Jenukurubara Ganesha vs State Of Karnataka

Nataraj Rangaswamy, J

This Criminal Appeal is filed by the accused who is in judicial custody assailing the Judgment dated 28.01.2016 passed by the I Additional District

and Sessions Judge, Kodagu, Madikeri in S.C.No.48/2013 convicting the accused for the offence punishable under Sections 302 and 201 of IPC and

the Order sentencing him to undergo imprisonment for life and to pay a fine of Rs.25,000/-, in default simple imprisonment for six months for the

offence under Section 302 IPC and simple imprisonment for seven years and to pay a fine of Rs.5000/, in default, simple imprisonment for six months

for the offence under Section 201 of IPC.

An action to bring to book, the perpetrators of an offence punishable under sections 302 and 201 IPC, was set in motion by PW.1 who lodged a

report-Ex.P.1 on 27.11.2012 at 10.00 a.m. with the respondent, wherein he alleged that at about 9.00 a.m., when he was walking in the pathway in his

coffee plantation, he saw a corpse of a woman amongst the coffee plants, whose face and body was covered by a cloth and that there were injuries

on her limbs. He alleged that someone had brought the woman to that place, murdered her and had disposed off the body amongst the coffee plants.

Based on the complaint of PW.1, the respondent registered Cr.No.190/2012 for the offences punishable under Sections 302 and 201 of Indian Penal

Code, 1988 against unknown persons. PW.14 was assigned to bring to book, the perpetrators responsible for the commission of the crime. A spot

mahazar (Ex.P2) was conducted on 27.11.2012 between 11.00 a.m. and 12.00 noon. An inquest was conducted on 27.11.2012 which indicated

wounds over the face, shoulders, ribs, cheeks, chest and thighs. A post mortem was conducted on 27.11.2012 (Ex.P6) which indicated

“haematoma over left temporal areaâ€​ and fracture of anterior 2nd, 3rd, 4th and 5th ribs and the following injuries:

(i) Contusions over the shoulders, approximate 3 inches x 2 inches in size

(ii) Contusions over anterior aspect of chest, 6 in number. Varies from 12 inches x 2 inches in size (maximum) to 3 inches x 1 inch (minimum)

(iii) Contusions over thigh (anterior aspect) 6 inches x 4 inches over both the thighs.

The Cause of death is stated to be due to shock and hemorrhage as a result of injury to vital organs.

After the post mortem was conducted, the clothes found on the body of the deceased was handed over to the police in terms of Ex.P.7. A mahazar

was drawn regarding the clothes on the deceased that were received back in terms of Ex.P8. PW14 arrested the accused on 27.11.2012 at 5.45 p.m.

and produced the accused before the Circle Inspector of Police, Somawarpet at 6.30 p.m. in terms of Ex.P10. MOs 1 and 2 were seized at the

instance of the accused and the seizure report (Ex.P3) was signed by PW1 and PW2. The statement of PW10, a child eye witness, was recorded

under Section 164 of Criminal Procedure Code on 28.11.2012, in terms of Ex.P13. The age of the child witness was ascertained in terms of Ex.P.15

and a sketch of the spot of crime was recorded as per Ex.P.14. The statement of CW6 and CW7 was recorded which indicted the accused who was

charge sheeted for the offences under Sections 302 and 201 IPC. A copy of the charge sheet was furnished to the accused in compliance with

Section 207 of Criminal Procedure Code, 1973. The case was later committed to the Principal District and Sessions Judge, Madikeri who in turn

assigned the case to the I Additional District and Sessions Judge, Madikeri for trial and disposal.

After the charge sheet was filed, Sessions Case No.48/2013 was registered. The accused was charged for the offences punishable under Sections

302 and 201 of Indian Penal Code. The accused pleaded innocence and not guilty and therefore sought to be tried.

