HAMZAversusMUHAMMADKUTTY @ MANI & ORS.

                     [2013) 10 S.C.R. 867


                            HAMZA                                 A
                               v.
             MUHAMMADKUTTY @ MANI & ORS.
            (Criminal Appeal No. 268 of 2007 etc.)
                        JUNE 20, 2013
                                                                  B
      [A.K. PATNAIK AND GYAN SUDHA MISRA, JJ.]

      Penal Code, 1860 - s.302134 - Death of woman in her
 matrimonial house by stab injury on neck - Initial prosecution
 of the family members of the in-laws of the deceased u/ss.       c
 498A and 306 /PC - Acquittal in the case - Not challenged
 further - Complaint by brother of the deceased alleging
 murder of the deceased by 6 family members of her in-laws
 - Prosecution uls. 302 and 201 rlw. s.34 /PC - Son of the
 deceased, who was 7 years of age at the time of incident,        D
 deposed as eye-witness - Trial court relying on the testimony
 of child witness, convicted 2 of the accused uls.302134 while
 acquitted other 4 accused - High Court reversed the order of
 conviction - On appeal, held: Order of High Court is not
 perverse or unreasonable so as to call for interference -        E
 Prosecution failed to prove its case beyond reasonable doubt
 - The child witness was tutored and his evidence was without
 adequate coffoboration and hence did not inspire confidence
 - Order of acquittal upheld.
                                                                  F
       Witness - Child witness - Testimony - Corroboration of -
  Held: In absence of coffoboration of oral testimony of child
  witness, his evidence cannot be relied on.

       Medical Evidence - Appreciation of - Held: Medical
   evidence cannot be considered in isolation and must be         G
.. taken in conjunction with all the circumstantial evidence on
   record - When the doctor expresses two views, the view
   favourable to the accused should be taken into account.

                              867                                 H
    868      SUPREME COURT REPORTS             (2013) 10 S.C.R.


A      Constitution of India, 1950 - Art. 136 - Appeal under -
  Against order of acquittal - Scope of - Held: If the view taken
  by High Court is reasonable or plausible one on the evidence
  on record, Supreme Court should not reverse the order of
  acquittal passed by High Court, on the ground that it had
B different view.

       The deceased in the present case, succumbed to the
  stab injuries on her neck. Initially four members of the
  family of her in-laws were prosecuted u/ss. 498A and 306
C IPC .. They were acquitted of the charges and no appeal
  was preferred against the acquitta1· order.

       After 2 years of the incident, .PW-2 (brother of the
  deceased) lodged a complaint against A-1 to A-6 alleging
  that A-1 and A-2 killed the deceased by stabbing her and
D accused Nos. 3 to 6 caused disappearance of the
  evidence of murder. The accu.sed persons were
  prosecuted u/ss.302 and 201 r/w.;.s.34 IPC. Trial court
  relying on the oral testimony of the child eye-witness
  (son of the deceased who was 7 years old at the time of
E the incident) convicted A-1 and A-2 for the offences u/s.
  302/34 IPC. However, acquitted A-3 to A-6 of the offences
  u/ss.302 and 201 r/w. s.34 IPC. HigJl Court acquitted A-1
  and A-2 (respondents) disbelieving the evidence of the
  child witness. Hence the present appeal by the
F complainant.

          Dismissing the appeal, the Court

       HELD: 1.1. The view taken by the ·High Court that A-
  1 and A-2 were entitled to acquittal is not perverse or
G unreasonable on the evidence on record so as to call for
  interference under Article 136 of the Constitution. [Para
  21] [888-E]
      1.2. If the view taken by the High Court is reasonable
H or a possible one on the evidence on record, this Court
   HAMZA v. MUHAMMADKUTTY @ MANI & ORS.                 869


will not reverse the judgment of acquittal of the High         A
Court only on the ground that it had a different view of
the evidence on record. Hence, the scope of the present
appeal under Article 136 of the Constitution is limited to
finding out whether the view taken by the High Court that
on the evidence on record, the conviction of A-1 and A-        B
2 for the offence under Section 302 read with Section 34
of the IPC was not sustainable was a perverse or
unreasonable view so as to call for interference by this
Court under Article 136 of the Constitution. [Para 14] [882-
A-C]                                                           C
    State of Kamataka vs. Amajappa and Ors. (2003) 9 SCC
468; State of Uttar Pradesh vs. Banne alias Baijnath and
Others (2009) 4 SCC 271; State of Haryana vs. Shakuntla
and Others (2012) 5 sec 171: 2012 (5) SCR 276 - relied
on.                                                            0

    2.1. It appears from the evidence of PW-1 that he was
not revealing the whole truth and avoided to answer
uncomfortable questions which would have prejudiced
the prosecution case. Thus, PW-1 was tutored and hence         E
his evidence could not be relied on without adequate
corroboration. [Para 16] (884-B-C]

    Suresh vs. State of U.P. (1981) 2 SCC 569:· 1981 (3)
SCR 259; State of Madhya Pradesh vs. Ramesh and Anr.
                                                               F
(2011) 4 sec 786: 2011 (5) SCR 1 - relied on.

    Promode Dey vs. State of West Bengal (2012) 4 SCC
559: 2012 (3) SCR 887 - distinguished.

    The Proof of Guilt Glanville Williams, Third Edition,      G
published by Stevens and Sons - referred to.

