Supreme Court of India
MALLAPPA SIDDAPPA ALAKANUR & ORS.versusSTATE OF KARNATAKA
- Citation
- 2009 INSC 870
- Decided
- 7 July 2009
- Disposal
- Dismissed
- Bench
- V S SIRPURKAR
Holding
The High Court correctly set aside the trial court’s acquittal and upheld the convictions, as the trial court’s appreciation of evidence was unreasonable and the child witness’s testimony was credible.
Summary
The appellants were acquitted by the Sessions Court for murder and related offences under IPC ss. 148, 302, 504 r/w 149. The High Court set aside the acquittal, convicting four of the accused based on the testimony of a child witness (PW‑7) and other corroborative evidence, despite the trial court’s doubts about the witness’s credibility, delay in recording his statement, and inconsistencies with medical findings. The Supreme Court examined whether a High Court can re‑appreciate evidence in an appeal against acquittal and whether the child’s testimony, supported by other witnesses and forensic evidence, was reliable. It held that the High Court has full power to overturn an acquittal when the trial court’s appreciation is unreasonable or perverse, and that the doubts raised by the trial court were not real or tangible. Consequently, the convictions were upheld and the appeal dismissed.
Issues considered
- The scope of a High Court’s power to re‑appreciate evidence and set aside an acquittal in an appeal against acquittal.
- Whether the testimony of a child witness, recorded with a delay, can be considered reliable despite minor contradictions and discrepancies with medical evidence.
- Whether the declaration of a witness as hostile (PW‑5) invalidates his evidence.
- The effect of inconsistencies between ocular evidence and post‑mortem findings on the existence of reasonable doubt.
Legislation cited
- Code of Criminal Procedure, 1973s. 161
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 504
Subjects
appeal against acquittalre‑appreciation of evidencechild witnessreasonable doubtpresumption of innocenceIPC sections 148, 302, 504, 149hostile witnessmedical versus ocular evidence
Judgment
[2009] 10 S.C.R. 196
A MALLAPPA SIDDAPPA ALAKANUR & ORS.
V.
STATE OF KARNATAKA
(Criminal Appeal No. 1055 of 2002)
JULY 7, 2009
B
[V.S. SIRPURKAR AND R.M. LODHA, JJ.]
Penal Code, 1860 - ss. 302, 504, 148 rlw s, 149 -
Prosecution under - Of six persons - Eye-witnesses to the
C incident a child - One ef the witness, who was told about the
incident by the child witness, declared hostile - Other witness
see1n the accused running away with the blood-stained
weapons of offence - Acquittal of all the accused by trial court
- Conviction of 4 of the accused by High Court - One of the
o convicted accused died, hence - On appeal, by the rest of
the convicted accused, Held: Conviction by High Court of the
four accused justified - Their offence proved - Appreciation
of evidence by the trial court was faulty.
Evidence - Oral evidence vis-a-vis medical evidence.
E
Criminal Law - Doubt on veracity of evidence of
witnesses - By criminal court- Held: the doubt should be
reasonable, real and tangible.
F Appeal - Appeal against acquittal - Interference with - -
scope of.
Appellants along with four accused (in all six
accused) were prosecuted u/ss. 148, 302, 504 r/w. s. 149
IPC for having killed one person. The incident was seen
G by PW-7 (a child witness), who was accompanying the
deceased. PW 5 (first informant) had reached the scene
of occurrence and seen there accused persons, and was
told about the incident by PW-7. PW-6 had seen the
H 1(;6
MALLAPPA SIDOAPPA ALAKANUR & ORS. v. 197
,,_, STATE OF KARNATAKA
..
accused persons going towards the scene of occurrence A
had also identified the blood-stained weapons of offence
and the clothes of the accused. During trial, PW5 was
declared hostile. Trial Court acquitted all the accused.
High Court convicted four of the accused. In the
meantime, one of the convicted accused died. Thus, the B
case against him abated. Hence, the present appeal by
the other accused.
Dismissing the appeal, the Court
HELD: 1.1. In an appeal against the acquittal, the High c
Court has same powers which the Trial Court has in
examining the evidence and if it comes to the conclusion
that the view taken by the trial court was unreasonable
or against the weight of evidence, it could reject the
• finding recorded by the Trial Court. In the instant case, 0
the High Court has not rejected the findings by the trial
court, merely because it could come to the other findings.
The High Court has given adequate reasons in coming
to the findings that it did. [Para 20] [214-E-F]
E
Di/a and Anr. vs. State of U.P. 2002 (7) SCC 450;
Bhagwan Singh and Ors. vs. State of M.P. 2002(4) SCC 85,
relied on.
Ramesh S/o Laxman Gawli vs. State of M.P. and Ors.
