Syed Khaja @ Khaja Vs State of Karnataka

THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 13.08.2018 AND ORDER OF SENTENCE DATED 18.08.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR IN S.C.NO.194/2015 - CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is against the judgment and order dated 13.08.2018 passed in S.C No.194/2015 on the file of Principal District and Sessions Judge, Kolar (hereinafter referred to as trial Court), by which the trial Court has convicted the appellant herein for the offence punishable under Section 302 of IPC and has sentenced him to undergo life imprisonment with fine of Rs.15,000/- and in default of payment of fine to undergo simple imprisonment for one year.

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Case of the prosecution is that a complaint was filed by one Mohammed Khaja stating that his sister-Harshiya Taj was married to the appellant and they were having two daughters namely Kaifa and Shafica aged about seven years and six years respectively. That as the said Harshiya Taj had not delivered a male child the appellant had subjected her to ill-

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treatment and physical harassment and had thrown her out of the matrimonial house. That on several occasions panchayaths had taken place in this regard. Appellant-accused had earlier attempted to kill his brother Saheb Pasha by assaulting him with a knife for which he had gone to jail. However, since Harshiya Taj had later delivered a male child, the appellantaccused came along with panchas to the village and upon a compromise he took Harshiya Taj along with the children to his house and were thus staying in Nukkanahalli village. That on 19.07.2015 at about 10.45 a.m. one Srinivas had called upon the cousin of the complainant over mobile to inform that Harshiya Taj was murdered. All the relatives went to Nukkanahalli village and found that the deceased Harshiya Taj had sustained chopped injuries. That thereafter it was learnt that the appellant-accused had quarreled with Harshiya Taj and had caused injuries with sharp weapon resulting in her death and had ran away from the spot.

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Based on the above complaint respondent-police registered a case in Crime No.331/2015. After the investigation, respondent-Police filed charge sheet against the

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appellant-accused for the offence punishable under Section 302 of IPC.

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The prosecution examined 22 witnesses as PW1 to

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PW22 and marked 18 documents as Exts.P1 to P18 and 3 material objects as M.Os.1 to 3.

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The statement of the accused was recorded under Section 313 of Cr.P.C wherein he has denied all the incriminating evidence adduced by the prosecution against him. He has even denied that the deceased-Harshiya Taj was his wife and their marriage had taken place in the year 2007 and he has also denied they having two daughters and a son. The father of the appellant-accused namely, Anwar Sab, who was examined as PW2 has supported the case of the prosecution. Appellant-accused has even denied PW2 as his father.

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Thus, based on the above the trial Court framed the

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following points for its consideration;

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"(i) Whether the prosecution proves beyond all reasonable doubt that, on 19.07.2015 at about 10.15 a.m. within the limits of Kolar Rural Police Station, Nukkanahalli Village, the accused Syed Khaja @ Khaja, S/o Anwar Sabi, in furtherance of common intention to kill his wife Harshiya Taj picked up quarrel with her in connection with preparation of

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food assaulted her by hitting with sharp weapon for which Harshiya Taj had sustained chop injury on the anterior aspect of neck cutting the underlying part of the mandible muscles, vessels, food pipe and wind pipe and abrasion below neck causing bleeding injuries due to which Harshiya Taj died and thereby committed an offence punishable under Section 302 of Indian Penal Code?

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(ii) What order?"

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Trial Court on appreciation of the evidence led by the

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prosecution more particularly the deposition of PW4 the daughter of the appellant and the deceased and PW2 the father of the appellant, who are the eye witnesses to the incident, found that the prosecution has proved the case of appellantaccused committing the offence punishable under Section 302 of IPC beyond reasonable doubt and accordingly convicted and sentenced him to undergo life imprisonment. Aggrieved by the same, the present appeal by the accused.

