW2 that she was tutored etc.  are  wholly baseless and are unwarranted."

     The  defence  evidence produced in the case also  does not  weaken  any part of the statement of Bhavya (PW2).   No suggestion  was  made to the witness for allegedly making  a false  or tutored statement.  Under the circumstances of the case and relying upon the testimony of PW2 which is found to be  no  suffering from any infirmity and is corroborated  in all  material  particulars,  we find no  substance  in  this appeal which is accordingly dismissed upholding the judgment of the trial court and the High Court.