Karnataka High Court
Hanamant Chandappa Walmiki vs The State Of Karnataka on 25 September, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.100146 OF 2018
BETWEEN
HANAMANT CHANDAPPA WALMIKI,
AGE: 35 YEARS, OCC: GOUNDI WORK,
R/O: KARWAR ROAD, KEMPAGERI,
NEAR GANESH TEMPLE, OLD HUBLI
... APPELLANT
(BY SRI. ANAND R KOLLI, ADV.,)
AND
THE STATE OF KARNATAKA
BY Old Hubli POLICE STATION,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDITIONAL SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED:25.04.2018 AND
ORDER ON SENTENCE 09.05.2018 PASSED BY THE
HON'BLE V-ADDITIONAL DISTRICT AND SESSIONS
JUDGE, DHARWAD, SITTING AT HUBLI, IN
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S.C.NO.108/2015 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC AND ACQUIT THE
APPELLANT OF THE OFFENCE WITH WHICH HE HAS BEEN
CONVICTED AND SENTENCED.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 01.09.2020, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, V.
SRISHANANDA, J, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/accused challenging the judgment of conviction dated 25.04.2018 and order on sentence dated 09.05.2018 in Sessions Case No.108 of 2015 on the file of the V-Additional District and Sessions Judge, Dharwad, sitting at Hubli (for short 'the Sessions Court'). The Sessions Court by the impugned judgment has convicted appellant/accused of the offence punishable under Section 302 of Indian Penal Code (for short 'IPC').
2. Germane facts for disposal of this appeal are as under:
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2.1 According to complainant, he is an auto driver. He is residing with his parents in Heggeri, Siddaroodhanagar, Hubballi. He had a sister by name Saroja @ Rekha (hereinafter referred to as "deceased" for short) who was married to appellant about 10 years earlier and couple were living in a house situated near Kempageri Ganesh Temple, Karwar Road, Old Hubballi.
The accused and deceased had three children. Accused was mason and deceased was attending coolie works. Complaint further reveals that since beginning, the accused suspected fidelity of deceased and used to taunt and assault her and harass the deceased under the influence of liquor. Repeated advice by elders to mend the attitude of appellant went in vain. Hence, complainant was constrained to bring first two children of the accused to his house one year prior to the incident, and only the youngest child Roopa aged about 5 years was living with accused and the deceased.
2.2. Complaint averments further reveal that on 11.3.2015 at 8.00 a.m. P.W.7, who is father of the 4 accused informed the complainant that on the previous night the accused and deceased had a quarrel and P.W.7 and P.W.8 had pacified the quarrel and on 11.03.2015 at 7.00 a.m. the youngest child Roopa came weeping saying that her mother is not waking up. P.W.7 with his wife (P.W.8) visited house of accused and found their daughter-in-law being dead. Further, it is ascertained by P.W.7 that on the previous night, the accused had assaulted and strangulated the deceased and ran away.
2.3. Immediately, the complainant along with his parents went there and found his sister lying on the ground. He observed assault marks on the face and black strangulation mark around the neck. On enquiry with Roopa (P.W.15), he came to know that previous night accused had quarreled with deceased and assaulted her with a club and strangulated her with a saree.
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3. On receipt of first information, the police registered FIR in Crime No.0047/2015 at 09:45:00 on 11.03.2015 and the FIR was filed with the learned jurisdictional Magistrate on 11.03.2015 at 2.00 p.m.
4. The jurisdictional police after completing the investigation filed charge sheet against the accused/appellant on 19.05.2015.
5. The learned jurisdictional Magistrate upon charge sheet being filed by the police against the accused, and on securing the presence of the accused has committed the case for trial to the District & Sessions Judge, Dharwad, after complying with the provisions of Section 207 of Criminal Code of Procedure.
6. The Sessions Court after hearing the prosecution and the defence has framed charge against the accused for the offence punishable under Section 302 of IPC. The accused, when the charge was read over, pleaded not guilty and claimed to be tried. 6
7. The prosecution to prove the case against the accused examined 25 witnesses as P.W.1 to P.W.25.
• P.W.1: Hanamant Walikar is the complainant, who lodged the complaint vide Ex.P.1. He has identified the photographs Ex.P.2 to 4 in his evidence. He is also witness to the Spot mahazar-Ex.P.5 under which bangle pieces (M.O.1) were seized. He has supported the case of the prosecution. • P.W.2: Rajashekhar Appaspet and P.W.3:
Sanju Kaval are the witnesses to spot mahazar (Ex.P.5) under which bangle pieces (M.O.1) were seized. These witnesses have identified their signatures on Ex.P.5-spot mahazar. They have supported the case of the prosecution.
