' published in http://courtnic.nic.in/supremecourt/qrydisp.asp
ITEM NO.1B COURT NO.3 SECTION IIB
[FOR JUDGMENT]
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 268 OF 2007
HAMZA Appellant (s)
VERSUS
MUHAMMADKUTTY @ MANI & ORS. Respondent(s)
WITH
CRIMINAL APPEAL NO. 1378 of 2007
[STATE OF KERALA V. MUHAMMADKUTTY @ MANI & ORS.]
Date: 20/06/2013 These Appeals were called on for pronouncement
of judgment today.
For Appellant(s)
in CrlA 268 For M/S. T.T.K. Deepak & Co., Adv.
In CrlA 1378 Mr. Jogy Scaria, Adv.
For Respondent(s)
Mr. Romy Chacko, Adv.
Mr. R. Sathish, Adv.
Mr. M.T. George, Adv.
For M/S. T.T.K. Deepak & Co., Advs.
*****
|Hon'ble Mr. Justice A.K. Patnaik pronounced the judgment of the Court for a |
|Bench comprising of His Lordship and Hon'ble Mrs. Justice Gyan Sudha Misra. |
|For the reasons recorded in the signed reportable judgment, the appeals are |
|dismissed. |
| |
|[KALYANI GUPTA] | |[SHARDA KAPOOR] |
|COURT MASTER | |COURT MASTER |
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE.]
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 268 of 2007
Hamza ......
Appellant
Versus
Muhammadkutty @ Mani & Ors. ..... Respondents
WITH
CRIMINAL APPEAL No. 1378 of 2007
State of Kerala ......
Appellant
Versus
Muhammadkutty @ Mani & Ors. ..... Respondents
J U D G M E N T
A. K. PATNAIK, J.
These are appeals by way of special leave under Article 136 of the
Constitution against the judgment dated 23.09.2005 of the Division Bench of
the Kerala High Court in Criminal Appeal No. 1187 of 2005 (B).
Facts of the Case:
2. The facts very briefly are that
on 26.02.1998 between 7.00 p.m. to
7.30 p.m. Suhara sustained stab injuries on her neck while she was in the
house of her in-laws. She was initially taken to the Government hospital,
Pattambi and was thereafter taken to Moulana Hospital, Perinthalmanna,
where she succumbed to the injuries and died.
On 27.02.1998, the Pattambi
Police registered the First Information Report (FIR) on the statement given
by one Saidalavi, a relative of Suhara, that she had suspicion regarding
the death of Suhara (hereinafter referred to as 'the deceased'). On
27.02.1998, postmortem was conducted on the body of the deceased by the
Lecturer, Forensic Medicine and Assistant Police Surgeon, Medical College,
Trichur.
The local police then investigated into the case and came to the
conclusion that it was a case of harassment and suicide and filed a charge- sheet against four members of the family of the in-laws of the deceased for offences under Sections 498-A and 306 of the Indian Penal Code (for short 'the IPC') but the accused persons were subsequently acquitted of the offences under Sections 498-A and 306 of the IPC and no appeal was filed by the State against the judgment of acquittal passed by the trial court.
After two years of the incident, Hamza, the brother of the deceased, lodged a complaint before the Magistrate on 26.02.2000.
In the complaint, Hamza
stated that the deceased was married to Ishaq, who was employed abroad and
the couple had two children, a boy Mohd. Faizal and a girl Fasila.
Hamza
alleged that in the beginning Ishaq was sending cash from abroad to his
brother Muhammadkutty, but later on stopped sending cash to him and instead
sent the cash to the deceased and as a result a quarrel started between the
brothers of Ishaq and the deceased and on 26.02.1998 at 6.30 p.m.
Hamsappa
(Accused No.2 for short 'A-2'), brother of Ishaq, caught hold of the hands
and legs of the deceased and Muhammadkutty (Accused No.1 for short 'A-1')
killed her by stabbing her neck with a knife and stuffing clothes into her
mouth.
Ayisha (mother-in-law of the deceased), Asia (wife of Hamsappa),
Pathummakutty (wife of Muhammadkutty) and Saju @ Sajitha (daughter of
Muhammadkutty) (Accused No. 3 to Accused No.6 for short 'A-3 to A-6')
changed the dress of the deceased and washed all the blood from the scene
of occurrence and caused disappearance of the evidence of the murder.
Accordingly, the aforesaid six accused persons committed offences
punishable under Sections 302 and 201 read with Section 34 of the IPC.
The
complainant and his witnesses were examined by the Magistrate under Section
202 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.').
The
Magistrate took cognizance of the case and issued processes against all the six accused persons.
After the accused persons entered appearance and were
served with the copies of all the relevant documents, the Magistrate committed the case to the Sessions Court, Palakkad on 03.04.2001.
The
Sessions Court thereafter framed charges against the six accused persons under Sections 302 and 201 read with Section 34 of the IPC and conducted trial in Sessions Case No.447 of 2001.
3. At the trial, altogether six witnesses were examined and 17
documents were marked as exhibits on behalf of the prosecution.
Mohd. Faizal, the son of the deceased, was examined as PW-1.
He was about 7 years old on 26.02.1998 and he claimed to be a witness to the murder of the
deceased. He deposed before the Court that on 26.02.1998 at 7.00 p.m when
he, his mother and younger sister were lying in the bedroom for the purpose
of sleeping, A-1 and A-2 came to the bedroom and A-1 took him to the sofa
placed in the portico and when A-1 took his sister, the deceased cried and
on hearing this, he looked into the room through a window and he saw A-2
catching hold of the hands of the deceased and A-1 pushing cloth into her
mouth and stabbing on her neck with a knife. PW-1 further deposed that
on
seeing this he cried aloud and A-1 came out of the room, took him to the kitchen side and told him that he will also do the same thing to him if he divulged the incident to anybody.
PW-1 further stated before the Court
that there was light in the room at the time of the occurrence and he saw A-
3 cleaning the bedroom and
A-4 and A-6 changing the dress of his mother and
his mother was thereafter taken to the hospital by family members and
neighbours and later somebody telephoned to the house and intimated that
his mother has expired.
PW-1 also deposed that on the next day he slept in
his maternal aunt's house and in the night he narrated the incident to his aunt and uncle (the complainant).
He also stated that on the day of the
burial of the deceased the police questioned him and he stated to the police that his mother was murdered and he also met the doctors of Trichur and told them that his mother was murdered.
The complainant was also
examined as PW-2, who inter alia stated before the Court that on the day
next to the date of incident, PW-1 slept in his house with his aunt and
told him and his other family members that the deceased was stabbed to
death by A-1 with the help of A-2.
The Lecturer in Forensic Medicine andAssistant Police Surgeon, Medical College Trichur, who conducted the
autopsy on the dead body of the deceased on 27.02.1998 and issued a
postmortem certificate Ex. P-12 was examined as PW-4 and
he stated that the
deceased died due to cut injuries on the neck and the injuries were more likely self inflicted, but the possibility of homicide could not be ruled out.
In defence, the accused persons examined the Professor and Head of the Department of Forensic Medicine and Police Surgeon, Medical College,
Trichur as DW-1, who had given a medico-legal opinion, which was marked as Ex. D-1.
DW-1 has concluded in his opinion that the injuries on the neck
of the deceased are consistent with the case of a suicide.
4. The trial court relied on the sole oral testimony of PW-1 and
convicted A-1 and A-2 for the offence under Section 302 read with Section 34 of the IPC. The trial court, however, held that there was nothing to suggest that A-3 to A-6 shared the common intention of A-1 and A-2 to murder the deceased.