The de-facto complainant was examined as PW1, who identified the complaint lodged by him as Ex.P1. He also identified his signature found on

the spot mahazar (Ex.P2) and on the seizure mahazar (Ex.P3). He stated that MOs.1 and 2 namely the wooden stick and stone were seized by the

police on the next day i.e, on 28.11.2012 but he claimed that he signed Ex.P3 (seizure mahazar) on 27.11.2012. He stated that he had not seen MOs 1

and 2 but however, stated that the signatures found on MOs 1 and 2 were his signatures. He feigned ignorance of the contents of Ex.P3 (seizure

mahazar). He was thus treated a hostile witness. When PW1 was cross examined by the Public Prosecutor, he accepted the fact that the police had

brought the accused to the scene of crime on 28.11.2012 at 10.00 a.m. He denied the suggestion that on 28.12.2011 at 10.00 a.m., the police secured

the accused to the coffee estate of PW1 and at that time, the accused secured MOs.1 and 2 from amongst the coffee plants. He denied the

suggestion that he had signed the spot mahazar and the seizure mahazar at the police station. He deposed that he had not seen the accused till then.

He further stated that he had not removed the cloth found on the body. Further he stated that he went to the police and after the police came to the

spot, he gave a complaint at the spot of the crime.

PW2 is the jeep driver who deposed that on 27.11.2012 at about 8.15 a.m., he accompanied PW1 to the spot where the body was found. He

deposed that PW1 informed the police over phone. He identified his signature on Exs.P2 and P3. He deposed that on 28.11.2012 at 10.00 a.m. the

police came to the spot along with the accused and the accused showed MOs 1 and 2 to the police, which they seized under Ex.P3 and he identified

his signature on Ex.P3 as Ex.P3(b). He also deposed that PW1 also affixed his signature. Since it was recorded in Ex.P3 that the accused had stated

that he had assaulted the deceased with a stick and stone and that he brought up them from amongst the coffee plants but in the cross-examination

PW2 deposed that the accused did not tell anything to the police, he was treated as partly hostile. In his cross-examination, PW2 admitted the

suggestion that the accused stated before the police that he had killed his wife with MOs 1 and 2. He further stated that he saw the accused on

28.11.2012. He stated that when he went to the spot of crime after the police reached the spot and that at that time, the accused was sitting in the

police jeep. PW2 retracted from his earlier statement and deposed that the accused did not mention in the presence of PW2 that he had killed his

wife. He deposed that he came to know from those present there that the accused had killed his wife.

PW3 is the panchayath member who identified the body as that of a woman named Renuka and she gave the particulars of the relatives of Renuka

to the police. She identified her signature on the inquest mahazar [Ex.P4(a)]. She deposed that she was unaware of the contents and had signed it as

per the directive of the police.

PW4 is the inquest witness who identified his signature-Ex.P4(b). He denied knowledge of its contents and claimed that he signed it on the directive

of the police.

PW5 is the brother of the deceased who deposed that the accused and the deceased were quarrelling frequently.

PW6 is the sister-in-law of the deceased who deposed that the accused used to frequently assault the deceased when he was drunk. She deposed

that two to three days prior to the murder of the deceased, the deceased along with her children and the deceased had gone to the colony where PW6

resided. She deposed that the deceased used to assault the deceased when he was inebriated. Further, she deposed that about two or three months

prior to death of the deceased, the accused had injured the deceased with a knife, as a result of which, the deceased had gone to her father’s

house. She alleged that the accused later took the deceased assuring to take good care but a month later, the accused had again assaulted the

deceased. She deposed that both the accused and the deceased were habituated to alcohol and were frequently quarrelling.

PW7 is the owner of the estate where the accused and the deceased were working as labour. He however turned hostile and failed to identify the

accused and retracted from his statement at Ex.P5.

PW8 is the Taluk Medical Officer who conducted the post mortem (Ex.P.6) on 27.11.2012. She stated that she had given her opinion in terms of

Ex.P7 that the injuries on the body of the deceased and the death could be caused by MOs.1 and 2. She stated that the injuries found on the body

were ante mortem. In her cross examination she deposed that the injuries found on the body were caused long before the post mortem.

PW9 is the witness to the mahazar (Ex.P8) by which the chudidar top found on the body of the deceased was seized and he identified his

signature as Ex.P8(a).

PW.10 is the daughter of the accused and the lone eye witness to the incident. Her statement under Section 164 of Criminal Procedure Code,

1973 was recorded on 27.11.2012 (Ex.P13). In her voir dire, the Trial Court assessed the levels of her understanding. She consistently deposed that it

was the accused who assaulted the deceased with wooden stick and stones and done her to death.

