MALLIKARJUN AND OTHERS versus STATE OF KARNATAKA on 8 August 2019

[2019] 11 S.C.R. 609

MALLIKARJUN AND OTHERS

v.

STATE OF KARNATAKA

(Criminal Appeal No.1066 of 2009)

AUGUST 08, 2019

[R. BANUMATHI AND A. S. BOPANNA, JJ.]

Evidence – Of eye-witness – Appreciation of – As per theprosecution on 14.06.02, PW-7-brother of ‘B’ went to the fields forploughing in the early morning, at about 09.00am, ‘B’ went outsideto attend the call of nature and when he was returning towards hishouse, accused no.1, 2 & 4(appellants) along with accused no.3(absconding) arrived there with weapons– Accused personsthreatened ‘B’ while chasing him saying that they would finish himoff as he continues illicit relationship with the wife of accused No.4/mother of accused Nos.1-3– ‘B’ came into his house, went to thekitchen and closed the door –Accused persons started pushing thekitchen door and then ‘B’ came outside –Accused No.2 caught thehead of ‘B’ whereas accused nos.3 and 4 caught his both the legsand accused no.1 cut the neck of ‘B’ with MO-1-dagger– PW-5,mother of the deceased ‘B’ raised alarm crying for help –Appellantsconvicted u/s.448 r/w s.34 as also u/s.302 r/w s.34 – On appeal,held: While appreciating the evidence of witness, the approach mustbe to assess whether the evidence of the witness read as a wholeappears to be truthful – If the evidence of eye witness is found to becredible and trustworthy, minor discrepancies not affecting the coreof the prosecution case, cannot be made ground to doubt thetrustworthiness of the witness – In the instant case, no doubt thereare slight variations in the statement of PW-5 as to when and howher statement was recorded by the police, but PW-5 is an ordinaryhome maker and an illiterate woman– Courts are not to judge theevidence of ruralites by the same standard and exactitude like anyother witness– Alleged variations in the statement of PW-5 do notaffect the trustworthiness of PW-5 – PW-5 has no reason to falselyimplicate the accused– Further, based on the disclosure statementof accused no.1, MO-1-dagger had been seized in the presence ofpanch witnesses –No merit in the contention that merely because

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610SUPREME COURT REPORTS

Athe panch witnesses turned hostile, the recovery of the weapon wouldstand vitiated– Evidence of the I.O can be relied upon to prove therecovery even when the panch witnesses turned hostile – From theevidence of PW-5 and PW-7, the prosecution has proved the overtact of accused nos.1, 2 and the same is corroborated by thecorresponding injuries as spoken by PW-12-doctor – However,Bserious doubts arise as to the presence of accused no.4 – Benefit ofdoubt given to him and his conviction is set aside – Conviction ofaccused nos.1 & 2 is confirmed while that of accused No.4 is setaside – Penal Code, 1860 – s. 448, 302 r/w s.34 IPC .

Evidence – Of Expert – Evidentiary value of – Held: ExpertCis not a witness of fact – Opinionative evidence of the doctor isprimarily an evidence of opinion and not of fact – It is only acorroborative piece of evidence as to the possibility that the injuriescould have been caused in the manner alleged by the prosecution –Unless the medical evidence rules out such possibility of injury beingDcaused in the manner alleged by the prosecution version, thetestimony of the eye witness cannot be doubted on the ground of itsinconsistency with medical evidence.

Criminal Trial – FIR – Delay in registration of – When notfatal – Discussed.EDisposing of the appeal, the Court

Conclusion

HELD: 1.1 While appreciating the evidence of a witness,the approach must be to assess whether the evidence of a witnessread as a whole appears to be truthful. Once the impression isformed, it is necessary for the court to evaluate the evidence andFthe alleged discrepancies and then, to find out whether it is againstthe general tenor of the prosecution case. If the evidence of eyewitness is found to be credible and trustworthy, minordiscrepancies which do not affect the core of the prosecution case,cannot be made a ground to doubt the trustworthiness of theGwitness. Minor discrepancies and inconsistent version do notnecessarily demolish the prosecution case if it is otherwise foundto be creditworthy. No doubt, there are slight variations in thestatement of PW-5 as to when and how her statement wasrecorded by the police. At one place, PW-5 states that the policecame to the village at 11.00 am and took her complaint byH

