STATE OF TAMIL NADUversusKARUPPUSAMY AND ORS.

                                     STATE OF TAMIL NADU                                   A
      ......                                      v.
                                   KARUPPUSAMY AND ORS.

                                          MARCH 31, 1992

                              [A. M. AHMADI AND S. MOHAN, JJ.)                             B

                     Penal Code, 186()-Sections 34, 354, 302-Appeal against acquittal by
               High Court-Appreciation of evidence by High Court-E"oneous and result-
               ing in miscarriage of justice.
                                                                                           c
---    )l..
                     The prosecution's case was that on 28.7.1976 at about 4P.M., P.W.1,
               aged 22 years was grazing her sheep in the field. Accused 1 and 2 (the

--      ~
               respondents) and one Selvaraj were also grazing their sheep nearby. The
               accused persons approached P.W.1. When Accused 1 pushed P.W.1 down
               and pulled up her saree in order to outrange her modesty, the other two
               stood on either side of her. P.W.1 managed to escape and ran towards the D
               road. The respondents (Accused 1 and 2) were armed with aruvals (sick-
               les).

                     P.W.l's paternal uncle (the deceased) was passing by on his bicycle
               carrying his 11 year old daughter (P.W.2) from the School. On hearing the
                                                                                         E
               shouts of P.W.1, her uncle got down from his bicycle. When P.W.l was
               narrating the incident to the deceased, the accused reached there, the
               accused persons threatened the decesased with dire consequences, when
               he questioned the accused and told them that the matter would be reported
               to the Village Panchayat. Accused 2 caught hold of the right hand of the
               deceased while Accused 1 cut the hand. When the deceased attempted F
               toward off the cut with his left hand, the thumb and the fingers were
               severed. Receiving cuts form the Accused 1 on the left hand, head, neck
               and right shoulder, the deceased fell down. Then the Accused cut off his

        \      head with his aruval.

                    When P.W.1 cried on seeing the ghastly sight, P.Ws. 4 and 5 and one    G
               Sarvanan came running to the place of occurrence. Accused 2 ran away
               throwing his arnval and Accused 1 also ran away carrying the head of the
               deceased and his arnval. Though P.W.5 and one Sarvanan were chasing
               Accused 1, were returned when they were threatened by the Accused 1.

--             P.W.4 chased Accused 2 but could not catch him.
                                                  415
                                                                                           H

 .
    416                   SUPREME COURT REPORTS                   [1992] 2 S.C.R.

A         At about 5.30 P.M., P.W.1 reported to the P.W.6 (the Village Munsif)
    about the occurrence, which was written down by P.W.6.        He
                                                                   went to the
    place of occurrence. Along with his own report, he sent the P.W.l's Written
    Statement to the Police Statinn, sending cnpies of the same to the local
    Magistrate. P.W. Hi (the Sub- Inspector) registered a case u/ss. 302 and
    354, IPC and commenced investigation. The accused-respondents were
B   tried before the Sessions Judge. The defence denied the charges.

          The Sessions Judge convicted both the accused-respondents. But
    they were acquited by the High Court, against which this appeal was filed
    by the State, by special leave.
c         The appellant-State contended that the High Court had completely
    misdirected itself with regard to the appreciation of evidence, by lightly
    dealing "Yith the evidence of the four eye-witnesses, P.Ws. 1, 2, 4 and 3; that
    merely because P.W.1 a rustic village Woman did not know the names of
                                                                                      -
    P.Ws.4 and 6 it did not mean her evidence was liable to be rejected; that
D   the High Court erred in holding that the el·idence of P.W.1 was unreliable,
    merely on the ground that she was not able to identify P.Ws. 4 and 5 and
    she could not name them properly; that the evidence of P.W.2, a child
    witness, who was having no motive against the accused, ought to have been
    accepted; that the evidence of P.Ws.4 and 6 was rejected on the ground
E   that they did not mention the accused severing the head and carrying the
    head away; and that the failure of P.W.11 to note the presence of sheep or
    goats around the scene of occurrence was immaterial.