PW11 is the woman PSI who handed over the body for post mortem and thereafter to the relatives of the deceased for last rites. She was a

witness to Ex.P8 by which the chudidar top was seized.

PW12 is the constable who submitted the FIR (Ex.P9) before the JMFC, Somawarpet and he identified the complaint at Ex.P1 as well as the FIR.

PW13 is the Assistant Sub Inspector who received the complaint of PW1 and registered Cr.No.190/2012 and submitted FIR (Ex.P9) to the JMFC

Court at Somawarpet through PW12. This witness claimed that the complaint at Ex.P1 was written by PW1 and submitted by him before PW13.

PW14 is the Sub Inspector of Police, who was assigned to crack the case and arrest the accused which he did on 27.11.2012 at 5.45 p.m. and

produced before PW15 and he identified his signature on Ex.P10.

PW.15 is the Investigation Officer, who deposed about the spot mahazar that he had conducted as per Ex.P2. He stated that he had taken

photograph of the body. Later the body was shifted to Government Hospital, Somawarpet. He stated that PW3 identified the body and based on the

information given by PW3, he summoned PW5 and Appanni (CW7) and in the presence of PW3, PW4, CW7 and CW5 an inquest was conducted.

He deposed that he had recorded the statement of the inquest witnesses. He further deposed that PW14 secured the accused and produced before

him and that he recorded the confession statement (Ex.P12) of the accused. He further deposed that on 28.11.2012, he went to the crime scene and

recovered MOs 1 and 2 as per Ex.P3. He further deposed that he took the two daughters of the deceased to the JMFC Court to record their

statements under Section 164 Cr.P.C. He stated that the statement of PW10 was alone recorded as the JMFC felt that the other daughter was not

competent to give her statement. He identified the statement of PW10 as Ex.P13. He further stated that he had recorded the further statement of

PW5, CW7, PW3, PW6, PW12, PW11, CW19, CW20, CW22. He requested the PWD officials to prepare a sketch which he identified as Ex.P14.

He requisitioned a report from forensic Science Laboratory, Mysore and received a report as per Ex.P11 and submitted the charge sheet.

In his cross examination, PW15 deposed that he had not enclosed the photograph along with the charge sheet. He denied the suggestion that

PW10 was planted by the prosecution.

The Forensic Science Laboratory report at Ex.P.11 disclosed blood stains on the chudidar worn by the deceased and on the stone allegedly used in

the commission of the offence (MO.2).

The Trial Court framed the following points for determination.

“1. Whether the prosecution proves that, the accused knowingly to cause the death of his wife Smt.Renuka, by assaulting with club and

stone, caused the death of Renuka and kept her dead body in between the coffee plants covered with red coloured chudidar top with an

intention to cause disappearance of the evidence?

What order?â€​

The Trial Court relied upon the evidence of PW6 who deposed of having seen the deceased with the accused three days prior to the incident,

when the accused and the deceased had gone to the house of Smt.Somakka. The Trial Court also relied upon her statement to hold that there were

frequent quarrels between the accused and the deceased. Further, the Trial Court drew support from Section 106 of the Indian Evidence Act and held

that the accused had not explained the reasons for the disappearance of the deceased for two days.

Further, the Trial Court relied upon the evidence of PW8 who opined that the injuries found on the deceased could be caused by MOs.1 and 2 and

also the Forensic report which disclosed blood stains on MO2 and the Churidhar top. The Trial Court greatly relied upon the evidence of PW10 who

was the eye witness to the incident and also the daughter of the accused and the deceased. The Trial Court held that there was nothing on record to

show that PW10 was not competent to speak about the incident and that there were no signs of tutoring PW10. On an over all appreciation of

evidence, the Trial Court held that there were corroborating evidence on record which disclosed that on 25.11.2012 at about 6.00 p.m. when the

accused and the deceased and their children were walking in the coffee estate of PW1, the accused assaulted the deceased with a wooden stick and

a stone for not yielding to his demand for money to consume alcohol. Thus, the injuries caused resulted in the death of the deceased. The Trial Court

held that the accused had thereafter covered the body amongst the coffee plants so that the crime went unnoticed. Thus, the Trial Court held that the

accused was guilty of the offences under Sections 302 and 201 of IPC and convicted the accused for the offence under Sections 302 and 201 of IPC

and sentenced him to undergo imprisonment for life and to pay a fine of Rs.25,000/- for the offence punishable under Section 302 IPC and to undergo

simple imprisonment for seven years and to pay a fine of Rs.5,000/- for the offence punishable under Section 201 of IPC. The sentences were

ordered to run concurrently.

