Honnamma vs State

N. Ananda, J.—The appellant(hereinafter referred as ''accused'') was tried and convicted for offences punishable under Sections 364 and 302 IPC. Therefore, she is before this Court.

We have heard Sri. G.M. Ananda, learned counsel (appointed by the Legal Service Authority) and Sri. Vijay Kumar Majage, learned Government Pleader for the State.

Before adverting to appreciation of evidence and submissions made by learned counsel for parties, it is necessary to state inter-se relationship of some of the prosecution witnesses and certain facts which are not in dispute.

P.W.-4 Ramadas and P.W.-6 Smt. Manjula are the parents of deceased Swetha, a girl aged about eight years. They are natives of Govinakere, Koratagere Taluk, Tumkur District. C.W.-10 Narasimhaiah is father of P.W.-6 Manjula and P.W.-7-Sharadamma is mother of P.W.-6 Manjula. P.W.-7 Sharadamma and C.W.-10 Narasimhaiah are the maternal grandparents of deceased Swetha. P.W.-1 Prasanna Kumar and P.W.-8 Raghavendra are sons of P.W.-7 Sharadamma and C.W.-10 Narasimhaiah. P.W.-1 and P.W.-8 are maternal uncles of deceased Swetha. Deceased Swetha since her age of three years was brought up in the house of her maternal grandparents at Shimoga. In the year 2005, deceased Swetha was studying in third standard in Suncity Lower Primary School at Hampinakatta road, Shimoga, which is at a distance of 200mt from the house of P.W.-7. Incidentally, it is necessary to state house of P.W.-7 is situated in an extension called Hudco Colony, Gopala, Shimoga Town. It is not in dispute that accused was working as maid servant in the house of P.W.-7 about three years prior to 12.3.2005.

It is the case of the prosecution that accused was not faithful, her hands were not clean, she was stealing house-hold articles, her mouth was foul. The accused had asserted that P.W.-8 Raghavendra (son of P.W.-7) had fallen in love with her and he had also promised to marry her. P.W.-8 broke promise to marry accused. Therefore, accused developed grudge against the family members of P.W.-7 and she was waiting for an opportunity to wreck vengeance against them.

It is the case of the prosecution that on 12.3.2005 (on a Saturday), deceased Swetha had gone to school and she was expected to return back at 11.30 a.m. The accused had gone near Sun City Lower Primary School. After deceased and other children were let out of the school, deceased Swetha met the accused. The accused took the deceased to a shop and got her chocolate and thereafter accused took deceased to a well in the land of one Arvind, which was situate at a distance of 2 km from Sun City School. The accused with an intention of committing murder of deceased Swetha pushed the deceased into that well. The deceased drowned and died in the well. The accused returned back to her work.

P.W.-7 and others searched for deceased and they also informed the matter to her parents. On 12.3.2005, P.W.-1 lodged missing report with the jurisdictional police, wherein he had given physical features of deceased Swetha. The Investigation Officer developed suspicion on accused. Therefore, Investigation Officer arrested the accused. On interrogation, accused gave voluntary information and led Investigation Officer and others to the well of one Arvind, which was at a distance of 2 km from the school of deceased Swetha. The Investigation Officer and others got the fire brigade. The personnel of Fire brigade drowned into well and brought dead-body of deceased Swetha and her school bag to surface. The dead-body was subjected to post-mortem examination. The cause of death of deceased Swetha was due to asphyxia as a result of drowning.

