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appreciation of evidence of a witness = If the behavior is absolutely unnatural, the testimony of the witness may not deserve credence and acceptance.= 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 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.=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.

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The Gandaberunda emblem in the Mysore Palace. ...

The Gandaberunda emblem in the Mysore Palace. This is now the official emblem of Karnataka state in India (Photo credit: Wikipedia)

 

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-
2Page 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 12th and 13th
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,
3Page 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
4Page 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 motherin-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
5Page 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
6Page 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
7Page 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.
8Page 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 Maharashtra1
, wherein a three-Judge Bench
has opined thus: –
1
AIR 1973 SC 2622
9Page 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 Thakran3
.
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
10Page 11
borne in mind. The said aspects have been encapsuled in
Chandrappa v. State of Karnataka4 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 Dutta5
.
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
11Page 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
Maharashtra6
, 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
12Page 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
Kerala9
, Raja Ram Yadav v. State of Bihar10 and
Dattu Ramrao Sakhare v. State of Maharashtra
(supra).”
15. Similar view has been expressed in State of U.P.
v. Ashok Dixit and another11
.
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
13Page 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
14Page 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 Pradesh12, 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
15Page 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
Haryana13, 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 counterattacking 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 Ram14, 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
16Page 17
of given facts and circumstances of the case. Similar view
has been reiterated in Lahu Kamlakar Patil and anr. v.
State of Maharashtra15
.
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
17Page 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
18Page 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

 

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