The accused has appealed against the aforesaid Judgment of conviction and sentence. The application filed by the accused for suspension of

sentence was rejected by this Court in terms of the order dated 29.06.2017.

This appeal is listed for final hearing.

We have heard the counsel for the accused / appellant and the State, perused the records of the Trial Court, its Judgment and order on sentence

and also the grounds urged in the appeal memorandum.

The counsel for the accused argued that the following contradictions / inconsistencies / omissions proved beyond doubt that the case of the

prosecution was doubtful and belied the complicity of the accused in the offence alleged against him:

i) PW1 in his evidence deposed that he had affixed his signature to Ex.P3 on the date of the incident and therefore, he was treated as

hostile. That PW1 when he was cross examined by the Public Prosecutor denied the suggestion that on 28.12.2011 at 10.00 a.m., the police

secured the accused to the coffee estate of PW1 and at that time, the accused secured MOs.1 and 2 from amongst the coffee plants. He

would thus contend that the seizure of MOs.1 and 2 was not proved.

ii) PW2 in his evidence stated that when MOs.1 and 2 were seized, the accused did not tell anything to the police and that the police

recovered the stick and the stone. He further deposed that the accused was sitting in the police jeep and that when Ex.P3 was drawn and

signed by PW2, the accused was sitting in the jeep. He also stated that he affixed his signature to the mahazar at the spot and another at the

police station. Thus he contended that evidence of PW2 casts a doubt about the seizure of MOs 1 and 2.

iii) the evidence of PWs.3 and 4 disclosed that they signed Ex.P4 on the instructions of the police;

iv) the evidence of PW5 who is the brother of the deceased deposed that both the accused and the deceased were habituated to alcohol;

v) the evidence of PW6 disclosed that both the accused and the deceased were habituated to alcohol;

vi) PW7 turned hostile and did not identify the accused and denied his statement at Ex.P5;

vii) the evidence of PW10, disclosed that at the time of the incident, she, her elder sister, the accused and the deceased were together and

contended that the prosecution had failed to examine the elder sister of PW10. He also argued that it was improbable for a child aged 7

years to comprehend the proceedings in a Court and therefore, stated that she was tutored by the prosecution

viii) the prosecution had failed to produce the photographs of the dead body that were allegedly taken at the time of Ex.P2.

He also argued that the Judgment of conviction by the Trial Court was purely based on the evidence of PW10 which was not safe and free from

doubt and therefore, implored the Court not to rely upon the evidence of PW10. He would further contend that the prosecution has failed to prove

beyond doubt that MOs.1 and 2 were recovered at the behest of the accused.

The counsel for the appellant relied upon the judgment of the Apex Court reported in State of MP Vs. Ramesh and another reported in 2011(4)

SCC 786 to contend that the evidence of a child should be corroborated.

On the contrary respondent / State relied supported the Judgment of the Trial Court and relied upon the Judgment of the Hon’ble Apex Court

in the case of Ramesh Vs. State Rep by Inspector of Police (Crl.A.1013/2019 disposed of on 09.07.2019) to contend that it is not a rule that the

evidence of the child should always be corroborated and that it depends on the quality of evidence, age of the witness etc.

On a careful perusal of the case of the prosecution, the evidence recorded before the Courts below, the following points arise for our

consideration.

(i) Whether the prosecution has proved beyond doubt that the accused had murdered his wife on 25.11.2012 and had attempted to destroy

the evidence by abandoning the body amongst the coffee plants and covering it to go unnoticed?

(ii) Whether the Trial Court committed an error in sentencing the accused for an offence under Section 302 of IPC ?