The trial court further held that there was nothing
also to show that A-3 to A-6 were aware that A-1 and A-2 had committed the murder and that they cleaned the room and changed the dress of the deceased with a view to cause disappearance of evidence to screen the offenders.
The trial court accordingly acquitted A-3 to A-6 of the offences under Sections 302 and 201 read with Section 34 of the IPC. Aggrieved, A-1 and A-
2 filed a Criminal Appeal No. 1187 of 2005 (B) before the High Court. The
High Court held in the impugned judgment that the oral evidence of PW-1 did not inspire confidence and it was not safe to convict the accused persons on the sole testimony of the child witness.
The High Court also held that the possibility of suicide by the deceased could not be ruled out, rather
the suicide by the deceased was more probable.
The High Court held that in
any event it is a case in which two views are possible, one in favour of the accused and the other against the accused and in such cases the view in favour of the accused must be preferred and therefore the accused persons were entitled to be acquitted.
Accordingly, the High Court set aside the
conviction and sentence under Section 302 read with Section 34 of the IPC
imposed on A-1 and A-2 by the trial court and allowed the Criminal Appeal.
Contentions on behalf of the Appellants:
5. Mr. B.V. Deepak, learned counsel appearing for the appellant,
Hamza, submitted that the High Court should not have disbelieved PW-1
merely because he was a child witness. He submitted that the Magistrate
before committing the case for trial to the Sessions court had recorded the
statement of PW-1 on 26.02.2000 only after being satisfied about his
competency to testify.
He cited the judgment of this Court
in Rameshwar vs. The State of Rajasthan (1952 SCR 377)
in which Vivian Bose, J. speaking
for the Court has held that the rule, which according to the cases has
hardened into one of law, is not that corroboration is essential before
there can be a conviction but that the necessity of corroboration, as a
matter of prudence, except where the circumstances make it safe to dispense
with it, must be present to the mind of the judge. He submitted that this
Court has further held in the aforesaid case the tender years of the child,
coupled with other circumstances appearing in the case, may render
corroboration unnecessary but that is a question of fact in every case.
He also cited
Suresh vs. State of U.P. [(1981) 2 SCC 569] in which this
Court relied on the evidence of a child witness to maintain the conviction
of the accused for the murder of his wife and his son.
He also relied on
the recent decision in
Promode Dey vs. State of West Bengal [(2012) 4 SCC 559]
in which the testimony of a girl child was relied on by this Court to
maintain the conviction of the accused under Section 302 IPC.
6. Mr. Deepak submitted that the High Court was not right in coming to
the conclusion that it was more probably a case of suicide than a case of
homicide. He relied on the post mortem certificate Ex.P/12 to argue that
the injuries mentioned therein could not have been self-inflicted. He
referred to the findings of the trial court that the possibility of
homicide should not be ruled out.
He referred to Modi's Medical
Jurisprudence & Toxicology, 22nd Edition at page 387
which states that
homicidal wounds on the throat, when inflicted from the front by a right- handed person, are, as a rule horizontal and directed from right to left;
but the reverse is the case if the assailant happens to be left-handed. He submitted that as the wounds on the throat of the deceased were horizontal, the death of the deceased was homicidal and not suicidal.
He referred to
the evidence of DW-1 who had admitted that homicide cannot be ruled out.
He submitted that PW-4 has similarly deposed that the possibility of
homicide could not have been ruled out. He submitted that thus the medical
evidence was not in conflict with the ocular evidence of PW-1 and the
ocular evidence of PW-1 can be relied upon to hold A-1 and A-2 guilty for
the offence under Section 302, IPC read with Section 34, IPC.
7. Mr. Deepak submitted that the defence story that the deceased had
committed suicide between 6.30 pm to 7.30 pm on 26.02.1998 is not at all
credible and at any rate no evidence has been adduced on behalf of the
defence that the deceased had earlier suicidal tendencies.
He submitted
that a young mother is not likely to commit suicide leaving behind two
children to the mercy of her in-laws.
He argued that in this case a
miscarriage of justice has taken place from the acquittal of the guilty.
He submitted that in view of the direct evidence of PW-1 that A-1 and A-2
had committed the murder of the deceased, the High Court ought to have
maintained the conviction of A-1 and A-2 by the trial court.
8. Learned counsel appearing for the appellant-State in Criminal
Appeal No.1378 of 2007, submitted that the consistent version of PW-1 that
A-1 and A-2 had committed the murder of his mother should have been
accepted by the High Court even though PW-1 was a child witness. He cited
State of Madhya Pradesh vs. Ramesh and Another [(2011) 4 SCC 786] in which
this Court has held that the deposition of a child witness may require
corroboration but in case his deposition inspires confidence of the court
and there is no embellishment or improvement therein the court may rely
upon his evidence. He submitted that in the aforesaid case this Court has
also held that only in case there is no evidence on record to show that the
child has been tutored, the court can reject his statement partly or fully.
He submitted that the High Court, therefore, should have come to a finding
that PW-1 was tutored before it could reject the evidence of PW-1. He
submitted that if the evidence of PW-1 is read, it will be clear that PW-1
has withstood a lengthy cross-examination and is a reliable witness and the
High Court was not right in discarding his evidence as not reliable. He
relied on the decision in State of Tamil Nadu vs. P. Muniappan [(1998) 1
SCC 515] in which the doctors took two views about the cause of death and
the Court held that if the entire circumstantial evidence points to
homicide only, and the medical evidence is not to the contrary, the death
can be homicidal only. He submitted that in this case similarly as the
evidence of PW-1 is clear that A-1 and A-2 had caused homicidal death of
the deceased and the medical evidence of PW-4 and PW-1 did not rule out
homicide, the High Court should have maintained the conviction of A-1 and A-
2 under Section 302, IPC read with Section 34, IPC.
Contentions on behalf of the respondent-accused persons
9. Mr. Basant, senior counsel, appearing for the A-1 and A-2, on the
other hand, submitted that the High Court was right in taking the view in
the impugned judgment that it was not safe to convict A-1 and A-2 on the
sole uncorroborated testimony of PW-1, who was only 7 years old at the time
of the incident. He submitted that Section 118 of the Indian Evidence Act,
1872 provides 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 those questions, by tender
years, extreme old age, disease, whether of body or mind, or any other
cause of the same kind. He submitted that the requirements of Section 118
have not been satisfied in this case because before PW-1 who was of tender
years was examined, the trial court has not put questions to him to find
out his competence to testify as a witness. He submitted that the incident
took place on 26.02.1998 and from 27.02.1998, PW-1 has remained in the
custody of his maternal uncle, PW-2, who had animosity against all the
accused persons. The result was that PW-1 implicated not only A-1 and A-2
but also A-3 to A-6 in the offences under Sections 201 and 302 read with
Section 34 of the IPC. He submitted that there was no evidence that PW-1
revealed to any one on 26.02.1998 that A-1 and A-2 had committed the murder
of the deceased and from the evidence of PW-1 it appears that for the first
time PW-1 revealed to his maternal aunt, Sareena, that he saw A-1 and A-2
committing the murder of the deceased. He submitted that aunt Sareena,
however, has not been examined by the prosecution before the Court to
corroborate the testimony of PW-1 under Section 157 of the Indian
Evidence Act, 1872, instead PW-2, who was the complainant and who had
animosity against all the accused persons had been examined. He referred
to Ex. P.10, a letter of the Superintendent of Police, Crime Branch, CID
Palakkad, in which he has stated that during investigation by the Crime
Branch, CID, PW-1 has stated that Muhammadkutty pushed cloth in the mouth
of his mother and Hamsappa stabbed her with knife, but investigation
disclosed that this was a tutored version concocted by his maternal grand
parents and investigation revealed that Muhammadkutty and Hamsappa were not
at all present in the scene at the time of occurrence.
