31 March 1992
Supreme Court


Bench: MOHAN,S. (J)
Case number: Appeal Criminal 688 of 1980








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



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



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.



    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



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.,



[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



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.



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