obtaining her left thumb impression; whereas PW-17-PSI statedthat he was not knowing about the incident till PW-5 came to thepolice station and lodged the complaint at 01.15 PM and beforethat he has not received any phone call from the village Dalapathi.As pointed out by the trial court, PW-5 is an ordinary home makerand an illiterate woman. While in the witness box, it is quite naturalfor a witness like PW-5 being overawed by the court atmosphereto give varying statements. The courts are not to judge theevidence of ruralites by the same standard and exactitude likeany other witness. As pointed out by the trial court, the evidenceof PW-5 as to the place of occurrence is corroborated by the spotpanchnama (Ex.-P7) drawn by PW-17-PSI and also the inquest onthe dead body of the deceased in the Padasala itself. The allegedvariations in the statement of PW-5, does not affect thetrustworthiness of PW-5 so as to doubt her testimony. [Paras 13-15] [619-E-F; 620-F-H; 621-A-B]

1.2 Evidence of a witness is not to be disbelieved simplybecause he/she appears partisan or is related to the deceased/prosecution witness. It is to be ascertained whether the witnesswas present or not and whether he/she is telling the truth or not.The place of occurrence being the house of the deceased, PW-5-mother of the deceased is a natural witness to speak about theoccurrence. PW-5-mother of deceased also explained that howshe was present in the house and how she happened to be in theplace of occurrence. As pointed out by the courts below, evenafter cross-examination, the defence was not able to establishanything that can create doubt as to the evidence of PW-5. Thatapart, PW-5 has no reason to falsely implicate the accused. Beingthe mother of deceased, it is highly improbable that PW-5 wouldhave falsely implicated the accused at the instance of the policeor anyone else. In his evidence, PW-7 stated that he went to thefield for ploughing and as usual came back to his house for mealsat 08.30 am. PW-12-Doctor was of the opinion that the death wasdue to haemorrhage and shock as a result of injury to vitalstructures of the neck i.e. large vessels and trachea. MO-1-dagger is 2 feet 6 inches in length and its blade is 1/1/2 inches inwidth. By looking into MO-1-dagger and nature of injury No.1, AB

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APW-12-doctor has opined that “….external injury No.1 in Ex.-P11 is not possible by using MO-1 or MO-2….”. PW-12-doctorfurther stated that if a man is assaulted with MO-1-dagger on histhroat two or three times, the death is possible. [Paras 16-18][621-B-F; 622-E-F]

B1.3 The expert is not a witness of fact. Opinionativeevidence of the doctor is primarily an evidence of opinion andnot of fact. It is only a corroborative piece of evidence as to thepossibility that the injuries could have been caused in the manneralleged by the prosecution. Unless the medical evidence rulesout such possibility of injury being caused in the manner allegedCby the prosecution version, the testimony of the eye witnesscannot be doubted on the ground of its inconsistency with medicalevidence. Though at one place, PW-12-doctor has stated thatinjury No.1 could not have been caused by MO-1-dagger, on beingfurther questioned, he has stated that injury No.1 could have beencaused by MO-1 either by attacking on the throat two or threeDtimes or by inflicting injury on the throat and twisting the weapon.Considering the evidence of PW-12-doctor, there is no merit inthe contention as to the alleged variance between the medicalevidence and the ocular evidence. There is, of course, delay inregistration of FIR and the receipt of the same in the court. ThereEmay be cases where the delay in FIR gives rise to the suspicionas to the false implication; but when the delay is satisfactorilyexplained, delay in registration of the FIR or receipt of the samein the court would not affect the prosecution case. PW-6-husbandof PW-5 and father of deceased was away from the house andnaturally, it would have taken some time for PW-5 and her sonFPW-7 to lodge the complaint about the occurrence. The effect onthe mind of PW-5 on seeing the death of her son, cannot bemeasured. Being grief-stricken because of death of her son, itmight have taken some time for PW-5 and PW-7 to lodge thecomplaint. FIR in Crime No.44/2002 was registered at 01.15 pmGand the same was received by the Magistrate at 08.00 pm nearlyafter six hours. There is, of course, some delay in receipt of theFIR in the court. In his evidence, PW-10-Constable then attachedto Saidapur Police Station has stated that the distance betweenSaidapur and Yadgir is 40 kms. PW-10-Constable has stated that at the relevant time, there was no train from Saidapur to Yadgir.PW-10-Constable further stated that though eight buses wereplying to Yadgir, at the relevant time, there were no buses enablinghim to reach Yadgir at an earlier time. There was no inordinatedelay in the receipt of FIR in the court. The findings of the trialcourt and the High Court that the delay in lodging the complaintand receipt of FIR in the court have been properly explained, donot suffer from infirmity.[Paras 20-22] [623-A-C, E-H; 624-A-B]