10. Mr. Basant submitted that PW-1 has stated in his examination-in-
chief that there is a window from the portico to the room where his mother
was lying and through that window he looked inside and saw A-2 was catching
hold of his mother's hands and A-1 pushed cloth into the mouth of his
mother and stabbed the front of mother's neck with a knife and he has
admitted in his cross-examination that he could not have seen the incident
had the window not been opened and that is why he had opened the window,
but prior to his evidence before court he has not stated anywhere that he
saw the incident after opening the window. He submitted that he has also
stated in his cross-examination that the window was used to be bolted
before going to bed in the night. He submitted that on this inconsistent
evidence of PW-1, it is extremely unsafe to convict the accused persons for
the offence under Section 302 read with Section 34 of the IPC and for this
reason the High Court has set aside the conviction of A-1 and A-2.
11. Mr. Basant submitted that from the evidence of PW-1 itself he can
give three illustrations to show that PW-1: (i) He has stated in his
evidence that he did not know about the marriage of Thatha 4 to 5 days
prior to the incident, though Thatha was the daughter of his father's
sister and the entire family had gone to attend the marriage; (ii) when the
question was put to him whether A-2 accompanied when his mother was taken
to the hospital, he stated that he does not remember, though, in fact, A-2
took the deceased to the hospital in his presence; (iii) when the question
was put to him that there was a small reaper fixed from inside on account
of which the window between the room in which the incident took place and
the portico in which he was laid down because of which the window could not
be opened, he stated that he does not remember.
12. Mr. Basant submitted that this is not a case where corroboration of
sole testimony of PW-1 could not have been possible. He submitted that the
police in its investigation did not find A-1 and A-2 at the house when the
incident took place and any neighbour could have been examined as to
whether A-1 and A-2 were present at the house when the occurrence took
place. He submitted that in the absence of any corroboration of the
testimony of PW-1, it is not prudent for the Court to convict A-1 and A-2
on the sole uncorroborated testimony of PW-1. He relied on the decision of
the Privy Council in Mohamed Sugal Esa Mamasan Rer Alalah v. The King [AIR
(33) 1946 PC 3] and the decisions of this Court in Rameshwar vs. The State
of Rajasthan (supra), Panchhi and Others v. State of U.P. [(1998) 7 SCC
177] and State of U.P. v. Ashok Dixit and Another [(2000) 3 SCC 70] for the
proposition that as a rule of practical wisdom, evidence of a child witness
must find adequate corroboration before it is relied on.
13. Finally, Mr. Basant submitted that this Court in exercise of its
powers under Article 136 of the Constitution does not interfere with the
judgment of acquittal of the High Court only because it has a different
view on the evidence and it only interferes where the judgment of acquittal
of the High Court is clearly unreasonable or perverse or manifestly illegal
or grossly unjust. In support of this proposition, he cited the decisions
of this Court in State of Karnataka v. Amajappa and Others [(2003) 9 SCC
468], State of Uttar Pradesh v. Banne alias Baijnath and Others [(2009) 4
SCC 271] and State of Haryana v. Shakuntla and Others [(2012) 5 SCC 171].
He submitted that since the view taken by the High Court in the impugned
judgment is a possible view on the evidence, this Court should not
interfere with the judgment of acquittal passed by the High Court.
Findings of the Court:
14. In this case, the High Court has acquitted A-1 and A-2 of the
offence under Section 302 read with Section 34 of the IPC after considering
the evidence on record. In State of Karnataka v. Amajappa and Others,
State of Uttar Pradesh v. Banne alias Baijnath and Others and State of
Haryana v. Shakuntla and Others (supra), this Court has held that if the
view taken by the High Court is reasonable or a possible one on the
evidence on record, this Court will not reverse the judgment of acquittal
of the High Court only on the ground that it had a different view of the
evidence on record. Hence, the scope of this appeal under Article 136 of
the Constitution is limited to finding out whether the view taken by the
High Court that on the evidence on record, the conviction of A-1 and A-2
for the offence under Section 302 read with Section 34 of the IPC was not
sustainable was a perverse or unreasonable view so as to call for
interference by this Court under Article 136 of the Constitution.
15. The evidence of PW-1 on which the trial court relied on to convict
A-1 and A-2 is quoted hereinbelow:
"On the evening at about 7 PM after having food myself along
with my mother and younger sister were laying awake in the room
intermediate to the portico and kitchen. By the time A-1 and A-
2 came to the room. We were awake. A-1 took me and taken to
the portico and laid me on the sofa in the portico. A-1 took my
sister and entrusted to A-5. By that time A-5 was standing
outside the room near the door. Mother made hue and cry when
younger sister is taken away. There is a window between the
portico and the room in which we were sleeping. I peep in to
the room through the window. I could see that A-2 was with
holding my mother's knees. A-2 sat on the cot in which mother
was sleeping. A-1 gagged cloth in the mouth of the mother.
With a knife A-1 stabbed on the neck of the mother. Blood oozed
from the wound. On seeing that I cried aloud. A-1 came out of
the room and took me towards the kitchen. A-1 threatened me
that if you divulge this to anybody you too would be stabbed to
death similarly. From there I returned to Thazvaram (portico).
I then saw that A-4 and A-6 were changing wearing apparels of
mother. By that time neighbors came there. Relatives and
neighbors together took my mother to the hospital. I saw A-3
cleaning the room where mother slept. When a phone call
received in the house of A-1, I came to know that mother is
expired."
Thus, PW-1 has deposed that he was taken by A-1 from the room in which he,
his younger sister and the deceased were sleeping to the portico and he
peeped into the room through the window and saw that A-2 was holding his
mother's knees and A-1 gagged cloth in the mouth of his mother and stabbed
on the neck of his mother with a knife and blood oozed from the wound.
The
High Court noticed that PW-1 had said that if the window was not open he
could not have seen the occurrence but PW-1 has admitted in his evidence
that when they slept at night they used to close and bolt the doors and
windows. The High Court further found that PW-1 had himself stated that
prior to his deposition in Court, he had never told that he had seen the
incident after opening the window panel. The High Court, therefore, did
not accept this evidence of PW-1 to be true.
16. The High Court also found that PW-1 was only aged seven years on
the date of the incident and he was examined in Court after lapse of seven
years and after the incident he was under the care and guardianship of his
mother's parents and the possibility of the parents of the mother tutoring
PW-1 could not be ruled out. Even though the High Court has not recorded
any clear finding that PW-1 had been tutored, we find that PW-1 has in fact
avoided to answer some questions during cross-examination, which he could
have easily answered. In cross-examination, questions were put to PW-1
whether he knew the name of the father's sister and whether that sister has
a daughter by the name Thatha and whether Thatha's marriage took place 4-5
days prior to the incident and whether he knew that all the family members
had gone for the marriage and PW-1 answered "I don't know who is Thatha and
which marriage is mentioned by you." Again in cross-examination, questions
were put to him on whether the window through which he saw the incident is
permanently fastened by using reapers and PW-1 answered "I do not
remember." In cross-examination, a question was put to PW-1 whether A-2
accompanied while his mother was taken to the hospital and he answered "I
do not remember". It, thus, appears from the evidence of PW-1 that he was
not revealing the whole truth and avoided to answer uncomfortable questions
which would have prejudiced the prosecution case. We, therefore, find that
PW-1 was tutored and hence as per the decision of this Court in State of
Madhya Pradesh vs. Ramesh and Another (supra) cited by learned counsel for
the State, the evidence of PW-1 could not be relied on without adequate
corroboration.
