CASE NO.: Appeal (crl.) 263 of 1994 PETITIONER: STATE OF KARNATAKA RESPONDENT: K. YARAPPA REDDY DATE OF JUDGMENT: 05/10/1999 BENCH: K.T. THOMAS & A.P. MISRA JUDGMENT:
JUDGMENT
1999 Supp(3) SCR 359
The Judgment of the Court was delivered by
THOMAS, J. A love affair got swerved to the wrong side and sank into
tragedy The female partner in the affair, as it often happens, became the
victim of the tragedy. Rekha, a working woman and Yarappa Reddy, the
respondent – a milk trader – were the participants in the ill-fated
romantic adventure. Rekha was badly mauled to death on the morning of the
Martyrs Day (30th January) of 1982 for which the respondent Yarappa Reddy
was indicted by the Police. Sessions Court convicted him, but the High
Court acquitted him. Thus the present appeal at the instance of the State
by special leave.
Rekha was put up in a college hostel at Bangalore while she was doing her
B.A. As she failed in the final examinations her father put her up in the
house of a relative for prosecuting her studies. That relative’s daughter
Anitha (PW-8) became her friend. Respondent Yarappa Reddy was living .1 few
yards away from the house of PW-8. Respondent developed a fascination for
Rekha which in due course snowballed into a love affair. They exchanged
love letters between each other. In the meantime Rekha got a job as
Receptionist in a company called “Acad Coach Builders”. She was later
promoted as Cashier.
The love affair initially was on cloud nine, but as days passed it did not
sail smooth. One of the love letters happened to reach Rekha’s father, He
took his daughter to task and wangled a promise from her that she would not
do coquetry towards respondent and that she would not marry any one against
the wishes of her parents.
But respondent was not prepared to softpedal the affair. He con-tinued to
frequent Rekha to her chagrin and persisted with his plan to marry her. She
told him of the hubbubs which took place after one of the love letters mis-
reached and she expressed her disinclination to marry him. This recusancy
was beyond his limit of forbearance. He determined either to repossess her
or to finish her off.
Now, comes the disputed part of the story. On the day of occurrence Rekha,
as usual, went to the Coach Factory by 10 A.M. Respondent went there on a
motorcycle and talked to Rekha and persuaded her to go along with him to
another place for continued parleys over their affair. The unsuspected lady
went with him. He decoyed her to the house of PW-11 (Sharadamma) who was a
family friend. Rekha was introduced to her as his would be bride. PW-11
Sharadamma presumably welcomed the choice and showed her hospitality by
supplying coffee to her guests. She withdrew to her kitchen for affording
the young couple undisturbed forum to carry on their chat, without knowing
that a cauldron of rancour was fuming in his mind, and a blood craving
chopper was twitching in his bag.
How the conversation turned violent is not known to anyone else except the
two. At one point of time respondent whipped out a chopper from his bag and
inflicted murderous blows on Rekha. She yelled out “Amma”. PW-11 Sharadamma
overhearing the cry rushed to the drawing room and saw Rekha lying down
bleeding. Respondent suddenly turned towards PW-11 and fell on her feel
with the blood-oozing chopper and prayed for pardon as he killed his
fiancee. The stunned housewife remained transfixed and dump- founded.
Accused then left the house with the chopper and rode away on his
motorcycle.
Accused went to the local police station and surrendered the bloodstained
chopper to PW-15 Thimmaiah, the Sub-Inspector of police who was then the
Station House Officer. He gave a statement which was used as first
information statement. PW-15 took the respondent back to the house of PW-11
as he offered to show the house where the dead body was lying. PW-16 Circle
Inspector later arrived and held the inquest. Post-mortem examination was
conducted by Dr. H.A. Somaiah (PW-4) on the body of Rekha, He noted 9 ante-
mortem injuries of which 4 were stab wounds and the remaining were
scratches. The injury which became fatal has the following description :
“An incised stab wound over the middle of the chest at the level of
nipples, vertical spindle shaped, measur-ing 5 cms. x 8.5 cms. with tailing
downwards for 3 cms.” On dissection of the injury the doctor noted that it
had gone down, cut the cartilages of the 3rd and 4th ribs of the left side
and passed through the pericardium and further went down and perforated the
right ventricle. The wound on the right ventrich measured 2 cms. x 0.5 cms.
The lower end of the wound was sharp and upper end blunt.
PW-11 Sharadamma is the star witness of the prosecution. She stood by the
prosecution version and narrated further that when she rushed to the
drawing room on hearing the cry she saw the accused standing in the drawing
room with a blood-stained chopper. Prosecution examined, among others,
PW-11’s aged mother Nanjamma as PW-12. But as she was short of hearing her
evidence is not of much probative utility.