• P.W.4: Najeer Kapali is panch witness to Ex.P.6-seizure mahazar, under which saree (M.O.2) and club (M.O.3) said to have been used by the accused for committing murder of the deceased were seized. This witness has also supported the case of the prosecution and he has identified his signature on Ex.P.6-seizure mahazar.7
• P.W.5: Mehabubsab Hanchinal and P.W.6:
Somanagouda Patil are the panch witnesses to Ex.P.7-seizure mahazar. These witnesses have not supported the case of the prosecution and have turned completely hostile.
• P.W.7: Chandappa Walmiki and P.W.8: Laxmibai Walmiki are the father and mother of the accused. These witnesses have not supported the case of the prosecution and have turned hostile.
• P.W.9: Bagamma Kulageri, P.W.10: Narasamma Doddamani, P.W.11: Renuka Yeligar, P.W.12: Kashavva Bairikoppa and P.W.17: Raju M. S., are the neighbours of the accused. These witnesses have not supported the case of the prosecution and they have turned completely hostile to the case of the prosecution.
• P.W.13: Ravi Billan and P.W.14: Minakshi Paragi are the witness to Ex.P.14 - inquest mahazar. These witnesses have supported the case of the prosecution and 8 deposed regarding mahazar proceedings in their presence.
• P.W.15: Kumari Roopa Walmiki is child witness, who is the daughter of the accused and the deceased. She has supported the case of the prosecution.
• P.W.16: Girijavva Walikar is the mother of the deceased. She has supported the case of the prosecution.
• P.W.18: Hanamant Kurabar is the witness who resides in the street, where the incident took place. This witness is also turned hostile to the case of the prosecution.
• P.W.19: Suresh Jangali is the owner of the house where the accused was a tenant. He is a hearsay witness. This witness has also not supported the case of the prosecution.
• P.W.20: Dr. Adamali Nadaf is the autopsy surgeon, who conducted postmortem on the dead body of the deceased and issued postmortem report vide Ex.P.19 and he has supported the case of the prosecution.9
• P.W.21: Mahesh Goudar is the Assistant Engineer, HESCOM. This witness has issued a report (Ex.P.22) regarding electricity supply between 10.03.2015 to 11.03.2015. He is a formal witness.
• P.W.22: Mallikarjun Shiriyammanavar is the police constable, who carried the complaint (Ex.P.1) and FIR (Ex.P.23) to the jurisdictional magistrate. He is also a formal witness.
• P.W.23: Basalingappa Gagal is the PWD Engineer, who prepared the sketch of the spot of incident vide Ex.P.25. He is also formal witness.
• P.W.24: Hanamantappa Sirihalli is the investigation officer who was deputed to arrest the accused. He has arrested the accused and produced him before P.W.25.
• P.W.25: Shivanand Chalavadi is the investigation officer who received the
complaint-Ex.P.1, registered FIR (Ex.P.23), conducted spot mahazar (Ex.P.5) and inquest mahazar (Ex.P.14) and after 10 completion of the investigation has filed charge sheet against the accused.
8. The prosecution has relied upon documentary evidence marked at Exs.P.1 to P.26 which include the complaint (Ex.P.1), photographs (Ex.P.2 to 4), spot panchanama (Ex.P.5),seizure mahazars (Ex.P.6 and 7), Statements of P.W.7, 9, 10, 11 and 12 (Ex.P.8 to 13), Inquest mahazar (Ex.P.14), Statements of P.W.17, 18 and 19 (Ex.P.15 to 17), Requisition issued by the police (Ex.P.18), postmortem report (Ex.P.19), requisition of Investigation officer (Ex.P.20), reports (Ex.P.21 & 22), FIR (Ex.P.23), requisition letter of Old-Hubballi police station (Ex.P.24), sketch (Ex.P.25) and voluntary statement of the accused (Ex.P.26).
9. The accused did not lead any evidence nor has he got marked any documents on his behalf. The accused, in his statement under Section 313 of Cr.P.C, has denied the evidence against him.