17. Under Section 157 of the Indian Evidence Act, the testimony of PW-
1 could be corroborated by his statements about the time of when the
incident took place. PW-1 has stated:
"Police came on that night itself. Police has not asked
anything to me, I did not told anything about the incident.
Next day evening mother's body buried. Thereafter I went to
mother's house. On that night I slept there. I slept there
with elder aunt Sareena. On that night I cried remembering
mother's memory, I told the whole incident witnessed to aunty.
My maternal grand mother Nabeesa and my uncle Hamzaka (mother's
brother) then came there. They also heard what I said."
From the aforesaid evidence of PW-1 it appears that PW-1 did not tell
anything about the incident to the police on the date of the incident,
though the police had come to the house where the incident had taken place.
Next day evening after her mother's body was buried, he went to the
mother's house and slept there with the elder aunt Sareena and on that
night he cried remembering his mother and told the whole incident he
witnessed to his aunt Sareena. Sareena has not been examined as a witness
to corroborate the testimony of PW-1. PW-1 has also said that his maternal
grandmother, Nabeesa and his uncle Hamza then came there and they also
heard what he said. Maternal grandmother of PW-1, Nabeesa has also not
been examined to corroborate the testimony of PW-1. Only Hamza has been
examined as PW-2 who has said that his mother and wife Sareena were told by
PW-1 that his mother was murdered by A-1 by stabbing while A-2 held her. PW-
2, however, has said that the husband of the deceased used to send money in
the name of A-1 and A-2 and the deceased informed her husband that she has
not received money and thereafter the husband of the deceased sent money in
the name of the deceased and he had learnt all this from the deceased.
From the evidence of PW-2 it is very clear that PW-2 had developed
animosity towards A-1 and A-2 on account of what the deceased had told him
about A-1 and A-2. Moreover, he has not been able to explain in cross-
examination as to why when the incident took place on 26.02.1998, he filed
the complaint before the Magistrate two years after on 26.02.2000 if the
police had treated the case as one of suicide and not of homicide. Hence,
even though the evidence of PW-2 corroborates the testimony of PW-1 his
evidence cannot be relied on to lend assurance that PW-1 was giving a true
version of the incident. From the deposition of PW-3 and Ex. P-11 (the
scene plan of the house in which the incident took place), it appears that
there were two windows in the room in which the incident took place, one
window opening towards the portico and the other window towards the road.
Hence, even if the window opening towards the road was closed, people on
the road or the neighbours around the house must have come to know about
the incident, but none among the people from the road or from amongst the
neighbours around the house have been examined on behalf of the prosecution
to corroborate the evidence of PW-1. In the absence of any corroboration
of the oral testimony of PW-1, the High Court was right in taking the view
that it is unsafe to convict A-1 and A-2 only on the evidence of PW-1, who
was a child witness and whose evidence did not inspire any confidence.
18. Learned counsel for the State is right that the consistent version
of PW-1 is that A-1 and A-2 have committed murder of the deceased. But the
High Court has rightly relied on the observations of this Court in Suresh
vs. State of U.P. (supra) that children mix up what they see and what they
like to imagine to have seen. Glanville Williams says in his book 'The
Proof of Guilt', Third Edition, published by Stevens & Sons:
"Children are suggestible and sometimes given to living in a world
of make-believe. They are egocentric, and only slowly learn the
duty of speaking the truth."
Hence, the proposition laid down by Courts that as a rule of practical
wisdom, evidence of child witness must find adequate corroboration [Panchhi
vs. State of U.P. (supra)].
19. In Suresh vs. State of U.P. (supra) cited by Mr. Deepak, the
evidence of child witness Sunil was corroborated by the conduct of the
accused and from pattern of crime committed by him and hence this Court
maintained the conviction of the accused for the murder of his wife Geeta
and son Anil on the basis of evidence of a child witness, Sunil, as
corroborated by other evidence. This Court specifically observed that if
the case was to rest solely on Sunil's uncorroborated testimony, the Court
might have found it difficult to sustain the conviction of the accused, but
there was unimpeachable and most eloquent materials on record which lent an
unfailing assurance that Sunil is a witness of truth and not a witness of
imagination as most children of that age generally are. Similarly, in
Promode Dey vs. State of West Bengal (supra) cited by Mr. Deepak, the Court
found that soon after the incident on 23.02.2002, the girl child had told
her grand mother and her father that it was the accused who had killed the
deceased and her grandmother and father had deposed before the Court in
their evidence that they had been told by this child witness that the
accused had killed the deceased with a dao. The evidence of this child
witness was also corroborated by the fact that the blood stained dao was
recovered on the very day of the incident from a jungle by the side of the
house of the accused. The evidence of the girl child that the accused had
killed her mother by striking on her head, back, fingers and throat with a
dao was thus believed by the Court because her evidence was adequately
corroborated. In this case, as we have found, the evidence of PW-1 is not
adequately corroborated.
20. Rather, as has been held by the High Court in the impugned
judgment, the evidence of the medical experts cast a serious doubt on the
reliability of the evidence of PW-1. PW-4, Lecturer in Forensic Medicine
and Assistant Police Surgeon, Medical College Trichur, who conducted the
postmortem examination of the body of the deceased and issued the
postmortem certificate (Ex.P-12) has said
"I cannot definitely say whether it is a case of suicide or homicide."
DW-1, Professor and Head of the
Department of Forensic Medicine and Police Surgeon, Medical College,
Trichur, has also opined in his medico-legal opinion Ex. D-1
"Under the
circumstances, as per the medical evidence, the most likely manner of
causation of injuries in this case is self infliction except for the fact
that there is always a chance of any mechanical injury to be sustainable byhomicidal manner."
Thus, the aforesaid opinions of the two medical experts
also do not lend assurance to the prosecution story that the death of the
deceased was only homicidal.
The opinion at page 387 of Modi's Medical
Jurisprudence & Toxicology, Twenty-Second Edition, to which reference was
made by Mr. Deepak, learned counsel for the appellant-Hamza, does notmaterially conflict with the expert opinions of PW-4 and DW-1.
On the
evidence of PW-1 read with the opinions of PW-4 and DW-1, the High Court
could not have held that the prosecution has been able to prove beyond
reasonable doubt that A-1 killed the deceased by stabbing her on the neck
with the help of A-2.
In State of T.N. v. P. Muniappan (supra) cited by
learned counsel for the State, the High Court had observed that when a
doctor expresses two views, the one that is favourable to the accused might
be taken into account and this Court held that as a general proposition it
may be true, but medical evidence could not be considered in isolation and
must be taken into conjunction with all the circumstantial evidence on
record. In that case, this Court found that seven circumstances led to
only one conclusion that it is the respondent who was guilty and
accordingly held that as the entire circumstantial evidence points to
homicide only and the medical evidence is not to the contrary, the
respondent was guilty of the offence under Section 302 IPC and set aside
the acquittal of the respondent by the High Court and restored the judgment
of conviction of the trial court.
In this case, the police itself had
investigated and filed a charge-sheet under Sections 498-A and 306 of the
IPC against four members of the in-laws of the family of the deceased andfound that it is a case of suicide.
Thus, this is not a case where the
only conclusion that could be drawn considering the entire evidence is that
the death was homicidal and not suicidal.
The decision of this Court in
State of Tamil Nadu v. P. Muniappan (supra), therefore, has no application
to the present case.
21. We, therefore, do not find that the view taken by the High Court
that A-1 and A-2 were entitled to acquittal is perverse or unreasonable on
the evidence on record so as to call for our interference under Article 136
of the Constitution and we accordingly dismiss the appeals.
.............................J.
(A. K.
Patnaik)
.............................J.
(Gyan Sudha
Misra)
New Delhi,
June 20, 2013.