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Learned counsel for the appellant submitted that trial Court erred in relying upon the evidence of PW4-Khaifa daughter of accused and deceased who was just aged about seven years at the time of alleged incident and was aged nine years when her evidence was recorded. That there was every possibility of this witness being tutored, as such, the trial Court

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erred in relying upon the evidence of the said witness. That as

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regards PW2 -Anwar Sab the father of the appellant he had not seen the commission of alleged offence by the accused and was thus just a hearsay witness. Thus, the conviction and the sentence handed over by the trial Court based on the evidence of these two witnesses who were not trustworthy is unsustainable as such same is required to be set aside. That the very premise on which the entire case of prosecution case built is the alleged quarrel between the appellant and deceased

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over preparation of food which had allegedly led the appellant murdering his wife by using chopper. That the said theory is improbable and unbelievable inasmuch as the reasons for the earlier quarrels were deceased not delivering a male child. That when admittedly she had delivered the male child there could not have been any quarrel. Therefore, he submits the motive sought to be propounded is imaginary and baseless.

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Learned SPP-II on the other hand justifying the conviction and sentence submits that PW4 is the eye witness to the entire incident. The trial Court on satisfying itself with regard to the evidence of PW4 which is corroborated by the

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evidence of PW2 who is none other than the father of the appellant. As such, there is nothing to disbelieve this evidence of the prosecution. That in the case of direct evidence motive becomes insignificant. Thus, he submits there are no grounds to interfere with the Judgment and order passed by the trial

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Court. Hence, seeks for dismissal of the appeal.

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10. Heard both side and perused the records.

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The point that arises for consideration is:

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"Whether in the facts and circumstances of the case the trial Court is justified in convicting the appellant for the offence punishable under Section 302 of IPC and sentencing him to undergo life imprisonment with fine of Rs.15,000/- and in default of payment of fine to undergo simple imprisonment for one year?"

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Motive :

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PW.1 -Mohammed Khaja the complainant is the

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brother of the deceased. He has reiterated the contents of the complaint produced at Ex.P1. He has also spoken about the spot mahazar that was prepared as per Ex.P2 and seizure of blood stain cover and bed sheet as per M.O. 1 and 2. He has also spoken about one Srinivas and Manjunath being the

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mahazar witnesses. He has also identified the photographs of

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the deceased Harshiya Taj marked at Ext.P3 to Ext.P8.

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PW.5-Tasneem Taj is the sister of deceased Harshiya Taj; PW.9- B.N.Mahaboob a relative of the family of deceased PW.15Shahajahan brother of CW.4Sakina; PW.19Mohammed Moin and PW.20- Sahed Pasha, the brothers of the deceased Harshiya Taj have consistently spoken about the illtreatment, abuse and physical assault by the appellant-accused to the deceased- Harshiya Taj for the reasons of she not preparing the food properly and she not delivering a male child.

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PW.18- Basha Sab, resident of Nukkanahalli Village has spoken about several panchayaths having taken place between the appellant-accused and the deceased.

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Thus, the prosecution has established the illtreatment meted out by appellant-accused to the deceased - Harshiya Taj.

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Eye witness :

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PW.4 is Kaifa, the daughter of the deceased and the appellant-accused. Her statement was recorded by the police

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on 19.07.2015 the very day of the incident. At the time of recording of her evidence, she was aged 9 years, studying in the 2^nd standard. The trial Court has ascertained the veracity and knowledge of the said witness. The preliminary examination conducted by the trial Court with regard to the demeanor and the ability of the child to respond to the question on 31.08.2016 the day on which the said witness was presented by the prosecution and that the opinion of the Court is extracted hereunder:

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(�ಾ�ಯು �ಾ��ಾಲಯದ ಪ��ೆ�ಗ��ೆ ಸಮಂಜಸ�ಾ� ಉತ � ಸು��ದು�ದ�ಂದ ಅವ��ೆ �ಾಕಷು# �ಳ%ವ�&ೆ ಇದು�, ಅವಳ% �ಾ() ನು+ಯಲು ಸಮಥ-�ರು/ಾ�0ೆ ಎನು�ವ 2ಷಯವನು� ಮನಗಂಡು �ಾ��ಾಲಯವ4 ಅವಳ �ಾ�ಯನು� 5ಾ+ಸಲು ಅ67ೕಗ ಪ(&ೆ9 ಅವ&ಾಶ ;ೕಡ<ಾ�=ೆ).