Respondent adopted a defence of total denial of his involvement in the
murder of Rekha. However, he suggested, as his defence, that Rekha would
have been killed by one of the sons of PW-11 who would have tried to ravish
her. According to the respondent, he was dragged into this case by PW-15
Sub Inspector only for extricating the real murderer out.
In support of his version he examined three witnesses. DW-1 Dr.
Gopalkrishnan was a surgeon having special knowledge in forensic medicine.
He gave his opinion that the injuries noted on the dead body of the
deceased would not have been inflicted with M.O. 16 chopper as its tip is
not sharp but curved and blunt. DW-2 Gopi merely said that he saw Rekha on
one or two occasions talking over the telephone from a nearby shop. DW-3
Venkatesh is the brother-in-law of PW-11. We will refer to his evidence
later.
The trial court relied on the evidence of PW-11 and found the other
circumstances narrated by the prosecution as proved in this case and hence
concluded that Rekha was put to death by the respondent and accordingly
convicted him under Section 302 of the IPC and sentenced him to im-
prisonment for life. On appeal a Division Bench of the High Court
disbilieved the testimony of PW-11 and launched a scathing criticism
against the investiga-tion. Learned Judges accepted the defence contention
that the injuries on the deceased could not have been caused by M.O. 16
chopper.
Sri M. Veerappa, learned counsel for the State contended that the reasoning
of the High Court for disbelieving the testimony of PW-11 is too fragile.
According to the counsel, every word of what PW- 11 said in the court was
nothing but true. He also contended that the defence version that police
favoured a rapist murderer of Rekha (son of PW-11) and for rescuing him
this innocent respondent was substituted, as absurd and most far-fetched.
The Division Bench of the High Court made a fatuous exercise for concluding
that MO- 16 chopper (as it is in the present shape) could not have caused
the incised injuries described in the post- mortem certificate. The curve
now found on the tip of the chopper (which made that portion look blunt)
seems to have persuaded the High Court in harping on such an exercise.
True, the defence counsel in the trial court had taken much strain to
establish that MO- 16 chopper, as it now remains, could not cause the
injuries indicated by the doctor who conducted the autopsy. It was quite
possible that the chopper could have become curved either when its sharp
tip made a forcible entry into the sternum (injury no. 1 in the post-mortem
report involves perforation of the sternum) or when it hit on the ribs. The
tip of the chopper could as well have been curved if the weapon had struck
the floor when the assailant fell on the feet of PW-11 with the weapon in
his hands. We are, therefore, not interested, in this case, to probe into
the possibilities of a blunt tipped weapon causing incised injuries.
If the said chopper remained in its original condition when the strikes
were inflicted by the assailant there is no room for any doubt that all the
injuries sustained by the deceased would have been caused by it. Of course,
another endeavour was made to show that a single edged weapon could not
result in spindle shaped incised injury, PW-4 Dr. Somaiah, a Senior
Professor in Forensic Medicine has repudiated the said suggestion. It is
not a correct proposition that such a shape of injury is not possible if
the weapon used is single edged. Regarding the incriminating conduct of the
accused that he surrendered before the police station at 11.20 am, the
Division Bench of the High Court made a frontal attack on the evidence of
PW-15 (Sub-Inspector Thimaiah). Learned Judges scrutinized the Station
House Diary and noted that two sheets therefrom had been torn off and in
that place another sheet has been pasted. The newly pasted sheet is marked
as Ex.D7. The following observation made by the High Court on that aspect
cannot be ignored :
` Therefore, the so called entry in Ex.D.7 on the basis of which the Police
Sub-Inspector claims to have registered a case is, in our opinion, highly
suspicious and appears to be manufactured and cooked up one. Therefore, the
version of the Police Sub-Inspector that on the basis of the information
given by the accused he registered a case looks rather unnatural and
unacceptable.”
We too have scrutinised the aforesaid Station House Diary and felt that the
Division Bench of the High Court is justified in making that observation.
As the entries on the particular sheet related to the events on 30.1.1982
we concur with the finding that no credence can be given to the police
version that accused gave First Information Statement to the police. No
doubt it vitiates the testimony of PW-15 (Sub-Inspector). Even other-wise
the First Information Statement given by an accused at the Police Station,
so long as it contains inculpative statements, would stand excluded from
evidence.
