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Reportabl e

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL  NO. 1366  OF 2007

Shivasharanappa and others ...  Appellants

Versus

State of Karnataka                  ..Respondent

With

CRIMINAL APPEAL NO. 508 OF 2007

Jagadevappa and others ...  Appellants

Versus

State of Karnataka and others               ..Respondents

J U D G M E N T

Dipak Misra, J.

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The  two  appeals  have  been  preferred  by  the  

accused- appellants against the common judgment dated  

28.10.2005 in Criminal Appeal No. 937/1999 by the High  

Court  of  Karnataka  at  Bangalore  whereby  the  Division  

Bench  has overturned the judgment of acquittal passed  

by the learned Ist Addl. Sessions Judge, Gulbarga, in S.C.  

No.  100/1995 acquitting all  the  accused persons  of  the  

offences under Sections 143, 147, 448, 302, 201 read with  

Section 149 of the Indian Penal Code (for short ‘IPC’) and  

convicted the accused-appellants for the said offences. For  

the  offence  punishable  under  Section  302  read  with  

Section  149  of  IPC,  each  of  them  was  sentenced  to  

undergo  imprisonment  for  life,   and  to  pay  a  fine  of  

Rs.5,000/-,  in  default  of  payment  of  fine,  to  undergo  

rigorous imprisonment for a period of one year. In respect  

of other offences, no separate sentence was imposed by  

the High Court.  

2. Sans  unnecessary  details,  the  prosecution  case  is  

that the deceased, Karemma, was the wife of Mallinath,  

son  of  Ningawwa.   After  the  unfortunate  demise  of  

Mallinath, dispute arose between Ningawwa, the mother-

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in-law of the deceased, and deceased Karemma, relating  

to  certain  landed  property,  which  initially  stood  in  the  

name  of  Mallinath,  and  subsequently,  the  entries  were  

made  in  name  of  deceased  Karemma  as  she  was  in  

possession. The dispute relating to property which is dear  

to  the  human  race  as  it  stands  in  contradistinction  to  

poverty, which is sometimes perceived as a cause of great  

calamity, eventually led, as alleged by the prosecution, to  

morbid bitterness.  In the intervening night of 12th and 13th  

June, 1994, accused- Ningawwa, along with her relatives  

formed  an  unlawful  assembly  in  front  of  the  house  of  

Shankarappa,  father of  the deceased,  with the common  

object to commit the murder and in execution of the said  

common  object,  they  trespassed  into  the  house  of  

Shankarappa  during  his  absence  where  deceased  

Karemma was sleeping with her daughter, Jagadevi.  After  

entering into  the house,  the accused persons assaulted  

the  deceased,  threatened  the  eleven  year  old  girl,  

Jagadevi,  and forcefully  took the deceased away.   After  

the mother was forcibly removed from the house, Jagadevi  

proceeded to inform her grandmother, Chandamma, who,  

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at  that  juncture,  was  residing  in  the  house  of  another  

daughter.   Being  informed  by  the  granddaughter,  

Chandamma came to the house of the deceased, searched  

for  her  daughter,  but,  eventually,  it  turned  to  be  an  

exercise in futility.   

3. As the prosecution story would further uncurtain,  

the accused persons committed murder of the deceased  

Karemma and threw her dead body in a well  situate at  

Benur village.  The dead body was found on 15.6.1994 and  

thereafter, one Dasharath, PW-10, informed the fact at the  

concerned police station.  On 16.6.1994, the Investigating  

Officer went near the well, removed the dead body of the  

deceased  from inside  the  well,  held  the  inquest  of  the  

dead body as per Ext. P-7, conducted the spot panchnama  

vide Ext Nos. 8 and 10, seized certain articles, recorded  

statements  of  certain  other  witnesses  and,  ultimately,  

about  8.00  P.M.,  registered  suo  motu  case forming the  

subject matter of Crime No. 29/94 at Nelogi Police Station.  

After  completing  the  investigation,  the  prosecution  

submitted the charge-sheet before the competent Court  

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which,  in  turn,  transmitted  the  same  to  the  Court  of  

Session for trial.   

4. The accused persons abjured their guilt on ground  

of false implication and claimed to be tried.   