    2.2. ·Under Section 157 of the Evidence Act, the
testimony of PW-1 could be corroborated by his
statements about the time of the incident. From the
                                                               H
    870     SUPREME COURT REPORTS            [2013] 10 S.C.R.


A   evidence of PW-1 it appears that PW-1 did not tell
    anything about the incident to the police on the date of
    the incident, though the police had come to the house
    where the incident had taken place. Next day evening
    after her mother's. body was buried, he went to the
B   mother's house and told the whole incident he witnessed
    to his aunt 'S' and grandmother 'N' and the complainant.
    'S' has not been examined as a witness to corroborate
    the testimony of PW-1. Maternal grandmother of PW-1, 'N'
    has also not been examined to corroborate the testimony
C   of PW-1. [Para 17) [884-0, G-H; 885-A]

         2.3. Even though the evidence of PW-2-:complainant
    corroborates the testimony of PW-1, his evidence cannot
    be relied on to lend assurance that PW-1 was giving a
    true version of the incident. [Para 17) [885-E]
D
         2.4. In the absence of any corroboration of the oral
    testimony of PW-1, the High Court was right in taking the
    view that it is unsafe to convict A-1 and A-2 only on the
    evidence of PW-1, who was a child witness and whose
E   evidence did not inspire any confidence. [Para 17) [885-
    G-H]

        2.5. The evidence of the medical experts cast a
  serious doubt on the reliability of the evidence ot'PW-1.
  PW-4, who conducted the postmortem examination of the
F body of the deceased and issued the postmortem
  certificate (Ex.P-12) has said "I cannot definitely say
  whether it is a case of suicide or homicide." DW-1,
  Professor and Head of the Department of Forensic
  Medicine and Police Surgeon, Medical College, has also
G opined in his medico-legal opinion Ex. D-1 "Under the
  circumstances, as per the medical evidence, the most
  likely manner of causation of injuries in this case is self
  infliction except for the fact that there is always a chance
  of any mechanical injury to be sustainable by homicidal
H manner." Thus, the aforesaid opinions of the two medical
   HAMZA v. MUHAMMADKUTTY @ MANI & ORS.                    871


experts. also do not lend assurance to the prosecution             A
story that the death of the deceased was only homicidal.
On the evidence of PW-1 read with the opinions of PW-4
and DW-1, the High Court could not have held that the
prosecution has been able to prove beyond reasonable
doubt that A-1 killed the deceased by stabbing her on the          B
neck with the help of A-2. [Para 20] [887-C-G]

    State of Tamil Nadu vs. P. Muniappan (1998) 1 SCC
515: 1997 (6) Suppl. SCR 124 - distinguished.

     Modi's Medical Jurjsprudence & Toxicology, 22nd               C
Edition at page 387; 'The Proof of Guilt' by Glanville Williams,
Third Edition - referred to.

     2.6. When a doctor expresses two views, the one that
is favourable to the accused might be taken into account,          0
as a general proposition it may be true, but medical
evidence could not be considered in isolation and must
be taken into conjunction with all the circumstantial
evidence on record. The present case is not a case where
the only conclusion that could be drawn considering the
entire evidence is that the death was homicidal and not            E
suicidal. [Para 20] [887-H; 888-A, D]

     Rameshwar vs. The State of Rajasthan 1952 SCR 377;
Mohamed Sugai Esa Mamasan Rer Ala/ah vs. The King AIR
(33) 1946 PC 3; State of U.P. vs. Ashok Dixit and Anr. (2000)      F
3 sec .70: 2000 (1) SCR 855 - referred to.

                      Case Law Reference:
    1952 SCR 377                  referred to        Para 5
                                                                   G
    AIR (33) 1946 PC 3            referred to        Para 12
    2000 (1) SCR 855              referred to        Para 12
    (2003) 9 sec 468              relied on          Para 14
    (2009) 4 sec 211              relied on          Para 14       H
    872       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A         2012 (5) SCR 276             relied on .        Para 14
          2011 (5) SCR 1               relied on          Para 16
          1998 (1) Suppl. SCR 40       relied on          Para 18
          1981 (3) SCR 259             distinguished      Para 19
B         2012 (3) SCR 887             distinguished      Para 19
          1997 (6) Suppl. SCR 124 distinguished           Para 20
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 268 of 2007.
c
        From the Judgment & Order dated 23.09.2005 of the High
    Court of Kerala at Ernakulam in Crl. A.No. 1187 of 2005(8).
                                    WITH
    Crl. Appeal No. 1378 of 2007.
D
         Basant, BV. Deepak, Usha Nandini V., Biju P, Raman,
    Nishe Rajan Shenker (for T.T.K. Deepak & Co.) Jogy Scaria,
    K.K. Sudheesh, Romy Chacko, Varun Mudgal, R. Sathish, M.T.
    George for the appearing parties.
E
          The Judgment of the Court was delivered by

         A.K. PATNAIK, J. 1. These are appeals by way of special
    leave under Article 136 of the Constitution against the judgment
    dated 23.09.2005 of the Division Bench of the Kerala High
F   Court in Criminal Appeal No. 1187 of 2005 (B).