1.4 Based on the disclosure statement of accused No.1,MO-1-dagger which was kept hidden in the haystack of fodder inthe loft of the cattle shed behind the house of accused No.1 hadbeen seized under Ex.-P9-Panchnama in the presence of panchwitnesses. There is no merit in the contention that merely becausethe panch witnesses turned hostile, the recovery of the weaponwould stand vitiated. The evidence of the Investigating Officercan be relied upon to prove the recovery even when the panchwitnesses turned hostile. When a grave crime is registered, thePSI who is in-charge of the police station cannot wait for the arrivalof the Circle Inspector or wait for the instruction to commencethe investigation. From the evidence of PW-5 and PW-7, theprosecution has proved the overt act of accused Nos.1 and 2 andthe same is corroborated by the corresponding injuries as spokenby PW-12. Accused No.4 was stated to be working as teacher atBalichakra who is said to have attacked the deceased with thewooden handle of the axe (MO-3) on the back of deceased. Byperusal of post-mortem certificate (Ex.-P11), there is no injurycorresponding to the alleged overt act of accused No.4. As seenfrom the FIR, in the complaint, PW-5 stated that at the time ofattacking, the accused stated that “this bastard is having illicitrelationship with our mother”. The above words stated in theFIR prima facie indicate the presence of accused Nos.1 & 2 andthe absconding accused No.3 only who have attacked thedeceased. Serious doubts arise as to the presence of accusedNo.4 and the benefit of doubt has to be given to him. The convictionof accused No.1 and accused No.2 are based upon properappreciation of evidence and the reasonings are well balancedand no reason is found warranting interference with theirconviction. Conviction of accused No.1 and accused No.2 and AB

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Athe sentence of imprisonment imposed upon them are confirmed.Conviction of accused No.4 is set aside and he is acquitted fromall the charges levelled against him. [Paras 23-26][624-C, E; 625-F-H; 626-A-D]

Bakhshish Singh v. State of Punjab and another (2013)B12 SCC 187: [2013] 16 SCR 589; RameshbhaiMohanbhai Koli v. State of Gujarat and others (2011)11 SCC 111 : [2010] 14 SCR 1 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1066 of 2009

From the Judgment and Order dated 30.05.2008 of the High Courtof Karnataka at Bangalore in Criminal Appeal No. 124 of 2005D

Ms. Kiran Suri, Sr. Adv., Ms. S. J. Amith, Ms. Aishwarya Kumar,Dr. (Mrs.) Vipin Gupta, Advs. for the Appellants.

Joseph Aristotle S., Mrs. Priya Aristotle, Rijuk Sarkar, Mrs. FarahHashmi, Advs. for the Respondent.

EThe Judgment of the Court was delivered by

R. BANUMATHI, J.

1. This appeal arises out of the judgment dated 30.05.2008 passedby the High Court of Karnataka in Criminal Appeal No.124 of 2005 inand by which the High Court affirmed the conviction of the appellants-Faccused Nos.1, 2 and 4 under Section 302 IPC read with Section 34IPC and the sentence of life imprisonment imposed upon each of them.The High Court also affirmed their conviction under Section 448 readwith Section 34 IPC and sentence of imprisonment imposed upon eachof them.G2. The appellants-accused No.1-Mallikarjun, accused No.2-Ravi