Etc. 2000 (1) SCC 243 Allarakha K. Mansuri v. State of F
Gujarat 2002 (3) SCC 57, referred to.
1.2. It is not arid can never be that the High Court is
bound by the finding of the Sessions Judge and cannot
re-appreciate the evidence. The only requirement of law G
J is that the High Court should be sufficiently mindful of
the presumption of innocence of the accused which
presumption is reiterated by the finding of acquittal
recorded by the Trial Court. The High Court, therefore,
must come to the conclusion that the finding of acquittal H
196 SUPREME COURT REPORTS [2009] 10 S.C.R.
A by the trial court is totally unsustainable and further that
the1 appreciation of the evidence of the trial court tends
to be perverse and as such cannot be supported. If the
High court comes to these conclusions, then the whole
appeal is open to the High Court and the High Court is
B justified in re-appreciating the evidence and also to come
to a different finding. [Para 11] [207-8-E]
2.1. A doubt by the criminal Court should not be that
of doubting Thomas, it should be a real and tangible
C doubt. A doubt regarding the veracity of the evidence of
the witness should be a reasonable doubt and the
evidence cannot be simply brushed aside on such minor
aspects, as h~s been done by the trial court. (Para 15]
[2110-B]
D 2.2. The Trial Court started with an expression of
doubt, holding that the evidence of PW7, appears to be
unnatural. There was nothing unnatural in the evidence.
His presence at the spot was well explained. The story
that he went alongwith the deceased to take bath after
E the work at the jaggery plant, also remained unshaken
and ultimately his story as to how the attack occurred has
also remained unshaken in his cross examination. Very
strangely, trial court calls him an interested witness. His
evidence could not be rejected on that ground. If he was
F actually the cousin of the deceased, he could not change
that situation. There is neither evidence nor any
suggestion that this boy was tried to be influenced either
by his father or the relations of the deceased. The
omissions proved at Exhibits 01(A) and 01(8) are most
G insignificant and, therefore, the finding of the High court
that the evidence of this witness was credible, is
satisfactory. [Para 16] [211-C-F]
2.3. PW-7 is a star witness in this case. The witness
being a boy of 13 or 14 years, obviously got frightened
H and ran away from that spot and where he met his father
MALLAPPA SIDDAPPA ALAKANUR & ORS. v. 199
STATE OF KARNATAKA
t PW-5 and told him what had happened. This witness has A
graphically described the shirt worn by the deceased, his
towel and identified the clothes in the court. He even
identified the pant of the deceased. The waist thread of
the deceased was also identified, which was blood
'stained. He had further identified the clothes worn by A- B
3, as also the sickles used by A-1 and A-2, who committed
the murder. The shirt of A-3 (M.O. 7) and sickles used by
A-1 and A-2 (M.Os. 8 and 10 respectively) were also
identified by the witness. [Para 13] [208-A-F]
2.4. Both the circumstances ie. Presence of food in C
the stomach of the deceased, as well as late recording
... of statement of PW 7, are most insignificant
circumstances and the High Court has correctly rejected
the same. Insofar as the medical aspect about the food
is concerned, the High Court has considered the same D
while considering the medica1 aspect. The High Court
has also considered the criticism that the number of
injuries on the body of the deceased did not tally with the
account given by this witness. [Para 14] [209-C-D]
E
Masjit Tato Rawoo/ vs. State of Maharashtra AIR 1971
SC 2119; Shivaji Sahebrao vs. State of Maharashtra AIR
... . \ 1973 SC 2622; P. Venkaiah vs. State of A.P. AIR 1985 SC
1715, referred to .
2.5. The High Court has discussed the number of F
injuries which did not tally with the eye-witness' account,
holding that it may be that the witness might not have
seen the other injuries being inflicted and further in a
· conflict between the ocular evidence and the medical
evidence, if the testimony is acceptable, trustworthy and G
reliable, the same should be preferred to the medical
evidence. The approach of the High Court on these
aspects was absolutely correct and the Trial Court was
. totally wrong in recording the finding of acquittal on such
H
200 SUPREME COURT REPORTS [2009] 10 S.C.R.
A insignificant circumstances. [Para 15) [209-G-H; 210-A-B]
2.6. The delay in recording the statement of PW-7, ii;
undoubtedly a circumstance which has to be taken Into
consideration, but at the :;ame time, the courts must be
reasonable in thi$ a~pect ah>o and should see as to .