    Facts of the Case:

         2. The facts very briefly are that on 26.02.1998 between
    7.00 p.m. to 7.30 p.m. Suhara sustained stab injuries on her
G   neck while she was in the house of her in-laws. She was initially
    taken to the Government hospital, Pattambi and was thereafter
    taken to Moulana Hospital, Perinthalmanna, where she
    succumbed to the injuries and died. On 27.02.1998, the
    Pattambi Police registered the First Information Report (FIR)
H   on the statement given by one Saidalavi, a relative of Suhara,
    HAMZA v. MUHAMMADKUTTY @ MANI & ORS.                     873
                [A.K. PATNAIK, J.]

  that she had suspicion regarding the death of Suhara A
  (hereinafter referred to as 'the deceased'). On 27 .02.1998,
  postmortem was conducted on the body of the deceased by
  the Lecturer, Forensic Medicine and Assistant Police Surgeon,
  Medical College, Trichur. The local police then investigated into
  the case and came to the conclusion that it was a case of B
  harassment and suicide and filed a charge-sheet against four
  members of the family of the in-laws of the deceased for
  offences under Sections 498-A and 306 of the Indian Penal
  Code (for short 'the IPC') but the accused persons were
  subsequently acquitted of the offences under Sections 498-A       c
  and 306 of the IPC and no appeal was filed by the State
  against the judgment of acquittal passed by the trial court. After
  two years of the incident, Hamza, the brother of the deceased,
  lodged a complaint before the Magistrate on 26.02.2000. In the
  complaint, Hamza stated that the deceased was married to
                                                                     0
  lshaq, who was employed abroad and the couple had two
  children, a boy Mohd. Faizal and a girl Fasila. Hamza alleged
  that in the beginning lshaq was sending cash from abroad to
  his brother Muhammadkutty, but later on stopped sending cash
  to him and instead sent the cash to the deceased and as a
  result a quarrel started between the brothers of lshaq and the E
  deceased and on 26.02.1998 at 6.30 p.m. Hamsappa
  (Accused No.2 for short 'A-2'), brother of lshaq, caught hold of
  the hands and legs of the deceased and Muhammadkutty
  (Accused No.1 for short 'A-1 ') killed her by stabbing her neck
. with a knife and stuffing clothes into her mouth. Ayisha {mother- F
  in-law of the deceased), Asia (wife of Hamsappa},
  Pathummakutty (wife of Muhammadkutty} and Saju @ Sajitha
  (daughter of Muhammadkutty} (Accused No. 3 to Accused No.6
  for short 'A-3 to A-6') changed the dress of the deceased and
  washed all the blood from the scene of occurrence and caused G
  disappearance of the evidence of the murder. Accordingly, the
  aforesaid six accused persons committed offences punishable
 under Sections 302 and 201 read with Section 34 of the IPC.
 The complainant and his witnesses were examined by the
  Magistrate under Section 202 of the Code of Criminal H
    874      SUPREME COURT REPORTS               (2013] 10 S.C.R.


A   Procedure, 1973 (for short 'the Cr.P.C.'). The Magistrate took
    cognizance of the case and issued processes against all the
    six accused persons. After the accused persons entered
    appearance and were served with the copies of all the relevant
    documents, the Magistrate committed the case to the Sessions
B   Court, Palakkad on 03.04.2001. The Sessions Court thereafter
    framed charges against the six accused persons under
    Sections 302 and 201 read with Section 34 of the IPC and
    conducted trial in Sessions Case No.447 of 2001.

C       3. At the trial, altogether six witnesses were examined and
  17 documents were marked as exhibits on behalf of the
  prosecution. Mohd. Faizal, the son of the deceased, was
  examined as PW-1. He was about 7 years old on 26.02.1998
  and he claimed to be a witness to the murder of the deceased.
  He deposed before the Court that on 26.02.1998 at 7.00 p.m
D when he, his mother and younger sister were lying in the
  bedroom for the purpose of sleeping, A-1 and A-2 came to the
  bedroom and A-1 took him to the sofa placed in the portico
  and when A-1 took his sister, the deceased cried and on
  hearing this, he looked into the room through a window and he
E saw A-2 catching hold of the hands of the deceased and A-1
  pushing cloth into her mouth and stabbing on her neck with a
  knife. PW-1 further deposed that on seeing this he cried aloud
  and A-1 came out of the room, took him to the kitchen side and
  told him that he will also do the same thing to him if he divulged
F the incident to anybody. PW-1 further stated before the Court
  that there was light in the room at the·time of the occurrence
  and he saw A~3 cleaning the bedroom and A-4 and A-6
  changing the dress of his mother and his mother was thereafter
  taken to the hospital by family members and neighbours and
G later somebody telephoned to the house and. intimated that his
  mother has expired. PW-1 also deposed that on the next day
  he slept in his maternal aunt's house and in the night he
  narrated the incident to his aunt and uncle (the complainant).
  He also stated that on the day of the burial of the deceased
H the police questioned him and he stated to the police that his
   HAMZA v. MUHAMMADKUTTY @ MANI & ORS.                      875
               [A.K. PATNAIK, J.]

mother was murdered and he also met the doctors of Trichur           A
and told them that his mother was murdered. The complainant
was also examined as PW-2, who inter alia stated before the
Court that on the day next to the date of incident, PW-1 slept in
his house with his aunt and told him and his other family
members that the deceased was stabbed to death by A-1 with           B
the help of A-2. The Lecturer in Forensic Medicine and Assistant
Police Surgeon, Medical College Trichur, who conducted the
autopsy on the dead body of the deceased on 27.02.1998 and
issued a postmortem certificate Ex. P-12 was examined as PW-
4 and he stated that the deceased died due to cut injuries on        c
the neck and the injuries were more likely self inflicted, but the
possibility of homicide could not be ruled out. In defence, the
accused persons examined the Professor and Head of the
Department of Forensic Medicine and Police Sµrgeon, Medical
College, Trichur as DW-1, who had given a medico-legal
                                                                     0
opinion, which was marked as Ex. D-1. DW-1 has concluded
in his opinion that the injuries on the neck of the deceased are
consistent with the case of a suicide.