But can the above finding (that the Station House Diary is not genuine)
have any inevitable bearing on the other evidence in this case? If the
other evidence, on scrutiny, is found credible and acceptable, should the
court be influenced by the machinations demonstrated by the Inves-tigating
Officer in conducting investigation or in preparing the records so
unscrupulously. It can be a guiding principle that as investigation is not
the solitary area for judicial scrutiny in a criminal trial, the conclusion
of the court in the case cannot be allowed to depend solely on the probity
of investigation. It is well nigh settled that even if the investigation is
illegal or even suspicious the rest of evidence must be scrutinized
independently of the impact of it. Otherwise criminal trial will plummet to
that level of the investigating officers ruling the roost. The Court must
have predominance and pre-eminence in criminal trials over the action taken
by investigating officers. Criminal justice should not be made the casually
for the wrongs committed by the investigating officers in the case. In
other words, if the court is convinced that the testimony of a witness to
the occurrence is true the court is free to act on it albeit investigating
officer’s suspicious role in the case.
PW-15 (Sub-Inspector) was asked during examination-in-chief about what
happened on 30.1.1982, and he wanted to check up his records as he could
not remember without refreshing his memory. But then the defence counsel
seriously objected and wanted the court to disallow him from looking into
such records. It is not clear whether the said objection was upheld or
whether PW-15 was allowed to check up with the records of investigation.
Trial court cannot overlook the reality that an investigating officer comes
to the court for giving evidence after conducting investigation in many
other cases also in the meanwhile. Evidence giving process should not bog
down to memory tests of witnesses. An investigating officer must answer the
questions in court, as far as possible, only with reference to what he had
recorded during investigation. Such records are the contemporaneous entries
made by him and hence for refreshing his memory it is always advisable that
he looks into those records before answering any question.
Section 159 of the Evidence Act is couched in a language recognising the
aforesaid necessity. The section reads thus :
“759. Refreshing memory :- A witness may, while under examina-tion, refresh
his memory by referring to any writing made by himself at the time of the
transaction concerning which he is questioned, or so soon afterwards that
the Court considers it likely that the transaction was at that time fresh
in his memory.
The witness may also refer to any such writing made by any-other person,
and read by the witness within the time aforesaid, if when he read it he
knew it to be correct.”
The objection of the defence counsel when investigating officer wanted to
reply by referring to the records of investigation is, therefore, untenable
and unjustified- The trial court should repel such objections. The most
important witness in this case is PW-11 Sharadamma. Since it is undisputed
that the murder of Rekha took place in the house of PW-11 no court can
possibly ignore the importance of the evidence of the inmates of that
house. In that way PW-11 is the most natural and the most probable witness
to speak about the murder of Rekha. What the witness has deposed in court
is apparently in consonance with the narration of the prosecution story.
The Sessions Judge before whom PW-11 gave evidence was so impressed by her
testimony that he placed absolute reliance on it. But the Division Bench of
the High Court has advanced a very feeble reason to sidestep the testimony
of such an important witness. The first reasoning is this :
“Admittedly Sharadamma P.W. No. 11 and Nanjamma P.W. No. 12 are living in
the ground floor. Murthy and some others are living in the first floor of
the house. Admittedly there are innumerable houses roundabout the house of
Sharadamma and within the hearing distance of her house. That Murthy and
others have been living in the first story, has been admitted by Nanjama
P.W. No. 12 herself. If such a ghastly murder had taken place would it not
attract the attention of the persons living in the first floor.”
Whether the killer of Rekha was the accused or anybody else, when the fact
is admitted that murder of Rekha took place inside the house of PW-11 and
if no neighbour had rushed to the scene, how can that be a reason lo think
that the murder would have been committed by somebody else? So the said
reasoning is a flimsy premise.
The other reason to disbelieve her evidence is that if PW-11 had seen the
murder she would have cried out or shouted. This is what the High Court had
said about that aspect :
“She claims to have remained calm like a stone in the house. This unnatural
conduct of Sharadamma makes her evidence highly suspect and incredible.
Would she not have atleast told the neighbours that a girl had been
murdered in a room of her house and that the accused, if he really had done
so, had murdered the girl in the room. This passive conduct of hers makes
her evidence highly suspect.” Criminal Courts should not expect a set
reaction from any eye witness on seeing an incident like murder. If five
persons witness one incident there could be live different types of
reactions from each of them. It is neither a tutored impact nor a
structured reaction which the eye witness can make. It is fallacious to
suggest that PW-11 would have done this or that on seeing the incident.