8
whether the late recording of the statement in the dead
of the night of a tender aged boy of 13 was possible and
feasib'le. T~e further thing which has to be considered is
as to whether such delay has affected his testimony or
whether there was any real apprehension of the boy
C being influenced by any other person or the police. In the
absence of any such possibility, the evidence of the boy
could not be thrown out, more particularly, when the boy •
had faced the ordeal of the cross-examination in a very
efficient manner. The usual police apathy to record
D_ statements in the late hours can also be another factor
to be considered. [Para 15) [210-D-G]
3.1. PW-5 was declared hostile because he refused
to state that he had seen the murder and stuck to the
E story that he was told by his son about it. During his
evidence, he had stated that the accused persons had
already assaulted and murdered the deceased befo~e he
and his son reached the spot. He had also very
specifically stated that he had not seen the accused •
F persons cutting the neck of the deceased. This was no
reason to declare him hostile. It may be that during his
narration, the person taking down the report may have
committed this mistake. That, however, will not be fatal
to his evidence. In his cross-examination, he reiterated
that he had stated that his son had seen the whole
G
incident. [Para 17) [211-G-H; 212-A-D] ... .
3.2. It is clear that PW 5 has referred and
corroborated the testimony of PW-7. The witness was
truthful and his evidence should not have been rejected
•
H
MALLAPPA SIDDAPPA ALAKANUR & ORS. v. 201
STATE OF KARNATAKA
, j-
by the trial court for such small and insignificant thing. A
. He is a villager and there is every possibility of the
person who took down the report on his dictation,
committing the mistake. Otherwise, the evidence of this
witness has remal:ned 1.1nshqken. [Para 17] [212-E-G]
' B
3.3 The High Court has correctly appreciated the
evidence and in recording a findin~ tha~ there was no
opportunity to this witness to concoct any fal!)e case, n9
error is committed. This witness was not treated as
hostile, on the oth~r hand only a permission to cross- C
examine him was sought. Even if he was declared to be
'hostile, the law is now clear that that by itself does not
L·- ~ash out his evidence. It is not correct to say that the
high Court has not considered the evidence in a fair and
correct manner. On the other hand, all the points argued
before this court seem to have been considered by the D
High Court with great care. [Para 17] [213-B-D]
4. PW-6 had seen the accused persons running away
with the sickles and the clothes of A-1 to A-4 being blood
stained. He had also identified the blood stained weapons E
r and the clothes. There is nothing unnatural in the
t evidence of this witness. [Para 18] [213-E]
i
l...: \ 5. The medical evidence of the doctor who had
conducted tile Post mortem had taken the ten injuries
suffered by)he deceased. It was said that the eye-witness
F
PW-7 had' not described the assault, so that it could
suggest causing ten injuries. A fact cannot be forgotten
that here was a witness of the tender age and he was not
expected to explain each and every injury. He has
deposed about the participation of A-1 and A-2 and the G
. crucial part played by A-3 and A-4. The cross-
examination of the Doctor is absolutely perfunctory. [Para
19] [213-F-H]
6. The evidence of Investigating Officer supports the H
202 SUPREME COURT REPORTS [2009] 10 S.C.R.
A evidence of PWs 1 and 2, who are the panch witnesses.
PW-2 has proved the discovery at the hands of A-1,. who
is dead, as also the discovery made by A-4. In, his
evidence, the Investigating Officer has also said aboutthe
articles being sent to the Chemical Examiner and had
8 also referred to the queries seeking the opinion of the
Doctor as to whether the external injuries could be
caused by the weapons seized by him. Lastly, the other
Investigating Officer PW-18 also suggested that he had' •
arrested A-1 and A-2, apart from the fact that he had
c referred to the various panchanamas including the
seizure panchanama of the blood stained clothes etc.
-
There is nothing in the cross-examination of this
Investigating Officer either. The offence was completely
and totally proved as against the four accused persons.
This was a case, where the appreciation of the evidence
D
at the hand of the Trial court was erroneous and faulty
and that by the High Court was correct. (Para 19) [214-A-
DJ
Case Law Reference:
E
2000 (1) sec 243 Referred to. Para 12
2002 (3) sec 57 Referred to. Para 12
AIR 1971 SC 2119 Referred to. Para 14
F AIR 1973 SC 2622 Referred to. Para 14
AIR 1985 SC 1715 Referred to. Para 14
2002 (7) sec 450 Relied on. Para 20
G 2002(4) sec 85 Relied on. Para 20
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal '-
No. 1055 of 2002.
From the Judgment & Order dated 19.07.2002 of the High
H Court of Karnataka at Bangalore in Criminal Appeal No. 823 '
MALLAPPA SIDDAPPA ALAKANUR & ORS. v. 203
STATE OF KARNATAKA
r of 1997. A
• A.T.M. Rangaramanujam, Rakesh K. Sharma and S.K.
Pasi (SCLSC) for the Appellants.