5. In  course  of  trial,  the  prosecution  examined  17  

witnesses, brought on record Exts. P-1 to P-17 and M.Os. 1  

to 9.  The defence chose not to adduce any evidence, but  

got certain portion of the statements of PW-7 and PW-10  

marked  during  the  cross-examination.   During  the  

pendency of the trial, the accused Ningawwa, the mother-

in-law  of  the  deceased  expired,  as  a  consequence  of  

which, the trial abated against her.   

6. The learned trial Judge framed four principal points  

for consideration, namely, (i) whether the accused persons  

formed an unlawful assembly with the common object to  

commit the murder of Karemma; (ii) whether the accused  

persons had trespassed into the house of Shankarappa;  

(iii)  whether  the accused persons  had thrown the  dead  

body  into  the  well  situate  at  Benur  village  for  causing  

disappearance  of  the  evidence;  and  (iv)  whether  the  

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accused persons had any motive to commit the murder.  

After analyzing the evidence on record, the learned trial  

Judge  came  to  hold  that  the  death  was  homicidal  in  

nature; that from the complaint Ext. P-6 lodged by PW-10,  

Dasharath, nothing was relatable how the deceased had  

fallen  into  the  well;  that  it  was  not  safe  to  record  a  

conviction on the sole testimony of Jagadevi, PW-9, since  

there  were  number  of  circumstances  due  to  which  her  

version could not be given credence to; that the conduct  

of  Chandamma,  PW-7,  could  not  be  accepted  to  be  in  

conformity  with  the  expected  normal  human  behaviour  

and, in fact, was quite unnatural since she did not intimate  

anyone about the incident after coming to know about it  

from  her  granddaughter;  and  that  it  was  not  safe  to  

convict  the  accused  persons  for  the  offences  alleged,  

regard  being  had  to  the  totality  of  circumstances  and,  

accordingly, acquitted them of all the charges.

7. The  High  Court,  after  entertaining  the  appeal,  

opined  that  there  was  a  property  dispute  in  existence  

between the deceased and her mother-in-law; that motive  

for commission of the crime had been brought home by  

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the prosecution; that at the time of occurrence, Jagadevi,  

daughter of the deceased, was staying with the deceased;  

that the father of the deceased, Shankarappa, had left the  

village along with his son and was residing at  Sholapur  

during the relevant time of the incident; that Chandamma,  

the wife of PW-6, who had been staying in the house of  

another daughter at the relevant time was informed about  

the occurrence by PW-9; that the learned trial Judge had  

erred by discarding the testimony of PW-7 on the ground  

that she had not informed about the incident to anyone in  

the  village;  that  at  the  time  when  the  deceased  was  

removed forcibly  from the  house,  PW-7  could  not  have  

anticipated  that  the  deceased  would  be  done  to  death  

and, therefore, they kept on searching for the deceased;  

that PW-9 had the occasion to see the accused persons as  

there  was  source  of  light  which  had  been  inappositely  

disbelieved by the learned trial  Judge; that Jagadevi,  an  

eleven year old girl,  could not have raised hue and cry  

because of the threat given by the accused persons; that  

the evidence of PW-9 deserved to be given total credence  

and, hence, could safely be relied upon; that there was no  

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reason  on  the  part  of  PW-9  to  falsely  implicate  the  

accused  persons  including  her  paternal  grandmother  

Ningawwa; that the reactions of PW-7 and PW-9 should not  

have  been  regarded  as  unnatural  by  the  trial  Court  

because every person reacts to a situation in a different  

manner,  for  human  behaviour  differs  and  varies  from  

person to person depending upon the situation;  that as  

PW-7 and PW-9 were terrified of the accused persons, they  

could  not  lodge  the  complaint  against  them and  it  got  

support from the fact that only after the recovery of the  

dead body, the Investigating Officer registered a suo motu  

case; that though there had been some delay in recording  

the statements of certain witnesses by the Investigating  

Officer, yet that should not have been regarded to have  

created  a  dent  in  the  prosecution  case;  and  that  the  

appreciation and analysis of the evidence by the learned  

trial Judge was not correct and the view expressed by him  

not being a plausible one deserved to be reversed.  Being  

of  this  view,  the  High  Court  unsettled  the  judgment,  

convicted  the  accused-appellants  and  imposed  the  

sentence as has been stated hereinbefore.                        

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8. We  have  heard  Mr.  P.R.  Ramasesh,  learned  

counsel for the appellants, and Ms. Anitha Shenoy, learned  

counsel for the respondent-State.  

