REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.203 OF 2005  

State of Karnataka …Appellant

Versus                     

 Shantappa Madivalappa Galapuji and Ors. ...Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is by the State of Karnataka to the judgment

of a Division Bench of the Karnataka High Court allowing the appeal filed

by the respondents.  Four respondents faced trial  for alleged commission of

offences punishable under Sections 302 and 201 read with Section 34 of the

Indian Penal Code, 1860 (in short the ‘IPC’) and were sentenced by learned

II Additional Sessions Judge, Belgaum. The High Court by the impugned

judgment has set aside the conviction.  

2. The prosecution version as unfolded during trial is as follows:

The  complainant  is  the  native  of  Biraladinni  village  in

Basavanabagewadi Taluk in Bijapur  District and he is residing at Bijapur.

He owned landed and house properties. His father and younger brother are

looking after the agriculture. The complainant though is residing in Bijapur,

visits Biraladinni village once every week. He has got two younger sisters

and  one  brother.  Annapurna  is  one  of  the  sisters.  The  marriage  of

Annapurna took place with Shantappa (A.1). The said Annapurna after the

marriage went to the house of A.1 to lead marital  life. She  gave birth to

three children. The brother of A.l who is A.2 is residing in Ainapur Village

since 10 years and he is residing in Gubbimaddi land after erecting a hut.

Along with him A.3 and A.4 are also residing. A.1 is addicted to bad vices

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like drinking  liquor  and  he  always  used  to  pick  up  quarrel  with  the

complainant's sister i.e., Annapurna. About one year prior to the death of

Annapurna, A.1 had brought the deceased Annapurna and her children to

Beeraladinni and left them in her parents’ place. About three months prior

to the incident,  A.1 had come to Beeraladdinni  village and requested the

complainant and his family members that he will take his wife and children

and he will  look after them properly. He also told them that he will  take

them to Ainapur Village. Then he took the deceased Annapurna and his son

Suresh to Ainapur. On 31.12.1994 i.e., on Saturday as it was a holiday, the

complainant had come to Beeraladinni Village. At about 8 p.m, on that day,

one Siddappa of their village came to the complainant and told him that he

had gone to Dhavalagi Village on that day and there A.2 had met him and

told him that on 29.12.1994 at about 11 p.m., Annapurna had died. He has

also  told  him that  A1  was to  be  informed.  After  hearing  this,  the  com-

plainant, on the next morning, along with Siddappa went to Ainapur Village

and went to the hut where the accused were residing and asked the accused

as to how his sister had died and as the accused did not give any satisfactory

answer,  he asked his sister's  son i.e.,  Suresh about the incident.   He was

about 9 years old then. Suresh told him that on that day i.e., on 29.12.1994

after taking food, his mother was making preparations to sleep. At about 11

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p.m.,  his  father  P.1  picked  up a  quarrel  stating  that  she  is  having  illicit

relations with somebody and also said that she should leave such habits. At

that time, his mother Annapurna said that she has not acted like that. A.1

went inside the house and brought other accused and also brought a rope

and  after  that  all  the  accused  made  the  deceased  Annapurna  lie on  the

ground and meanwhile A.3 and A.4 caught hold of her hands. A.2 held both

the legs  of  the  deceased and then  A.1 tying the rope  to  the  neck of  the

deceased pulled it and then the deceased  died on the spot, Then A.1 took

Suresh inside the house and threatened him not to tell the fact to anybody

and thereafter, the dead  body of the deceased was taken away and it was

burnt. After hearing this from Suresh, the complainant went to Biraladdinni

Village and informed the said fact to the parents and others and on the next

day morning he went to the police station and filed his written complaint

against the accused and the A.S.I, who was incharge  of the police station,

received the complaint and registered a case in Cr.No.2/95 under Sections

302, 201 read with Section 34 I.P.C. and then sent F.I.R. to the court and

thereafter,  took up further  investigation and visited the scene of offence,

drew panchanama of the scene of offence as shown by Suresh and thereafter

three accused were arrested.  After completion of investigation charge sheet

was filed.  

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Since the accused persons pleaded innocence trial  was held.   The

trial  Court  placed  reliance  on  the  evidence  of  the  PWs  and  directed

conviction.  By  the  impugned  judgment  the  High  Court  held  that  the

prosecution  version  is  not  established  and  the  evidence  of  the  witnesses

cannot be termed as credible.   