Anil Mishra, Aditya Jain and Sanjay R. Hegde for the
Respondents. B
The Judgment of the Court was delivered by
V.S. SIRPURKAR, J. 1. Three appellants who were
original accused Nos. 2, 3 and 4 have come up against the
conviction for the offences under Section 302 read with Section
c
149, Indian Penal Code. They were acquitted by the Sessions
...., Judge. However, the High Court allowed the appeal against
their acquittal. As many as six accused persons were tried
before the Principal Sessions Judge, Bijapur on the basis of
the charge-sheet filed by the police on the allegation that on
0
22.06.1996 at about 5 p.m. they were the members· of unlawful·
assembly in prosecution of the common object thereof and
committed murder of one Malakari Sidda S/o Kariyappa
Alakanur. They were also named in the charge-sheet for the
offences under Sections 148, 302, 504 read with 149, IPC. E
2. The First Information Report was given by one Ningappa
Mudakappa Kamari complaining therein that the complainant's
\
lo., sister's liusband was involved in a murder case and was in jail.
The complainant had put up a hut in the land of Kariyappa F
Alakanur situated at Yaragatti and started cultivating it. It was
further alleged that Kariyappa had three sons and the eldest
was Malakari Sidda. The father of Kariyappa was involved in
the murder of one Maruti Alakanur and on this account the
accused persons who were the relatives of the said Maruti G
nurtured a grudge against Kariyappa Alakanur. It is stated that
J on 22.06.1996 the deceased and the son of complainant were
rattending to the work of preparing jaggery from sugarcane.
When the work was over, his son Mahadev Ningappa Kamari
and deceased Malakari Sidda went to have a bath in the canal
H
204 SUPREME COURT REPORTS (2009] 10 S.C.R.
A by the side of the land of Dattapant Kulkarni. Since they did
not return early the complainant went towards the said canal
and saw all the accused persons near the canal who were •-
armed with various weapons. They lifted the said Malakari
Sidda and carried him for some distance and committed his
B murder. This was seen by his son Mf'hadev and he being a
friend ran towards their garden hut and, thereafter, this witness
came on a bicycle along with Arjun lshwar Honamore and
Sanjeev Mahadev Honamore. He also mentioned that the
ar;cused persons had gone away along with blood stained
c sickles in their hands towards Yaragatti village. He had found
that Malakari Sidda was dead and his head was almost
completely severed from the trunk. The police reached the spot
and found the body and conducted the necessary investigation.
The dead body was sent for post-mortem where 10 serious
wounds were found in it. The weapons were seized from the
--
D
accused they being M.Os. 8 and 10. On the basis of the
investigation the charge-sheet followed and the accused
persons were charged as aforesaid.
3. At the stage of evidence, the complainant turned hostile.
E However, his son Mahadev Ningappa Kamari, PW-7 stood
firmly and deposed against the accused, though he was about
13-14 years old. PWs-5 and 6 were also examined in support
F
of the prosecution. The Sessions Judge accepted the evidence
of PW-5, the complainant, in part. However, commented that
the evidence of PW-7 who was the star witness, was unnatural.
I
..
,
The Trial Court commented that his evidence did not match with
the medical evidence regarding the time of death of the
deceased as according to this witness the deceased had not
eaten anything during the day. However, the reminiscences of
G food were found which suggested that his time of death would
be about 11 O'clock or 12 O' clock in the noon and not at 5
p.m. as deposed by the witness. Again the learned Sessions
Judge also found favour with the fact that though this witness
was available on the night when police visited the spot, his
H statement was not recorded under Section 161 Cr. P.C. The
-
MALLAPPA SIDDAPPA ALAKANUR & ORS. v. 205
STAIE'. OF KARNATAKA [V.S. SiRPURKAR, J.]
-- .
Sessions Judge also found that there were material
contradictions in the evidence of this Witness and his father PW-
A
5. Insofar as PW-6, Ningappa is concerned, he had seen the
accused persons proceeding towards the garden land at about
4:30 p.m. and at that time the accused having blood stained
sickles in their hands and the sickles of the accused were also B
blood stained.
4. The Sessions Judge discussed the evidence of
Siddappa, PW-2 who was a panch witness of the seizure of
the blood stained clothes of the accused persons as also on
the discovery effected by the accused No. 2 in pursuance
c
whereof the sickle was recovered on the basis of the
information given by the accused No.2. The Sessions Judge
. ' also discussed the evidence of PWs-3 and 4, Arjuna lswhara
and Muttappa respectively, who had turned hostile. After
discussing the evidence of the investigating officers the D
Sessions Judge came to the conclusion that the prosecution
had failed to prove the evidence and, therefore, awarded the
benefit of doubt to all the accused persons.