Unless the reaction demonstrated by an eye witness is so improbable or so
inconceivable from any human being pitted in such a situation it is unfair
to dub his reactions as unnatural, Rana Pratap v. State of Haryana, AIR
(1983) SC 680, Appabhai v. State of Gujarat, AIR (1988) SC 696
The evidence of PW-11 was sought to be attacked by Shri Naresh Kaushik,
learned counsel for the respondent, on a ground which the High Court did
not choose to countenance. DW-3 Venkatesh – brother of Laxminarayanan
(husband of PW-11) was examined to say that accused’s father and
Laxminarayanan had a long transaction on which they later fell out. The
said evidence was let in, presumably, to show that PW-11 had some ire
towards the accused. In other words, it was intended to impeach the
impartiality of PW-11.
The general rule of evidence is that no witness shall be cited to
contradict another witness if the evidence is intended only to shake the
credit of another witness. The said rule has been incorporated in Section
153 of the Evidence Act which reads thus :
“153. Exclusion of evidence to contradict answers to questions testing
veracity. – When a witness has been asked and has answered any question
which is relevant to the inquiry only in so far as it tends to shake his
credit by injuring his character, no evidence shall be given to contradict
him; but if he answers falsely, he may afterwards be charged with giving
false evidence.”
The said rule has only two exceptions. One is that if the witness denies
having been previously convicted then evidence can be adduced to prove that
he was so convicted. The other exception is the following :
“Exception 2. – If a witness is asked any question tending to impeach his
impartiality, and answers it by denying the facts suggested, he may be
contradicted.”
Illustration (d) cited in Section 153 is to amplify the aforesaid cxcep-
tion no. 2. That illustration is extracted below :
“(d) A is asked whether his family has not had a blood fued with the family
of B against whom he gives evidence. He denies it. He may be contradicted
on the ground that the question tends to impeach his impartiality.”
The basic requirement for adducing such contradictory evidence is that the
witness, whose impartiality is sought to be contradicted with the help of
such evidence, should have been asked about it and he should have denied
it. Without adopting such a preliminary recourse it would be meaningless,
if not unfair, to bring in a new witness to speak something fresh about a
witness already examined. In Vijayan v. State, [1999] 4 SCC 36 this Court
has held that “the rule limiting the right to call evidence to contradict a
witness on collateral issues excludes all evidence of facts which are
incapable of affording any reasonable presumption or inference as to the
principal matter in dispute.”
As the general rule of evidence is one of prohibiting evidence on
collateral issues and since it is only by way of exception that such
evidence can be permitted, the court must guard that the defence evidence
falls strictly within the exception.
In the present case the basic premise has not been laid by asking PW-11
about the alleged loan transaction between her husband and accused’s father
and hence it is not permissible to cite a witness like DW-3 to say about
any such transaction.
PW-11 Sharadamma who is the most natural and probable witness to the
occurrence in this case, has stated about the role which the accused had
played in the murder of Rekha as far as she had witnessed it. Her evidence
admits of no other hypothesis except the exclusive involvement of the
accused in the murder. Learned counsel for the accused contended that if
PW-11 had supplied coffee to the accused and deceased (as she claimed) the
viscera of the stomach contents should have shown coffee. It is too puerile
a contention, for, there is no finding by the doctor as to the precise food
articles remained in the stomach of the dead body. No effort was made by
the doctor to see whether there was coffee in the stomach, and there was no
need to do so either Perhaps the doctor would have chosen in ascertain that
aspect if the death was suspected to he due to poisoning.
PW-6 Ankaiah had testified that at about 11.45 A.M. he saw the accused
proceeding to the house of PW-11 escorted by police personnel. PW-6 has
further said that it was the accused who pointed out the house of PW-11 and
that the dead body of the murdered lady was lying inside that house. PW-6
was one of the attestors of the inquest report and he is a resident of the
same locality. His evidence lends credence to the version of PW-11.
M.O. 16 (chopper) was surrendered by the accused to the police station.
PW-5 and PW-13 are the witnesses who were present when the accused
surrendered the chopper which was smeared with blood. Both witnesses have
put their signatures on Ext. P-6 Panchanama drawn up then. When M.O. 16
knife was subjected to serological examination it was found containing
blood of B-Group. The significance of the above circumstance is that when
two bed-sheets (on which the dead body was lying) were subjected to
serological test they too contained blood of B-Group.
From the above evidence we have no speck of doubt that accused was the
murderer of Rekha. The Sessions Judge who arrived al the above conclusion
had rightly convicted the accused. The Division Bench of the High Court
erroneously upset such a well merited conclusion.
We, therefore, allow this appeal and set aside the impugned judg-ment. We
restore the conviction and sentence passed by the trial court on the
respondent. We direct the City Civil and Sessions Judge, Bangalore to lake
immediate and prompt steps to put the respondent back in jail for
undergoing the remaining portion of his sentence.