2. The appellants-accused No.1-Mallikarjun, accused No.2-Raviand co-accused No.3-Maruti (absconding) are the sons of accused No.4-Balappa. It is alleged that deceased Bhimraya was having illicit affairwith Bhimawwa-wife of accused No.4-Balappa since 4-5 years prior to

the incident and therefore, all the accused were said to be having enmitywith the deceased Bhimraya. PW-5- Kamalamma is the mother ofdeceased. Case of the prosecution is that on 14.06.2002, PW-6-Mareppa-father of the deceased went to village Kaulur to attend marriage. PW-7-Hanmanth-brother of deceased went to the fields for ploughing in theearly morning. At about 09.00 am, deceased-Bhimraya went outside toattend the call of nature. When he was returning towards his house,accused No.1-Mallikarjun, accused No.2-Ravi and accused No.4-Balappa (appellants herein) along with accused No.3-Maruti (absconding)arrived there armed with weapons in their hands. All the four accusedpersons were threatening the deceased while chasing him saying thatthey would finish him off as he continues with illicit relationship with thewife of accused No.4/mother of accused Nos.1 to 3. Deceased-Bhimraya came into his house, went straight to the kitchen and closedthe door. Kamalamma (PW-5), mother of deceased tried to persuadethe accused persons not to kill her son. PW-7-Hanmanth came fromfield but seeing weapons in the hands of the accused persons, he did notgo inside the house; but he saw the incident. All the four accused startedpushing the kitchen door and then deceased came outside the kitchen.Accused No.4-Balappa is alleged to have exhorted other accused to killdeceased saying that he should not be left alive as he has been having anaffair with his wife for 4-5 years and both are tarnishing the image oftheir family. Accused No.1-Mallikarjun inflicted an injury on the leftside of waist of deceased with MO-1-dagger; accused No.2-Raviassaulted deceased with dagger-MO-2 on his nose and on left eye-brow.Accused No.1 again inflicted the injuries with MO-1-dagger on the chest,right elbow and right thigh of the deceased. After that accused No.3-Maruti dragged the deceased and knocked him to the ground. AccusedNo.4-Balappa assaulted the deceased on his back with the handle of theaxe (MO-3). Accused No.2-Ravi caught the head whereas accusedNo.3 and 4 caught both the legs of the deceased and accused No.1 cutthe neck of the deceased with MO-1-dagger. PW-5-mother of deceasedraised alarm crying for help. PWs 1 to 4 and PW-7 and others camenear to the spot and on seeing them, all accused ran away from thereleaving one dagger (MO-2) and handle of the axe (MO-3) on the spot.

3. On the same day at 01.15 pm, PW-5- Kamalamma, mother ofdeceased lodged complaint before Saidapur Police Station which wasreduced to writing by PW-17-PSI S.Y. Hunshikatti; based on which, ABCDEF

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AFIR was registered in Crime No.44/2002 at Saidapur Police Station underSections 448, 504 and 302 IPC read with Section 34 IPC. PW-17-PSIwent to the scene of occurrence and conducted inquest (Ex.-P6) andinitial part of the investigation viz. preparation of the spot panchnama(Ex.-P7) in the presence of PW-8-Chandrappa and PW-9-MahadevappaNeedgera. Bloodstained dagger (MO-2), bloodstained handle of theBaxe (MO-3), bloodstained mud (MO-10) and sample mud (MO-11) wererecovered from the scene of occurrence. PW-12-Dr.H.R. Kumarconducted the post-mortem (Ex.-P11) on the dead body of deceasedBhimraya on 14.06.2002 at 04.15 pm. PW-12-Doctor opined that thedeath was caused due to shock and haemorrhage due to injury to theCvital organ i.e. neck. PW-12-doctor further opined that the injurycould have been caused by the knives.

4. Accused No.1 to 3 were arrested on 15.06.2002 at about 11.00am. Confessional statement of accused No.1 led to the recovery ofdagger (MO-1) hidden in the haystack of fodder in a loft of cattle shedDof his house. On completion of investigation, charge sheet was filedagainst all the four accused under Section 448 IPC read with Section 34IPC and under Section 302 IPC read with Section 34 IPC.

