The High Court dismissed an appeal against a murder conviction, holding that the稚儿童 eyewitness testimony was reliable and corroborated by neighbor accounts and medical evidence, thereby satisfying the burden of proof under Section 302 IPC.
Appeal dismissed; judgment of conviction and sentence by the Trial Court confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 17TH DAY OF MARCH, 2020
PRESENT
THE HON’BLE MR.JUSTICE B.A.PATIL
AND
THE HON’BLE MR. JUSTICE M. I. ARUN
CRL.A.NO.100027/2015
BETWEEN :
HANUMANTAPPA KINNURI S/O LATE YELLAPPA, AGE : 56 YEARS, OCC: AGRICULTURE, R/O NANDIGAVI, NOW RESIDING AT BYALAHUNASI VILLAGE, HADAGALI TALUK, BELLARY DISTRICT.
... APPELLANT
(BY SMT.SHASHIKALA L.DESAI, ADVOCATE)
AND :
THE STATE OF KARNATAKA, CIRCLE INSPECTOR OF POLICE, HADAGALI CIRCLE, TQ: HADAGALI, DIST: BELLARY.
... RESPONDENT
(BY SRI V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE AGAINST THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE PASSED BY THE ADDITIONAL SESSIONS JUDGE & PRESIDING OFFICER, FAST TRACK COURT-III, HOSPET DATED 13.03.2013 PASSED IN S.C.NO.134/2011.
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THIS APPEAL COMING ON FOR DICTATION THIS DAY, B.A.PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been filed by the appellant-accused being aggrieved by the judgment of conviction and sentence dated 13.03.2013 passed in S.C.No.134/2011 by the Additional Sessions Judge
& Presiding Officer, Fast Track Court-III, Hospet (“the Trial Court” for short) for the offences punishable under Sections 302 of the Indian Penal Code.
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assaulting with a chopper by her husband accused and ran away. Immediately he went to his house and made enquiry with PW.2. She narrated that when, they were watching the T.V. along with his sister and the deceased, accused came inside the house, all of a sudden by holding the chopper, assaulted the deceased with Chopper and caused bleeding injuries over left neck, ear and cheek. Due to which, she fell-down on the ground by crying and immediately she went and informed the same to her uncle and in turn, he has informed the same to the complainant. Accordingly, the complainant filed a complaint.
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cognizance and secured the presence of the accused and charge was framed.
prosecution, the prosecution got examined 13 witnesses as PWs.1 to 13 and got marked 13 documents as Exs.P.1 to 13 and Ex.P.13(a) and also marked 5 material objects as MOs.1 to 5.
for both the parties, the Trial Court convicted the accused holding that the material placed on record is sufficient to bring home the guilt of the accused. Challenging the legality and correctness of the same, the appellant-accused is before this Court.
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minor child eye witnesses. PW.3 has clearly admitted in her evidence that she has deposited before the Court on the instruction of her elders. Her evidence is tutored evidence and as such the same is not reliable. It is her further submission that the evidence of PW.2 is also not worthy to rely upon. Immediately after the incident, she has not made any hue and cry and even the theory of she was going and intimating the incident to her uncle is also not acceptable and believable. It is her further submission that no independent witnesses have supported the case of the prosecution and no other circumstances are also substantiated the case of the prosecution, so as to rely upon the evidence of PW.2.
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PW.1 and as such, the false implication of the accused cannot be over ruled. It is her further submission that PW.4 the inquest mahazar panch has clearly admitted that, as per say of the police he has singed the mahazar. Under the said facts and circumstances, the Trial Court ought to have given the benefit of doubt. In order to substantiate her arguments she has relied upon the decision of the Hon’bel Apex Court in the case of Radhey Shyam Vs. State of Rajasthan reported in AIR 2014 SC (Supp) 773. It is her further submission that the provision of Section 300 of IPC is not attracted in view of the evidence of PW.11-Doctor. The doctor in
his evidence has also clearly and categorically deposed that the injuries, which have been found over the body of the deceased may be caused. In that light, there is no material to attract the provision of Section 300 of IPC. For all these grounds, she prayed to allow the appeal and set
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aside the judgment of conviction and sentence
passed by the Trial Court and to acquit the accused.
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Vahuna Krishnan Vs. State of Tamil Nadu
reported in 1989 Supp (1) SCC 232 . It is his further submission that though PW.3 is an eyewitness and her evidence is not reliable, but if the evidence of PWs.6, 7, 8 and 9 is looked into they corroborated with the evidence of PW.2. PW.8 has seen the accused running out of the house immediately after the incident. PW.6 is a witness who has heard the screaming voice and she rushed to the house and she has also deposed that PWs.2 and 3 were present and she made an enquiry with PW.2, the said evidence is natural and probable. It cannot be discarded. This evidence is also corroborated with the evidence of PW.11-doctor, who has conducted the postmortem over the body of the deceased and he has clearly stated that if a person has been assaulted with chopper like MO.1, the death may occur.