      4. The trial court relied on the sole oral testimony of PW-1
and convicted A-1 and A-2 for the offence under Section 302 E
read with Section 34 of the IPC. The trial court, however, held
that there was nothing to suggest that A-3 to A-6 shared the
common intention of A-1 and A-2 to murder the d~ceased. The
trial court further held that there was nothing also to show that
A-3 to A-6 were aware that A-1 and A-2 had committed the F
murder and that they cleaned the room and changed the dress
of the deceased with a view to cause disappearance of
evidence to screen the offenders. The trial court accordingly
acquitted A-3 to A-6 of the offences under Sections 302 and
201 read with Section 34 of the IPC. Aggrieved, A-1 and A-2 G
filed a Criminal AppealNo. 1187 of 2005 (B) before the High
Court. The High Court held in the impugned judgment that the
oral evidence of PW-1 did not inspire confidence and it was
not safe to convictthe accused persons on the sole testimony
of the child witness. The High Court also held that the possibility H
    876      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A   of suicide by the deceased could not be ruled out, rather the
    suicide by the deceased was more probable. The High Court
    held that in any event it is a case in which two views are
    possible, one in favour of the accused and the other against
    the accused and in such cases the view in favour of the accused
B   must be preferred and therefore the accused persons were
    entitled to be acquitted. Accordingly, the High Court set aside
    the conviction and sentence under Section 302 ~ead with
    Section 34 of the IPC imposed on A-1 and A-2 by the trial court
    and allowed the Criminal Appeal.
c   Contentions on behalf of the Appellants:

        5. Mr. B.V. Deepak, learned counsel appearing for the
  appellant, Hamza, submitted that the High Court should not
  have disbelieved PW-1 merely because he was a child witness.
D He submitted that the Magistrate before committing the case
  for trial to the Sessions court had recorded the statement of
  PW-1 on 26.02.2000 only after being satisfied about his
  competency to testify. He cited the judgment of this Court in
  Rameshwar vs. The State of Rajasthan (1952 SCR 377) in
E which Vivian Bose, J. speaking for the Court has held that the
  rule, which according to the cases has hardened into one of
  law, is not that corroboration is essential before there can be
  a conviction but that the necessity of corroboration, as a matter
  of prudence, except where the circumstances make it safe to
F dispense with it, must be present to the mind of the judge. He
  submitted that this Court has further held in the aforesaid case
  the tender years of the child, coupled with other circumstances
  appearing in the case, may render corroboration unnecessary
  but that is a question of fact in every case. He also cited Suresh
G vs. State of U.P. [(1981) 2 SCC 569] in which this Court relied
  on the evidence of a child witness to maintain the conviction of
  the accused servant for the murder of the mistress of the house
  and her son. He also relied on the recent decision in Promode
  Dey vs. State of West Bengal [(2012) 4 SCC 559] in which
H the testimony of a girl child was relied on by this Court to
   HAMZA v. MUHAMMADKUTTY @ MANI & ORS.                       877
               [A.K. PATNAIK, J.]

maintain the conviction of the accused under Section 302 IPC.        A

     6. Mr. Deepak submitted that the High Court was not right
in coming to the conclusion that it was more probably a case
of suicide than a case of homicide. He relied on the post
mortem certificate Ex.P/12 to argue that the injuries mentioned 8
therein could not have been self-inflicted. He referred to the
findings of the trial court that the possibility of homicide should
not be ruled out. He referred to Modi's Medical Jurisprudence
 & Toxicology, 22nd Edition at page 387 which states that
homicidal wounds on the throat, when inflicted from the front by C
a right-handed person, are, as a rule horizontal and directed
from right to left; but the reverse is the case if the assailant
happens to be left-handed. He submitted that as the wounds
on the throat of the deceased were horizontal, the death of the
deceased was homicidal and not suicidal. He referred to the
evidence of DW-1 who had admitted that homicide cannot be D
ruled out. He submitted that PW-4 has similarly deposed that
the possibility of homicide could not have been ruled out. He
submitted that thus the medical evidence was not in conflict with
the ocular evidence of PW-1 and the ocular evidence of PW-1
can be relied upon to hold A-1 and A-2 guilty for the offence E
under Section 302, IPC read with Section 34, IPC.

      7. Mr. Deepak submitted that the defence story that the
deceased had committed suicide between 6.30 pm to 7.30 pm
on 26.02.1998 is not at all credible and at any rate no evidence     F
has been adduced on behalf of the defence that the deceased
had earlier suicidal tendencies. He submitted that a young
mother is not likely to commit suicide leaving behind two children
to the mercy of her in-laws. He argued that in this case a
miscarriage of justice has taken place from the acquittal of the     G
guilty. He submitted that in view of the direct evidence of PW-
1 that A-1 and A-2 had committed the murder of the deceased,
the High Court ought to have maintained the conviction of A-1
and A-2 by the trial court.