9. The  first  submission  of  Mr.  Ramasesh,  learned  

counsel  for  the  appellants,  is  that  the  High  Court  has  

erroneously  unsettled  the  decision  of  the  trial  court  by  

holding that the view expressed by the learned trial Judge  

is unreasonable.  It is his further submission that the High  

Court  has  reviewed  the  entire  evidence  in  an  unusual  

manner which is impermissible.  Ms. Anita Shenoy, learned  

counsel  for  the State,  would contend that  the appellate  

power of the High Court against a judgment of acquittal  

cannot be curtailed if the finding based on appreciation of  

evidence is totally perverse.  It is urged by her that the  

evidence  of  the  sole  eye  witness,  Jagadevi,  PW-9,  has  

been rightly relied upon by the High Court.

10.  At this juncture, we may refer with profit to the  

dictum in  Shivaji  Sahebrao Bobade and another v.   

State  of  Maharashtra1, wherein  a  three-Judge  Bench  

has opined thus: -

1 AIR 1973 SC 2622

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“.....there are no fetters on the plenary power of  the  Appellate  Court  to  review  the  whole  evidence  on  which  the  order  of  acquittal  is  founded and, indeed, it has a duty to scrutinise  the  probative  material  de  novo,  informed,  however,  by  the  weighty  thought  that  the  rebuttable innocence attributed to the accused  having  been  converted  into  an  acquittal  the  homage of our jurisprudence owes to individual  liberty constrains the higher court not to upset  the finding without very convincing reasons and  comprehensive consideration.”

11. Similar view has been expressed in Girija Prasad  

(dead) by LRs. v. State of M. P.2 and State of Goa v.  

Sanjay Thakran3.

12. From the aforesaid authorities,  it  is  clear as day  

that  while dealing with an appeal  against  acquittal,  the  

High  Court  has  a  duty  to  scrutinize  the  evidence  and  

sometimes it is an obligation on the part of the High Court  

to  do  so.   The  power  is  not  curtailed  by  any  of  the  

provisions of the Code of Criminal Procedure.  It  is also  

worthy to note that while reappreciating and reconsidering  

the evidence upon which the order of acquittal is based,  

certain other principles pertaining to other facets are to be  

2  (2007) 7 SCC 625  3 ( 2007) 3 SCC 755

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borne in mind.  The said aspects have been encapsuled in  

Chandrappa v. State of Karnataka4 as under: -

“(4) An appellate court, however, must  bear  in  mind that  in  case of  acquittal,  there is double presumption in favour of  the accused.  Firstly, the presumption of  innocence is available to him under the  fundamental  principle  of  criminal  jurisprudence that every person shall be  presumed to  be  innocent  unless  he  is  proved guilty  by a competent court  of  law.   Secondly,  the  accused  having  secured  his  acquittal,  the  presumption  of  his  innocence  is  further  reinforced,  reaffirmed and strengthened by the trial  court.

(5)  If  two  reasonable  conclusions  are  possible on the basis of the evidence on  record,  the  appellate  court  should  not  disturb the finding of acquittal recorded  by the trial court.”

Quite  apart  from  the  above,  the  High  Court  is  

required  to  see  that  unless  there  are  substantial  and  

compelling  circumstances,  the  order  of  acquittal  is  not  

required to be reversed in appeal.  It has been so stated in  

State of Rajasthan v. Shera Ram @ Vishnu Dutta5.

13. From  the  analysis  of  the  High  Court,  it  is  

discernible  that  it  has  not  accepted the appreciation of  

evidence made by the learned trial Judge pertaining to the  

4 (2007) 4 SCC 415 5 (2012) 1 SCC 602

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testimonies  of  PWs-7  and  9  and  has  further  based  its  

reasoning  on  the  bedrock  that  there  was  a  property  

dispute  between  the  deceased  and  her  mother-in-law  

which provided motive for commission of the crime.  The  

High Court  has  also  expressed the view that  conviction  

can be recorded on the basis of the sole testimony of a  

child witness.  It is not in dispute that PW-9, Jagadevi, was  

eleven years old at the time of the occurrence.  In Dattu  

Ramrao  Sakhare  and  others  v.  State  of  

Maharashtra6, while dealing with the reliability of witness  

who  was  ten  years  old,  this  Court  opined  that  a child  

witness,  if  found competent  to  depose to the facts  and  

reliable, such evidence could form the basis of conviction.  