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money and at that time also he has specifically stated that if she is not going to give the money, he is going to deal with her life.
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son of the deceased and the accused. In his evidence he has clearly deposed that PW.2 went and informed to PW.7 and PW.7 in turn called him through mobile phone when he was working in a tractor and immediately he came and saw the dead body inside the house. After collecting the information he went and filed a complaint. During the course of cross-examination, though he has admitted that, the leaders of the village developed animosity with the accused as the accused is the follower of the Congress Party and accused has also made some allegations as against the police and they were not in good terms. But insofar as his evidence is concerned, it appears to be corroborated
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with the evidence of other witnesses and it is not going to falsify the evidence to the effect that he went and saw the dead body and filed the complaint and false implication of the accused. Even the alleged incident has taken place at about 7.30 p.m., and the complaint has been filed as per Ex.P.1 at about 10.00 p.m. on the same night. Under such circumstances, there is no possibility of concocting and creating the complaint. If there is a delay in filing the complaint and sending the FIR, then one can infer that there were deliberations and discussions to falsely implicate the accused. In that light also the said evidence, during the course of cross-examination which has been elicited will not enure to the benefit of the accused.
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the accused and the accused enquired about his wife deceased Chinnamma and she told him that she was in her house. She has further deposed that on the same day at about 7.30 p.m., she went to the house of the Chinnamma and watching T.V. along with PW.3 and at that time the accused came with a chopper and murdered Chinnamma by assaulting with chopper. She has further deposed that he assaulted with the chopper on her left ear, left cheek and left side neck and thereafter the accused expressed his joy and went away with chopper. Immediately, she went to the house of CW.9 and called him to the spot. CW.9 informed the same through mobile to the complainant and he came and people have gathered. During the course of crossexamination nothing has been elicited so as to discard her evidence. Though learned counsel for the appellant contended that the evidence of a child witness has to be carefully scrutinized and only if it
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is reliable then only it has to be accepted. In order to substantiate her contentions, she has relied upon a decision in the case of Radhey Shyam’s quoted supra at paragraph Nos.3 and 18 of the said decision, the Apex Court has observed as under:
“3. Shri Santosh Mishra, learned counsel appearing for the appellant submitted that the entire case rests on the testimony of a child witness. The child witness’s evidence has to be carefully scrutinized and, only if it is found reliable, it can be accepted. He submitted that PW-2 Banwari’s evidence does not answer the test laid down by this Court in numerous judgments and, hence, no reliance can be placed on him. In support of this submission, counsel relied on Rameshwar s/o Kalyan Singh v. The State of Rajasthan, Panchhi & Ors. v. State of U.P., Ratansinh Dalsukhbhai Nayak v. State of Gujarat and Raj Kumar v. State of Maharashtra. He submitted that the entire incident appears to be inherently improbable. If throats of two children were cut with a blade, they would have raised
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loud cries and that would have brought the neighbours to the room. Counsel submitted that there are inconsistencies in the evidence of the witnesses. The story that PW-2 Banwari saw the incident through the hole of the door is difficult to digest. Counsel submitted that recovery of blade from the possession of the appellant is also not proved. Motive is also not established. In the circumstances benefit of doubt must be given to the appellant, who is in jail for about 19 years.
18. It is also surprising that if the appellant had committed such a heinous crime he would continue to sit in the room. His first reaction would have been to run away. It is also difficult to appreciate as to how those who had gathered at the scene of offence kept quiet after seeing such a gruesome crime. The reaction of the people would have been to take him to the police station. The prosecution is heavily relying on the fact that the appellant was alone in the room along with the children and no one else could have gone inside the room to kill the children. Normally, this argument would
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have impressed us if the prosecution had established the other circumstances to the hilt. But in this case the prosecution has not established even a single circumstance beyond doubt. We are of the opinion that the prosecution has suppressed the genesis of the case. The incident does not appear to have happened in the manner in which the prosecution wants the court to believe it had happened. The police came to the scene after about one hour. As to what happened in between is anybody’s guess. The story of alleged dying declaration of Rajkanta is not established. The discovery of blade from the almirah is not established and has rightly been rejected by the trial court. The panch witness turned hostile. Resultantly, the recoveries are not established. PW-13 Vimala, the wife of the appellant, categorically stated that the appellant loved his children and he was a normal person. His conduct prior to the incident does not suggest guilty mind. He fed his children Jalebi and Kachodi. He ordered tablets for Rakesh because he had high fever. The injuries suffered by the children are so
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grave that the children would have raised cries. Nobody has stated that they heard any cries. The story that the child witness saw the incident through the hole is difficult to digest. No independent witness has been examined and the evidence of all the witnesses is replete with inconsistencies. All these circumstances make the prosecution story doubtful. The appellant, therefore, must be given benefit of doubt. In the circumstances we set aside the impugned order. The appellant is directed to be released forthwith unless required in any other case”.
that the child witness has to be carefully scrutinized and only if it is found reliable it can be accepted. For this proposition of law, there is no difference of opinion even we both agree to the said proposition of law. It is well settled proposition of law that, evidence of a child witness is not required to be rejected. But the Court as a rule of prudence consider such evidence with close scrutiny and only
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on being convinced about the quality thereof and reliability can record the conviction based thereon. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Golla Yelugu Govindu Vs. State of A.P. reported in AIR 2008 Supreme Court 1842 . At paragraph No.9, it has been observed as under.