                                                                                      -
          The respondents contended that unless the appreciation of evidence
    by the High Court was perverse, tbis Court normally would not interfere
F   against an order of acquittal; that in this case it could not be contended
    that the appreciation of the evidence by the High Court was perverse, and
    that it was the duty of the prosecution to establish the guilt beyond all
    reasonable doubt, which was not established in this case; hence this
    Court's intereference not warranted.
G
          Allowing the appeal of the State, this court,

          HELD : 1.01. Only a tutored witness can depose in a parrot-like
    fashion. On the contrary, a natural witness is bound to commit mistakes.
    In the instant case the mistakes are so incnnsequential and immateria!
H   when she mentions the name of Muthu wrongly instead of Deiveegan. On
                                 STATE v. KARUPPUSAMY                               417

          that score it should not be held that her evidence does not inspire con-        A
          fidence. The presence of absence of the sheep or goats, whether noted or
          nott can have no hearing on the case of the prosecution. Therefore, the
          failure of P.W.11 to note thefr presence would not affected the case of the
          prosecution. [422F-G}

                1.02. P,W. 2 being a child of tender age witnessed a ghastly murder       B
          where her father himself was killed. One cannot brush aside the agitated
          mood and the mind in which the tender child would have been. It must
          have been the rudest shock of her life. To expect her in that situation to
          give the details as to who chased Accused l or 2 or to expect her to go to
          the scene of occurrence on that very night would be asking for too much.        C
          After all, she did state the two persons chased. the accused. That should

 -        be enough. [423F-G]

               1.03. P.W.2's failure to inform her mother is not a factor which
          would make her evidence not credit-worthy, because by then the mother
          had come to know of the murder. [423H-424A]                                     D
                 1.04. Normally in a village no woman would come forward, unless it
          i5 true, ~ith a plea that her modesty was outraged, by such statement, her
          very honour was at stake. Coming as she does from a cloistered society
          her whole future would bet~ome bleak. P.W.1 does not inspire confidence         E
          as the High Court has held, seems to be wrong. [422H-423A]

                1.0S. On the evidence of P.Ws. 1 and 2 alone that the prosecution
          has fully established its case. Besides! there is the evidence of P.Ws. 4 and
          6, The appreciation of the evidence by the High Court is erroneous and
          has resulted in miscarriage of justice. [4248, F]                               F
                State of Jammu & Kashmir v. Hazara Singh & Anr., [1980] Supp. SCC
          641 at page 644 (para 10), Distinguished.
     \
                CRIMINAL APPELLATE JURISD!C'TION: Criminal Appeal No.
          688 of 1980.                                                G
               From the Judgment and Order dated 20.2.1978 of the Madras High

-
......-
          Court in Crl. Appeal No. 306 of 1977.


          ~
                K.V. Venkataraman and K.V. Vishwanathan (N.P.) for the Appel-
                                                                                          H
    418                   SUPREME COURT REPORTS                (1992] 2 S.C.R.

A           R.K Garg and VJ. Francis for the Respondents.

            The Judgement of the Court was delivered by

           MOHAN, J. The respondents were accused 1 and 2. They were tried
    by the learned Sessions Judge of the Tiruchirapalli Division in Sessions
B   Case No.73 of 1976. Both the accused along with a juvenile Selvaraj were
    tried for using criminal force to Anjali (P.W.1) with the intention of
    outraging her modesty at about 4.30 P.M. on 28th July, 1976 at PuUambadi
    Village, an offence punishable under Section 354 I.P.C. The first accused
    ~uppusamy was also tried for the offence of murder of one Muthusamy
C   of Thappai Village on the same day and at the same time and place, in
    that, he cut him with an aruval (sickle) and severed his head, an offence
    punishable under Section 302 I.P.C. The second accused Natarajan was
    also tried under Section 302 read with Section 34 l.P.C. In that the murder
    of Muthuswamy was committed by the first accused, in furtherance of the
                                                                                   -
    common intention of both the accused.
D
          The first accused was also tried for an. effence of causing disap-
    pearance of evidence. In that, the severed head of Muthusamy was con-
    cealed in a bush, an offence under section 201 I.P.C.