The case of the prosecution is that PW1 saw the dead body on 27.11.2012 at about 9.00 a.m. and lodged a complaint and that the respondent

registered a crime against unknown accused and took up investigation. A spot mahazar was conducted which is proved by the evidence of PW1 and

PW2. Later an inquest was conducted which disclosed injuries on the face, below the eyes, on both the cheeks, on the neck, shoulder, chest, rib cage,

thighs and bruises on the back and buttock. The body was sent to post mortem which revealed ante mortem injuries. Though PW7 did not identify the

deceased and denied that the accused / deceased were employed with him, PW14 apprehended the accused on 27.11.2012 from the coffee estate of

PW7. Though PW1 turned hostile regarding the seizure of MOs 1 and 2, yet he admitted that he came to know that the accused had accompanied the

police to the crime scene on 28.11.2012. He identified his signatures on MOs 1 and 2 as well as on Ex.P3. The evidence of PW2 does not generate

any suspicion about the recovery of MOs 1 and 2 at the instance of the accused. The statement of PW10 was recorded under Section 164 Cr.P.C.

which indicted the accused in the offence. The evidence of PW6 and PW7 indicated that the accused had a past history of assaulting the deceased.

The FSL report indicated blood stains on the stone.

It is indisputable that the degree of proof in a prosecution for commission of a criminal offence, is proof beyond reasonable doubt. It is true that

every material omission or a material contradiction would not necessarily result in an acquittal. Such omissions or contradictions should be so material

that they should point towards two possible views and in such an eventuality, the view that is favorable to the accused should be adopted. The

Judgment of the Apex Court in the case of Chikkarangaiah and others vs State of Karnataka reported in 2009 (17) SCC 497 is noticeable and the

relevant portion is extracted:

“37. Further, if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to

his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the

guilt of the accused the benefit of such doubt should go in favour of the accused. However, at the same time, the court must not reject the

evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful or purely imaginary grounds or on the basis of

conjectures and surmises, the case of the prosecution must be judged as a whole having regard to the totality of the evidence. In reaching a

conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of

probabilities, its intrinsic value and the animus of witnesses.â€​

The Judgment of the Apex Court in the case of Himachal Pradesh Administration vs Shri Om Prakash reported in 1972 (1) SCC 249 has well

entrenched the principles of appreciation of evidence in criminal prosecution and the relevant portion is extracted below:

“It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence

either during trial by cross examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But

what has to be borne in mind is that the penumbra of uncertainty in the evidence before a Court is generally due to the nature and quality

of that evidence. It may be the witnesses as are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to

expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties

corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the

prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt

by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt - the doubt which rational

thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy - though unwittingly

it may be - or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is “Not the doubt of a

vascillating mind that has not the moral courage to decide but shelters itself in a vain and idle skepticismâ€. It does not mean that the

evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the

law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable

doubts and will result in deflecting the course of justice if not thwarting it altogetherâ€​

As argued by the learned counsel for the accused, PW1 had contradicted about the recovery of MOs 1 and 2 and was therefore treated hostile.

However, the recovery of MOs 1 and 2 were proved by PW2. However, the minor variance in evidence of PW2 that when MOs 1 and 2 were

recovered, he did not say anything to the accused and or that the accused was seated in the jeep when MOs 1 and 2 were recovered, were very

minor discrepancies which could not render the seizure doubtful.

In the case on hand, it is seen that PW14 had arrested the accused from the estate of PW7 situate at Masgodu village. It is in the evidence of

PW1 that people used to take the pathway in his estate to reach Masgodu and other villages. The lone witness who saw the commission of the

offence was PW10 and she unhesitatingly recorded in her statement under Section 164 Cr.P.C. that the accused assaulted the deceased with a stick

and a stone, as a result of which she died. PW10 stated that the incident occurred on Sunday and as her statement was recorded on 28.11.2012 and

therefore, the crime was committed on 25.11.2012. The post mortem report indicates that rigor mortis had set in and PW8 stated that the injuries on

the body were inflicted long prior to the post mortem. The accused did not explain the missing of her wife for more than two days. In addition, the

evidence disclosed that the accused and the deceased were not cordial and there were past instances of abuse and assault by the accused.

The Trial Court greatly relied on the evidence of PW10 to hand out a conviction. Thus it is imperative that the evidence of PW10 is scrutinized to

examine whether her evidence is believable or needs corroboration and whether there are any palpable signs of tutoring. PW10 was aged 6 years at

the time when her statement under Section 164 Cr.P.C. was recorded. She gave a vivid picture of the crime scene. When she was cross examined,

nothing noteworthy is suggested to indicate that she was either tutored or that her evidence was not trustworthy.