ITEM NO.1B COURT NO.3 SECTION IIB
[FOR JUDGMENT]
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 268 OF 2007
HAMZA Appellant (s)
VERSUS
MUHAMMADKUTTY @ MANI & ORS. Respondent(s)
WITH
CRIMINAL APPEAL NO. 1378 of 2007
[STATE OF KERALA V. MUHAMMADKUTTY @ MANI & ORS.]
Date: 20/06/2013 These Appeals were called on for pronouncement
of judgment today.
For Appellant(s)
in CrlA 268 For M/S. T.T.K. Deepak & Co., Adv.
In CrlA 1378 Mr. Jogy Scaria, Adv.
For Respondent(s)
Mr. Romy Chacko, Adv.
Mr. R. Sathish, Adv.
Mr. M.T. George, Adv.
For M/S. T.T.K. Deepak & Co., Advs.
*****
|Hon'ble Mr. Justice A.K. Patnaik pronounced the judgment of the Court for a |
|Bench comprising of His Lordship and Hon'ble Mrs. Justice Gyan Sudha Misra. |
|For the reasons recorded in the signed reportable judgment, the appeals are |
|dismissed. |
| |
|[KALYANI GUPTA] | |[SHARDA KAPOOR] |
|COURT MASTER | |COURT MASTER |
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE.]
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 268 of 2007
Hamza ......
Appellant
Versus
Muhammadkutty @ Mani & Ors. ..... Respondents
WITH
CRIMINAL APPEAL No. 1378 of 2007
State of Kerala ......
Appellant
Versus
Muhammadkutty @ Mani & Ors. ..... Respondents
J U D G M E N T
A. K. PATNAIK, J.
These are appeals by way of special leave under Article 136 of the
Constitution against the judgment dated 23.09.2005 of the Division Bench of
the Kerala High Court in Criminal Appeal No. 1187 of 2005 (B).
Facts of the Case:
2. The facts very briefly are that
on 26.02.1998 between 7.00 p.m. to
7.30 p.m. Suhara sustained stab injuries on her neck while she was in the
house of her in-laws. She was initially taken to the Government hospital,
Pattambi and was thereafter taken to Moulana Hospital, Perinthalmanna,
where she succumbed to the injuries and died.
On 27.02.1998, the Pattambi
Police registered the First Information Report (FIR) on the statement given
by one Saidalavi, a relative of Suhara, that she had suspicion regarding
the death of Suhara (hereinafter referred to as 'the deceased'). On
27.02.1998, postmortem was conducted on the body of the deceased by the
Lecturer, Forensic Medicine and Assistant Police Surgeon, Medical College,
Trichur.
The local police then investigated into the case and came to the
conclusion that it was a case of harassment and suicide and filed a charge- sheet against four members of the family of the in-laws of the deceased for offences under Sections 498-A and 306 of the Indian Penal Code (for short 'the IPC') but the accused persons were subsequently acquitted of the offences under Sections 498-A and 306 of the IPC and no appeal was filed by the State against the judgment of acquittal passed by the trial court.
After two years of the incident, Hamza, the brother of the deceased, lodged a complaint before the Magistrate on 26.02.2000.
In the complaint, Hamza
stated that the deceased was married to Ishaq, who was employed abroad and
the couple had two children, a boy Mohd. Faizal and a girl Fasila.
Hamza
alleged that in the beginning Ishaq was sending cash from abroad to his
brother Muhammadkutty, but later on stopped sending cash to him and instead
sent the cash to the deceased and as a result a quarrel started between the
brothers of Ishaq and the deceased and on 26.02.1998 at 6.30 p.m.
Hamsappa
(Accused No.2 for short 'A-2'), brother of Ishaq, caught hold of the hands
and legs of the deceased and Muhammadkutty (Accused No.1 for short 'A-1')
killed her by stabbing her neck with a knife and stuffing clothes into her
mouth.
Ayisha (mother-in-law of the deceased), Asia (wife of Hamsappa),
Pathummakutty (wife of Muhammadkutty) and Saju @ Sajitha (daughter of
Muhammadkutty) (Accused No. 3 to Accused No.6 for short 'A-3 to A-6')
changed the dress of the deceased and washed all the blood from the scene
of occurrence and caused disappearance of the evidence of the murder.
Accordingly, the aforesaid six accused persons committed offences
punishable under Sections 302 and 201 read with Section 34 of the IPC.
The
complainant and his witnesses were examined by the Magistrate under Section
202 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.').
The
Magistrate took cognizance of the case and issued processes against all the six accused persons.
After the accused persons entered appearance and were
served with the copies of all the relevant documents, the Magistrate committed the case to the Sessions Court, Palakkad on 03.04.2001.
The
Sessions Court thereafter framed charges against the six accused persons under Sections 302 and 201 read with Section 34 of the IPC and conducted trial in Sessions Case No.447 of 2001.
3. At the trial, altogether six witnesses were examined and 17
documents were marked as exhibits on behalf of the prosecution.
Mohd. Faizal, the son of the deceased, was examined as PW-1.
He was about 7 years old on 26.02.1998 and he claimed to be a witness to the murder of the
deceased. He deposed before the Court that on 26.02.1998 at 7.00 p.m when
he, his mother and younger sister were lying in the bedroom for the purpose
of sleeping, A-1 and A-2 came to the bedroom and A-1 took him to the sofa
placed in the portico and when A-1 took his sister, the deceased cried and
on hearing this, he looked into the room through a window and he saw A-2
catching hold of the hands of the deceased and A-1 pushing cloth into her
mouth and stabbing on her neck with a knife. PW-1 further deposed that
on
seeing this he cried aloud and A-1 came out of the room, took him to the kitchen side and told him that he will also do the same thing to him if he divulged the incident to anybody.
PW-1 further stated before the Court
that there was light in the room at the time of the occurrence and he saw A-
3 cleaning the bedroom and
A-4 and A-6 changing the dress of his mother and
his mother was thereafter taken to the hospital by family members and
neighbours and later somebody telephoned to the house and intimated that
his mother has expired.
PW-1 also deposed that on the next day he slept in
his maternal aunt's house and in the night he narrated the incident to his aunt and uncle (the complainant).
He also stated that on the day of the
burial of the deceased the police questioned him and he stated to the police that his mother was murdered and he also met the doctors of Trichur and told them that his mother was murdered.
The complainant was also
examined as PW-2, who inter alia stated before the Court that on the day
next to the date of incident, PW-1 slept in his house with his aunt and
told him and his other family members that the deceased was stabbed to
death by A-1 with the help of A-2.
The Lecturer in Forensic Medicine andAssistant Police Surgeon, Medical College Trichur, who conducted the
autopsy on the dead body of the deceased on 27.02.1998 and issued a
postmortem certificate Ex. P-12 was examined as PW-4 and
he stated that the
deceased died due to cut injuries on the neck and the injuries were more likely self inflicted, but the possibility of homicide could not be ruled out.
In defence, the accused persons examined the Professor and Head of the Department of Forensic Medicine and Police Surgeon, Medical College,
Trichur as DW-1, who had given a medico-legal opinion, which was marked as Ex. D-1.
DW-1 has concluded in his opinion that the injuries on the neck
of the deceased are consistent with the case of a suicide.
4. The trial court relied on the sole oral testimony of PW-1 and
convicted A-1 and A-2 for the offence under Section 302 read with Section 34 of the IPC. The trial court, however, held that there was nothing to suggest that A-3 to A-6 shared the common intention of A-1 and A-2 to murder the deceased.