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10. The Sessions Court, on appreciation of the evidence on record, convicted accused for the offence punishable under Section 302 and sentenced him to undergo rigorous imprisonment for five years with fine of Rs.5,000/- with default sentence of ten months simple imprisonment for the said offence. It is that judgment, which is under challenge in this appeal.
11. Learned counsel for the appellant Sri. Anand R. Kolli vehemently contended that learned Sessions Judge grossly erred in recording an order of conviction based on the tutored testimony of PW15-child witness. He further argued that the court below failed to note that accused and deceased had spent twelve long years of matrimonial life without any complaint and therefore there was no necessity for the accused to take away the life of deceased.
12. He further argued that somebody else is responsible for the death of Saroja @ Rekha as appellant has gone out of the house around 12.00 noon on the date 12 of incident and as such, he is not responsible for the incident. He also contended that none of the prosecution witnesses have stated that it is the accused, who has killed the deceased and in the absence of such evidence placed on record, trial court ought not to have convicted the accused. It is his further submission that mere non explanation by the accused as to the death of deceased in the house would not ipso facto result in an inference that accused is responsible for the death of deceased and thus, prayed for allowing the appeal.
13. Per contra, learned State Public Prosecutor argued that the trial court has rightly assessed the prosecution evidence and ordered conviction against the accused. It is his submission that the testimony of child witness cannot be brushed aside in toto. Even if the court come to the conclusion that the child witness is tutored, such portion of the evidence which remains untutored must be taken into consideration while considering the prosecution case as whole. 13
14. He further pointed out that the evidence of PW7 and 8 who are parents of the accused clearly establish the fact that PW15 stayed in the place of incident on 10.08.2015 and 11.08.2015. As such, the theory put forward by the defence that PW15 was not present in the place of incident cannot be countenanced, which has been rightly appreciated by the trial court and prayed for the dismissal of the appeal.
15. In view of the rival contentions, the sole point that would arise for our consideration is :
1. Whether the finding recorded by the Trial Court as to culpability of appellant in regard to the homicidal death of Saroja @ Rekha is suffering from legal infirmity or perversity?
16. We answer the above point in negative for the following :
REASONS
17. The complainant is P.W.1. He is the brother of deceased who deposed about the relationship of accused, deceased and his children, who were residing in a house 14 at Kempageri village near Ganesh Temple (hereinafter referred to as place of incident) and the avocation of the accused and deceased. He further deposed that accused used to harass the deceased physically and mentally under the influence of liquor and despite advice of the elders, accused did not mend his behavior. He further deposed that on 11.03.2015 at about 7.30 to 8.00 a.m. P.W.7, who is the father of accused came and raised a hue and cry and on enquiry, he revealed that the accused had assaulted the deceased with a wooden club and after throttling the deceased, he had run away. P.W.7 also revealed that there was quarrel between the accused and deceased on the previous night. It is his further say that on receipt of such information, himself and his parents went in an auto-rickshaw to place of incident and tried to wake up the deceased but she did not wake up. He came to know from P.W.15-Roopa, who is the youngest daughter of accused and the deceased, that accused had picked up quarrel with deceased and assaulted her with wooden club and also strangulated deceased and ran 15 away. As such he complained to the police vide Ex.P.1 and police visited the place of incident, conducted inquest mahazar by noting injuries found on the chin and ligature mark found on the neck of the deceased.
18. In the cross-examination, he answered that no complaint was lodged to police about earlier harassment, but a panchayat was held in the presence of Suresh Sahukar, Minakshi and the elders; though they had once visited the police, but they had asked them to settle the dispute amicably. He has answered that P.W.7 had visited his house around 6.30 to 7.00 a.m. and P.W.15 was not a school going child at the time of incident. He has answered that other two children of accused and the deceased were living with him. He admits that there are number of houses situated in the vicinity of the place of incident. He has answered that the room where the dead body was lying was measuring about 10 x 12 ft and portion of the kitchen is measuring about 8 x 10 ft. He denied that there is no nexus between the death of Saroja @ Rekha. He denied that the date of 16 death was not nearer to new moon day but it was nearer to full moon day. He admits that the date of incident was Holi festival day and people had played colours. To a specific suggestion that during Holi festival, the liquor shops would be closed, this witness has answered that people would store liquor well in advance. He denied that accused never used to pick up quarrel with the deceased. He denied that he has given false evidence.