         Juvenile Selvaraj who was present at the time of outraging the modesty
E   of Anjali (P.W.l) was also tried for an offence under Section 354 I.P.C.

          The learned Sessions Judge found the first accused guilty of the
    offence punishable undef'Sections 354, 302 and 201 I.P.C. Accordingly he
    was convicted ana-;ntenced to undergo rigorous imprisonment for three
    months under section 354 l.P.C., imprisonment for life under Section 302
F   I.P.C and rigorous imprisonment for two years under Section 201 l.P.C.
    The sentences were to run concurrently.

           The second accused was acquitted of the charge under Section 354       J- -
    I.P.C. However, he was found guilty under Section 302 read with Section
G   34 I.P.C. and was convicted and sentenced to undergo imprisonment for
    life.

            The juvenile accused was acquitted.

         Aggrieved by the conviction and the sentence accused 1 and 2 took
H   up the matter in appeal to the High Court of Madras in Criminal Appeal
                            STATE v. KARUPPUSAMY [MOHAN, J.]                     419

              No. 306 of 1977. Both the accused were acquitted by the High Court A
      ~.
              holding that the prosecution had not proved the case against any of the
              accused satisfactorily and beyond all reasonable doubt.

                   The case of the prosecution can be briefly stated as under:

                     On 28th of July, 1976 at about 4 P.M., P.W.1 Anjali, aged 22 years B
              was grazing her sheep in the fields of Pullambadi. Accused 1 and 2 and
              juvenile Selvaraj were also grazing their sheep nearby. They came near
              P.W.1. Accused 1 suddenly pushed her down. The other two stood on
              either side of P.W.1. Accused 1 pulled up her saree in order to outrage

.-- "-·       her modesty. However, she managed to escape and ran towards the road
              between Thappi and Pullambadi. Accused 1 was armed an aruval (sickle)
              (M.0.2), while accused 2 had also an aruval (M.0.3). A~ that time the
                                                                                       c
              deceased Muthusamy, paternal uncle of P.W.1 was going on a bicycle. His
~
       -.,-   11 year old girl P.W.2 Rajamani was carried by Muthusamy on the carrier
              of the bicycle as she was returning from the school. On hearing the shouts
              of P.W.1 the deceased got down from the bicycle. P.W.1. narrated the D
              incident. By then the accused also came there. Thereupon the accused
,.,            were questioned and the deceased Muthusamy told the accused that he
               would report the matter to the Village Pant:hayat. The accused became
               defiant and threatened the deceased only if he were left alive he would be
               able to report the matter to the Panchayat. At that time one Daiveegan
               from Thappai Village came along the road. He advised them to go to their E
               village and went away. Accused 2 caught hold of the right hand of the
               deceased. Accused 1 cut the hand. The deceased warded off the cut with
               his left hand. In that process, the thumb and the fingers were severed.
               Accused 1 cut the deceased on the left hand, head, neck and right shoulder.

---            The deceased fell down. Then Accused 1 cut off his head with his aruval.
               When P.W.1 cried on seeing this ghastly sight P.Ws. 4 and 5 and one F
               Sarvanan came running to the place. Accused 2 ran away throwing his
               aruval (M.0.3). Accused 1 also ran away carrying the head of the deceased
               and his aruval (M.0.2). When P.W.5 and Sarvanan chased the first accused
       \       he threatened them with dire consequences. Therefore, they returned. P.W.
               4 also chased Accused 2 for some distance but could not catch him. He G
               also returned. In the meanwhile, P.W.1 ran shouting to the Village, P.W.2,
                the daughter of the deceased who was at the scene of occurrence was taken
                to her house by some of her classmates.
~
       ).          At about 530P.M., P.W.1 gave a report to P.W. 6 (the Village
              Munsif). That statement was reduced to writing under Ex. P-1. He went to H

o'{
    420                  SUPREME COURT REPORTS                   (1992] 2 S.C.R.