The evidence of a child witness and the credibility thereof  

would depend upon the circumstances of each case. The  

only precaution which the court should bear in mind while  

assessing  the  evidence  of  a  child  witness  is  that  the  

witness  must  be  a  reliable  one  and  his/her  demeanour  

must be like any other competent witness and there is no  

likelihood  of  being  tutored.   Thereafter,  the  Court  

proceeded to lay down that there is  no rule or practice  6 (1997) 5 SCC 341

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that in every case the evidence of such a witness should  

be  corroborated  before  a  conviction  can  be  allowed  to  

stand but, as a rule of prudence, the court always finds it  

desirable to seek the corroboration to such evidence from  

other dependable evidence on record.  

14. In Panchhi and others v. State of U.P.7, it has  

been held thus: -

“Courts have laid down that evidence of a child  witness  must  find  adequate  corroboration  before  it  is  relied  on.   It  is  more  a  rule  of  practical  wisdom than of law (vide  Prakash  v.  State of M.P.8,  Baby Kandayanathil  v.  State of  Kerala9, Raja Ram Yadav v. State of Bihar10 and  Dattu Ramrao Sakhare v.  State of Maharashtra  (supra).”

15. Similar view has been expressed in State of U.P.  

v. Ashok Dixit and another11.

16. Thus, it is well settled in law that the court can rely  

upon the testimony of a child witness and it can form the  

basis of conviction if the same is credible, truthful and is  

corroborated  by  other  evidence  brought  on  record.  

Needless to say, the corroboration is not a must to record  

7 (1998) 7 SCC 177 8 (1992) 4 SCC 225 9 1993 Supp (3) SCC 667 10 (1996) 9 SCC 287 11 (2000) 3 SCC 70

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a conviction, but as a rule of prudence, the court thinks it  

desirable  to  see  the  corroboration  from  other  reliable  

evidence placed on record.  The principles that apply for  

placing  reliance  on  the  solitary  statement  of  witness,  

namely, that the statement is true and correct and is of  

quality and cannot be discarded solely on the ground of  

lack  of  corroboration,  applies  to  a  child  witness  who is  

competent and whose version is reliable.   

17. The trustworthiness of the version of PWs-7 and 9  

are to be tested on the aforesaid touchstone and it is to be  

seen  whether  the  other  circumstances  do  support  the  

prosecution  case  or  to  put  it  differently,  whether  the  

evidence  brought  on  record  proves  the  guilt  of  the  

accused  persons  beyond  reasonable  doubt.   PW-9,  the  

daughter of the deceased, has testified to have witnessed  

the  accused  appellants  being  exhorted  by  her  paternal  

grandmother,  Ningawwa,  who  had  trespassed  into  the  

house and forcibly took out her mother.  She had, as is  

reflected,  immediately  rushed  to  the  house  of  her  

maternal grandmother and disclosed it to her.  It has been  

elicited  in  the  cross-examination  that  her  maternal  

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grandmother  was  staying  with  her  another  married  

daughter and both the daughter and son-in-law were at  

home.  She did not choose it appropriate to inform them  

about the incident.  It is manifest, the grandmother, PW-7,  

came with her granddaughter, PW-9, to the house of the  

deceased and tried to search for her.  Despite the search  

becoming a Sisyphean endeavour and non effective, she  

chose to remain silent and did not inform any one.  The  

High  Court  has  accepted  the  version  of  these  two  

witnesses on two counts, namely, that the daughter was  

threatened and both of them were in state of fear.  The  

learned  trial  Judge,  on  the  contrary,  had  found  the  

aforestated  conduct  of  both  the  witnesses  to  be  highly  

unnatural.   In  Gopal  Singh  and  others v.  State  of  

Madhya  Pradesh12,  this  Court  did  not  agree  with  the  

High  Court  which  had  accepted  the  statement  of  an  

alleged  eye  witness  as  his  conduct  was  unnatural  and  

while so holding, it observed as follows: -

“We also find that the High Court has accepted  the statement of Feran Singh, PW 5 as the eye  witness of the incident ignoring the fact that his  behaviour was unnatural as he claimed to have  

12 (2010) 6 SCC 407

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rushed to the village but had still not conveyed  the  information  about  the  incident  to  his  parents  and  others  present  there  and  had  chosen to disappear for a couple of hours on the  specious and unacceptable plea that he feared  for his own safety.”