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The observation made by the trial Court regarding capacity of the said witness to depose in the matter and satisfaction of the trial Court is as under:

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�ಾ��ಾಲಯದ ಪ��ೆ�:

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&ೋ?ð�ೆ �ಾವ &ಾರಣ&ಾ9� §A¢¢ÝÃgÁ?

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ಉಃ �ಾನು �ಾ() Bೇಳಲು �ಾ��ಾಲಯ&ೆ9 ಬಂD=ೆ�ೕ�ೆ.

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�ಾವ 2ಷಯ&ಾ9� �ಾEಯ ನು+ಯಲು ಬಂDD�ೕ�ಾ?

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ಉಃ ನನ� /ಾFಯ �ಾ2ನ ಬ�ೆG �ಾನು �ಾ� Bೇಳಲು �ಾ��ಾಲಯ&ೆ9 ಬಂD=ೆ�ೕ�ೆ.

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�ಾವ �ಾ<ೆಯHI ಓದು��D�ೕ�ಾ ಮತು� ಅದು ಎHI=ೆ?

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ಉಃ �ಾನು &ಾರಂKಕLೆ#ಯHIರುವ ಸುMಾN �ಾ<ೆಯHI 2 �ೇ ಇಯ/ೆ�ಯHI ಅಭ�Pಸು��=ೆ�ೕ�ೆ.

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ಮಕ9ಳ% �ಾವ �ೕ� �ಾ() BೇಳQೇಕು? ಉಃ ;ಜ BೇಳQೇಕು. 5. �ಾ() Bೇಳಲು ;ನ�ೆ �ಾರು Bೇ� &ೊR#=ಾ�Sೆ? ಉಃ ನನ�ೆ �ಾರು Bೇ�&ೊಡ=ೇ �ಾನು �ೋ+ದ� 2ಷಯವನು� Bೇಳಲು �ಾ��ಾಲಯ&ೆ9 ಬಂD=ೆ�ೕ�ೆ.

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(¸ÁQëAiÀÄÄ £ÁåAiÀiÁ®AiÀÄzÀ ¥Àæ±ÉßUÀ½UÉ ¸ÀªÀÄAd¸ÀªÁV GvÀÛj¸ÀÄwÛzÀÄÝzÀjAzÀ CªÀ½UÉ ¸ÁPÀµÀÄÖ w¼ÀÄªÀ½PÉ EzÀÄÝ CªÀ¼ÀÄ ¸ÁPÀëöå £ÀÄrAiÀÄ®Ä ¸ÀªÀÄxÀð½gÀÄvÁÛ¼É J£ÀÄßªÀ «µÀAiÀÄªÀ£ÀÄß ªÀÄ£ÀUÀAqÀÄ £ÁåAiÀiÁ®AiÀÄªÀÅ CªÀ¼À ¸ÁQëAiÀÄ£ÀÄß ªÀiÁr¸À®Ä C©üAiÉÆÃUÀ ¥ÀPÀëPÉÌ CªÀPÁ±À ¤ÃqÀ¯ÁVzÉ).

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As her answers were rational and after satisfying with the

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answers given by her the Trial Court has considered her to be a competent witness and recorded her evidence.

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The said witness has deposed that the complainant - Mohammed Khaja and Shahab Basha are her maternal uncles and CW.3 -Anwar Sab and CW.4-Sakina are her grand parents. CW.16-Kamarunnisa is her grand mother and Harshiya Taj was her mother and accused who was present before the Court was her father. She has also deposed that earlier she was residing in Nukkanahalli as she was going to school at Nukkanahalli. Her father the accused was assaulting her mother saying that she was not preparing food properly. Even he has not taken care of

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his wife and daughters. He was always abusing her mother and she had delivered only girls. After the birth of her younger brother they again came to Nukkanahalli. The relevant portion of the deposition of the said witness is extracted by the trial Court, which reads as under:

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"ನನ� ತಂ=ೆ ಮTU;ಂದ ನನ� /ಾFಯನು� BೊVೆದು �ಾFP=ಾ � ೆ . ಅವನು ನನ� /ಾFಯ ಕ� � ೆ ಮತು� &ೈ�ೆ ಮTU;ಂದ BೊVೆDದ�ನು. ಅವಳ% ಊಟ ಸ��ಾ� ಬ+ಸHಲI ಎನು�ವ &ಾರಣ&ಾ9� ಅವಳ Zೕ<ೆ ನನ� ತಂ=ೆ ಹ<ೆI 5ಾ+ದನು. ಆಗ Qೆಳ�ನ ೧೦.೦೦ ಗಂLೆ�ಾ�ತು�. ಆ ಸಮಯದHI �ಾನು ಮ�ೆಯHI_ೕ ಇ=ೆ�. �ಾನು ಈ ಘಟ�ೆಯನು� ಪ�ತ�(�ಾ� �ೋ+ದು�, ಆ ಸಮಯದHI ಮ�ೆಯ BೊರಗVೆ �bೆc &ೆಲಸ 5ಾಡು��ದ� ನನ� /ಾತನನು� Bೋ� �ಾನು ಕSೆದು&ೊಂಡು ಬಂ=ೆನು. D ಸಮಯದHI ನನ� ಅKd ಕೂH�ೆ Bೋ�ದು�, ಅವಳe ಸBಾ ಅHI ಬಂದಳ%. ನನ� /ಾF ಮಂಚದ Zೕ<ೆ_ೕ ಮರಣ BೊಂDದ�ಳ%. ನನ� /ಾFಯ Zೕ<ೆ ಹ<ೆI 5ಾಡಲು ಉಪ7ೕ�Pದ ಮಚUನು� �ಾನು �ೋ+ದSೇ ಗುರು�ಸಬ<ೆI. ಮಂಚದ Zೕ<ೆ<ಾI ರಕ� gD�ತು�. ಈಗ ನನ�ೆ /ೋ�Pದ ಮTU;ಂದ<ೇ ನನ� /ಾFಯ Zೕ<ೆ ಹ<ೆI�ಾ�ದು�, ಅದನು� ಮು5ಾ-೩ ಎಂದು ಗುರು�ಸ<ಾFತು. (ಮು5ಾ-೩ iಹರು 5ಾ+ದ TೕಲದHIದು�, ಅದನು� ಮುಕ� �ಾ��ಾಲಯದHI /ೆSೆದು ಗುರು�ಸ<ಾ�=ೆ). � ¦ ೩ �ಂದ ೮ ಈ kೕLೋಗಳ% ನನ� /ಾF�ೆ ಸಂಬಂಧಪR#ದು�, ಅವಳ &ೊ<ೆ�ಾದ ಸmಳದHI /ೆ�ೆಯ<ಾ�ರುತ�=ೆ."

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The trial Court have found the aforesaid deposition of the witness to be natural, inspiring confidence and there was no impediment in accepting the same. The said witness is subjected to elaborate cross-examination and nothing has been elicited to discredit the veracity of her deposition.

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PW.2-Anwar Sab is the father of the appellant-

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accused. He has spoken about the marriage of Harshiya Taj with accused and they having two daughters and a son. He also spoken about the dispute between the appellant-accused and the deceased. Said witness has further deposed that on the date of incident, he was working in the backyard of the house at 9.00 a.m his grand daughter came and informed him that the appellant-accused had murdered his daughter-in-law. When he went inside the house and noticed that daughter-in-law was murdered by inflicting injuries on her neck and her hands. At that time the villagers had asked him not to stay in the place, therefore he had left the place. He has specifically stated that his grand daughter -Kaifa informed him that the appellantaccused has murdered his daughter-in-law with a sharp weapon and when he reached the spot he saw his son-accused running away from the spot. The deposition of the said witness has remained undisputed.

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The deposition of the aforesaid two witnesses has remained intact without any shadow of doubt being casted on the same by the appellant-accused.