A the scene of occurrence. Then he sent Ex. P-1 with his own report (Ex.P-5)
    to the Kallaikudi Police Station. Copies of the same report were sent to
    the Magistrate at Lalgudi. Sub-Inspector (P.W.10) registered a case acting
    on Ex. P-1 at 7.30 P.M. under Sections 302 and 3541.P.C. Immediately he
    sent express report to his superiors and proceeded to the scene of occur-
    rence at 8.45 P.M. Thereafter he went in search of accused.
B
          The Inspector (P.W.11) came to tr•.:: scene of occurrence at 11.30
    P.M. and took up investigation. He prepared an observation mahazar
    (Ex.P-7). He held an inquest at which P.Ws. 1, 2, 4 and 5, Sarvanan,
    Deiveagan and others were examined. He recovered blood-stained earth
C   and the aruval dropped by Accused 2 and the cycle on which the deceased
    was proceeding (M.0.5) under mahazar (Ex.P-8).

          The next morning P.W.11 arrested Accused 1. In the presence of
    P.W.6 the Village Munsif Karnam, Accused 1 gave a confessional state-
                                                                                      -
    ment. Acting on that statement the Inspector recovered the head of the
D   deceased from a bush as well as aruvel (M.0.2) from another place which
    was rolled up in Accused l's underwear (M.0.7). On the same day the
    Inspector examined P.W.7 from whom the details relating to che hiring of
    the bicycle were gathered.

E         P.W.3(the doctor) conducted the post-mortem at 4.00 P.M. and
    found the head and the body belonged to the same person. The head had
    been completely severed by cutting through the third and fourth vertebra.
    He also found the incised injuries on the right and the left side of the neck,
    on the right shoulder, on the middle of the left forearm, on the left hand
    exposing bones and muscles of the hand. He opined that the death was due
F   to shock and haemorrhage. He further opined that the injuries could have
    been caused by an aruval like (M.0.3).

           The respondents were tried before the learned Sessions Judge of
     Tiruchirapalli on four charges. The defence was one of denial. According
                                                                                     t-
G    to accused 1 who filed the written statement the deceased saw him talking
     and laughing with P.W.1. On that account he became very angry, abused
     accused 1 and beat P.W.l. He denied that he either molested P.W. 1 or
     cut the deceased and the case was foisted on him. Though as stated above
     the learned Sessions Judge convicted both the accused the High Court
     acquitted them. Special Leave was grantecJ. by this Court on 22nd of
H    October, 1980. Hence the present appeal by the State.
                           STATE v. KARUPPUSAMY [MOHAN, J.]                         421

       ~          The learned counsel appearing for the State of Tamil Nadu Mr. K.V. A
            Venkataraman urged that the High Court had completely misdirected itself
            with regard lo the appreciation of evidence. In this ca5e there are four
            eye-witnesses P. Ws. 1, 2, 4 and 5. Their evidence has been lightly dealt with.
            Merely because P.W.1 did not know the names of P.Ws. 4 and 5 it does
            not mean her evidence is liable to be rejected. She being a rustic woman,
            ignorance of names would not matter. She has graphically spoken as to B
       ~    what actually happened prior to the murder and about the: murder as well.
            When her modesty was about to be outraged she escaped and came to the
            road and narrated the incident to the deceased. Normally, in a village no

--     ~
            woman would come forth v.ith such a plea since by that statement her
            honour itself would be at stake.
                                                                                            c
                   The High Court erred in holding that the evidence of P.W. 1 is
  4'
       ~    thoroughly unreliable, merely on the ground that she was not able to
            identify P.Ws. 4 and 5 she could not name them properly.

                  As regards evidence of P.W. 2 she being a child witness and having        D
            no motive against the accused her evidence ought to have been accepted.
            So long as the trial court had found that she was in a position to discern
            as to what was truth and what was falsehood the failure to administer oath
            would be of no consequence. To expect a child of that tender age to come
            to the scene of occurrence during night is to ask something unnatural.
            Where P.Ws. 1and2 were in an agitated mood after witnessing a gruesome          E
            murder they could not be expected to behave in a calm and coilected way.