“9. 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 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 his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make
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beliefs. 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 in it, there is no obstacle in the way of accepting the evidence of a child witness.”
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be natural though it is contended that PW.2 has not
made hue and cry is no substance.
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case of Vahula Bhushan Alias Vahuna Krishnan quoted supra at paragraph Nos.7 and 9 of the said decision, it has been observed as under:
“7. The instant appeal on special leave has been filed against this judgment and order. It has been urged on behalf of the appellant that the courts below should not have convicted the accused on the sole testimony of PW 1 as the same was not corroborated by the evidence of any other witness. This contention is unsustainable inasmuch as there is no rule of law that the testimony of a single witness cannot be accepted and the conviction cannot be based on such evidence, if believed. The testimony of a single witness if it is straight-forward, cogent and if believed is sufficient to prove the prosecution case, the conviction can be made on the testimony of such a single witness
8. In the case of Vadivelu Thevar v. State of Madras the appellant was convicted on a charge of murder on the sole testimony of a witness. The question arose whether such a
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conviction can be sustained or not. It was held that there was no statutory requirement that a conviction cannot be made on the testimony of single witness unless it is corroborated. The court can accept the evidence of a single witness through uncorroborated and convict an accused except in cases where the nature of the testimony of the single witness itself required, as a matter of prudence, that corroboration should be insisted upon, as in the case of a child witness, an accomplice or any others of an analogous character”
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as per Ex.P.8. During the course of cross-
examination nothing has been elicited to discard his evidence. Even the evidence of PW.8, the neighbor also corroborates the evidence of PW.2. In his evidence he has deposed that he came out of his house after having heard hue and cry of girls, he enquired with PW.2 why she was crying and she replied that her uncle murdered Chinnamma and went away. At that time he saw accused Hanumanthappa running away from the house of Chinnamma. In that light, the presence of the accused and he running away immediately after the incident by holding chopper in his hand is believable. All these circumstances clearly point out the fact that, it is the accused who has committed the murder of deceased Chinnamma and even the evidence of PW.4, inquest mahazar, postmortem report at Ex.P.8 have substantiated the fact that it is a homicidal death.
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which has been produced clearly goes to show that there was a strong motive for commission of the said offence and all the witnesses have categorically and clearly stated that it is the accused who has committed the murder. When there is cogent, trust worthy and corroborative evidence both ocular, medical and circumstantial, then under such circumstances, we are of the considered opinion that there are no good grounds to hold that the appellant has made out the grounds so as to interfere with the judgment of conviction and sentence passed by the Trial Court. Hence, the Judgment of conviction and sentence passed by the Trial Court deserves to be confirmed. Appeal is devoid of merits, the same is liable to be dismissed, accordingly, dismissed.
given by the learned counsel Smt.Shashikala L.Desai who has been appointed by High Court Legal
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Services Committee in disposing the case. The High Court Legal Services Committee is hereby directed to pay the remuneration to her in accordance with law.
SD JUDGE
SD JUDGE
EM/-
2 issues framed by the court
Whether the judgment of conviction and sentence passed by the Trial Court attracting Section 302 IPC should be set aside on grounds of uncorroborated testimony of a child eye-witness.
Whether the evidence of a single child witness PW.2 was sufficient to sustain the conviction for murder without independent corroboration.
Colour shows how this judgement treated each authority
Radhey Shyam Vs. State of RajasthanDistinguished¶3
Radhey Shyam Vs. State of Rajasthan, AIR 2014 SC (Supp) 773 · Who else cites this
Vahula Bhushan Alias Vahuna Krishnan Vs. State of Tamil NaduExplained¶44
Vahula Bhushan Alias Vahuna Krishnan Vs. State of Tamil Nadu, 1989 Supp (1) SCC 232 · Who else cites this
Golla Yelugu Govindu Vs. State of A.P.Explained¶74
Golla Yelugu Govindu Vs. State of A.P., AIR 2008 Supreme Court 1842 · Who else cites this
Rameshwar s/o Kalyan Singh v. The State of RajasthanFollowed¶63
Rameshwar s/o Kalyan Singh v. The State of Rajasthan
Panchhi & Ors. v. State of U.P.Followed¶63
Panchhi & Ors. v. State of U.P.
Ratansinh Dalsukhbhai Nayak v. State of GujaratFollowed¶63
Ratansinh Dalsukhbhai Nayak v. State of Gujarat
Raj Kumar v. State of MaharashtraFollowed¶63
Raj Kumar v. State of Maharashtra
2 provisions across 2 enactments
Hanumantappa Kinnuri
State of Karnataka
B.A.Patil
M. I. Arun
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