5. To prove the guilt of the accused before the trial court,prosecution examined PWs1 to 17 and marked number of documentsEand also marked material objects. The trial court rejected the defenceplea of alibi put forth by accused No.4 who has been working as ateacher at Balichakra village. Upon consideration of oral anddocumentary evidence, the trial court found that the delay in registrationof FIR is not fatal to the prosecution case. Relying upon the evidence ofPW-5-mother of deceased corroborated by the medical evidence andFconsidering other evidence, the trial court held that the prosecution hasestablished the guilt of the accused beyond reasonable doubt and convictedaccused Nos.1, 2 and 4 (appellants herein) and also accused No.3(absconding) under Section 448 read with Section 34 IPC and sentencedthem to undergo rigorous imprisonment for six months each. They wereGalso convicted under Section 302 IPC read with Section 34 IPC andsentenced each of them to undergo life imprisonment. In appeal, theHigh Court confirmed the conviction of the appellants (accused Nos.1,2and 4) and co-accused No.3 and also the sentence of imprisonmentimposed upon them.

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6. Ms. Kiran Suri, learned senior counsel appearing for theappellants submitted that the incident was at 09.00 am whereas thecomplaint was lodged only at 01.15 pm and the FIR was received by theMagistrate only at 08.00 pm and there is an inordinate delay in receipt ofFIR by the Magistrate and no explanation is given for the delay inregistration of FIR. It was submitted that the unexplained delay inregistration of FIR and delay in receipt of FIR in the court raises seriousdoubts about the prosecution case and there is every likelihood of falseimplication of the accused and this aspect has not been properlyconsidered by the trial court and the High Court. It was further submittedthat the evidence of PW-5-Kamalamma-mother of deceased suffersfrom discrepancies which vitally affect the credibility of PW-5 and theevidence of PW-5 cannot form the basis for conviction. The learnedsenior counsel assailed the alleged recovery of dagger (MO-1) fromaccused No.1 and other material objects from the scene of occurrenceand submitted that without proper appreciation of evidence, the courtsbelow erred in convicting the appellants.

7. Mr. Joseph Aristotle, learned counsel appearing for the Stateof Karnataka has submitted that there is no discrepancy in the evidenceof two eye-witnesses viz. PW-5-Kamalamma-mother of deceased andPW-7-Hanmanth and their evidence are well corroborated by medicalevidence. It was submitted that upon appreciation of evidence of PW-5 and PW-7, the courts below rightly held that the appellants havecommitted the murder of deceased. The learned counsel submitted thatthe evidence of Investigating Officers viz. PW-16-Dattappa and PW-17-PSI S.Y. Hunshikatti and the evidence adduced regarding the seizureof MO-1-dagger from accused No.1 and MOs 2 and 3 from the sceneof occurrence amply support the case of prosecution and the trial courtrightly convicted the appellants-accused Nos.1, 2 and 4 and abscondingaccused No.3 and the High Court rightly confirmed the same and theimpugned judgment warrants no interference.

8. We have heard learned senior counsel appearing for theappellants-accused and learned counsel appearing for the State ofKarnataka and carefully considered the submissions and perused theimpugned judgment and the evidence and materials on record.

9. PWs 1 to 4 stated to be the independent eye witnesses havenot supported the case of the prosecution and turned hostile. On the AB

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Amorning of 14.06.2002 i.e. date of occurrence, PW-6-Mareppa-fatherof deceased went to the Kaulur village to attend a marriage. PW-7-Hanmath-brother of deceased had gone to the land for ploughing in themorning. PW-5-mother of deceased Bhimraya is the eye witness andPW-7 who came back from the field for meals also stated that he haswitnessed the occurrence.B

10. PW-5-mother of the deceased, in her evidence, stated that on14.06.2002 at 09.00 am, deceased Bhimraya went out to attend the callof nature and when he was coming back to the house, accused No.1holding dagger-MO-1, accused No.2 holding dagger-MO-2 and accusedNo.4 holding handle of the axe-MO-3 chased the deceased and theCdeceased went inside the kitchen and closed the door. PW-5 stated thatshe pleaded with the accused for mercy and asked them not to do anythingto Bhimraya. The accused, however, pushed the kitchen door andBhimraya came outside to the verandah and at that time, accused No.1attacked the deceased at his left waist with MO-1-dagger and accusedDNo.2 stabbed on the nose and left eye brow with MO-2-dagger. AccusedNo.1 again stabbed the deceased on the right elbow. It is alleged thataccused Nos.2 to 4 caught hold the legs and hands of Bhimraya andaccused No.1 inflicted chop wound on the neck of Bhimraya andBhimraya died on the spot. PW-7-brother of deceased who came backfrom the field for meals also witnessed the occurrence and spoke aboutEthe overt act of the accused. Motive is stated to be the illicit relationshipof the deceased with the mother of accused Nos.1 to 3 and wife ofaccused No.4. It is alleged that the deceased used to go to the house ofaccused No.4 and wife of accused No.4 used to go to the house ofdeceased.