In an article “The Child as Witness: Competency and Credibility†published by Dr.Barry Nurcombe, M.D., F.R.A.C.P. in the Journal of

the American Academy of Child Psychiatry concluded as follows:

“Children under 9 years of age have less capacity than older children to recall past events without prompting. There is also evidence

that younger children are more likely than older children, adolescents and adults to be influenced by suggestive questions, though research

has been inconsistent on this point. Nevertheless, if prompted, children as young as 3 years of age can recall past events quite well,

although they will have difficulty under 10 years of age dating the events or attributing the appropriate motivation and intention to other

people. Despite conventional wisdom, there is no evidence that children are more prone to lie than adults, and no evidence that they are

more prone to confabulate or fabricate complex allegations. There has been little research into the susceptibility of children to adult

influence; indeed, level of moral judgment may be a more important factor than age in this regard. The possibility of parental indoctrination

should, however, be considered in all cases involving disputed custody or visitation rights. Unfortunately, little is known about the effect of

high emotional arousal on the registration and retrieval of memories of personal experience. This is clearly of great importance in the

context of traumatic sexual molestation and potentially disturbing courtroom confrontations.

Given these research findings, and the dubious validity of judicial voir dire evaluations of children’s competence, it has been

recommended that children be allowed to testify, and the jury left to determine competency and credibility (Melton et al., 1984). This more

liberal attitude to the juvenile witness seems appropriate to children older than 8 years of age. However, since the rules of evidence are

relaxed for minors, and since children must be asked many direct or leading questions, pretrial clinical evaluation of competency would

seem advisable for very young witnesses. The clinician may also be asked to examine the child before legal action is taken, in order to

determine whether the child is credible and psychologically strong enough to cope with repeated appearances in court, whether

psychological preparation would enable the child to give evidence, and whether psychiatric treatment would prevent further emotional

trauma as a consequence of the legal process.

It is important to follow a logical pathway when evaluating a child’s potential credibility as a witness, first excluding mental incapacity,

misinterpretation and delusion, and then probing for confabulation, fabrication or indoctrination. Verbatim recordings of such interviews

can provide telling evidence in court.â€​

The Hon’ble Apex Court in the case of Ramesh Vs. State Represented by Inspector of Police reported in 2019 SCC Online SC 927 held

that;

“17. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test

the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render

the child a competent witness. The competency of a child witness can be ascertained by questioning her / him to find out the capability to

understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to

give evidence if she / he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be

understood. A child of tender age can be allowed to testify if she / he has the intellectual capacity to understand questions and give rational

answers thereto. [Dalsukhbhai Nayak v. State of Gujarat (2004) 1 SCC 64]. A child becomes incompetent only in case the court considers

that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. [Sarkar, “Law of

Evidence†19th Edition, Volume 2, Lexis Nexis, p.2678 citing DPP v. M(1977) 2 All ER 749 (QBD)] If the child understands the questions

put to her / him and gives rational answers to those questions, it can be taken that she / he is a competent witness to be examined.â€​

The Hon’ble Apex Court in the case of Dalip Singh and others Vs. State of Punjab reported in 1979 (4) SCC 332 held “Thus the

competency of a child to give evidence is not regulated by the age but by the degree of understanding he appears to possess and no fixed

rule can be laid down as to the credit that should be assigned to his testimony. The question depends upon a number of circumstances, such

as the possibility of tutoring the consistency of the evidence, how far it stood the test of cross-examination and how far it fits in with the rest

of evidence.â€​

The Hon’ble Apex Court in the case of Mangoo and other Vs. State of Madhya Pradesh reported in AIR 1995 SC 959 held “There

was always scope to tutor a 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.â€​

Further the Apex Court in the case of State of Uttar Pradesh Vs. Krishna Master and others reported in 2010 (12) SCC 324 held

“Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and the

recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. The

burden of proving incompetence is on the party opposing the witness. The Court considered five factors when determining competency of a

child witness. Absence of any of them renders the child incompetent to testify. They are:

An understanding of the obligation to speak the truth on the witness stand;

The mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it;

A memory sufficient to retain an independent recollection of the occurrence;

