STATE OF KARNATAKA Vs. MARUTI HANAMAPPA

JUDGEMENT

(1.) This double murder case, which ended in an order of acquittal before the trial Court, involves some unusual aspects of the law as will be presently indicated by us. The incident in question took place on 19-9-199 1 at about 4 p.m. in RS. No. 136/3 of Kanasageri Village, when it is alleged that the accused were transiting through the property belonging to the deceased. Admittedly, the accused owned some adjoining agricultural lands, and as is common in the rural areas, they were in the habit of transiting through the field belonging to the deceased which was objected to, as a result of which, considerable amount of friction had taken place in the recent past. On the day in question two minor incidents had preceded the present one and it is alleged by the prosecution that the five accused, three of whom are men and the wives of two of them, all belonging to the same family, assaulted Hussainsab and Saidusab with axes and sticks, while the two women are supposed to have instigated the men folk and also participated to a limited extent in the assault by twisting the arms and legs of the victim, The assault was a merciless one and the two victims died on the spot. P.W. 2 Thallurappa who is the son of the deceased, claims to have been present when the incident took place. He was aged 11 years at that time and her an to his uncle P.W. 1 Fakirasab and informed him about the incident after which, Fakirasab and P.W. 2 proceeded to the police station at Lokapura and informed the authorities about the incident. The police, instead of registering the complaint, accompanied P. W. 1 back to the village and after ascertaining that such an incident had taken place, proceeded back to the police station and recorded the F.LR at 7.20 p.m. on that evening. Apart from Thallurappa, the sister of the deceased who is P.W. 3, by name Thippavva, also claims to be an eye witness. The police commenced the investigation, placed A4 and AS under arrest on 21-9-199 1 and succeeded in apprehending Al to 3 on 26-9-199 1 and they also alleged that the accused were not available prior to that date. In the course of the investigation, it is contended that .two axes with blood, stains on them which on analysis were found to be human blood, were recovered at the instance of A2. On completion of the investigation, the five accused were put up on trial and the learned Sessions Judge. Bijapur at the conclusion of the trial held that the accused were entitled to an acquittal.

(2.) Briefly stated the reasoning of the learned trial Judge proceeded on the footing that the complainant P.W.1 depended heavily and entirely on the evidence of P.W. 2-Thallurappa. As far as P.W. 3-Thippavva is concerned, the learned trial Judge upheld the defence plea that even she was somewhere around that place when the incident occurred, that it was physically impossible for her to have seen the incident or the accused because, the Bandh between the fields was of a height of about 10, ft and that it was physically impossible for her to have viewed anything over this barrier. Also, the learned Judge took note of the fact that P.W. 3 Thippavva had admitted that she was in a sun-flower field at that time, where the plants were above chest high. The learned Judge concluded that the only evidence which the prosecution could rely on was perhaps that of P.W. 2 Thallurappa but that there was a serious limitation with regard to basing a conviction on this material because it would mean that the Court has convicted the accused on the strength of the uncorroborated evidence of a child witness alone. The accused were accordingly acquitted and the State of Karnataka has preferred this appeal assailing the correctness of that order.

(3.) The learned S.P.P. contended that the order of the lower Court is reversible because the basic premise on which it is based is incorrect. The learned counsel submitted that as far as a child witness is concerned that the only reason why a Court is put on guard while dealing with that evidence is because of the possibility of the child being tutored. He submitted that once the evidence has been duly scrutinised and its veracity put on test through cross examination, that if the evidence appears to be 100% reliable that it would be absolutely on par with that of a case involving a single eye witness and the age of the witness regardless that a conviction could safely be placed on this evidence. We need to mention here that the respondents learned counsel drew our attention to a recent decision of the Supreme Court reported in 1994 Cri. L.J. 56 wherein the Supreme Court had occasion to sound a note of caution with regard to the evidence of a child witness who was found to have been heavily tutored.