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11. Evidence of PW-5 is assailed on the ground that her evidencesuffers from discrepancies and contradictions as to how and when herstatement was recorded and when PW-7 came back to the house. Inher evidence, PW-5 stated that Saidapur Police came to the scene ofoccurrence and her statement was recorded. PW-5 further stated thatGthe police took her to the police station and recorded her statement inthe police station. In her cross-examination, PW-5 stated at one time“that at about 10.00 am village Dalapathi informed the police and policecame at 11.00 am and recorded her statement and obtained her leftthumb impression…..”. In another version, PW-5 stated that she wasat home till her husband (PW-6) came home from village Kaulur and H

thereafter she went to the police station along with PW-6. The learnedsenior counsel submitted that PW-5 could not have been an eye witnessas her evidence suffers from various discrepancies. The learned seniorcounsel for the appellants submitted that the contradictory versions ofPW-5 as to how and when her statement was recorded by the policebecomes relevant in the light of delay in registering FIR and delay insending the FIR to JMFC and this only strengthens the defence plea offalse implication of the accused.

12. In its judgment, the trial court elaborately discussed about thepresence of PW-5 in the house at the relevant time where the occurrencehad taken place and how PW-5 is the natural witness. The trial courtwhich had the opportunity of seeing and observing PW-5 while she wasin the witness box, had observed that PW-5 has given graphic picture ofthe incident and that her evidence is trustworthy. The trial court alsopointed out that PW-5 being an illiterate woman, her varying statementsas to when and how her statement was recorded by the police, cannotbe the ground for doubting her testimony and this finding was affirmedby the High Court. We do not find any reason to take a different view.

13. While appreciating the evidence of a witness, the approachmust be to assess whether the evidence of a witness read as a wholeappears to be truthful. Once the impression is formed, it is necessaryfor the court to evaluate the evidence and the alleged discrepancies andthen, to find out whether it is against the general tenor of the prosecutioncase. If the evidence of eye witness is found to be credible andtrustworthy, minor discrepancies which do not affect the core of theprosecution case, cannot be made a ground to doubt the trustworthinessof the witness.

14. Observing that minor discrepancies and inconsistent versiondo not necessarily demolish the prosecution case if it is otherwise foundto be creditworthy, in Bakhshish Singh v. State of Punjab and another(2013) 12 SCC 187, it was held as under:-

32. In Sunil Kumar Sambhudayal Gupta v. State of Maharashtra(2010) 13 SCC 657 this Court observed as follows: (SCC p. 671,para 30)

“30. While appreciating the evidence, the court has to takeinto consideration whether the contradictions/omissions hadbeen of such magnitude that they may materially affect the AB

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trial. Minor contradictions, inconsistencies, embellishments orimprovements on trivial matters without effecting the core ofthe prosecution case should not be made a ground to reject theevidence in its entirety. The trial court, after going through theentire evidence, must form an opinion about the credibility ofthe witnesses and the appellate court in normal course wouldnot be justified in reviewing the same again without justifiablereasons. (Vide State v. Saravanan (2008) 17 SCC 587.)”

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33. ……. this Court in Raj Kumar Singh v. State of Rajasthan(2013) 5 SCC 722 has observed as under: (SCC p. 740, para 43)

C“43. … It is a settled legal proposition that, while appreciatingthe evidence of a witness, minor discrepancies on trivialmatters, which do not affect the core of the case of theprosecution, must not prompt the court to reject the evidencethus provided, in its entirety. The irrelevant details which donot in any way corrode the credibility of a witness, cannot beDlabelled as omissions or contradictions. Therefore, the courtsmust be cautious and very particular in their exercise ofappreciating evidence. The approach to be adopted is, if theevidence of a witness is read in its entirety, and the sameappears to have in it, a ring of truth, then it may becomeEnecessary for the court to scrutinise the evidence moreparticularly, keeping in mind the deficiencies, drawbacks andinfirmities pointed out in the said evidence as a whole, andevaluate them separately, to determine whether the same arecompletely against the nature of the evidence provided by thewitnesses, and whether the validity of such evidence is shakenF”by virtue of such evaluation, rendering it unworthy of belief.