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PW.8-Sriram a panch witness and the villager has deposed that he had participated in the panchayath that had taken place between the deceased and the appellant-accused and he had advised the appellant-accused in the said panchayath. He further deposed that on 19.07.2015, in the morning at about 10.30 a.m. he found accused running away from his house in a suspicious manner. That he went to the house of the appellant which is situated in front of his house and found the deceased murdered. He is also a signatory to the document at Ex.P11-Inquest Mahazar which was drawn in mortuary of Jalappa Hospital.

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Seizure Mahazar and recovery of weapon :

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PW.3 is the witness to the spot mahazar. He has spoken about the police seizing material objects marked as M.O.1-pillow cover and M.O.2-bed sheet from the spot of the incident.

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PW.13-Javeed Pasha is a witness to the mahazar pertaining to recovery of blood stained weapon-chopper-M.O.3 used by the appellant-accused for commission of offence based

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on the information furnished by the accused. Seizure Mahazar

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was conducted as per Ex.P14 and signature of the said witness is identified. The said witness has withstood the test of crossexamination. Nothing is elicited to disbelieve the process of recovery and seizure of M.O-3.

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Medical Evidence:

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PW7-Dr. Ajaykumar, Associate Professor,

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Department of Forensic Medicine, Jalappa Hospital who conducted the post mortem of the dead body of Harshiya Taj, referring to the post mortem report at Ex.P9 has stated about the injuries found on the body of the victim which are as under:

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1. Chop injury measuring 24 cms x 8 cms x bone deep present over anterior aspect of neck, horizontally placed, 5 cms below the right ear and 4 cms below left ear, cutting the underlying part of the mandible, muscles, vessels, food pipe and wind pipe.

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2. Abrasion of length 6 cm, width 0.5 cms, red in colour, present 2 cms below injury No.1.

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3. Chop injury measuring 25 cms x 5 cms, vertebra deep with irregular margin, obliquely placed over back of the neck, extending 3 cms medial to pinna of left ear to right cheek, cutting the lower part of the right ear, muscles, blood vessels and C-2 vertebra.

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4. Chop injury 12 cms x 6 cms x vertebra deep with irregular margin, obliquely placed, extending 3 cms below the left ear to right shoulder blade, cutting the underlying muscles, blood vessels and C-6 vertebra.

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5. Laceration of size 2 cm x 2 cm x muscle deep over left side of chest, 5 cms below the lateral aspect of left clavicle with tailing upwards.

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6. Chop injury with irregular margins measuring 7 cms x 3 cms x bone deep over anterior aspect of lower one third region of right forearm cutting the under line muscle, vessels and tendons and bones.

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7. Chop injury over posterior aspect of lower one third region of right arm measuring 8 cms x 9 cms x bone deep cutting the under line muscles, vessels and tendons.

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All the above mentioned injuries are antemortem in nature.

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The said witness has opined that the death was due to shock and hemorrhage as a result of multiple chop injuries sustained over her neck. The said witness has stated the injuries sustained by the deceased could be caused by the weapon as per Ex.P10. He has denied suggestion of such injuries being sustained by falling on the sharp object.

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The trial Court as already noted has relied upon the deposition of PW4-Kaifa the daughter of the appellant and deceased who was present at the time and the place of the incident and has deposed that she personally and directly seeing her father murdering her mother by use of weapon.

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The Apex Court in the case of State of Madhya Pradesh Vs Balveer Singh reported in 2025 SCC Online SC

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390 dealing with identical fact situation of the matter where the trial Court had convicted and sentenced the accused therein

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for the offences punishable under Section 302 and 201 of IPC

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solely upon the evidence of daughter of the deceased and appellant who was aged seven years, referring to its various earlier Judgments in the case of Dattu Ramrao Sakhare Vs State of Maharashtra reported in (1997) 5 SCC 341, Ratansinh Dalsukhbhai Nayak Vs State of Gujarat reported in (2004)1SCC 64, Suryanarayana Vs State of Karnataka reported in (2001)9 SCC 129 and State of U.P. Vs Krishna Master reported in (2010) 12 SCC 324 on the testimony of the child witness at paragraph 58 has summarized the principles governing the testimony of the child witness which are as under:

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58. We summarize our conclusion as under:—

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(I) The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly.