18. In  Rana  Partap  and  others v.  State  of  

Haryana13,  while  dealing  with  the  behaviour  of  the  

witnesses, this Court has opined thus: -

“Every person who witnesses a murder reacts in  his  own  way.  Some  are  stunned,  become  speechless and stand rooted to the spot. Some  become hysteric and start wailing. Some start  shouting  for  help.  Others  run  away  to  keep  themselves  as  far  removed  from the  spot  as  possible.  Yet others rush to the rescue of the  victim,  even  going  to  the  extent  of  counter- attacking the assailants. Every one reacts in his  own special way. There is no set rule of natural  reaction. To discard the evidence of a witness  on  the  ground  that  he  did  not  react  in  any  particular manner is to appreciate evidence in a  wholly unrealistic and unimaginative way.”

19. In  State  of  H.P.  v.  Mast  Ram14,  it  has  been  

stated that there is no set rule that one must react in a  

particular  way,  for  the  natural  reaction  of  man  is  

unpredictable.   Everyone  reacts  in  his  own  way  and,  

hence,  natural  human behaviour  is  difficult  to  prove by  

credible evidence.  It has to be appreciated in the context  

13 (1983) 3 SCC 327 14 (2004) 8 SCC 660

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of given facts and circumstances of the case.  Similar view  

has been reiterated in Lahu Kamlakar Patil and anr. v.  

State of Maharashtra15.

20. Thus, the behaviour of witnesses or their reactions  

would differ from situation to situation and individual to  

individual.   Expectation  of  uniformity  in  the  reaction  of  

witnesses  would  be  unrealistic  but  the  court  cannot  be  

oblivious  of  the  fact  that  even  taking  into  account  the  

unpredictability of human conduct and lack of uniformity  

in human reaction, whether in the circumstances of the  

case,  the  behaviour  is  acceptably  natural  allowing  the  

variations.  If  the behaviour is absolutely unnatural,  the  

testimony of the witness may not deserve credence and  

acceptance.  In the case at hand, PW-9 was given a threat  

when her mother was forcibly taken away but she had the  

courage to walk in the night to her grandmother who was  

in  her  mid-fifties.   After  coming  to  know  about  the  

incident,  it  defies  commonsense that  the mother  would  

not tell her other daughter and the son-in-law about the  

kidnapping of the deceased by her mother-in-law.  It  is  

15 2012 (12) SCALE 710

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interesting to note that the High Court has ascribed the  

reason that PW-7 possibly wanted to save the reputation  

of  the  deceased-daughter  and  that  is  why  she  did  not  

inform the other daughter and son-in-law.  That apart, the  

fear  factor  has  also  been  taken  into  consideration.  

Definitely,  there  would  have  been  fear  because,  as  

alleged,  the  mother-in-law  had  forcibly  taken  away  the  

deceased,  but  it  is  totally  contrary to  normal  behaviour  

that she would have maintained a sphinx-like silence and  

not inform others.  It is also worthy to note that she did  

not tell it  to anyone for almost two days and it has not  

been explained why she had thought it apt to search for  

her daughter without even informing anyone else in the  

family  or  in  the  village  or  without  going  to  the  police  

station.   In  view  of  the  obtaining  fact  situation,  in  our  

considered opinion, the learned trial Judge was absolutely  

justified  in  treating  the  conduct  of  the  said  witnesses  

unnatural and, therefore, felt that it was unsafe to convict  

the accused persons on the basis of their testimony.  It  

was  a  plausible  view  and  there  were  no  compelling  

circumstances  requiring  a  reversal  of  the  judgment  of  

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acquittal.  True it is, the powers of the appellate court in  

an appeal against acquittal are extensive and plenary in  

nature  to  review  and  reconsider  the  evidence  and  

interfere with the acquittal, but then the court should find  

an  absolute  assurance  of  the  guilt  on  the  basis  of  the  

evidence on  record  and not  that  it  can  take one  more  

possible or a different view.   

21. In view of the aforesaid premises, the appeals are  

allowed  and  the  judgment  of  conviction  passed  by  the  

High Court in Criminal Appeal No. 937 of 1999 is set aside  

and the accused-appellants are acquitted of the charges.  

As the appellants are already on bail, they be discharged  

of their bail bonds.

……………………………….J. [K. S. Radhakrishnan]

….………………………….J.                                            [Dipak Misra]

New Delhi; May 07, 2013.

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