N.B. Somashekara Shetty vs The State of Karnataka

Mohan M. Shantana Goudar, J.

The judgment and order of conviction passed by the Sessions Court, Bangalore Rural District in S.C. No. 294/2008 is called in question in this appeal by the convicted-accused.

The accused/appellant herein was tried and convicted for the offences punishable under Section 302 of Indian Penal Code by the Court below.

The case of the prosecution in brief is that the accused is the husband of deceased-Sheela; PWs 2 and 3 are the children born out of the said wedlock between the accused and the deceased; PW1 is the brother of the deceased; the deceased started doubting the chastity of his wife-Sheela and therefore, committed the murder by stabbing her with a knife in the matrimonial house during the night intervening between 25/26.07.2008; the incident has taken place within the limits of Varthur Police Station, Bangalore. PWs 2 and 3 being the children of the deceased and the accused were sleeping with their parents, got up after hearing the cries of their mother and saw the ghastly incident of murder by the accused/their father; the victim tried to run away from house for saving her life, but fell outside the house; the children immediately went out of the house to call PW1 (their maternal uncle) for help; PW3, thereafter went to the police for getting assistance from them; PW1 as well as the police who were on night duty rushed to the spot and saw the injured with bleeding injuries outside the house. The accused was standing on the spot; the injured was shifted to Vydhehi Hospital wherein she expired. According to the case of the prosecution, this incident has taken place at about 1.15 a.m. on 26.07.2008; the first information came to be lodged by PW8 as per Ex. P1 before Varthur Police Station against the appellant herein, which came to be registered for the offence punishable under Section 307 of Indian Penal Code in Crime No. 141/08. Subsequent to the death of the deceased, the offence punishable under Section 302 is added. The police, after investigation laid the charge sheet against the accused for the offence punishable under Section 302 of Indian Penal Code.

In order to prove its case, the prosecution in all examined 27 witnesses and got marked 22 exhibits and 13 Material Objects. The defence did not adduce any evidence. As aforementioned, the trial Court convicted the accused for the offence punishable under Section 302 of Indian Penal Code and sentenced him to undergo imprisonment for life. He is also imposed with fine of Rs. 5,000/- with a default clause.

Mr. Jagadeesh B.N., learned Advocate appearing on behalf of the appellant taking us through the entire material on record submits that the Court below is not justified in relying upon the evidence of the two child witnesses. After the incident, they started residing with their maternal uncle (PW1); their maternal uncle is taking care of the children in proper manner; the children are school going and all the expenses of the education are borne by PW1; therefore, the children must have been tutored by PW1 and other family members. He further submits that the accused and the deceased were living amicably and they did not have any dispute whatsoever; they were looking after the children very well; since there is no ill-will on the part of the accused to commit the murder of his wife, he is not involved in the crime. He further submits that the injured was lying outside the house and therefore, the defence theory that somebody must have murdered the deceased when she had been outside during night, is supported by the said circumstances. It is further submitted that two weapons are seized from the spot and it may not be probable that the accused must have used the two weapons for commission of the offence; the weapons seized by the police during the course of investigation are not sent to the finger prints expert to find out the finger prints on the weapons; merely because, the accused was found on the spot, he cannot be suspected. Lastly, he submitted that the reasons assigned and the conclusion arrived at by the Court below are not proper and correct.

Per contra, Mr. Vijayakumar Majage, learned High Court Government Pleader appearing on behalf of the State argued in support of the judgment of the Court below by contending that the evidence of the child witnesses is trustworthy and blemishless. Though no corroboration is necessary in this matter, the prosecution has adduced corroborative material to support the versions of the child witnesses. He further draws the attention of the Court that the versions of PWs 2 and 3 (child witnesses) is corroborated fully by the evidence of PWs 1 and 19 who came to the spot immediately after the incident.

PW1 is the elder brother of the deceased; on being informed by PWs 2 and 3 about the incident during the night intervening between 25/26.07.2008, he rushed to the spot and saw the injured lying with severe bleeding injuries; he shifted the victim to Vydhehi Hospital for treatment with the help of the police who came to the spot immediately after the incident. he lodged the first information report as per Ex. P1 before Varthur Police Station at about 4.15 a.m. on 26.07.2008.