                  The evidence of P.Ws. 4 and 5 have been rejected solely on the
            ground that the.y did not mention the accused severing. the head anci
            carrying the head away. As regards indentification also to characterise it,
            as force, is not correct. The failure of P.W.11 to note the presence of sheep   F
            or goats around the scene of occurrence is immaterial. Thus looking from
            any point of view the acquittal, as ordered by the High Court, is unsup-
       \.   portable.

                  Mr. R.K. Garg, learned counsel for the defence would submit first
                                                                                      G
            and foremost on the basis of a decision of this Court in State of Jamnm &
            Kashmir v. Hazara Singh & Anr., [1980} Supp. SCC page 641 at 644 para
            10 that unless the appreciation of evidence by the High Court is perverse
       )-   this Court normally would not interfere against an order of acquittal. In
            this case it cannot be contented that the appreciation of the evidence by
            the High Court is perverse. P.W.1 claims to know P.Ws. 4 and 5 from the H
""\'


  l
    422                   SUPREME COURT REPORTS                    [1992) 2 S.C.R.

A   age of her discretion. Therefore, normally speaking, she should have had
    no difficulty in mentioning their names and properly identifying them. That
    she should mention the name of De.iveegan as Muthu is rather strange.
    Even the case of prosecution is that Deiveagan advised the parties to
    amicably go away from the scene of occurrence. Such a person cannot be
    mistaken for Muthu. It is against all probability that she would return home
B   without even caring for the sheep or the goats which she was grazing.
    Equally, for very valid reasons the evidence of P .W.2 had to be rejected by
    the High Court. P.Ws. 4 and 5 have been purposely introduced in order to
    bolster up the case of the prosecution. There is also a good deal ·of doubt


c
    as to whethc..r P.W.11 prepared the report on that day or later. Whatever
    it be, if it is an axiomatic principle that it is the duty of the prosecution to
                                                                                           --
    establish the guilt beyond ail reasonable doubt that bas not been so
    established in this case. Hence no interference is warranted.

           We will now proceed to examine the merits of the respective conten-
    tions. The learned trial judge has held that in appreciating the evidence of
D   P.Ws. 1and2 one has to take into account their state of mind, at that time,
    when they saw a ghastly murder in that, the head of the deceased was
    completely severed. Unfortunately, this important factor has not been
    properly appreciated by the High Court.

          From the evidence of P.W. 1 it is clear that she graphically gave an
E   account as to the happenings. Being a rustic woman, in that agitated mood
    she might have committed one or two mistakes in the actual ~dentification
    or as to who chased Ac~used 1 or Accused 2. These, in our considered
    view, are bound to happen. Only a tutored witness can depose in a
    parrot-like fashion. On the contrary, a natural witness is bound to commit
    mistakes. In the instant case the mistakes are so inconsequential and
F immaterial when she mentions the name of Muthu wrongly instead of
  · Deivee~an. We are unable to see as to how on that score it should be held
    that her evidence does not inspire confidence. Equally, we are of the view
    that the presence or absem:e of the sheep or goats whether noted or not
                                                                                       t
    can have no bearing on the case of the prosecution. Therefore, the failure
G of P.W. 11 to note their presence would not affect the case of the prosecu-
    tion.

         The characterisation that the evidence of P.W.1 does not inspire
  confidence as the High Court has held, seems to be wrong:· Normally, in a            -it(
  village no woman would come forward, unless it is true, with a plea that
H her modesty was outraged. As rightly contended by the learned counsel for
                         STATE v. KARUPPUSA..\fY [MOHAN, J.]                     423

         the State, by such statement, her very honour was at stake. Coming as she      A
         does from a cloistered society her whole future would become bleak. After
         all, what was the motive for her to say this against the accused. It has not
         been brought out in cross-examination that there was any enmity between
         P.W. 1.on the one hand and the accused on the other. She would not even
         implicate a j_uvenile accused.
                                                                                        B
     ~        Her failure to state in the report (Ex. P-1) the details should not
         make the court reject her evidence:

               The doubt raised by the High Court that Ex. P-1 was not prepared
         on that day seems unwarranted when it contains the initials bearing the
         time and the date as 9.30 P.M. and 28.7.1976. The learned Sessions Judge C
         was fully satisfied by summoning the production of the despatch register
         of Kallakudi Police Station that Exs. P-1 and P-5 were received on that day
         in the station. The suggestion by the defence that the learned Magistrate
         had obliged the police to put the date as 28.7.76 and the time as 9.30 P.M.
         was rightly rejected as an e>..1reme contention by the learned Sessions Judge D
         which unfortunately was doubted by the High Court.