19. P.W.2 is one of the spot mahazar witnesses to Ex.P.5-spot mahazar, whereunder the police have seized the bangle pieces of the deceased. He supported the case of the prosecution. In the cross-examination, it is elicited that he is a friend of P.W.1 and he had voluntarily visited the place of incident on receipt of information that Saroja @ Rekha was murdered. He denied having given false evidence.
20. Another witness to Ex.P.5-spot mahazar is P.W.3. He also supported the case of the prosecution and identified the bangle pieces as M.O.1. In his cross- 17 examination also defence is unable to elicit any material so as to disbelieve his version that he was not a mahazar witness to Ex.P.5.
21. P.W.4 is the panch witness to Ex.P.6-seizure mahazar. He deposed that on 15.03.2015, police had called him and the accused was in their custody. It is his further case that accused gave voluntary statement and took the police and mahazar witnesses to his house at Kempageri and from there he took out a wooden club and a red colour saree, which were said to have been used in the incident. The police seized the same and drafted Ex.P.6 mahazar. The seized materials i.e. saree and club were marked as M.O.2 and 3, respectively. He also identified the accused before the Court.
22. In his cross-examination, he has answered that he is a contractor by profession; he used to visit the police station for settling some disputes. He has answered that M.O.3 was kept on a wall inside the house and M.O.2-Saree was kept in the almirah. The defence is 18 unable to elicit any useful material to disbelieve his testimony.
23. P.W.5 and 6 are the mahazar witnesses to Ex.P.7 cloth seizure mahazar. They did not support the case of the prosecution.
24. P.W.7 is the father of the accused, who has partly supported the case of the prosecution. In his evidence he has stated that the deceased is his daughter- in-law and they were living in the adjacent house to his house. He has answered that P.W.15 was residing with the accused and deceased, and other two children of the accused were residing with the parents of deceased. He has further deposed that accused was indulged in labour work and deceased was attending factory. He has answered that about two years earlier to deposition on 11th March, P.W.15 visited their house and woke them up and on enquiry as to what her mother is doing, she has answered that her mother is not behaving properly and accordingly, he sent his wife to the house of deceased and 19 she came and started crying and when both of them visited the house of the accused, they found that Saroja @ Rekha was dead and accordingly informed the parents of the deceased and they visited the place of incident. However, he did not support further the case of the prosecution to the effect that the relationship between the accused and the deceased were not cordial and accused used to harass the deceased physically and mentally. The defence did not cross-examine this witness.
25. P.W.8 is the wife of P.W.7. She has deposed in line with examination-in-chief of P.W.8. she did not support the case of the prosecution in its entirety.
26. P.W.9, 10, 11 and 12 are the neighbours who did not support the case of the prosecution except deposing about the acquaintance with accused and the deceased and death of deceased-Saroja @ Rekha. In their cross-examination, prosecution is unable to elicit any material so as to prove the case of the prosecution. 20
27. Yet another neighbour by name Ravi is P.W.13. He deposed that on the new moon day, in the month of March, 2015, it was a Holi festival and he came to know that the accused had throttled his wife and accordingly, he had visited the place of incident. He deposed that police had visited the place of the incident and took the photographs. He also deposed that he saw the dead body at the place of incident and found ligature mark on the neck and injury on the cheek, which was blackish in colour. He has signed Ex.P.14 along with P.W.14.
28. In his cross-examination, he answered that he is acquainted with parents of P.W.1. He admits that he does not know the contents of Ex.P.14. He also admits that injury was found on the cheek and neck and not on the head.
29. PW14 is another witness to Ex.P14 Mahazar. He supported the case of prosecution. In his cross examination, he admits that he is acquainted with 21 parents of deceased and he is in good terms with them. He denied having given false evidence to support prosecution.
30. PW15 is the child witness. She is the youngest child of accused and deceased. She deposed that accused in the influence of liquor, picked up the quarrel with deceased and assaulted her with a club and strangulated deceased with a saree. It is her further case that she informed the same to the parents of accused next day morning and thereafter her mother's parents and brother came to the spot and she informed them also. In her cross examination, she admits that she is accompanied by brother of deceased and she has stated about the incident as per the say of PW1. However, even in cross examination she reiterated about the incident.
31. Mother of the deceased is PW16. She deposed in line with her husband and PW1. In her cross examination, she admits that earlier to the incident they had complained to the Police about the harassment 22 but no case was registered. She denied having given false evidence.