5. In appeal against the acquittal filed by State of E
Karnataka against all six accused persons, the High Court
allowed the same only in case of A-1, A-2, A-3 and A-4,
namely, Pradhani Siddappa Alakanur, Mallappa Siddappa
\
Alakanur, Dundappa Yamanappa Kabbur and Siddappa
Yamanappa Kabbur, respectively. F
6. Since A-1 Pradhani Siddappa Alakanur died during the
criminal proceedings before the High Court this appeal abated
against him. The present appeal, therefore, has been filed only
by A-2, Mallappa Siddappa Alakanur, A-3, Dundappa
Yamanappa Kabbur and A-4, Siddappa Yamanappa Kabbur. G
We are, therefore, concerned only with these three accused.
J
7. The learned senior counsel appearing on behalf of the
appellants severally criticized the approach adopted by the
High Court in setting aside the acquittal recorded by the H
206 SUPREME COURT REPORTS [2009] 10 S.C.R.
A Sessions Judge. In that, the learned senior counsel claimed that
the High Court had·completely ignored the principles laid down
by this Court while dealing with appeal against acquittal. It was
then pointed out by the learned senior counsel that though the
High Court had power to re-appreciate the evidence in appeal
-
B against acquittal, in this par.ic Jlar case the High Court, while
appreciating the evidence of tne child witness and the other
witnesses was not alive to the fact that the demeanour of the
witnesses was seen by the Trial court which had chosen to
disbelieve the witnesses. It was suggested that the evidence
..
c of PW-5 was of no use because he was declared hostile and
the evidence of PW-7 was that of a child Witness who could
be influenced by the prosecution. Further, it was suggested that
the High Court had not given any explanation for the inherent
weakness of a child's testimony and even on merits the
evidence of PW-7 could not be accepted. It was pointed out
D
that the fact that, though available, the statement of this witness
was not recorded immediately, was left unconsidered by the
High Court. Further, the discrepancy of medical evidence with
the prosecution case was also ignored by the High Court.
E 8. Lastly, almost a desperate argument was made that
even if the prosecution evidence could be believed, accused
...
Nos. 3 and 4 deserved to be treated differently than accused ,__
No.2 as they could not be said to have any intention to commit
murder of the deceased. I
F
9. As against this, the learned counsel for the State refuted
the arguments and pressed into service a few reported
decisions suggesting that even in an appeal against acquittal,
the High Court's power to re-appreciate the evidence and to
come to the conclusion independently of the judgment of the
G
acquittal remained undeterred. The State counsel has
supported the judgment and criticized the judgment of the
Sessions Judge that the appreciation of evidence by the Trial
court was not only perfunctory but whole approach was perverse
and, therefore, the High Court had rightly set aside the said
H
MALLAPPA SIDDAPPA ALAKANUR & ORS. v. 207
STATE OF KARNATAKA [V.S. SIRPURKAR, J.]
judgment. A
10. On these conflicting claims we have to decide as to
whether the High Court was right in upsetting the finding of
acquittal reached by the Trial Court 'and convicting the three
appellants herein.
B
11. The course to be taken by the High Court in dealing
with the appeal against acquittal is now well established. It is
not and can never be that the High Court is bound by the finding
of the Sessions judge and cannot re-appreciate the evidence.
The only requirement of law is that the High Court should be C
sufficiently mindful of the presumption of innocence of the
accused which presumption is reiterated by the finding of
acquittal recorded by the Trial Court. The High Court, therefore,
must come tothe conclusion that the finding of acquittal by the
Trial court is totally unsustainable and further that the D
appreciation of the evidence of the Trial Court tends to be
perverse and as such cannot be supported. If the High court
comes to these conclusions, then the whole appeal is open to
the High Court and the High Court is justified in re-appreciating
the evidence and also to come to a different finding. E
12. The High Court, firstly, found fault with the Trial Court's
approach in rejecting the testimony of the witness on immaterial
, and unsubstantial contradictions not relating to vital and relevant
aspects. The High Court also reiterated the law laid down by F
this Court in Ramesh S/o Laxman Gawli Vs. State of M.P. &
Ors.Etc. reported in 2000 (1) SCC 243 to the effect that the
contradictions, inconsistencies, exaggerations or
embellishments, minor discrepancies or variance in the
evidence do not make the prosecution doubtful. On the other
hand they lend credibility to the prosecution version. Even as G
regards the principles of dealing with the judgment of acquittal,
the High Court relied on the judgment reported as Allarakha
K. Mansuri v. State of Gujarat [2002 (3) SCC 57] wherein this
Court has reiterated the duty to avoid miscarriage of justice
arising from acquittal of guilty. Therefore, it cannot be said that H
208 SUPREME COURT REPORTS [2009] 10 S.C.R.
A the High Court was not alive to the fact that it was dealing with
the judgment of acquittal. The high court has correctly
proceeded to consider the evidence.