                                                                     H
    878      SUPREME COURT REPORTS                  (2013) 10 S.C.R


A         8. Learned counsel appearing for the appellant-State in
    Criminal Appeal No .1378 of 2007, submitted that the consistent
    version of PW-1 that A-1 and A-2 had committed the murder
    of his mother should have been accepted by the High Court
    even though PW-1 was a child witness. He cited State of
B   Madhya Pradesh vs. Ramesh and Another [(2011) 4 SCC
    786) in which this Court has held that the deposition of a child
    witness may require corroboration but in case his deposition
    inspires confidence of the court and there is no embellishment
    or improvement therein the court may rely upon his evidence.
c   He submitted that in the aforesaid case this Court has also held
    that only in case there is no evidence on record to show that
    the child has been tutored, the court can reject his statement
    partly or fully. He submitted that the High Court, therefore, should
    have come to a finding that PW-1 was tutored before it could
    reject the evidence of PW-1. He submitted that if the evidence
0
    of PW-1 is read, it will be clear that PW-1 has withstood a
    lengthy cross-examination and is a reliable witness and the
    High Court was not right in discarding his evidence as not
    reliable. He relied on the decision in State of Tamil Nadu vs.
E   P. Muniappan [(1998) 1 SCC 515) in which the doctors took
    two views about the cause of death and the Court held that if
    the entire circumstantial evidence points to homicide only, and
    the medical evidence is not to the contrary, the death can be
    homicidal only. He submitted that in this·case similarly as the
    evidence of PW-1 is clear that A-1 and A-2 had caused
F   homicidal death of the deceased and the medical evidence of
    PW-4 and PW~1 did not rule out homicide, the High Court
    should have maintained the conviction of A-1 and A-2 under
    Section 302, IPC read with Section 34, IPC.

G Contentions on behalf of the respondent-accused
  persons

          9. Mr. Basant, senior counsel, appearing for the A-1 and
    A-2, on the other hand, submitted that the High Court was right
H   in taking the view in the impugned judgment that it was not safe
   HAMZA v. MUHAMMADKUTTY @ MANI & ORS.                   879
               [A.K. PATNAIK, J.]

 to convict A-1 and A-2 on the sole uncorroborated testimony A
 of PW-1, who was only 7 years old at the time of the incident.
 He submitted that Section 118 of the Indian Evidence Act,
 1872 provides that all persons shall be competent to testify
 unless the Court considers that they are prevented from
 understanding the questions put to them, or from giving rational B
 answers to those questions, by tender years, extreme old age,
 disease, whether of body or mind, or any other cause of the
 same kind. He submitted that the requirements of Section 118
 have not been satisfied in this case because before PW-1 who
 was of tender years was examined, the trial court has not put c
 questions to him to find out his competence to testify as a
 witness. He submitted that the incident took place on
 26.02.1998 and from 27.02.1998, PW-1 has remained in the
custody of his maternal uncle, PW-2, who had animosity against
 all the accused persons. The result was that PW-1 implicated
                                                                  0
 not only A-1 and A-2 but also A-3 to A,6 in the offences under
Sections 201 and 302 read with Section 34 of the IPC. He
submitted that there was no evidence that PW-1 revealed to
any one on 26.02.1998 that A-1 and A-2 had committed the
murder ef the deceased and from the evidence of PW-1 it
appears that for the first time PW-1 revealed to his maternal E
aunt, Sareena, that he saw A-1 and A-2 committing the murder
of the deceased. He submitted that aunt Sareena, however, has
not been examined by the prosecution before the Court to
corroborate the testimony of PW-1 under Section 157 of the
Indian Evidence Act, 1872, instead PW-2, who was the F
complainant and who had animosity against all the accused
persons had been examined. He referred to Ex. P.10, a letter
of the Superintendent of Police, Crime Branch, CID Palakkad,
in which he has stated that during investigation by the Crime
Branch, CID, PW-1 has stated that Muhammadkutty pushed G
cloth in the mouth of his mother arid Hamsappa stabbed her
with knife, but investigation disclosed that this was a tutored
version concocted by his maternal grand parents and
investigation revealed that Muhamrnadkutty and Hamsappa
were not at all present in the scene at the time of occurrence. H
    880      SUPREME COURT REPORTS              [2013] 10 S.C.R.


A      10. Mr. Basant submitted that PW-1 has stated in his
  examination-in-chief that there is a window from the portico to
  the room where his mother was lying and through that window
  he looked inside and saw A-2 was catching hold of his mother's
  hands and A-1 pushed Cloth into the mouth of his mother and
B stabbed the front of mother's neck with a knife and he has
  admitted in his cross-examination that he could not have seen
  the incident had the window not been opened and that is why
  he had opened the window, but prior to his evidence before
  court he has not stated anywhere that he saw the incident after
c opening the window. He submitted that he has also stated in
  his cross-examination that the window was used to be bolted
  before going to bed in the night. He submitted that on this
  inconsistent evidence of PW-1, it is extremely unsafe to convict
  the accused persons for the offence under Section 302 read
0 with Section 34 of the IPC and for this reason the High Court
  has set aside the conviction of A-1 and A-2.