32. PW17 is the neighbour. He did not support the case of prosecution.
33. PW18 is an Auto driver residing near the place of incident, who partly supported the case of prosecution. He deposed about the acquaintance with accused and deceased. He has stated about the suspicious nature of accused, whenever he tried to visit their house and converse with deceased. In his cross examination, he denied having given false evidence.
34. PW19 did not support the case of prosecution.
35. PW20 is the Autopsy surgeon, who conducted post mortem examination and issued report vide Ex.P19 and final opinion as Ex.P19 and 21. In his cross examination, he admits that in Ex.P19 and 20 he has not mentioned any injury on the head. He has answered that before issuing Ex.P21 he had examined MO2 saree. 23
36. P.W.21 is the official from electricity department who issued certificate Ex.P22. PW22 is FIR carrier. PW23 is the engineer who prepared the spot sketch as per Ex.P25. Their evidence is formal in nature.
37. P.W.24 is the PSI of Hubli old Police Station who apprehended the accused on 15.03.2015 at Peranemi village Goa state and produced him before the Investigating Officer. In his cross examination, he has answered that accused was found in Peranemi on 14.03.2015 night. He denied having given false evidence.
38. P.W.25 is the Investigating Officer, He deposed about registering of the case on the basis of Ex.P1 in crime No.47/2015, conduct of inquest mahazar, spot mahazar, seizure of article, arrest of accused on 15.03.2015, recording voluntary statement, recovery of saree and club under Ex.P6 mahazar, collection of reports and filing charge sheet against the accused. In his cross examination, it is elicited that place of incident is 10 to 15 minutes walk from Police Station. He denied 24 that police had visited the place of incident earlier to registration of the case. He has answered that date of incident was on a Holi festival day and liquor was banned during that period. He has answered that he did not get finger prints in the place of incident or on the dead body. He denied having concocted voluntary statement and material objects and filing charge sheet.
39. The above evidence on record is sought to be reappreciated by the learned counsel for the appellant.
40. We have carefully perused the material on record in the light of the grounds urged in support of the appeal.
41. The Sessions Court has mainly relied on the oral evidence of PW15, who is the daughter of the deceased and the accused in regard to the role played by the appellant in the incident. Admittedly, at the time of examination of PW15, she was aged 6 years. What value to be attached to testimony of a child witness is no longer res integra.
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42. In this regard, it is worth to quote the judgment of Hon'ble Apex Court in the case of State of M.P. v. Ramesh, (2011) 4 SCC 786 where in it is held as under:
7. In Rameshwar v. State of Rajasthan [AIR 1952 SC 54 : 1952 Cri LJ 547] this Court examined the provisions of Section 5 of the Oaths Act, 1873 and Section 118 of the Evidence Act, 1872 and held that (AIR p. 55, para 7) every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the court considers otherwise. The Court further held as under: (AIR p. 56, para 11) "11. ... it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was 26 of that opinion can, I think, be gathered from the circumstances when there is no formal certificate."
8. In Mangoo v. State of M.P. [AIR 1995 SC 959 :
1995 Cri LJ 1461] this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
9. In Panchhi v. State of U.P. [(1998) 7 SCC 177 :
1998 SCC (Cri) 1561 : AIR 1998 SC 2726] this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child 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 a child witness is an easy prey to tutoring" (SCC p. 181, para 11).27
10. In Nivrutti Pandurang Kokate v. State of Maharashtra [(2008) 12 SCC 565 : (2009) 1 SCC (Cri) 454 : AIR 2008 SC 1460] this Court dealing with the child witness has observed as under:
(SCC pp. 567-68, para 10) "10. '... 7. ... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath.
The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth 28 in it, there is no obstacle in the way of accepting the evidence of a child witness."
11. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross- examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. (Vide Himmat Sukhadeo Wahurwagh v. State of Maharashtra [(2009) 6 SCC 712 : (2009) 3 SCC (Cri) 1 : AIR 2009 SC 2292] .)
12. In State of U.P. v. Krishna Master [(2010) 12 SCC 324 : (2011) 1 SCC (Cri) 381 : AIR 2010 SC 3071] this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his 29 life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
13. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness.
(Vide GaganKanojia v. State of Punjab [(2006) 13 SCC 516 : (2008) 1 SCC (Cri) 109] .)
14. In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the 30 court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.