The trial court further held that there was nothing
also to show that A-3 to A-6 were aware that A-1 and A-2 had committed the murder and that they cleaned the room and changed the dress of the deceased with a view to cause disappearance of evidence to screen the offenders.
The trial court accordingly acquitted A-3 to A-6 of the offences under Sections 302 and 201 read with Section 34 of the IPC. Aggrieved, A-1 and A-
2 filed a Criminal Appeal No. 1187 of 2005 (B) before the High Court. The
High Court held in the impugned judgment that the oral evidence of PW-1 did not inspire confidence and it was not safe to convict the accused persons on the sole testimony of the child witness.
The High Court also held that the possibility of suicide by the deceased could not be ruled out, rather
the suicide by the deceased was more probable.
The High Court held that in
any event it is a case in which two views are possible, one in favour of the accused and the other against the accused and in such cases the view in favour of the accused must be preferred and therefore the accused persons were entitled to be acquitted.
Accordingly, the High Court set aside the
conviction and sentence under Section 302 read with Section 34 of the IPC
imposed on A-1 and A-2 by the trial court and allowed the Criminal Appeal.
Contentions on behalf of the Appellants:
5. Mr. B.V. Deepak, learned counsel appearing for the appellant,
Hamza, submitted that the High Court should not have disbelieved PW-1
merely because he was a child witness. He submitted that the Magistrate
before committing the case for trial to the Sessions court had recorded the
statement of PW-1 on 26.02.2000 only after being satisfied about his
competency to testify.
He cited the judgment of this Court
in Rameshwar vs. The State of Rajasthan (1952 SCR 377)
in which Vivian Bose, J. speaking
for the Court has held that the rule, which according to the cases has
hardened into one of law, is not that corroboration is essential before
there can be a conviction but that the necessity of corroboration, as a
matter of prudence, except where the circumstances make it safe to dispense
with it, must be present to the mind of the judge. He submitted that this
Court has further held in the aforesaid case the tender years of the child,
coupled with other circumstances appearing in the case, may render
corroboration unnecessary but that is a question of fact in every case.
He also cited
Suresh vs. State of U.P. [(1981) 2 SCC 569] in which this
Court relied on the evidence of a child witness to maintain the conviction
of the accused for the murder of his wife and his son.
He also relied on
the recent decision in
Promode Dey vs. State of West Bengal [(2012) 4 SCC 559]
in which the testimony of a girl child was relied on by this Court to
maintain the conviction of the accused under Section 302 IPC.
6. Mr. Deepak submitted that the High Court was not right in coming to
the conclusion that it was more probably a case of suicide than a case of
homicide. He relied on the post mortem certificate Ex.P/12 to argue that
the injuries mentioned therein could not have been self-inflicted. He
referred to the findings of the trial court that the possibility of
homicide should not be ruled out.
He referred to Modi's Medical
Jurisprudence & Toxicology, 22nd Edition at page 387
which states that
homicidal wounds on the throat, when inflicted from the front by a right- handed person, are, as a rule horizontal and directed from right to left;
but the reverse is the case if the assailant happens to be left-handed. He submitted that as the wounds on the throat of the deceased were horizontal, the death of the deceased was homicidal and not suicidal.
He referred to
the evidence of DW-1 who had admitted that homicide cannot be ruled out.
He submitted that PW-4 has similarly deposed that the possibility of
homicide could not have been ruled out. He submitted that thus the medical
evidence was not in conflict with the ocular evidence of PW-1 and the
ocular evidence of PW-1 can be relied upon to hold A-1 and A-2 guilty for
the offence under Section 302, IPC read with Section 34, IPC.
7. Mr. Deepak submitted that the defence story that the deceased had
committed suicide between 6.30 pm to 7.30 pm on 26.02.1998 is not at all
credible and at any rate no evidence has been adduced on behalf of the
defence that the deceased had earlier suicidal tendencies.
He submitted
that a young mother is not likely to commit suicide leaving behind two
children to the mercy of her in-laws.
He argued that in this case a
miscarriage of justice has taken place from the acquittal of the guilty.
He submitted that in view of the direct evidence of PW-1 that A-1 and A-2
had committed the murder of the deceased, the High Court ought to have
maintained the conviction of A-1 and A-2 by the trial court.
8. Learned counsel appearing for the appellant-State in Criminal
Appeal No.1378 of 2007, submitted that the consistent version of PW-1 that
A-1 and A-2 had committed the murder of his mother should have been
accepted by the High Court even though PW-1 was a child witness. He cited
State of Madhya Pradesh vs. Ramesh and Another [(2011) 4 SCC 786] in which
this Court has held that the deposition of a child witness may require
corroboration but in case his deposition inspires confidence of the court
and there is no embellishment or improvement therein the court may rely
upon his evidence. He submitted that in the aforesaid case this Court has
also held that only in case there is no evidence on record to show that the
child has been tutored, the court can reject his statement partly or fully.
He submitted that the High Court, therefore, should have come to a finding
that PW-1 was tutored before it could reject the evidence of PW-1. He
submitted that if the evidence of PW-1 is read, it will be clear that PW-1
has withstood a lengthy cross-examination and is a reliable witness and the
High Court was not right in discarding his evidence as not reliable. He
relied on the decision in State of Tamil Nadu vs. P. Muniappan [(1998) 1
SCC 515] in which the doctors took two views about the cause of death and
the Court held that if the entire circumstantial evidence points to
homicide only, and the medical evidence is not to the contrary, the death
can be homicidal only. He submitted that in this case similarly as the
evidence of PW-1 is clear that A-1 and A-2 had caused homicidal death of
the deceased and the medical evidence of PW-4 and PW-1 did not rule out
homicide, the High Court should have maintained the conviction of A-1 and A-
2 under Section 302, IPC read with Section 34, IPC.
Contentions on behalf of the respondent-accused persons
9. Mr. Basant, senior counsel, appearing for the A-1 and A-2, on the
other hand, submitted that the High Court was right in taking the view in
the impugned judgment that it was not safe to convict A-1 and A-2 on the
sole uncorroborated testimony of PW-1, who was only 7 years old at the time
of the incident. He submitted that Section 118 of the Indian Evidence Act,
1872 provides 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 those questions, by tender
years, extreme old age, disease, whether of body or mind, or any other
cause of the same kind. He submitted that the requirements of Section 118
have not been satisfied in this case because before PW-1 who was of tender
years was examined, the trial court has not put questions to him to find
out his competence to testify as a witness. He submitted that the incident
took place on 26.02.1998 and from 27.02.1998, PW-1 has remained in the
custody of his maternal uncle, PW-2, who had animosity against all the
accused persons. The result was that PW-1 implicated not only A-1 and A-2
but also A-3 to A-6 in the offences under Sections 201 and 302 read with
Section 34 of the IPC. He submitted that there was no evidence that PW-1
revealed to any one on 26.02.1998 that A-1 and A-2 had committed the murder
of the deceased and from the evidence of PW-1 it appears that for the first
time PW-1 revealed to his maternal aunt, Sareena, that he saw A-1 and A-2
committing the murder of the deceased. He submitted that aunt Sareena,
however, has not been examined by the prosecution before the Court to
corroborate the testimony of PW-1 under Section 157 of the Indian
Evidence Act, 1872, instead PW-2, who was the complainant and who had
animosity against all the accused persons had been examined. He referred
to Ex. P.10, a letter of the Superintendent of Police, Crime Branch, CID
Palakkad, in which he has stated that during investigation by the Crime
Branch, CID, PW-1 has stated that Muhammadkutty pushed cloth in the mouth
of his mother and Hamsappa stabbed her with knife, but investigation
disclosed that this was a tutored version concocted by his maternal grand
parents and investigation revealed that Muhammadkutty and Hamsappa were not
at all present in the scene at the time of occurrence.