                 The line of reasoning adopted by the High Court in appreciating the
          evidence of P.W. 2 is not correct. According to the High Court her failure
          to mention the names of P.Ws. 4 and 5 and Sarvanan in the course of
          investigation, her failure to come to the scene of the occurrence during the E
         night and her going to the scene of occurrence only the next day along with
         her mother are all factors on which the evidence of this child witness was
         rejected. We hardly find any justification to reject the evidence of P.W. 2.


--
\
         The learned Sessions Judge has appreciated that she had a discerning mind
         as to what was truth and what was falsehood. Therefore, the failure to
         adminster oath is of no consequence. We have cautioned ourselves of the F
         possibility of tutoring, she being a child of tender age. She witnessed a
         ghastly murder where her father himself was killed. One cannot brush aside
         the agitated mood and the mind in which the tender child would have been.
         It must have been the rudest shock of her life. To expect her in that
         situation to give the details as to who chased Accused 1 or 2 or to expect G
         her to go to the scene of occurrence on that very night would be asking for
         too much. After all, she did state the two persons chased the accused. That
         should be enough as was rightly held by the learned Sessions Judge.

              Then again, her failure to inform her mother is not a factor which
         would make her evidence not creditworthy, because by then the mother           A
    424                   SUPREME COURT REPORTS                  [1992] 2 S.C.R.

A had come to know of the murder. If it was a false case being foisted on the
    accused we do not think that such natural imperfections would have
    surfaced. Merely because P.W.2 did not give details as to whether the
    deceased caught hold of the hair of the first accused etc. does not give rise
    to any doubt as to the occurrence. It will be too much to expect from a
    child to give such intricate details. Therefore, we conclude on the evidence
B   of P.Ws. 1 and 2 alone that the prosecution has fully established its case.
    Besides, there is the evidence of P.Ws. 4 and 5. We are not in a position
    to appreciate the finding of the High Court that they have been introduced
    to strengthen the case of the prosecution. The learned Sessions Judge has
    rightly accepted their evidence.
c
           One important factor, in our considered opinion, was missed by the
    High Court. Pursuant to the confessional statement of the first accused,        ,,.
    the recovery of the severed head and M.0.2 would be an admissible piece          r
    of evidence. After the arrest the first accused took P.W.11 and P.W.6 to a
D   bush in a place one mile north of Thappai village and produced the head.
    At that place an inquest was held in which the Inspector examined P.Ws.
    1, 2, 4 and 5. Then, the first accused took them to another bush in the
    burial ground of S.P.G. Mission Church, from where M.O. 2 had been
    recovered concealed in the underwear (M.0.7). This aruval, according to
    the analyst's report, contained human blood. The dhoti worn by the ac-
E   cused M.0.8 which was seized from him also contained human blood. This
    part of the confession which led to the recovery of the severed head and
    M.0.2, is clearly Admissible under Section 27 of the Indian Evidence Act.
    This goes a long way to corroborate the case of the prosecution. In the
    whole we are satisfied that the appreciation of the evidence by the High
    Court is erroneous and has resulted in miscarriage of justice. Therefore,
F   we find no scope for the application of the ratio laid down at para 10 of
    page 644 in State of J & K (supra) on which reliance has been placed by
    Mr. R.K. Garg, learned counsel for the defence.


G         In the result, we set aside the judgment of the High Court acquitting
    the accused (the respondents). We restore the conviction and sentence
    imposed by the learned Sessions Judge and the accused shall serve their
    sentences. Appeal will stand allowed accordingly.


    V.P.R.                                                      Appeal allowed.