PWs 2 and 3 are the eye-witnesses to the incident; both are child witnesses; both are the children of the accused and the deceased; PW2 was aged about 11 years and whereas, PW3 was aged about 9 years at the time of incident and they were school going. They have deposed fully supporting the case of the prosecution. PWs 4, 5, 6 and 7 are hearsay witnesses and they came to the spot on being informed by others; PW7 is another brother of the deceased; PW4 is the wife of PW7; PW5 is the mother of the deceased; PW6 is the wife of PW1. All these persons are inmates of the house of PW1 who also came to the spot immediately after hearing the incident; however, the injured was shifted to the hospital by then; PW8 is the photographer who took the photographs of the scene of offence and the dead body as per Exs. P3 and P4; PWs 9, 10 and 11 are the neighbours who rushed to the spot immediately after the incident; however, all these witnesses have turned hostile to the case of the prosecution; PW12 is the witness for inquest panchanama-Ex. P8; PWs 13, 14 and 15 are the police constables who participated during the course of investigation at different levels; PW16 is the Engineer who drew the sketch of the scene of offence as per Ex. P9. It is relevant to note that the sketch was prepared after 27 days of the incident; PW17 is the Assistant Sub-Inspector of Police attached to Varthur Police Station during the relevant point of time; he recorded the first information as stated by PW1 in the hospital; he went to the hospital on being informed by PW19; the accused was arrested at about 4.15 a.m. i.e., immediately after lodging the first information; PW18 is a witness to the panchanama-Ex. P12, under which M.Os 6 and 7-weapons were seized; even the blood stained clothes, that were also seized under the very mahazar; however, he has turned hostile to the case of the prosecution; PW19 is another important witness to the case of the prosecution inasmuch as he reached to the scene of offence immediately on being informed by PW3. He has deposed that the two children informed him that their mother is assaulted with a knife by their father. After informing PW19, the children went to the house of PW1. PW20 is the Engineer of BESCOM; he has issued the power supply certificate as per Ex. P13, which shows that there was electricity connection to the area in question; PW21 is the witness for mahazar-Ex. P14, under which blood stained clothes were recovered; PW22 is the Doctor who conducted autopsy over the dead body; the dead body had suffered 19 injuries; out of them 18 were cut injuries; Ex. P15 is the post mortem report and Ex. P16 is the opinion in respect of the weapon used for commission of the offence; PW23 is another Doctor who examined the accused; he issued the wound certificate as per Ex. P7, which shows that the deceased had sustained one lacerated wound injury over the right little finger and bruises; he has opined that such injury is possible by use of M.Os. 6 or 7; PW24 is the Investigating Officer who completed the investigation and laid the charge sheet; PW25 is another police officer who went to Vydhehi Hospital at 4.00 a.m. and conducted part of investigation; PW26 is the Doctor, he treated the victim/injured immediately after the victim was admitted to Vydhehi Hospital; the Doctor has deposed that the deceased died about 6.20 a.m. on 26.07.2008; PW27 is the officer of Forensic Science Laboratory who issued the FSL report as per Ex. P18, she has examined M.Os 1 to 13 and gave her report.

From the aforementioned, it is amply clear that the case of the prosecution mainly rests on the evidence of the two eye-witnesses PWs 2 and 3 who are none other than the children of the accused and the deceased. Their evidence is supported by the evidence of PWs 1 and 19 who rushed to the spot on being informed by the aforementioned two children.

The incident has taken place within four walls of the house that too in the mid night intervening between 25/26.07.2008. The door was bolted from inside. Thus, there is no scope for anybody to enter the house during mid night. Undisputedly, the incident has taken place within the house inasmuch as the entire house was blood stained. Even the clothes of the children, who were sleeping with the deceased, were blood stained. The foot that was also blood stained. Keeping this in background, the evidence will have to be assessed. We have assessed the evidence on record.