The case of prosecution rests upon circumstantial evidence. The prosecution has adduced evidence to prove the following circumstances:--

"i. Motive;

ii. The deceased was last seen alive in the company of accused;

iii. The dead-body of deceased was recovered on the information volunteered by accused.

iv. The conduct of accused before and after the incident."

i. Motive:

P.W.-7 Sharadamma(maternal grandmother of deceased) P.W.-8 Raghavendra(son of P.W.-7) and P.W.-1 Prasanna Kumar(son of P.W.-7) have deposed that accused was working in their house as a maid servant about three years prior to date of incident and her conduct and character were not good. Therefore, P.W.-7 had removed accused from service about one year prior to the date of incident. P.W.-1, P.W.-7 and P.W.-8 have deposed that accused had asserted that P.W.-8 had fallen in love with her and he had promised to marry her and he had broken his promise. Therefore, the accused was waiting for an opportunity to wreck vengeance against the family members of P.W.-7. At this juncture, it is relevant to state that deceased Swetha was brought up by maternal grand-parents since her age of three years. The parents of deceased Swetha were visiting the house of P.W.-7 once or twice in a year. P.W.-7 Sharadamma, her husband C.W.-10 and their sons P.Ws.-1 and 8 had immense love and affection towards Swetha and this fact was known to accused. Therefore, accused had decided to wreck vengeance against P.W.-7 and her family members by committing murder of deceased Swetha.

The learned counsel for accused would submit that accused had no grudge or enemity against deceased Swetha. Deceased Swetha was aged eight years. Therefore, it is difficult to conceive that accused had developed grudge against deceased Swetha. As already stated, deceased Swetha was a lovely girl and she was brought up in the house of P.W.-7 since three years of her age. Therefore, the accused had decided to commit murder of Swetha to wreck vengeance against P.W.-7 and family members.

In a decision reported in Ravinder Kumar and Another Vs. State of Punjab, , the Supreme Court has held:--

"Head Note ''C''. Criminal Trial-Circumstantial evidence- Motive- Need not be established precisely-Showing of the possible mental element which could have been the cause of the crime would be sufficient).

It is held "It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that the prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. It is, therefore, not possible to change the tide on account of the inability of the prosecution to prove the motive aspect to the hill."

In a decision reported in State of Himachal Pradesh Vs. Jeet Singh, , the Supreme Court has held:--

"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire of the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended".

In the case on hand, the motive deposed by P.W.-1, P.W.-7 and P.W.-8 looks rather remote. It is not possible for the prosecution to prove what precisely impelled the accused to commit a particular offence. If the prosecution is able to establish the possible mental element, which could have impelled the accused to commit the murder, that would be sufficient. It is needless to state many a times, it would not be possible for the prosecution to ravel the whole of the motive. If the prosecution succeeds in showing the possibility of some ire of the accused towards the victim or near and dear of the victim, that would be sufficient to prove motive. The evidence of P.W.-1, P.W.-7 and P.W.-8, who did not bear grudge or enemity against the accused is sufficient to prove motive put forth by the prosecution.

The deceased was last seen alive in the company of accused around 12.00 a.m.(noon) on 12.3.2005. In order to prove the circumstances, prosecution has relied on evidence of P.W.-9 Srikanth and P.W.-11-Keshavamurthy.

P.W.-11 Keshavamurthy has deposed that at relevant time, he was running a stationary shop in the ground floor of the building and in the first floor of the building, there was Sun City School. He had seen deceased Swetha. He had also seen the accused. The accused had come near Sun City School to meet Swetha about two or three days prior to death of Swetha. The accused had come near the school. When P.W.-11 enquired, accused told her she had come to meet Swetha(since deceased). The accused gave chocolates to Swetha, spoke with her and left that place. On the date of incident, after school was over and school children were let out, accused met deceased Swetha and got her chocolate from the shop of P.W.-11 and accused took deceased with her. Thereafter, deceased was not seen alive. On the other hand, P.W.-11 saw the dead-body of deceased Swetha in the mortuary of MEGAN hospital, at Shimoga.

During cross-examination, P.W.-11 has reiterated version given in examination-in-chief. P.W.-11 has admitted when he had been to mortuary to see the dead-body of deceased Swetha, he did not inform the police that he had seen deceased Swetha in the company of accused. However, when police enquired, he has given statement that he had seen deceased Swetha in the company of accused.