43. Applying the legal principles enunciated in the above decision to the facts of this case, the oral testimony of PW15 cannot be made brushed aside in toto as is argued by the learned counsel for appellant. At the same time, the same cannot be the sole basis for upholding the finding of the Sessions Court that the accused is culpable for the homicidal death of deceased.
44. Having said thus, this court carefully appreciated the entire material on record especially the oral testimony of PW15. On such appreciation, it is seen that there is no serious dispute as to the homicidal death 31 of Saroja @ Rekha. Post mortem report and the final opinion clearly establish the fact that cause of death is on account of asphyxia as a result of ligature compression of neck. Injuries noted in inquest mahazar and post mortem report tally each other. Though defence cross examined in detail the autopsy surgeon, it was not suggested to him that death is not homicidal. As such finding of sessions court that Saroja @ Rekha died a homicidal death needs no interference.
45. According to the defence, somebody else is responsible for homicidal death of Saroja@ Rekha. Accused, while recording the accused statement has answered that on the day of Holi festival around 12.00 noon he had gone out of the house and on receipt of information that his wife is dead, he visited the place of incident and Police arrested him. He has also stated that he would examine Manju, Koudi and Dadafeer. But the evidence on record would show that he was arrested at Peranemi village at Goa state on 14.03.2015. In the cross examination of PW1, it has been suggested that 32 somebody else had killed the deceased. But, there was no defence evidence adduced to establish the defence theory. Thus, defence theory fails.
46. Admittedly, accused, deceased and PW15 were living in the place of incident. It is an admitted fact that parents of accused (PW7 & 8) were resided next door. House of PW7 & 8 and place of incident is separated by a common wall. PW7 & 8 did not dispute that PW15 was living with accused and deceased in the place of incident. So also, PW7 & 8 in their testimony unequivocally deposed that on 11.3.2014 in the morning PW15 came and woke them up and informed that deceased is not waking up. Accordingly, PW7 had sent his wife-PW8 to the house of accused to verify. PW7 further stated that PW8 screamed loudly and stating that Saroja @ Rekha is dead. Thereafter, PW7 has visited the parents of the deceased and informed about the incident. It is pertinent note that defence did not cross examine PW7 and PW8. Hence it stands proved that PW15 stayed with accused and deceased in the place of incident on 10.3.2015 and 33 11.3.2015. The contrary answers obtained in cross examination of PW15 thus looses its significance. No doubt PW15 has answered in cross examination that on 10.3.2015 before going to bed she had watched 'Chintu' channel in T.V. and there is no TV available in the place of incident. But that answer cannot be read in isolation to hold that PW15 was not at all present in the place of incident and she was in the house of parents of deceased at Heggeri. This answer in considered opinion of the court cannot be considered to doubt the entire testimony of PW15. PW15 being young girl aged six years having witnessed an abnormal event would never forget the same for the rest of her life. As such, PW15 stating that accused assaulted with club on the head and strangulated deceased with a saree repeatedly both in examination in chief and cross examination and identified the saree with which deceased has been strangulated cannot be brushed aside on the ground of tutoring despite her answer that she had been accompanied by her maternal uncle (PW1). Moreover after the incident necessarily she has taken shelter with parents of deceased wherein PW1 is also residing. She being very 34 young girl at the time of deposition she might have been confused with the sequence of events and given few answers which may on bare reading appear to be contradictory. But on cumulative consideration of entire deposition her testimony does inspire confidence in court that it is trustworthy insofar as the incident is concerned. Defence did point out that there is no injury on the head of deceased. Post mortem report confirms it. Autopsy surgeon admits that there was no injury on the head. But it is pertinent to note that dead body was found in the house of the accused in supine position when PW7, 8- parents of deceased and PW1 have seen the dead body. PW1 and parents of deceased have noticed a ligature mark on the neck and contusion injury on the chin. The same is visible in the photographs Ex.P2 to 4. PW15 stated that accused assaulted on head. Chin being part of the head, we are unable accept the arguments of defence that testimony of PW15 is not trustworthy. It is also pertinent to note that no questions are put to PW15 with the purpose of discerning the truth and falsehood. 35
47. Death of Saroja @ Rekha is homicidal and it is a case of house murder. Prosecution having placed positive evidence through oral testimony of PW1, PW7, 8 and 15 has successfully established that Saroja died a homicidal death within the house. Therefore, it is for the accused to explain as to how Saroja @ Rekha sustained those injuries. But, there is no explanation forthcoming from the accused in this regard. In fact accused has denied all the incriminating circumstances put to him when the accused statement was recorded. He did not also choose to lead defence evidence.