PW2 is the elder of the two children; he was aged about 11 or 12 years at the time of the incident; he was studying VII Std. in a Government School; he has deposed that on the date of the incident he was sleeping along with the mother, father and PW3 within the house; after hearing the cries of his mother, he got up from deep sleep; he saw his father assaulting the deceased; the deceased tried to run away by moving towards the door and she could not run out of the house immediately since, the accused had assaulted with knife; the blow had fallen on the right side of the stomach; however, his mother was able to go out of the house and she fell down. Immediately thereafter, he rushed outside the house and informed his maternal uncle (PW1). He has deposed that he does not know as to how the galata took place between his mother and father and his father was wearing a panche on that day and it was also blood stained. Such panche was marked as M.O. No. 10. He has also identified the knife-M.Os 6 and 7.

He was subjected to cross-examination by the defence. In his cross-examination, he has stated that he was studying VII Std. as on the date of the deposition; even when the incident had taken place he was studying in VII Std. in a Government School. He admits that his uncle pays his school fees and looks after him and PW3 very well; that PWs 2 and 3 go to school along with their maternal uncle; both these children listen to the words of their maternal uncle fully inasmuch as they have great respect to their uncle and grand mother. He further admits that his parents and his younger brother and himself used to go to market and purchase clothes and other articles. His mother and father were living cordially and amicably and they were also talking cordially with PWs 2 and 3.

The specific suggestions are made by the defence to the effect that PWs 2 and 3 were not there in the house when the incident had taken place and such suggestions are denied emphatically. In the cross-examination, he has reiterated that immediately after the incident, he went out of the house and informed the police as well as his uncle who came to the spot immediately. It is admitted by him that the distance between the house of the deceased and the house of the maternal uncle can be covered by one minute walk; his mother and father were running the hotels separately. It is also admitted by him that the accused was very much present on the spot when PW1 and the police came to the spot.

On reading the entire deposition of PW2, we are of the clear opinion that the said version is untainted and untutored. A specific question is asked to him as to whether he is deposing as taught by PW1 and his family members, but such suggestion is denied by him.

The version of PW2 is fully supported by the version of PW3, the younger brother of PW2. He was aged about 9 to 10 years at the time of the incident and he was studying V. Std. The version of PW3 is almost on par with the version of PW2. He has also withstood in the cross-examination. He has narrated as to how the incident has taken place by specifically deposing that his father assaulted his mother with a knife repeatedly during night and after hearing the cries, PWs 2 and 3 got up and came out of the house; he has also deposed that his mother came out of the house inasmuch as she could not tolerate the pain caused by the injuries sustained and fell down near the gate. In the cross-examination, he has reiterated that his father assaulted his mother with a knife. A number of suggestions are put by the defence to this witness in order to elicit that the version of the child witness is a tutored one, but all such suggestions are turned down by PW3. It is also admitted by him that his parents were living amicably and they were looking after PWs 2 and 3 properly. It is specified by him in the cross-examination that it was not a pitch dark but there was light outside the house; the police came by walk on being informed by PW3. At that point of time there were only 2 to 3 police constables who were on night duty. He admits that he was informed to give evidence neatly.

While evaluating the evidence of PWs 2 and 3 who are conscious of the legal position that the evidence of the child witness must be evaluated more carefully and with greater circumspection because the child is susceptible to be swayed away by what others tell him and thus the child witness is an easy prey for tutoring. We are also conscious about the legal position that the evidence of the child witness must find adequate corroboration before it is relied upon. However, it is well settled that it is more a rule of practical wisdom than of law. We have subjected the evidence of the child witnesses to close scrutiny to rule out the possibility of tutoring. We find that both the child witnesses have sufficient intelligence and understanding of the obligation to state truth. Despite the same, we find that other evidence on record provides adequate corroboration to the version of the child witnesses.

We find that the evidence of these two child witnesses is consistent, cogent and reliable. Their evidence is absolutely untainted. There is nothing on record to show that they are tutored by anybody. Their version only supports the case of the prosecution. These two witnesses were the only two persons present apart from the accused and the deceased at the time of the incident. Their clothes were also blood stained. Thus, their presence on the scene of offence cannot be ruled out. There is no reason as to why they should tell falsehood against their father if really their father is innocent. Though we find that the evidence of these two witnesses cannot be said to be tutored one, we hasten to add here itself that, as aforementioned, their version finds corroboration from other evidence on record.