3. In  support  of  the  appeal,  learned  counsel  for  the  appellant-State

submitted that the High Court has by a cryptic and non-reasoned order set

aside  the  judgment  of  conviction.  Since  the  judgment  of  acquittal  was

challenged,  and  none  appeared  for  the  respondents,  Ms.  Vibha  Datta

Makhija was appointed as Amicus Curiae. It is to be noted that there were

16 witnesses examined.  PW-1 who was younger brother of the deceased

spoke as to what PW-2 had narrated to him.  PW-2 is a child witness who

was the son of the deceased. He categorically stated the facts of incident and

had identified the rope used during the incident. PW-3, the neighbour of the

accused  stated  that  he  had  attempted  to  bury  the  dead  body  as  per  the

custom while the same was to be burnt. PW-4 stated that the accused told

him that  the  deceased had died of  heart  attack.  PW-7 is the person who

informed PW-1 about the death of the deceased.  He also spoke about PW-2

narrating the incident to him.  PWs 10 and 11 spoke about frequent quarrels

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between the deceased and A-1. The only reason which apparently weighed

with the High Court to discard the evidence of PW-2 is that PW-1 was an

Advocate  and  PW-2  was  staying  with  him  and  therefore  his  evidence

appeared to be tutored.  It also noted about the delay in filing F.I.R.  

4. The so called delay in lodging the FIR was also explained by PW-1. It

is to be noted that out of 19 typed pages of the order, forming special leave

petition 18 pages have been devoted to recital of the evidence of witnesses

and thereafter there is an abrupt conclusion to discard the evidence of PW-2

on the presumption that he was tutored as his uncle PW-1 was an advocate.

It is also observed that it is not known what the learned Additional Sessions

Judge  asked  the  child  witness  to  test  his  knowledge.  Unfortunately,  the

High Court failed to notice that the learned Additional Sessions Judge has

referred to all relevant aspects in detail. It has been recorded that when the

Court put preliminary questions to the child who appeared to be of tender

age,  it  was  revealed  that  the  witness  was  capable  of  understanding  the

questions put to him and was capable of giving rational answers to those

questions.  He knew the difference between the truth and the falsehood and

knew that only truth has to be deposed before the Court. He also knew the

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consequences of deposing falsely. Therefore, the Court was of the opinion

that the witness was competent to testify before the Court.  

5. The position in law relating to the evidence of child witness has been

dealt with by this Court in  Nivrutti Pandurang Kokate and Ors. v. State of

Maharashtra (2008 (12) SCC 565), and Golla Yelugu Govindu  v. State of

Andhra Pradesh (2008 (4) SCALE  569).  

6. The Indian Evidence Act, 1872 (in short “the Evidence Act”) does not

prescribe any particular age as a determinative factor to treat a witness to be

a  competent  one.  On  the  contrary,  Section  118  of  the  Evidence  Act

envisages  that  all  persons  shall  be  competent  to  testify,  unless  the  court

considers that they are prevented from understanding the questions put to

them or from giving rational answers to these questions, because of tender

years, extreme old age, disease — whether of mind, or any other cause of

the same kind.  A child of tender age can be allowed to testify if  he has

intellectual  capacity  to  understand  questions  and  give  rational  answers

thereto.  This  position  was  concisely  stated  by  Brewer,  J.  in  Wheeler  v.

United States (159 US 523). The evidence of a child witness is not required

to be rejected per  se,  but  the court  as a rule  of prudence considers  such

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evidence with close scrutiny and only on being convinced about the quality

thereof  and  reliability  can  record  conviction,  based  thereon.  [See

Suryanarayana v. State of Karnataka (2001 (9) SCC 129)]  

7.  In  Dattu Ramrao Sakhare  v.  State of Maharashtra [(1997) 5 SCC

341] it was held as follows: (SCC p.   343, para 5):  

“A child  witness  if  found  competent  to  depose  to  the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section  118  of  the  Evidence  Act  provided  that  such witness is able to understand the questions and able to give  rational  answers  thereof.  The evidence  of  a child witness and 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.”  

The  decision  on  the  question  whether  the  child  witness  has sufficient intelligence primarily rests with the trial Judge who notices  his  manners,  his  apparent  possession  or  lack  of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of  the  trial  court  may,  however,  be  disturbed  by the  higher court if from what is preserved in the records, it is clear that his conclusion  was  erroneous.  This  precaution  is  necessary

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because child witnesses are amenable to tutoring and often live in  a  world  of  make-believe.  Though  it  is  an  established principle that child witnesses are dangerous witnesses as they are  pliable  and  liable  to  be  influenced  easily,  shaken  and moulded, but it  is also an accepted norm that if after careful scrutiny of  their  evidence the court  comes to  the  conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.  

8. The  above  position  was  highlighted  in  Ratansingh Dalsukhbhai

Nayak v. State of Gujarat (2004(1) SCC 64). Looked at from any angle the

judgments  of  the  trial  court  and the  High  Court  do not  suffer  from any

infirmity to warrant interference.

9. In view of the foregoing conclusions  without  even indicating as to

how  conclusions  of  the  trial  Court  were  in  any  manner  deficient  or

insufficient,  the  High  Court  ought  not  to  have,  on  abrupt  conclusions,

directed acquittal.  

10. In the  circumstances  we deem it  proper  to  set  aside the  impugned

judgment and remand the matter to the High Court to consider the matter

afresh and dispose of the appeal indicating reasons.  

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11. The appeal is allowed.     

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, April 20, 2009

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