The learned counsel for accused would submit that at earliest point of time, P.W.-11 had not informed police. As per evidence of P.W.-11, he had gone to mortuary to see dead-body of Swetha. The evidence on record does not reveal presence of Investigation Officer near the mortuary at that point of time. It is natural that P.W.-11 had given his statement when he was enquired by the Investigation Officer. Therefore, this cannot be a reason to suspect the evidence of P.W.-11, who is totally an independent witness. P.W.-11 had no grudge or grievance against the accused. Similarly, he was not related to P.W.-7. He did not have interest in success of the case of prosecution.

At relevant point of time, P.W.-9 Srikanth was working as manager in Professional Couriers at Shimoga. He was residing in a house situate opposite to the house of P.W.-7. He had seen deceased Swetha. She was visiting the house of P.W.-9. On 12.3.2005, he had gone to office, and he came back to house for lunch and after having lunch, he was returning to his office, around 11.30 a.m., when he was near Gopala bus stand, the accused was taking deceased Swetha. The accused was holding the hand of deceased Swetha. P.W.-9 knew that accused was working as maid servant in the house of P.W.-7. P.W.-9 having felt nothing unusual, went to his office. After returning from office, P.W.-9 went to Kundapura and Mangalore on some urgent work. After two days, he came back to his house at Shimoga and learnt about death of Swetha. P.W.-9 has deposed he was not aware about the relationship between accused and C.W.-10 Narasimhaiah. During cross-examination, P.W.-9 has admitted that Investigation Officer recorded his statement on 20.3.2005. P.W.-9 has deposed that he informed family members of P.W.-7 that he had seen deceased Sweetha in the company of accused at about 11.30 a.m. on 12.3.2005.

The learned counsel for accused would submit that if P.W.-9 had seen deceased in the company of accused around 11.30 a.m. on 12.3.2005, the natural conduct of P.W.-9 after coming to know about the murder of deceased Swetha was to inform the police. The Investigation Officer has recorded statement of P.W.-9 on 20.3.2005. Therefore, there was inordinate delay in recording the statement of P.W.-9.

P.W.-9 is an independent witness. He had no grudge or enemity against the accused. He was not related to P.W.-7. He had no interest in the success of the case of prosecution. P.W.-9 has deposed he was not in Shimoga for a period of two days after 13.3.2005. In other words, he returned to Shimoga on 15.3.2005. The Investigation Officer has not been cross-examined about reasons for the delay in recording the statement of P.W.-9.

The law is fairly well settled that mere delay of few days in recording statement of a witness under Section 161 Cr.P.C. would not render evidence of witnesses untrustworthy. It depends on facts and circumstances of each case. How far the delay recording statement of witness under Section 161 Cr.P.C. would discredit evidence of witness depends upon facts and circumstances of each case. It also depends upon availability of witness to Investigation Officer and the relationship of witness with the victim or family members of the deceased.

In the case on hand, we find P.W.-9 was working as manager of Professional Couriers at Shimoga. He was not in town for a period of two days. He had no occasion to contact Investigation Officer. Therefore, Investigation Officer has recorded statement of P.W.-9 on 20.3.2005. At this juncture, it would be useful to refer to the judgment of the Supreme Court reported in Dalip Singh and Others Vs. State of Punjab, , wherein, Supreme Court has held:--

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high & there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

There in nothing on record to suggest that P.W.-9 had enemity against the accused. P.W.-9 had no reasons to falsely implicate the accused. P.W.-9 was not related to P.W.-7 and her family members and he was not interested in the success of the case of prosecution. Therefore, we do not find any reason to discredit evidence of P.W.-9. The prosecution from the evidence of P.W.-9 and P.W.-11, has proved that deceased was last seen alive in the company of accused and there was proximity between the place where the deceased was last seen alive and the place of incident. There was also proximity between time at which deceased was last seen alive in the company of accused and the time of incident.