The evidence of these two child witnesses is supported by the evidence of PWs 1 and 19. PW1 is none other than the brother-in-law of the accused and elder brother of the deceased. His house is nearby the house of the accused and the deceased. He was informed by PWs 2 and 3 immediately after the incident and he rushed to the spot immediately and saw his sister who had fallen on the ground with bleeding injuries. By that time, the police were also informed by PWs 2 and 3 and such police were on night duty. The police also came to the spot. The police as well as PW1 shifted the injured to hospital for treatment. Thereafter, the first information came to be recorded in the hospital as spoken to by PW1. PW1 in his evidence has deposed that the accused was very much present on the spot when he reached the spot; he saw the injured with bleeding injuries; he was informed by PWs 2 and 3 as to the incident in question; the version as spoken to by PWs 2 and 3 before him is reiterated by him before the Court. At the time of admission of the victim to the hospital, the history is recorded by the Doctor to the effect that the victim sustained bleeding injuries because of the assault by her husband. It is relevant to note that the injured was admitted to the hospital immediately after the incident i.e., at 2.00 a.m. on 26.07.2008, which means the victim was admitted to Vydhehi Hospital within 45 minutes of the incident in question and the history as aforementioned is recorded.

It is also relevant to note that the accused was apprehended on the spot. His blood stained lungi is seized and the same is marked as M.O. No. 10. Apart from seizing the blood stained lungi of the accused, the blood stained clothes of the children, the deceased and the blood stained that and knife were seized from the spot. All these materials were sent for examination to the Forensic Science Laboratory. PW27 has examined all the material objects i.e., M.O. Nos. 1 to 13 and has issued a report as per Ex. P18. The Forensic Science Laboratory report emphatically discloses that except item No. 9 all other items were stained with human blood with Group ''A''. The clothes of the accused, the clothes of the deceased, the clothes of the children and the blood on the weapon are of ''A'' Group. Therefore, it is clear that the lungi of the accused was stained with blood of the deceased, which was having ''A'' Group. Even otherwise, we may mention here itself that accused in his statement recorded under Section 313 of Code of Criminal Procedure has admitted his presence on the spot. However, according to him, his blood group is also ''A''. Be that as it may, it is clear from the aforementioned material that the accused was very much present on the spot and his lungi was stained with blood of ''A'' Group. This material also fully supports the case of the prosecution as well as corroborates the versions of the child witnesses.

The versions of PWs 2 and 3 is further supported by the version of PW19 who is the Assistant Sub-Inspector of Police who came to the spot on being informed by PWs 2 and 3. He has also deposed that he was on Nakabandhi duty during the night. The Police Constable-Muniyappa was with him at 1.00 a.m. the two children were weeping and came near Nakabandhi. The two children told him that their father assaulted their mother with a knife and caused bleeding injury. The two children sought for help and among them, one child went further by saying that he will bring his uncle Shankar (PW1). Immediately thereafter, PW19 rushed to the spot and saw the injured with pool of blood. Immediately thereafter, he intimated the Hoysala Police who came to the spot with the police jeep. He found the accused near the bush. He identified such person as the accused who was the father of the children. Thereafter, the victim was shifted to the hospital. This version of PW19 fully supports the version of the child witnesses.

From the aforementioned, it is clear that the version of the children is not tutored; the two child witnesses have sufficient intelligence and understanding of an obligation to state truth before the Court. Since, the children are susceptible to be swayed away by what others tell them and as the child witnesses are easy prey for tutoring, we have evaluated their evidence more carefully and with greater circumspection. We have subjected their evidence with close scrutiny to rule out the possibility of tutoring. On evaluation of the entire material on record, more particularly, the versions of the child witnesses, we are of the clear opinion that their version is untainted and blemishless. They have withstood in their cross-examination boldly before the Court by deposing against their own father. Their evidence is highly reliable and truthful. Their version is corroborated by other evidence on record, which we have already discussed in the aforementioned paragraphs. Therefore, their version is accepted without any hesitation.

We also find that that the trial Court has assigned valid reasons for coming to the conclusion. The reasons assigned and the conclusion arrived at by the Court below are just and proper. Even on re-appreciation of the material on record, we do not find any ground to disagree with the conclusion reached by the trial Court. Hence, no interference is called for. Appeal fails and the same stands dismissed.