SURYANARAYANA.

STATE OF KARNATAKA

JANUARY 3, 2001

[K.T. THOMAS AND R.P. SETHI, JJ.] B

Criminal Law :

Evidence Act, 1872 : c Section 118-Witness--Oiild iritness-Competence to testifj~Evidentia1)' mlue of-Conviction based sole(v upon that evidence-Validity-Held: the evidence of child witness cannot be rejected per se-Hoirever, such evidence should be subjected to close scrutiny before its reception-Corroboration of such testimony not a rule hut a measure of caution and prudence-Possibility of tllloring of child witness must be ruled out-On facts, conviction based D upon the sole evidence of child witness upheld-Penal Code, 1860, S.302.

The appellant-accused was convicted by the trial court under Section 302 of the Penal Cod~, 1860 and sentenced to undergo imprisonment for life.

The High Court upheld the conviction and sentence. Hence this appeal.

E According to the prosecution S had developed intimacy and extramarital relations with the appellant-accused, as a result of which she gave birth to a male child. After the birth of the child, differences arose between the accused and S. The accused subjected S to cruelty and harassment. S, therefore, left the residence of the accused and started living F with her brother. On the fateful day S went to the village tank to wash clothes along with her brother's female child (PW-2) aged about 4 years. While S was washing the clothes, the accu5ed came and stabbed S with a knife resulting in her death. Immediately the child (PW-2) rushed to the house and informed her parents about the occurrence specifically mentioning that the appellant had stabbed deceased. The prosecution. case was mainly based upon G the statement of the child witness (PW-2) who was the solitary eyewitness.

On behalf of the accused it was contended that it would not be safe to base the eonviction on the sole testimony of the child witness; and that there were certain discrepancies in the deposition of the child witness.

A Dismissing the appeal, the Court

HELD: I. 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 statement and its reliability, base the conviction by accepting the statement B of the child witness. The evidence of PW-2 cannot be discarded only on the ground of her being of tender age. The fact of being PW-2 a child witness would require the court to scrutinize 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 C 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 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 ciumstances, would like to mix up what the witness D 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 E of such witness for the purposes of holding the accused guilty or not.

14-H; 5-A-CI

Panchhi v. State of UP., 1199817 SCC 177; Prakash v. State ofM.P., 119921 4 SCC 225; Baby Kandayanthi v. State of Kera/a, 119831 Supp. 3 SCC 887; Raja Ram Yadav v. State of Bihar, 11996) 9 SCC 287; Da1tu f Ramrao Sakhare v. State of Maharashtra, 1199715 SCC 341 and State of U.P.

v. Ashok Dixil, 120001 3 SCC 70, relied on.

2. Under the circumstances of the case reliance could be placed upon the testimony of PW-2 which is found to be not suffering from any infirmity and is corroborated in all material particulars. 17-FI

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

" -

522 of 1999. +

From the Judgment and Order dated 26.8.98 of the KarnatakaHigh Court in Crl.A. No. 65of1996.

H Ms. Neeru Vaid (A.C.) for the Appellant.

SURYANARAYANA v. STATE OF KARNATAKA [SETI-II, .I.] 3

N.P. Midha and N. Ganpathy for the Respondent.

The Judgment of the Court was delivered by

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 B male child. After the birth of the child differences arose between the appellant and the deceased. The ppellant started suspecting the deceased of having illegal connections witli other persons. She was subjected to cruelty and harasment. 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 C house of his brother Ravi (PWl ). On 22nd September, 1993 the deceased accompanied by Bhavya (PW2), the female child of Ravi (PWl), who was about four years of age, went to the village tank in the afternoon for washing the clothes. While she vas washing clothes, the appellant came an 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 D Bhavya (PW2) rushed to the house and informed her parents about the occun-ence specifically mentioning that the appellant had stabbed the deceased .

.,;•r On the complaint of Ravi (PW!) FIR was registered against the appellant and investigation commenced. The Tehsildar P.H. Krishnappa (PW14) prepared E 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 p.13. In consequence of the disclosure statement made by the appellant, the knife (MOl), shirt (MOS), Lungi (M06) and Towel (M07) F 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 lPC. The prosecution examined 16 witnesses. Upon the conclusion of he trial the Sessions Judge found the G appellant guilty of the commission of offence under Section 302 !PC 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 PWI and wife of the appellant. Deceased Saroja and Smt. Nalini are the other sisters B of Ravi (PW I). Bhavya (PW2) is the daughter of PW I. 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 (PWl). While deceased was residing in the house of her sister Nalini, the accused took her to his house where they C 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 he appellant had inflicted the fatal blows on the body of the D 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 E 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 appellate to develop intimacy with the deceased and on alleged breaking of the relationship F 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 (DWI) besides appellant (DW2) himself.

Admittedly, Bhavya (PW2), who was at the time of occurre"nce was G 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 drcumstances 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 rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality H of the statements and its reliability, base conviction by accepting the statement

SURYANARAYANA v. STATE OF KARNATAKA [SETHI. J.] 5

of the child wiiness. The witness of PW2 cannot be discarded only on the A

--I., 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 crossexamination 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 B a rule but a measure of caution and prudence. Some 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 C 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 UP., (1998] 7 SCC 177, held that the evidence of the chi le 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 E rule of corroboration is of practical wisdom than of law (vi de Prakash v. State of MP., (1992] 4 SCC 225, Baby Kandayanathi v. State of Kera/a, (1993] Supp. 3 SCC 667. Raja Ram Yadav v. State ofBihar, (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 UP. v. Ashok Dixit & Anr. F (20001 3 sec 10.

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". G Without administering the oath to the wit;1ess 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 lunch My Ammayi i.e. my aunt Saroja and myself went to lake to wash the clothes and to take bath. On that day, my uncle Suryanarayana sittin~ in the court pierced with knife to stomach and neck to my ammayi. Hence she suffered injuries and her entire body covered with blood. My ammaye while running after injuries fall 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 Armnaye this was marked as Ex.P-0 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 D 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 on 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 E no reason to take a country view. The mere fact that her mother had told 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 has explained to the Investigating Officer in the language which has understood by him. There is no ground of doubting the F 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 G 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 H with Pw I is sufficiently corroborated by the other evidence led in the case.

; r-

SURYANARAYANA v. STATE OF KARNATAKA [SETHI, J.] 7

The factum of deceased having received stabbed wound with knife is proved A 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 shown that Blouse (M02), Towel (M03) and the bangle pieces (M04) of the deceased and the knife (MO!) which was used in the commission of the B crime, the towel (M07), Lungi (M06) and shirt (MOS) 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 MOI.

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 D 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.

v.s.s.

Appeal dismissed.