        11. Mr. Basant submitted that from the evidence of PW-1
  itself he can give three illustrations to show that PW-1: (i) He
  has stated in his evidence that he did not know about the
E marriage of Thatha 4 to 5 days prior to the incident, though
  Thatha was the caughter of his father's sister and the entire
  family had gone to attend the marriage; (ii) when the question
  was put to him whether A-2 accompanied when his mother was
  taken to the hospital, he stated that he does not remember,
F though, in fact, A-2 took the deceased to the hospital in his
  presence; (iii) when the question was put to him that there was
  a small reaper fixed from inside on account of which the
  window between the room in which the incident took place and
  the portico in which he was laid down because of which the
G window could not be opened, he stated that he does not
  remember.

       12. Mr. Basant submitted that this is not a case where
  corroboration of sole testimony of PW-1 could not have been
H possible. He submitted that the police in its investigation did
   HAMZA v. MUHAMMADKUTTY @ MANI & ORS.                        881
               [A.K. PATNAIK, J.]

not find A-1 and A-2 at the house when the incident took place        A
and any neighbour could have been examined as to whether
A-1 and A-2 were present at the house when the occurrence
took place. He submitted that in the absence of any
corroboration of the testimony of PW-1, it is not prudent for the
Court to convict A-1 and A-2 on the sole uncorroborated               B
testimony of PW-1. He relied on the decision of the Privy
Council in Mohamed Sugai Esa Mamasan Rer Ala/ah v. The
King [AIR (33) 1946 PC 3] and the decisions of this Court in
Rameshwar vs. The State of Rajasthan (supra), Panchhi and
Others v. State of UP. [(1998) 7 SCC 177] and State of UP.            c
v. Ashok Dixit and Another [(2000) 3 SCC 70] for the
proposition that as a rule of practical wisdom, evidence of a
child witness must find adequate corroboration before it is relied
on.

      13. Finally, Mr. Basant submitted that this Court in exercise   D
of its powers under Article 136 of the Constitution does not
interfere with the judgment of acquittal of the High Court only
because it has a different view on the evidence .and it only
interferes where the judgment of acquittal of the High Court is
clearly unreasonable or perverse or manifestly illegal or grossly     E
unjust. In support of this proposition, he cited the decisions of
this Court in State of Karnataka v. Amajappa and Others
[(2003) 9 SCC 468], State of Uttar Pradesh v. Banne alias
Baijnath and Others [(2009) 4 SCC 271] and State of Haryana
v. Shakuntla and Others [(2012) 5 SCC 171). He submitted              F
that since the view taken by the High Court in the impugned
judgment is a possible view on the evidence, this Court should
not interfere with the judgment of acquittal passed by the High
Court.
                                                                      G
Findings of the Court:

      14. In this case, the High Court has acquitted A-1 and A-
2 of the offence under Section 302 read with Section 34 of the
IPC after considering the evidence on record. In State of
Kamataka v. Amajappa and Others, State of Uttar Pradesh               H
    882       SUPREME COURT REPORTS                (2013] 10 S.C.R.


A    v. Banne alias Baijnath and Others and State of Haryana v.
     Shakuntla and Others (supra). this Court has held that if the
    view taken by the High Court is reasonable or a possible one
    on the evidence on record, this Court will not reverse the
    judgment of acquittal of the High Court only on the ground that
B   it had a different view of the evidence on record. Hence, the
    scope of this appeal under Article 136 of the Constitution is
    limited to finding out whether the view taken by the High Court
    that on the evidence on record, the conviction of A-1 and A-2
    for the offence under Section 302 read with Section 34 of the
c   IPC was not sustainable was a perverse or unreasonable view
    so as to call for interference by this Court under Article 136 of
    the Constitution.

         15. The evidence of PW-1 on wh.ich the trial court relied
    on to convict A-1 and A-2 is quoted hereinbelow:
D
          "On the evening at about 7 PM after having food myself
          along with my mother and younger sister were laying
          awake in the room intermediate to the portico and kitchen.
          By the time A-1 and A-2 came to the room. We were
E         awake. A-1 took me a·nd taken to the portico and laid me
          on the sofa in the portico. A-1 took my sister and entrusted
          to A-5. By that time A-5 was standing outside the room
          near the door. Mother made hue and cry when younger
          sister is taken away. There is a window between the
F         portico and the room in which we were sleeping. I peep in
          to the room through the window. I could see that A-2 was
          with holding my mother's knees. A-2 sat on the cot in which
          mother was sleeping. A-1 gagged cloth in the mouth of the
          mother. With a knife A-1 stabbed on the neck of the
          mother. Blood oozed from the wound. On seeing that I cried
G
          aloud. A-1 came out of the room and took me towards the
          kitchen. A-1 threatened me that if you divulge this to
          anybody you too would be stabbed to death similarly.
          From there I returned to Thazvaram (portico). I then saw
          that A-4 and A-6 were changing wearing apparels of
H
    HAMZA v. MUHAMMADKUTTY@ MANI & ORS.                      883
                [A.K. PATNAIK, J.]