13. PW-7 is a star witness in this case. He was all through
with the deceased on that fateful day, since they were working
B
together on jaggery plant. He had also, as usual, gone for taking
bath along with the deceased and when they finishe~d bath, he
suddenly found A-3 and A-4, calling the deceased and whisking
him away to the distance of about 100 yards. The third accused
. l-
held the legs of the deceased, while the fourth accused held
...
c the hands and thus, completely overpowered him and in that
state, A-1 and A-2 assaulted at the neck of the accused. The
other accused persons were provoking not to leave the
deceased. All this time, the deceased was making hue and cry,
which was most natural. The witness being a boy of 13 or 14
D years, obviously got frightened and ran away from that spot and
where he met his father PW-5 and told him what had happened.
This witness has graphically described the shirt worn by the
deceased, his towel and identified the clothes in the Court. He
even identified the pant of the deceased. The waist thread of
E the deceased was also identified, which was blood stained. He
had further identified the clothes worn by A-3, as also the
sickles used by A-1 and A-2, who committed the murder. The
green shirt of A-3 (M.O. 7) and sickles used by A-1 and A-2
(M.Os. 8 and 10 respectively) were also identified by the
F witness. He was mostly cross examined on persons present
on the spot, which was of no consequence, because the
incident did not take place at the jaggery land.
14. The major reason why this witness was disbelieved
was because of the food articles found in the stomach of the
G
deceased, which could only be if the deceased had eaten
something 3 or 4 hours before the death. From this, the Trial
Court jumped to the conclusion that the boy must have been
done to death not at 4 or 5' 0 clock in the evening as claimed
by the witness, but at about 11 or 12' 0 clock in the morning,
H
MALLAPPA SIDDAPPA ALAKANUR & ORS. v. STATE 209
OF KARNATAKA [V.S. SIRPURKAR, J.]
>·
since he had eaten his food at 8'0 clock according to PW-7. A
Now, one sentence in the cross examination that the deceased
did not take lunch in the farm land, was reiterated by the Trial
Court to hold that the whole story of PW-7 was unnatural. It was
got admitted in the cross examination that he was sitting near
the dead body of the deceased. He also reiterated that his father B
again came to the spot at about 9 p.m. alongwith PSI. However, .
he was interrogated at 12 pm next day. From this, the Sessions
Judge came to the conclusion that the boy must have been
influenced and that there was no explanation for not recording
his statement at night itself. Both the circumstances about the c
food, as well as, late recording are most insignificant
circumstances and the High Court has correctly rejected the
same. Insofar as the medical aspect about the food is
concerned, the High Court has considered the same while
considering the medical aspect. The High Court has also D
considered the criticism that the number of injuries on the body
of the deceased did not tally with the account given by this
witness. The High Court has relied on the judgment in Masjit
Tato RAwool Vs. State of Maharashtra reported in AIR 1971
SC 2119, Shivaji Sahebrao Vs. State of Maharashtra reported
E
in AIR 1973 SC 2622 and P. Venkaiah Vs. State of A.P.
reported in AIR 1985 SC 1715 and held that too much reliance
could not be placed on such slippery steps regarding the
reminiscences of food articles found iri the stomach of the
deceased. The High court has attributed that discrepancy to the
fact that PW-7 might not have noted that the deceased had F
eaten something or that being young children they had the habit
of eating something between the meals and only such
undigested food must have been found in the stomach of the
deceased.
G
15. Similarly, the High Court has discussed the number of
J. injuries which did not tally with the eye-witness' account, holding
that it may be that the witness might not have seen the other
injuries being inflicted and further in a conflict between the ocular
evidence and the medical evidence, if the testimony is H
210 SUPREME COURT REPORTS [2009] 10 S.C.R.
A acceptable, trustworthy and reliable, the same should be
preferred to the medical evidence. We feel the approach of the
High Court on these aspects was absolutely correct and the
Trial Court was totally wrong in recording the finding of acquittal
on such insignificant circumstances. A doubt by the criminal
B Court should not be that of doubting Thomas, it should be a real
and tangible doubt. A doubt regarding the veracity of the
evidence of the witness should be a reasonable doubt and the
evidence cannot be simply brushed aside on such minor ~
aspects, as has been done by the Sessions Judge. Same thing
c can be said about the other circumstance that his Statement
was not recorded on the same day. The Trial Court has led
stress on this insignificant aspect. True it is that the statement
should have been recorded in the same night, however, one
can imagine a situation of a young boy, who had seen a ghastly
murder having been committed and then his being subjected
0
to an ordeal of giving the statement in the dead of the night.