48. Once the prosecution established its case with postive evidence on record, the appellant was obliged to offer some explanation to the incriminatory materials found in the evidence of prosecution while recording their statement under Section 313 Cr.P.C.
49. It is for the appellant to explain how the death of his wife has taken place in his house. The theory of defence that somebody else has murdered his wife being 36 not proved by placing atleast plausible evidence we were constrained to hold that said theory stands not proved as discussed supra. In such circumstances, onus of proving a particular fact on the accused or when that particular fact is especially within his knowledge has to explained by appellant as is contemplated under section 106 of the Indian Evidence Act, 1872. This section is an exception to section 101 of the Evidence Act and its applicability does not relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.
50. For ready reference said section is culled out hereunder which reads:
37
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations:
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him."
51. Gainfully, we quote the decision of Hon'ble Supreme Court in the case of Jamnadas v. State of M.P., (2016) 13 SCC 12, wherein it is held as under:
19. We have considered the above submissions in the light of evidence on the record, and the law laid down by this Court applicable to such cases.
Undoubtedly, it is a case of circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , a three-Judge Bench of this Court has laid down the law as to when in a case of circumstantial evidence charge can be said to have been 38 established. Five points enumerated in said case are summarised as under: (SCC p. 185, para 153)
(i) The circumstances from which the conclusion of guilt is drawn should be fully established. The accused must be, and not merely may be guilty, before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
20. On behalf of the appellants, it is submitted that the accused has a right to silence and no adverse inference can be drawn from his silence as to the 39 cause of death of the deceased. In this connection, reliance is placed on para 141 of Selvi v. State of Karnataka [Selvi v. State of Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1] , which reads as under: (SCC p. 337, para 141) "141. At this juncture, it must be reiterated that Indian law incorporates the "rule against adverse inferences from silence" which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and proviso (b) of Section 315(1) CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial Judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. Director of Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 : 1935 All ER Rep 1 (HL)] , AC at p. 481:
'The "right to silence" is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, 40 by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.'"
Above observations are made by this Court in an answer to the legal question raised in the batch of criminal appeals relating to the involuntary administration of certain scientific techniques, namely, narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. In the present case facts and circumstances are different. The abovereferred case, in our opinion, is of little help to the appellants in the present case.
21. In State of W.B. v. Mir Mohammad Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] , this Court, while interpreting the burden of extent of proof on prosecution, observed as under: (SCC pp. 392 & 393, paras 31 & 36-37) "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On 41 the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
***
36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows:
'106. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.'
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."
22. Shri S.K. Jain, learned Senior Counsel, on behalf of the appellants drew our attention to 42 Tomaso Bruno v. State of U.P. [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , and argued that to invoke Section 106 of the Evidence Act the prosecution must have proved presence of the appellants in their house at the time of the incident. We have carefully gone through the case cited before us. It was a case where CCTV footage of the hotel was available but not produced to show the presence of the accused in the hotel and, as such, the plea of alibi that the accused had gone to witness "Subah-e-Banaras" from the hotel was accepted. The present case relates to a different kind of incident where a bride has been brutally murdered inside the house and her body, after cutting into pieces, was thrown in the park.
23. In Trimukh Maroti Kirkan v. State of Maharashtra [Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , which is a case similar in nature to the present one, this Court has held as under: (SCC pp. 690-91, para 15) "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of 43 circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
52. In Tulshiram Sahadu Suryawanshi and Ors. vs. State of Maharashtra, (2012) 10 SCC 373, Hon'ble Apex Court observed as under :
"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position.
The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened.44
In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar "38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.
In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus:45
'11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. Onthe contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge.
53. Applying the legal principles enunciated in the above decisions to the case on hand, we notice that after the prosecution has established its case with credible evidence, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in his house as said fact was exclusive to his knowledge.
54. In the absence of any such explaination forthcoming on record and defence theory having been held as not proved, we do not find any legal infirmity or 46 perversity in the finding reached by the Sessions Court holding that appellant is respnonsible for the homicidal death of Saroja @ Rekha.
55. In view of the foregoing discussion, none of the appeal grounds stand merit and hence, we pass the following :
ORDER Appeal is merit less and hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE Yan/MNS