                                                                     A
     mother. By that time neighbors came there. Relatives and
     neighbors together took my mother to the hospital. I saw
     A-3 cleaning the room where mother slept. When a phone
     call received in the house of A-1, I came to know that
     mother is expired."
                                                                     B
      Thus, PW-1 has deposed that he was taken by A-1 from
.the room in which he, his younger sister and the deceased were
 sleeping to the portico and he peeped into the room through
 the window and saw that A-2 was holding his mother's knees
 and A-1 gagged cloth in the mouth of his mother and stabbed         c
 on the neck of his mother with a knife and blood oozed from
 the wound. The High Court noticed that PW-1 had said that if
 the window was not open he could not have seen the occurrence
 but PW-1 has admitted in his evidence that when they slept at
 night they used to close and bolt the doors and windows. The        o
 High Court further found that PW-1 had himself stated that prior
 to his deposition in Court, he had never told that he had seen
 the incident after opening the window panel. The High Court,
 therefore, did not accept this evidence of PW-1 to be true.

      16. The High Court also found that PW-1 was only aged          E
 seven years on the date of the incident and he was examined
 in Court after lapse of seven years and after the incident he was
 under the care and guardianship of his mother's parents and
the possibility of the parents of the mother tutoring PW-1 could
not be ruled out. Even though the High Court has not recorded        F
any clear finding that PW-1 had been tutored, we find that PW-
 1 has in fact avoided to answer some questions during cross-
examination, which he could have easily answered. In cross-
examination, questions were put to PW-1 whether he knew the
name of the father's sister and whether that sister has a            G
daughter by the name Thatha and whether Thatha's marriage
took place 4-5 days prior to the incident and whether he knew
that all the family members had gone for the marriage and PW-
1 answered "I don't know who is Thatha and which marriage
is mentioned by you." Again in cross-examination, questions          H
    884       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   were put to him on whether the window through which he saw
    the incident is permanently fastened by using reapers and PW-
    1 answered "/ do not remember." In cross-examination, a
    question was put to PW-1 whether A-2 accompanied while his
    mother was taken to the hospital and he answered "/do not
B   remember". It, thus, appears from the evidence of PW-1 that
    he was not revealing the whole truth and avoided to answer
    uncomfortable questions which would have prejudiced the
    prosecution case. We, therefore, find that PW-1 was tutored
    and hence as per the decision of this Court in State of Madhya
c   Pradesh vs. Ramesh and Another (supra) cited by learned
    counsel for the State, the evidence of PW-1 could not be relied
    on without adequate corroboration.

       17. Under Section 157 of the Indian Evidence Act, the
  testimony of PW-1 could be corroborated by his statements
D about the time of when the incident took place. PW-1 has
  stated:

          "Police came on that night itself. Police has not asked
          anything to me, I did not told anything about the incident.
E         Next day evening mother's body buried. Thereafter I went
          to mother's house. On that night I slept there. I slept there
          with elder aunt Sareena. On that night I cried remembering
          mother's memory, I told the whole inc!dent witnessed to
          aunty. My maternal grand mother Nabeesa and my uncle
F         Hamzaka {mother's brother) then came there. They also
          heard what I said."

       From the aforesaid evidence of PW-1 it appears that PW-
  1 did not tell anything about the incident to the police on the
  date of the incident, though the police had come to the house
G where the incident had taken place. Next day evening after her
  mother's body was buried, he went to the mother's house and
  slept there with the elder aunt Sareena and on that night he
  cried remembering his mother and told the whole incident he
  witnessed to his aunt Sareena. Sareena has not been
H examined as a witness to corroborate the testimony of PW-1.
   HAMZA v. MUHAMMADKUTTY @ MANI & ORS.                    885
               [A.K. PATNAIK, J.]

PW-1 has also said that his maternal grandmother, Nabeesa         A
and his uncle Hamza then came there and they also heard what
he said. Maternal grandmother of PW-1, Nabeesa has also not
been examined to corroborate the testimony of PW-1. Only
Hamza has been examined as PW-2 who has said that his
mother and wife Sareena were told by PW-1 that his mother         B
was murdered by A-1 by stabbing while A-2 held her. PW-2,
however, has said that the husband of the deceased used to
send money in the name of A-1 and A-2 and the deceased
informed her husband that she has not received money and
thereafter the husband of the deceased sent money in the name     c
of the deceased and he had learnt all this from the deceased.
From the evidence of PW-2 it is very clear that PW-2 had
developed animosity towards A-1 and A-2 on account of what
the deceased had told him about A-1 and A-2. Moreover, he
has not been able to explain in cross-examination as to why
                                                                  0
when the incident took place on 26.02.1998, he filed the
complaint before the Magistrate two years after on 26.02.2000
if the police had treated the case as one of suicide and not of
homicide. Hence, even though the evidence of PW-2
corroborates the testimony of PW-1 his evidence cannot be
                                                                  E
relied on to lend assurance that PW-1 was giving a true version
of the incident. From the deposition of PW-3 and Ex. P-11 (the
scene plan of the house in which the incident took place), it
appears that there were two windows in the' room in which the
incident took place, one window opening towards the portico
and the other window towards the road. Hence, even if the         F
window opening towards the road was closed, people on the
road or the neighbours around the house must have come to
know about the incident, but none among the people from the
road or from amongst the neighbours around the house have
been examined on behalf of the prosecution to corroborate the     G
evidence of PW-1. In the absence of any corroboration of the
oral testimony of PW-1, the High Court was right in taking the
view that it is unsafe to convict A-1 and A-2 only on the
evidence of PW-1, who was a child witness and whose
evidence did not inspire any confidence.                          H
    886      SUPREME COURT REPORTS                 (2013] 10 S.C.R.