The capacity to express in words his memory of the occurrence; and

The capacity to understand the questions about it.â€​

The Hon’ble Apex Court in the case of Sucha Singh and another v. State of Punjab reported in AIR 2003 SC 3617 held “Close

relations of the deceased are unlikely to falsely implicate any one. Some times, such relationship is guarantee of truth. Evidence of such

relations need not be corroborated. Where feelings turn on high enmity, prudence may compel court to see corroboration. But general

statement in cross examination are bald assertion of relationship when question is not sufficient.â€​

Likewise, in the Judgment reported in the case of Dattu Ramrao Sakhare and others v. State of Maharashtra reported in 1997(5) SCC 341,

the Apex Court held “where a child witness is found competent to depose to the facts and the child’s evidence is found to be reliable,

such evidence could be the basis of conviction even if oath is not administered to the child. Court should take care to see that the child is a

reliable witness and his demeanor must be like any other witness.â€​

If the evidence of PW10 is weighed bearing in mind the safeguards as aforesaid, we find from the voir dire that the child possessed reasonable

levels of understanding as she spoke about the place of crime, and the assault by the accused causing the death, the objects used for the crime. PW10

deposed that her mother collapsed and fell down and that she and her sister were sitting next to the deceased and that later the accused took PW10

and her sister home. When the statement of PW10 was recorded as provided under Section 164 Cr.P.C, (Ex.P13) on 28.11.2012, she has given a

vivid description of the crime that was committed in front of her eyes. It is evident from Ex.P15 that PW10 was aged about 6 to 8 years as on

02.02.2013. The statement under Section 164 Cr.P.C though indicated the presence of a police constable in uniform, PW10 was unable to recognize

the constable. Her deposition is credible, in the sense, she promptly narrated the sequence of events and stated that it was dark. PW10 did not depose

about the presence of any other person at the scene of the crime nor was such a suggestion put when she was cross examined. If the evidence of

PW6 and 7 is accepted, then the child must have been a witness to continued acts of assault by the accused against the deceased. It is therefore not

unnatural for the child to recount acts of assault by the accused. In addition, there were no questions or suggestions put to PW10 in her cross

examination to indicate that she was either tutored or that her narration was a result of her delusions or that her levels of understanding was abysmally

low and that therefore her evidence required corroboration.

As regards the non-examination of the elder sister of PW10, it was not fatal to the prosecution as PW15 deposed that both the daughters of the

deceased were taken before the Magistrate for recording the statement and that Magistrate after recording their statements felt that the older

daughter was not competent to record her statement. Further PW10 in her statement before the Magistrate stated that her elder sister was

hospitalized. The mere non-examination of the elder sister of PW10 cannot generate any doubt about the sanity of the prosecution.

The Apex Court in State of Madhya Pradesh Vs Dharkole alias Govind Singh and others reported in 2004 (13) SCC 308 held as follows:,

“14. It is not necessary for the prosecution to examine somebody as a witness even though the witness was not likely to support the

prosecution version. Non-examination of some persons per se does not corrode vitality of prosecution version, particularly when the

witnesses examined have withstood incisive cross examination and pointed to the respondents as the perpetrators of the crime.

In the instant case the prosecution has indicated the reasons as to why it did not choose to examine the alleged independent persons.â€​

Likewise, though the prosecution stated that the photograph of the deceased was taken, they were not placed on record. The prosecution has

failed to explain the same. This cannot be leveraged by the accused to contend that the prosecution case was doubtful. The argument that both the

accused and the deceased had the habit of drinking does not itself generate any doubt about the sanity of the prosecution.

Thus the evidence on record clearly points to the guilt of the accused and he is guilty of homicidal murder. However, the accused in his confession

(Ex.P12) is stated to have mentioned that when he demanded the deceased for money to drink arrack, she refused which provoked him and that he

first assaulted the deceased with a stick and thereafter with a stone. The brother of the deceased - PW5 stated that both the accused and the

deceased were alcoholics and were frequently quarrelling. PW6 deposed that both the accused and the deceased used to drink daily and were

overdoing it once a week. She deposed that the accused and the deceased led a marital life for more than 9 years. PW10 deposed that the accused

was drunk on that fateful evening. Thus, the socio / economic and cultural background of the accused and the deceased and their inter personal

relationship needs to be taken into consideration before concluding that the case was homicidal murder. The accused and the deceased were labourers

in a coffee estate and lived in an eco-system which is largely illiterate, they were both addicted to liquor and were frequently quarrelling and there

were past instances of assault by accused. In fact when PW15 was cross examined, it was suggested that JenuKurubas do not have a defined place

or residence and that there were no relationship of husband and wife amongst JenuKurubas. Incidentally, the deceased and the accused are also