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(II) As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him.

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(III) Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion.

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(IV) The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court. The correctness of the opinion formed by the Trial Court as to

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why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court.

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(V) The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence.

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(VI) The Trial Court must also record the demeanour of the child witness during the course of its deposition and crossexamination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others.

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(VII) There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever.

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(VIII) Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case.

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(IX) Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an

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inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.

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(X) The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication.

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(i) Improvisation in testimony whereby facts have been altered or new details are added inconsistent with the version of events not previously stated must be eradicated by first confronting the witness with that part of its previous statement that omits or contradicts the improvisation by bringing it to its notice and giving the witness an opportunity to either admit or deny the omission or contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If the witness denies the omission or contradiction the same has to be proved in the deposition of the investigating officer by proving that part of police statement of the witness in question. Only thereafter, may the improvisation be discarded from evidence or such omission or contradiction be relied upon as evidence in terms of Section 11 of Evidence Act.

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(ii) Whereas the evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the presence of the following two factors have to be established being as under:—

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• Opportunity of Tutoring of the Child Witness in question whereby certain foundational facts suggesting or demonstrating the probability that a part of the testimony of the witness might have been tutored have to be established. This may be done either by showing that there was a delay in recording the statement of such witness or that the presence of such witness was doubtful, or by imputing any motive on the part of such witness to depose falsely, or the susceptibility of such witness in falling prey to tutoring. However, a mere bald assertion that there is a possibility of the witness in question being tutored is not sufficient.

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• Reasonable likelihood of tutoring wherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently

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19 -

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substantiated. This may be done by leading evidence to prove a strong and palpable motive to depose falsely, or by establishing that the delay in recording the statement is not only unexplained but indicative and suggestive of some unfair practice or by proving that the witness fell prey to tutoring and was influenced by someone else either by cross-examining such witness at length that leads to either material discrepancies or contradictions, or exposes a doubtful demeanour of such witness rife with sterile repetition and confidence lacking testimony, or through such degree of incompatibility of the version of the witness with the other material on record and attending circumstances that negates their presence as unnatural. (XI) Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her crossexamination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness.

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(XII) 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 or untainted part inspires confidence. The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness.

¶168

The facts in the instant case would indicate that PW4

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was present at the spot which was normal and natural as it was the place where her parents and grand parents resided. Thus, there is nothing abnormal about PW4 being present at the place and time of the incident. The statement of PW4 was recorded

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in terms of Section 161 Cr.P.C on the very same date of the incident namely on 19.07.2015. Her deposition was recorded on 31.08.2016. The said witness has repeated her version verbatim in material aspects ruling out any possibility of tutoring, improvisation or fabrication.

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As regards the competency of her deposition, as already noted above the trial Court before subjecting the said witness for examination, had conducted preliminary enquiry to understand the rational and understanding ability of PW4 (referred at paragraph No.16 supra).

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Thus, recording of evidence of PW4, and reliance placed on her deposition by the trial Court is in consonance with the principles enunciated by the Apex Court as extracted hereinabove.

¶175

Thus, the conviction of the accused in the instant case based on the aforesaid testimony of PW4 cannot be found fault with. That apart evidence of PW4 is corroborated with the evidence of PW2 and PW8. Thus, from the aforesaid evidence produced by the prosecution more particularly the unshakable

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deposition of PW4 the daughter of appellant and the deceased which is also supported by the evidence of PW2 the father of the appellant, and the medical evidence given by PW7. This Court is of the considered view that the trial Court is justified in convicting and sentencing the appellant for the offence punishable under Section 302 of IPC. Appeal deserves no merit. Hence appeal is hereby dismissed.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(M.G.S. KAMAL) JUDGE

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RU/SBN List No.: 1 Sl No.: 14

Syed Khaja @ Khaja v. State of Karnataka

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Syed Khaja @ Khaja v. State of Karnataka

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