A        18. Learned counsel for the State is right that the
    consistent version of PW-1 is that A-1 and A-2 have committed
    murder of the deceased. But the High Court has rightly relied
    on the observations of this Court in Suresh vs. State of UP.
    (supra) that children mix up what they see and what they like to
B   imagine to have seen. Glanville Williams says in his book 'The
    Proof of Guilt', Third Edition, published by Stevens & Sons:

           "Children are suggestible and sometimes given to living
          in a world of make-believe. They are egocentric, and only
          slowly learn the duty of speaking the truth."
c
        Hence, the proposition laid down by Courts that as a rule
    of practical wisdom, evidence of child witness must find
    adequate corroboration [Panchhi vs. State of U.P. (supra)].

o         19. In Suresh vs. State of UP. (supra) cited by Mr. Deepak,
  the evidence of child witness Sunil was corroborated by the
  conduct of the accused and from pattern of crime committed
  by him and hence this Court maintained the conviction of the
  accused servant for the murder of the mistress of the house
E Geeta and her son Anil on the basis of evidence of a child
  witness, Sunil, as corroborated by other evidence. This Court
  specifically observed that if the case was to rest solely on
  Sunil's uncorroborated testimony, the Court might have found
  it difficult to sustain the conviction of the accused, but there was
F unimpeachable and most eloquent materials on record which
  lent an unfailing assurance that Sunil is a witness of truth and
  not a witness of imagination as most children of that age
  generally are. Similarly, in Promode Dey vs. State of 111/est
  Bengal (supra) cited by Mr. Deepak, the Court found that soon
G after the incident on 23.02.2002, the girl child had told her grand
  mother and her father that it was the accused who had killed
  the deceased and her grandmother and father had deposed
  before the Court in their evidence that they had been told by
  this child witness that the accused had killed the deceased with
  a dao. The evidence of this child witness was also corroborated
H by the fact that the b!ood stained dao was recovered on the
   HAMZA v. MUHAMMADKUTTY@ MANI & ORS.                          887
               [A.K. PATNAIK, J.]

very day of the incident from a jungle by the side of the house        A,
of the accused. The evidence of the girl child that the accused
had killed her mother by striking on her head, back, fingers and
throat with a dao was thus believed by the Court because her
evidence was adequately corroborated. In this case, as we
have found, the evidence of PW-1 is not adequately                     B
corroborated.

     20. Rather, as has been held by the High Court in the
impugned judgment, the evidence of the medical experts cast
a serious doubt on the reliability of the evidence of PW-1. PW-
4, Lecturer in.Forensic Medicine and Assistant Police Surgeon,         C
Medical College Trichur, who conducted the postmortem
examination of the body of the deceased and issued the
postmortem certificate (Ex.P-12) has said"/ cannot definitely
say whether it is a case of suicide or homicide." DW-1,
Professor and Head of the Department of Forensic Medicine              D
and Police Surgeon, Medical College, Trichur, has also opined
in his medico-legal opinion Ex. D-1 "Under the circumstances,
as per the medical evidence, the most likely manner of
causation of injuries in this case is self infliction except for the
fact that there is always a chance of any mechanical injury to         E
be sustainable by homicidal manner." Thus, the aforesaid
opinions of the two medical experts also do not lend assurance
to the prosecution story that the death of the deceased was only
homicidal. The opinion at page 387 of Modi's Medical
Jurisprudence & Toxicology, Twenty-Second Edition, to which            F
reference was made by Mr. Deepak, learned counsel for the
appellant-Hamza, does not materially conflict with the expert
opinions of PW-4 and DW-1. On the evidence of PW-1 read
with the opinions of PW-4 and DW-1, the High Court could not
have held that the prosecution has been able to prove beyond           G
reasonable doubt that A-1 killed the deceased by stabbing her
on the neck with the help of A-2. In State of T.N. v. P.
Muniappan (supra) cited by learned counsel for the State, the
High Court had observed that when a doctor expresses two
views, the one that is favourable to the accused might be taken        H
    888      SUPREME COURT REPORTS                  [2013] 10 S.CR.


A   into account and this Court held that as a general proposition
    it may be true, but medical evidence could not be considered
    in isolation and must be taken into conjunction with all the
    circumstantial evidence on record. In that case, this Court found
    that seven circumstances led to only one conclusion that it is
B   the respondent who was guilty and accordingly held that as the
    entire circumstantial evidence points to homicide only and the
    medical evidence is not to the contrary, the respondent was
    guilty of the offence under Section 302 IPC and set aside the
    acquittal of the respondent by the High Court and restored the
c   judgment of conviction of the trial court. In this case, the police
    itself had investigated and filed a charge-sheet under Sections
    498-A and 306 of the IPC against four members of the in-laws
    of the family of the deceased and found that it is a case of
    suicide. Thus, this is not a case where the only conclusion that
D   could be drawn considering the entire evidence is that the
    death was homicidal and not suicidal. The decision of this
    Court in State of Tamil Nadu v. P. Muniappan (supra),
    therefore, has no application to the present case.

          21. We, therefore, do not find that the view taken by the
E   High Court that A-1 and A-2 were entitled to acquittal is
    perverse or unreasonable on the evidence on record so as to
    call for our interference under Article 136 of the Constitution
    and we accordingly dismiss the appeals.

    K.K.T.                                       Appeals dismissed.