The accused, who had taken the girl of tender age viz., Swetha in her company has not offered any explanation. The accused has not stated that deceased had parted with the company of accused and went towards the well. The defence has made an unsuccessful attempt to establish that deceased had fallen into well while playing near the well. We find from evidence of P.W.-9 that distance between Sun City School and the well where the deadbody of Swetha was found is two kilometers. It looks improbable that deceased Swetha after completing the school alone had gone near a well which is at a distance of two kilometers from her school. We find from the evidence when deadbody was recovered, deceased was wearing school uniform, alongwith the dead-body, school bag, other books and articles of deceased were removed from the well. Therefore, we hold that deceased was pushed into the well alongwith school bag and other articles.

The I.O.- Sandesh Kumar- P.W.-15, who was then working as Sub-Inspector of Police has deposed that he arrested accused on 13.3.2005 (on suspicion). The accused gave voluntary information that she would show the well, where the dead-body of deceased Swetha was drowned. The Investigating Officer secured panch witnesses, P.W.-7 and other relatives of the deceased. The accused led the Investigation Officer and other witnesses to a open well situate in the land of Arvind, which is at a distance of two kilometers from the house of P.W.-7. The Investigation Officer secured Fire Brigade. The Fire brigade personnel got into the well and drowned into the water and brought the dead-body of Swetha alongwith her books and school bag to the surface of water. Thereafter, the dead-body of Swetha was removed from the well.

The learned counsel for accused would submit that as per evidence of P.W.-1, people had gathered near the well even before accused and Investigation Officer and panch witnesses had reached the well. The Investigation Officer had interrogated the accused and recorded her voluntary statement. It looks probable that people had gathered near the well after the accused gave her statement. The incriminating evidence against the accused is concealment of body of deceased. The existence of body of deceased under water in the well was within the exclusive knowledge of accused. It is not as if each and everyone who had gone near the well or passed on that way could notice the dead-body, which had drowned in the well. During cross-examination of P.W.-7, defence has made unsuccessful attempt to establish that deadbody was floating. P.W.-7 has denied the suggestion. Even other-wise, it is established from the evidence on record that deceased was found missing from 11.30 a.m. on 12.3.2005 and the dead-body was removed from the well during afternoon of 13.3.2005. In the circumstances, it looks improbable the dead-body was floating on the surface of water. Thus the prosecution has proved that dead-body of Swetha was recovered on the information volunteered by accused.

At the relevant time, accused was washing clothes in Sree Ramakrishna Vidyaniketan Residential School at Gopala, Shimoga. P.W.-10 was working as Supervisor of the said school. P.W.-10 had deposed on the date of incident, accused took permission and left the school at about 11.20 a.m. Accused returned back to school at 12.45 p.m. (afternoon). When P.W.-10 enquired accused, she told, she had gone to the house of her friend. P.W.-10 has deposed that accused was nervous and she was sweating. From the evidence of P.W.-11, we find that accused had visited Sun City school continuously two or three days prior to the date of incident and also on the date of incident. The accused had been removed from service of house of P.W.-7. It is obvious that accused was visiting school of deceased, she had met deceased two days before the date of incident to gain confidence of deceased. Thus we find that accused had made preparation to commit offence. The offence committed by the accused was not only premeditated, but also pre-calculated. On the date of incident, the accused met the deceased after she came out of the school around 11.30 a.m.. The accused got a chocolate to deceased from the shop of P.W.-11. Thereafter, the accused took the deceased and pushed the deceased into open well of one Arvind, which is situate at a distance of two kilometers from the Sun City School. The accused returned back to her work. The conduct of accused would also provide incriminating evidence against accused. Thus prosecution from aforestated proved circumstances has established guilt of accused beyond reasonable doubt. The prosecution has adduced independent evidence in proof of each link in the chain of circumstances. The proved circumstances are completely consistent with the guilt of accused and they exclude innocence of accused.

The learned Sessions Judge on proper appreciation of evidence has convicted the accused for offences punishable under Sections 364 and 302 IPC. On re-appreciation of evidence, we do not find any reasons to interfere with the impugned judgment. Therefore, the appeal is dismissed.