10. Mr. Basant submitted that PW-1 has stated in his examination-in-
chief that there is a window from the portico to the room where his mother
was lying and through that window he looked inside and saw A-2 was catching
hold of his mother's hands and A-1 pushed cloth into the mouth of his
mother and stabbed the front of mother's neck with a knife and he has
admitted in his cross-examination that he could not have seen the incident
had the window not been opened and that is why he had opened the window,
but prior to his evidence before court he has not stated anywhere that he
saw the incident after opening the window. He submitted that he has also
stated in his cross-examination that the window was used to be bolted
before going to bed in the night. He submitted that on this inconsistent
evidence of PW-1, it is extremely unsafe to convict the accused persons for
the offence under Section 302 read with Section 34 of the IPC and for this
reason the High Court has set aside the conviction of A-1 and A-2.
11. Mr. Basant submitted that from the evidence of PW-1 itself he can
give three illustrations to show that PW-1: (i) He has stated in his
evidence that he did not know about the marriage of Thatha 4 to 5 days
prior to the incident, though Thatha was the daughter of his father's
sister and the entire family had gone to attend the marriage; (ii) when the
question was put to him whether A-2 accompanied when his mother was taken
to the hospital, he stated that he does not remember, though, in fact, A-2
took the deceased to the hospital in his presence; (iii) when the question
was put to him that there was a small reaper fixed from inside on account
of which the window between the room in which the incident took place and
the portico in which he was laid down because of which the window could not
be opened, he stated that he does not remember.
12. Mr. Basant submitted that this is not a case where corroboration of
sole testimony of PW-1 could not have been possible. He submitted that the
police in its investigation did not find A-1 and A-2 at the house when the
incident took place and any neighbour could have been examined as to
whether A-1 and A-2 were present at the house when the occurrence took
place. He submitted that in the absence of any corroboration of the
testimony of PW-1, it is not prudent for the Court to convict A-1 and A-2
on the sole uncorroborated testimony of PW-1. He relied on the decision of
the Privy Council in Mohamed Sugal Esa Mamasan Rer Alalah v. The King [AIR
(33) 1946 PC 3] and the decisions of this Court in Rameshwar vs. The State
of Rajasthan (supra), Panchhi and Others v. State of U.P. [(1998) 7 SCC
177] and State of U.P. v. Ashok Dixit and Another [(2000) 3 SCC 70] for the
proposition that as a rule of practical wisdom, evidence of a child witness
must find adequate corroboration before it is relied on.
13. Finally, Mr. Basant submitted that this Court in exercise of its
powers under Article 136 of the Constitution does not interfere with the
judgment of acquittal of the High Court only because it has a different
view on the evidence and it only interferes where the judgment of acquittal
of the High Court is clearly unreasonable or perverse or manifestly illegal
or grossly unjust. In support of this proposition, he cited the decisions
of this Court in State of Karnataka v. Amajappa and Others [(2003) 9 SCC
468], State of Uttar Pradesh v. Banne alias Baijnath and Others [(2009) 4
SCC 271] and State of Haryana v. Shakuntla and Others [(2012) 5 SCC 171].
He submitted that since the view taken by the High Court in the impugned
judgment is a possible view on the evidence, this Court should not
interfere with the judgment of acquittal passed by the High Court.
Findings of the Court:
14. In this case, the High Court has acquitted A-1 and A-2 of the
offence under Section 302 read with Section 34 of the IPC after considering
the evidence on record. In State of Karnataka v. Amajappa and Others,
State of Uttar Pradesh v. Banne alias Baijnath and Others and State of
Haryana v. Shakuntla and Others (supra), this Court has held that if the
view taken by the High Court is reasonable or a possible one on the
evidence on record, this Court will not reverse the judgment of acquittal
of the High Court only on the ground that it had a different view of the
evidence on record. Hence, the scope of this appeal under Article 136 of
the Constitution is limited to finding out whether the view taken by the
High Court that on the evidence on record, the conviction of A-1 and A-2
for the offence under Section 302 read with Section 34 of the IPC was not
sustainable was a perverse or unreasonable view so as to call for
interference by this Court under Article 136 of the Constitution.
15. The evidence of PW-1 on which the trial court relied on to convict
A-1 and A-2 is quoted hereinbelow:
"On the evening at about 7 PM after having food myself along
with my mother and younger sister were laying awake in the room
intermediate to the portico and kitchen. By the time A-1 and A-
2 came to the room. We were awake. A-1 took me and taken to
the portico and laid me on the sofa in the portico. A-1 took my
sister and entrusted to A-5. By that time A-5 was standing
outside the room near the door. Mother made hue and cry when
younger sister is taken away. There is a window between the
portico and the room in which we were sleeping. I peep in to
the room through the window. I could see that A-2 was with
holding my mother's knees. A-2 sat on the cot in which mother
was sleeping. A-1 gagged cloth in the mouth of the mother.
With a knife A-1 stabbed on the neck of the mother. Blood oozed
from the wound. On seeing that I cried aloud. A-1 came out of
the room and took me towards the kitchen. A-1 threatened me
that if you divulge this to anybody you too would be stabbed to
death similarly. From there I returned to Thazvaram (portico).
I then saw that A-4 and A-6 were changing wearing apparels of
mother. By that time neighbors came there. Relatives and
neighbors together took my mother to the hospital. I saw A-3
cleaning the room where mother slept. When a phone call
received in the house of A-1, I came to know that mother is
expired."
Thus, PW-1 has deposed that he was taken by A-1 from the room in which he,
his younger sister and the deceased were sleeping to the portico and he
peeped into the room through the window and saw that A-2 was holding his
mother's knees and A-1 gagged cloth in the mouth of his mother and stabbed
on the neck of his mother with a knife and blood oozed from the wound.
The
High Court noticed that PW-1 had said that if the window was not open he
could not have seen the occurrence but PW-1 has admitted in his evidence
that when they slept at night they used to close and bolt the doors and
windows. The High Court further found that PW-1 had himself stated that
prior to his deposition in Court, he had never told that he had seen the
incident after opening the window panel. The High Court, therefore, did
not accept this evidence of PW-1 to be true.
16. The High Court also found that PW-1 was only aged seven years on
the date of the incident and he was examined in Court after lapse of seven
years and after the incident he was under the care and guardianship of his
mother's parents and the possibility of the parents of the mother tutoring
PW-1 could not be ruled out. Even though the High Court has not recorded
any clear finding that PW-1 had been tutored, we find that PW-1 has in fact
avoided to answer some questions during cross-examination, which he could
have easily answered. In cross-examination, questions were put to PW-1
whether he knew the name of the father's sister and whether that sister has
a daughter by the name Thatha and whether Thatha's marriage took place 4-5
days prior to the incident and whether he knew that all the family members
had gone for the marriage and PW-1 answered "I don't know who is Thatha and
which marriage is mentioned by you." Again in cross-examination, questions
were put to him on whether the window through which he saw the incident is
permanently fastened by using reapers and PW-1 answered "I do not
remember." In cross-examination, a question was put to PW-1 whether A-2
accompanied while his mother was taken to the hospital and he answered "I
do not remember". It, thus, appears from the evidence of PW-1 that he was
not revealing the whole truth and avoided to answer uncomfortable questions
which would have prejudiced the prosecution case. We, therefore, find that
PW-1 was tutored and hence as per the decision of this Court in State of
Madhya Pradesh vs. Ramesh and Another (supra) cited by learned counsel for
the State, the evidence of PW-1 could not be relied on without adequate
corroboration.