The delay in recording the Statement is undoubtedly a
circumstance which has to be taken into consideration, but at
the same time, the Courts must be reasonable in this aspect
also and should see as to whether the late recording of the
E statement in the dead of the nig_ht of a tender aged boy of 13
was possible and feasible. The further thing which has to be
considered is as to whether such delay has affected his
testimony or whether there was any real apprehension of the
boy being influenced by any other person or the police. In the
F absence of any such possibility, the evidence of the boy could
not be thrown out, more particularly, when the boy had faced
the ordeal of the cross examination in a very efficient manner.
The usual police apathy to record statements in the late hours
can also be another factor to be considered.
G
16. We have, ourselves, seen the cross examination and
very strangely, the witness was asked the questions about the
actual assaults in his cross examination, thereby actually
admitting his presence at the spot. He explained in his cross
H examination that A-3 and A-4 attacked the boy and threw him
MALLAPPA SIOOAPPA ALAKANUR & ORS. v. 211
STATE OF KARNATAKA [VS. SIRPURKAR, J.]
""""""
( .>- down on the ground and he identified the accused even at that A
time. His not shouting can 2lso be explained that he was feeling
extremely apprehensive on account of such dastardly attack on
the deceased, who was his friend. Graphic description as to
how the attack was made by A-1 and A-2 with the help of A-3
and A-4 has come in para 7, in his cross examination. The B
omissions brought out in para 9 are also of miniscule nature.
His story that A-3 and A-4 whisked away the deceased and
.. thereafter, overpowered him and A-1 and A-2 committed the
dastardly attack on the helpless boy, however remained
unshaken throughout the cross examination. The reasons given
by the Sessions Judge to reject the evidence appear to be non-
c
existent. In fact, the Trial Court started with an expression of
doubt, holding that the evidence appears to be unnatural. There
was nothing unnatural in the evidence. His presence at the spot
was well explained. The story that he went alongwith the
~
deceased to take bath after the work at the jaggery plant, also D
remained unshaken and ultimately his story as to how the attack
occurred has also remained unshaken in his cross examination.
Very strangely, the Sessions Judge calls him an interested
witness. In our opinion, his evidence could not be rejected on
that ground. If he was actually the cousin of the deceased, he E
coul~ not change that situation. There is neither evidence nor
any suggestion that this boy was tried to be influenced either
by his father or the relations of the deceased. We have already
" stated that the omissions proved at Exhibits 01 (A) and 01 (B)
are most insignificant and, therefore, we are quite satisfied with F
the finding of the High court that the evidence of this witness
was credible. I
17. The High Court has then discussed the evidence of
PW-5, the father of PW-7. We completely fail to understand as G
to why PW-5 was declared hostile. He was perhaps declared
> hostile because he refused to state that he had seen the murder
and stuck to the story that he was told by his son about it. In
his evidence, he reiterated that his son, i.e., PW-7 and the
deceased left for taking the bath after the completion of work
H
212 SUPREME COURT REPORTS [2009] 10 S.C.R.
A as per their practice and since they did not turn up for a long ~
time, he went and saw that nis son was running at a distance
of 150-250 ft. from the said chamber. He had stated that he
had not seen the accused persons cutting the neck, however,
he rad actually seen all the accused persons, who ran away
8 towards the Yaragatti. Great stress was led on the fact that in
Exhibit P-8 FIR, he had stated that when he went near the land,
the six accused persons attacked the boy and committed his
murder. During his evidence, however, he had stated that the
accused persons had already assaulted and murdered the
C deceased before he and his son reached the spot. He had also
very specifically stated that he had not seen the accused
persons cutting the neck of the deceased In our opinion, this
was no reason to declare him hostile. It may be tr.at during his
narration, the person taking down the report may have
committed this mistake That, however, will not bP. fatal to his
D evidence. In his cross examination, he reiterated that he had
stated that his son had seen the whole incident One very
significant sentence in Exhibit P-8 is missed by the Trial Court.
That sentence is:-
E "seei~g this situation, my son Mahadev apprehended and
ran towards our crushing house and immediately I made
hue and cry."
Therefore, it is clear that the witness has referred and
F corroborated the testimony of PW-7 that he ran towards his
father and thereafter, the father and son. PW-5 and PW-7
respectively, went towards the spot, where the deceased was
lying, and at that time, the accused persons fled away from the
spot. In our opinion, the witness was truthful and his evidence
should not have been rejected by the Trial Court for such small
G and insignificant thing. After all, he is a villager and there is
every possibility of the person who took down th1~ report on his
dictation, committing the mistake. Otherwise, the evidence of
this witness has remained unshaken. Much was said of the fact
that in para 8 of his evidence, he said that his son was near
H
MALLAPFA SIDDAPPA ALAKANUR & ORS. v. 213
STATE OF KARNATAKA [V.S. SIRPURKAR, J.]