JenuKurubas who are nomadic tribes. None of the witnesses for the prosecution spoke of any intention of the accused to murder the deceased. It

may be that the accused did not want to murder his wife but wanted to punish her for not heeding to his demand for money. However, having regard

to the injuries sustained, the accused knew that the injuries were likely to cause death and therefore was guilty of murder. PW10 in her evidence

stated that she, her sister and the accused sat next to the deceased until the next day morning and this generates an impression that the accused had

no intention to murder but to punish her, as he did earlier. Since, the deceased refused to pay the money demanded, the accused had in a fit of a rage

assaulted the deceased which resulted in the death of the deceased.

The Apex Court had in the case of Paul vs State of Kerala reported in 2020 SCC Online 57 had laid down the law regarding as to when

culpable homicide would not amount to murder and the relevant portion is extracted:

“30. xxx

If the act results in culpable homicide which does not amount to murder, then and then alone the question arises of applying Section 304

Part I or Part II as the case may be. Appellant cannot extricate himself from the consequence of his act attracting the ingredients of murder

by pointing out Section 304 Part I which also contains the expression “the act with the intention to cause death.†The implications are

vastly different. Section 304 of the IPC would apply only in a case where culpable homicide is not murder. If the act amounting to culpable

homicide satisfies any of the four criteria to bring it under the offence of murder, being mutually exclusive, there can be no scope for

applying Section 304 of IPC. On the other hand, if the act is culpable homicide as falling in any of the five exceptional circumstances

mentioned in Section 300 and then it would amount to culpable homicide not amounting to murder. In cases where the accused is able to

establish he is entitled to the benefit of any of the exceptions under Section 300 then his case may be considered under Part I or Part II of

Section 304 of the IPC depending on whether the act which caused the culpable homicide was done with the intention of causing death or

with knowledge that it is likely to cause death. That apart, cases of culpable homicide which do not attract any of the four situations under

Section 300 would still be culpable homicide to be dealt with under Section 304 of IPC. However, if the case falls under any of the four

limbs of Section 300, there would be no occasion to allow Section 304 to have play. If the act which caused the death and which is culpable

homicide is done with the intention of causing death, then it would be murder. This is however subject to the act not being committed in

circumstances attracting any of the five exceptionsâ€​.

There is no evidence that even faintly indicate that the accused had a pre-meditated intention to murder his wife. Having regard to the social

background of the accused, his addiction to alcohol and the environment within which they lived, it is palpable that the accused had allowed temper to

over ride prudence resulting in the incident. Thus, we hold that the accused had committed the offence in a fit of rage and out of grave and sudden

provocation and was thus guilty of culpable homicide not amounting to murder

As regards the offence under Section 201 of IPC, there is no incriminating evidence that indicates that the accused had attempted to cause

disappearance of the body of the deceased. The sketch at Ex.P14 disclosed that the body was found a meter away from the pathway and it was PW1

who saw the body on 27.11.2012 at 9.00 p.m. The prosecution failed to prove beyond doubt that the accused had attempted to cause disappearance of

the body of the deceased. Thus the prosecution has failed to prove the commission of an offence punishable under Section 201 of IPC.

Hence, the following:

ORDER

The Judgment dated 28.01.2016 passed by the I Additional District and Sessions Judge, Kodagu, Madikeri in S.C.NO.48/2013 convicting the accused /

appellant for the offence punishable under Sections 302 and 201 of IPC is modified and the accused / appellant is convicted for an offence punishable

under Section 304 Part-II of IPC.

Consequently, the Order of Sentence of life imprisonment passed by the I Additional District and Sessions Judge, Kodagu, Madikeri in

S.C.No.48/2013 is modified and the accused / appellant is sentenced to undergo imprisonment for a period of ten years and to pay fine of a sum of

Rs.10,000-00, in default to undergo simple imprisonment for six months.

The accused / appellant is acquitted of the offence under Section 201 of IPC.