17. Under Section 157 of the Indian Evidence Act, the testimony of PW-
1 could be corroborated by his statements about the time of when the
incident took place. PW-1 has stated:
"Police came on that night itself. Police has not asked
anything to me, I did not told anything about the incident.
Next day evening mother's body buried. Thereafter I went to
mother's house. On that night I slept there. I slept there
with elder aunt Sareena. On that night I cried remembering
mother's memory, I told the whole incident witnessed to aunty.
My maternal grand mother Nabeesa and my uncle Hamzaka (mother's
brother) then came there. They also heard what I said."
From the aforesaid evidence of PW-1 it appears that PW-1 did not tell
anything about the incident to the police on the date of the incident,
though the police had come to the house where the incident had taken place.
Next day evening after her mother's body was buried, he went to the
mother's house and slept there with the elder aunt Sareena and on that
night he cried remembering his mother and told the whole incident he
witnessed to his aunt Sareena. Sareena has not been examined as a witness
to corroborate the testimony of PW-1. PW-1 has also said that his maternal
grandmother, Nabeesa and his uncle Hamza then came there and they also
heard what he said. Maternal grandmother of PW-1, Nabeesa has also not
been examined to corroborate the testimony of PW-1. Only Hamza has been
examined as PW-2 who has said that his mother and wife Sareena were told by
PW-1 that his mother was murdered by A-1 by stabbing while A-2 held her. PW-
2, however, has said that the husband of the deceased used to send money in
the name of A-1 and A-2 and the deceased informed her husband that she has
not received money and thereafter the husband of the deceased sent money in
the name of the deceased and he had learnt all this from the deceased.
From the evidence of PW-2 it is very clear that PW-2 had developed
animosity towards A-1 and A-2 on account of what the deceased had told him
about A-1 and A-2. Moreover, he has not been able to explain in cross-
examination as to why when the incident took place on 26.02.1998, he filed
the complaint before the Magistrate two years after on 26.02.2000 if the
police had treated the case as one of suicide and not of homicide. Hence,
even though the evidence of PW-2 corroborates the testimony of PW-1 his
evidence cannot be relied on to lend assurance that PW-1 was giving a true
version of the incident. From the deposition of PW-3 and Ex. P-11 (the
scene plan of the house in which the incident took place), it appears that
there were two windows in the room in which the incident took place, one
window opening towards the portico and the other window towards the road.
Hence, even if the window opening towards the road was closed, people on
the road or the neighbours around the house must have come to know about
the incident, but none among the people from the road or from amongst the
neighbours around the house have been examined on behalf of the prosecution
to corroborate the evidence of PW-1. In the absence of any corroboration
of the oral testimony of PW-1, the High Court was right in taking the view
that it is unsafe to convict A-1 and A-2 only on the evidence of PW-1, who
was a child witness and whose evidence did not inspire any confidence.
18. Learned counsel for the State is right that the consistent version
of PW-1 is that A-1 and A-2 have committed murder of the deceased. But the
High Court has rightly relied on the observations of this Court in Suresh
vs. State of U.P. (supra) that children mix up what they see and what they
like to imagine to have seen. Glanville Williams says in his book 'The
Proof of Guilt', Third Edition, published by Stevens & Sons:
"Children are suggestible and sometimes given to living in a world
of make-believe. They are egocentric, and only slowly learn the
duty of speaking the truth."
Hence, the proposition laid down by Courts that as a rule of practical
wisdom, evidence of child witness must find adequate corroboration [Panchhi
vs. State of U.P. (supra)].
19. In Suresh vs. State of U.P. (supra) cited by Mr. Deepak, the
evidence of child witness Sunil was corroborated by the conduct of the
accused and from pattern of crime committed by him and hence this Court
maintained the conviction of the accused for the murder of his wife Geeta
and son Anil on the basis of evidence of a child witness, Sunil, as
corroborated by other evidence. This Court specifically observed that if
the case was to rest solely on Sunil's uncorroborated testimony, the Court
might have found it difficult to sustain the conviction of the accused, but
there was unimpeachable and most eloquent materials on record which lent an
unfailing assurance that Sunil is a witness of truth and not a witness of
imagination as most children of that age generally are. Similarly, in
Promode Dey vs. State of West Bengal (supra) cited by Mr. Deepak, the Court
found that soon after the incident on 23.02.2002, the girl child had told
her grand mother and her father that it was the accused who had killed the
deceased and her grandmother and father had deposed before the Court in
their evidence that they had been told by this child witness that the
accused had killed the deceased with a dao. The evidence of this child
witness was also corroborated by the fact that the blood stained dao was
recovered on the very day of the incident from a jungle by the side of the
house of the accused. The evidence of the girl child that the accused had
killed her mother by striking on her head, back, fingers and throat with a
dao was thus believed by the Court because her evidence was adequately
corroborated. In this case, as we have found, the evidence of PW-1 is not
adequately corroborated.
20. Rather, as has been held by the High Court in the impugned
judgment, the evidence of the medical experts cast a serious doubt on the
reliability of the evidence of PW-1. PW-4, Lecturer in Forensic Medicine
and Assistant Police Surgeon, Medical College Trichur, who conducted the
postmortem examination of the body of the deceased and issued the
postmortem certificate (Ex.P-12) has said
"I cannot definitely say whether it is a case of suicide or homicide."
DW-1, Professor and Head of the
Department of Forensic Medicine and Police Surgeon, Medical College,
Trichur, has also opined in his medico-legal opinion Ex. D-1
"Under the
circumstances, as per the medical evidence, the most likely manner of
causation of injuries in this case is self infliction except for the fact
that there is always a chance of any mechanical injury to be sustainable byhomicidal manner."
Thus, the aforesaid opinions of the two medical experts
also do not lend assurance to the prosecution story that the death of the
deceased was only homicidal.
The opinion at page 387 of Modi's Medical
Jurisprudence & Toxicology, Twenty-Second Edition, to which reference was
made by Mr. Deepak, learned counsel for the appellant-Hamza, does notmaterially conflict with the expert opinions of PW-4 and DW-1.
On the
evidence of PW-1 read with the opinions of PW-4 and DW-1, the High Court
could not have held that the prosecution has been able to prove beyond
reasonable doubt that A-1 killed the deceased by stabbing her on the neck
with the help of A-2.
In State of T.N. v. P. Muniappan (supra) cited by
learned counsel for the State, the High Court had observed that when a
doctor expresses two views, the one that is favourable to the accused might
be taken into account and this Court held that as a general proposition it
may be true, but medical evidence could not be considered in isolation and
must be taken into conjunction with all the circumstantial evidence on
record. In that case, this Court found that seven circumstances led to
only one conclusion that it is the respondent who was guilty and
accordingly held that as the entire circumstantial evidence points to
homicide only and the medical evidence is not to the contrary, the
respondent was guilty of the offence under Section 302 IPC and set aside
the acquittal of the respondent by the High Court and restored the judgment
of conviction of the trial court.
In this case, the police itself had
investigated and filed a charge-sheet under Sections 498-A and 306 of the
IPC against four members of the in-laws of the family of the deceased andfound that it is a case of suicide.
Thus, this is not a case where the
only conclusion that could be drawn considering the entire evidence is that
the death was homicidal and not suicidal.
The decision of this Court in
State of Tamil Nadu v. P. Muniappan (supra), therefore, has no application
to the present case.
21. We, therefore, do not find that the view taken by the High Court
that A-1 and A-2 were entitled to acquittal is perverse or unreasonable on
the evidence on record so as to call for our interference under Article 136
of the Constitution and we accordingly dismiss the appeals.
.............................J.
(A. K.
Patnaik)
.............................J.
(Gyan Sudha
Misra)
New Delhi,
June 20, 2013.