~- the dead body and on that day, the police interrogated his son A
Mahadev at night. whereas PW-7 had said that his submission
was recorded on the next day at 12' 0 clock. Both the things
can be true. It may be that though PW-7 was interrogated at
night, his statement came to be recorded on the next day. We
do not find any such discrepancy, so as to reject the evidence B
of both. The other omissions brought in the cross examinatio~
-of this witness are wholly insignificant. In our opinion, the High
Court has correctly appreciated the evidence and in recording
a finding that there was no opportunity to this witness to concoct
any false case, no error is committed. We must note that this c
witness was not treated as hostile, on the other hand only a
permission to cross-examine him was sought. Even if he was
declared to be hostile, the law is now clear that that by itself
does not wash out his evidence. It is not correct to say that the
high Court has not considered the evidence in a fair and correct
D
' manner. On the other hand, all the points argued before us
seem to have been considered by the High Court with great
care.
18. Similar thing has happened about the evidence of PW-
6. He was the one, who had seen the accused persons running E
away with the sickles and the clothes of A-1 to A-4 being blood
stained. He had alsa\identified the blood stained weapons and
the clothes. We do not find anything unnatural in the evidence
" of this witness.
F
19. We have see~ the medical evidence of Dr. Shobha
PW-15, who had condu.cted the Post mortem and had taken
the ten injuries suffered by the deceased. Much was said that
the eye-witness PW-7 had not described the assault, so that it
could suggest causing ten injuries. A fact cannot be forgotten G
that here was a witness ·of the tender age and he was not
expected to explain each ~nd every injury. He has deposed
about the participation of '-A-1 and A-2 and the crucial part
played by A-3 and A-4. The cross examination of the Doctor
is absolutely perfunctory. ThEi evidence of Investigating Officer
H
214 SUPREME COURT REPORTS [2009] 10 S.C.R.
A supports the evidence of PWs 1 and 2, who are the panch
witnesses. PW-2 has proved the discovery at the hands of A-
1, who is dead, as also the discovery made by A-4. In his
evidence, the Investigating Officer has also said about the
articles being sent to the Chemical Examiner at Bangalore and
B had also referred to the queries seeking the opinion of the
Doctor as to whether the external injuries could be caused by
the aforementioned weapons seized by him. Lastly, the other
Investigating officer PW-18 Gurrapagouda also suggested that •
he had arrested the A-1 and A-2, apart from the fact that he
c had referred to the various panchanamas including the seizure
panchanama of the blood stained clothes etc. There is nothing
in the cross examination of this Investigating Officer either.
Therefore, we ourselves are satisfied that the offence was
completely and totally proved as against the four accused
persons. We are fully satisfied that this was a case, where the
0
appreciation of the evidence at the hand of the Trial court was
erroneous and faulty and that by the High Court was correct.
20. We need not reiterate on the case law in Di/a & Anr.
Vs. State of UP. reported in 2002 (7) SCC 450. The three
E Judge Bench of this Court has held that in an appeal against
the acquittal, the High Court has same powers which the Trial
Court has in examining the evidence and if it comes to the
conclusion that the view taken by the Trial Court was
unreasonable or against the weight of evidence, it could reject
F the finding recorded by the Trial Court. In this case, the High
Court has not rejected the findings by the Sessions Court,
merely because it could come to the other findings. The High
Court has given adequate reasons in coming to the findings
that it did. The two Judge Bench of this Court in Bhagwan
G Singh & Ors. Vs. State of M.P. reported in 2002(4) SCC 85
has held that the paramount consideration of the Court is to
ensure that miscarriage of justice is avoided.
21. We are, therefore, convinced that the High Court has
H acted correctly in setting aside the judgment. The Learned
MALLAPPA SIDDAPPA ALAKANUR & ORS. v. 215
- STATE OF KARNATAKA [V.S. SIRPURKAR, J.]
Senior Counsel Shri Rangaramanujam, appearing on behalf of - A
the appellants, however, by way of his last submission reiterated
that the case of A-3
. and A-4 is different from the case. of A-1
and A-2. We do not think so. In fact, A-3 and A-4 have played
a very major roleljn the whole affair. They were the one, who
started the assault1on the poor boy, nobbed him down, carried B
him away and overpowered him. Therefore, there may not be
any dispute about the role played by them. They are equally
guilty as A-1 and A-2. In short, there is no merit in this appeal
and it is dismissed accordingly.
K.K.T. Appeal dismissed.
c
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