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2009(3) Supreme 394
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
State of Karnataka — Appellant
versus
Shantappa Madivalappa Galapuji and Ors. — Respondents
Criminal Appeal No. 203 of 2005
Decided on : 20-04-2009
The Indian Evidence Act, 1872 – Section 118 – Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be a competent one – On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease – whether of mind, or any other cause of the same kind- A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto – The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (Paras 6, 9 to 11)
(159 US 523) : 2001 (9) SCC 129 – Relied upon.
Facts of the Case :
1. Accused persons four in number were prosecuted herein in the instant case for causing death of deceased by strangulating her. As per Prosecution case on quarrel with his wife A.1 went inside the house and brought other accused and also brought a rope and after that all the accused made the deceased lie on the ground and meanwhile A.3 and A.4 caught hold of her hands. A.2 held both legs of deceased and then A.1 tying the rope to neck of deceased pulled it and then deceased died on spot.Thereafter dead body of deceased was taken away and it was burnt. Trial Court convicted accused persons relying upon evidence of PW2, child witness, son of deceased. Appeal thereagainst was allowed by High Court holding that prosecution version was not established and evidence of witnesses could not be termed as credible.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
The so called delay in lodging the FIR was explained by PW-1. Out of 19 typed pages of the order, forming special leave petition 18 pages had been devoted to recital of the evidence of witnesses and thereafter there was an abrupt conclusion to discard the evidence of PW-2 on the presumption that he was tutored as his uncle PW-1 was an advocate. It was also observed that it was not known what Additional Sessions Judge asked the child witness to test his knowledge. Unfortunately, the High Court failed to notice that Additional Sessions Judge had referred to all relevant aspects in detail. When the Court put preliminary questions to the child who appeared to be of tender age, it was revealed that the witness was capable of understanding the questions put to him and was capable of giving rational answers to those questions. He knew the difference between the truth and the falsehood and knew that only truth had to be deposed before the Court. He also knew consequences of deposing falsely .Hence Court was of opinion that witness was competent to testify before Court. Without even indicating as to how conclusions of trial Court were in any manner deficient or insufficient, High Court ought not to have, on abrupt conclusions, directed acquittal. In the circumstances held proper to set aside impugned judgment and remand the matter to High Court to consider the matter afresh and dispose of the appeal indicating reasons. Appeal was allowed.
Result : Appeal allowed.
JUDGMENT
Dr. Arijit Pasayat, J.
1. Challenge in this appeal is by the State of Karnataka to the judgment of a Division Bench of the Karnataka High Court allowing the appeal filed by the respondents. Four respondents faced trial for alleged commission of offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) and were sentenced by learned II Additional Sessions Judge, Belgaum. The High Court by the impugned judgment has set aside the conviction.
2. The prosecution version as unfolded during trial is as follows:
The complainant is the native of Biraladinni village in Basavanabagewadi Taluk in Bijapur District and he is residing at Bijapur. He owned landed and house properties. His father and younger brother are looking after the agriculture. The complainant though is residing in Bijapur, visits Biraladinni village once every week. He has got two younger sisters and one brother. Annapurna is one of the sisters. The marriage of Annapurna took place with Shantappa (A.1). The said Annapurna after the marriage went to the house of A.1 to lead marital life. She gave birth to three children. The brother of A.l who is A.2 is residing in Ainapur Village since 10 years and he is residing in Gubbimaddi land after erecting a hut. Along with him A.3 and A.4 are also residing. A.1 is addicted to bad vices like drinking liquor and he always used to pick up quarrel with the complainant’s sister i.e., Annapurna. About one year prior to the death of Annapurna, A.1 had brought the deceased Annapurna and her children to Beeraladinni and left them in her parents’ place. About three months prior to the incident, A.1 had come to Beeraladdinni village and requested the complainant and his family members that he will take his wife and children and he will look after them properly. He also told them that he will take them to Ainapur Village. Then he took the deceased Annapurna and his son Suresh to Ainapur. On 31.12.1994 i.e., on Saturday as it was a holiday, the complainant had come to Beeraladinni Village. At about 8 p.m, on that day, one Siddappa of their village came to the complainant and told him that he had gone to Dhavalagi Village on that day and there A.2 had met him and told him that on 29.12.1994 at about 11 p.m., Annapurna had died. He has also told him that A1 was to be informed. After hearing this, the complainant, on the next morning, along with Siddappa went to Ainapur Village and went to the hut where the accused were residing and asked the accused as to how his sister had died and as the accused did not give any satisfactory answer, he asked his sister’s son i.e., Suresh about the incident. He was about 9 years old then. Suresh told him that on that day i.e., on 29.12.1994 after taking food, his mother was making preparations to sleep. At about 11 p.m., his father P.1 picked up a quarrel stating that she is having illicit relations with somebody and also said that she should leave such habits. At that time, his mother Annapurna said that she has not acted like that. A.1 went inside the house and brought other accused and also brought a rope and after that all the accused made the deceased Annapurna lie on the ground and meanwhile A.3 and A.4 caught hold of her hands. A.2 held both the legs of the deceased and then A.1 tying the rope to the neck of the deceased pulled it and then the deceased died on the spot, Then A.1 took Suresh inside the house and threatened him not to tell the fact to anybody and thereafter, the dead body of the deceased was taken away and it was burnt. After hearing this from Suresh, the complainant went to Biraladdinni Village and informed the said fact to the parents and others and on the next day morning he went to the police station and filed his written complaint against the accused and the A.S.I, who was incharge of the police station, received the complaint and registered a case in Cr.No.2/95 under Sections 302, 201 read with Section 34 I.P.C.
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