15. No doubt, there are slight variations in the statement of PW-5as to when and how her statement was recorded by the police. At oneplace, PW-5 states that the police came to the village at 11.00 am andtook her complaint by obtaining her left thumb impression; whereas PW-G17-PSI stated that he was not knowing about the incident till PW-5 cameto the police station and lodged the complaint at 01.15 PM and beforethat he has not received any phone call from the village Dalapathi. Aspointed out by the trial court, PW-5 is an ordinary home maker and anilliterate woman. While in the witness box, it is quite natural for a witnessHlike PW-5 being overawed by the court atmosphere to give varying statements. The courts are not to judge the evidence of ruralites by thesame standard and exactitude like any other witness. As pointed out bythe trial court, the evidence of PW-5 as to the place of occurrence iscorroborated by the spot panchnama (Ex.-P7) drawn by PW-17-PSIand also the inquest on the dead body of the deceased in the Padasalaitself. The alleged variations in the statement of PW-5, in our view, doesnot affect the trustworthiness of PW-5 so as to doubt her testimony.

16. Evidence of a witness is not to be disbelieved simply becausehe/she appears partisan or is related to the deceased/prosecution witness.It is to be ascertained whether the witness was present or not and whetherhe/she is telling the truth or not. The place of occurrence being thehouse of the deceased Bhimraya, PW-5-mother of the deceased is anatural witness to speak about the occurrence. PW-5-mother of deceasedalso explained that how she was present in the house and how shehappened to be in the place of occurrence. As pointed out by the courtsbelow, even after cross-examination, the defence was not able to establishanything that can create doubt as to the evidence of PW-5. That apart,PW-5 has no reason to falsely implicate the accused. Being the motherof deceased, it is highly improbable that PW-5 would have falselyimplicated the accused at the instance of the police or anyone else.

17. In his evidence, PW-7 stated that he went to the field forploughing and as usual came back to his house for meals at 08.30 am.PW-7 has stated about the overt act of all the accused and thus stated tobe the eye witness and in our view, this submission does not meritacceptance. The learned senior counsel for the appellants submittedthat the trial court did not treat PW-7 as an eye witness. It was elicitedfrom PW-5 that the land where PW-7 had gone for ploughing, is situatedfar away and he could not have heard the noise from the land. It is inthis context, the trial court proceeded under the footing that even assumingfor the arguments sake that the characteristics of an eye witness is notattached to PW-7 and even then the same can be taken into considerationto the extent of the place of commission of offence i.e. in the Padasalaof their house and to the extent of injuries found on Bhimraya. The trialcourt thus did consider PW-7 as an eye-witness. The trial court recordedits reasonings under the alternative footing that even assuming that PW-7 is not considered as an eye witness, his evidence supports theprosecution case to the extent of place of occurrence and the nature ofinjuries and the injuries sustained by deceased Bhimraya.

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A18. PW-12-Dr.H.R. Kumar who conducted the autopsy, has notedthe following injuries on the body of deceased Bhimraya:-

i.An antemortem chop wound present over the neck in its an-terior aspect, extends from the lateral border of right sterno-mastoid muscles to its left side size 10 × 3’. Large vessels ofBthe neck and trachea were cut.

ii.Cut lacerated wound over the root of the nose present size1 ×1 cm.

iii.Cut lacerated wound over the left eye brow region present.

iv.Cut incised wound over the left side of the chest, anteriorily10’ below the middle of the clavical size 4 × 2 cm.

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v.An incised wound over the right elbow size 2 × 1 cm.

vi.Chop wound in the loin region left, posteriorly size 4 × 2’ withcoils of intestine seen.D

vii. An incised wound over the right thigh in the antero medicalaspect size 2 × 1.

Injury No.1 in Ex.-P11-post-mortem certificate shows that it ischop wound cutting the large vessel of neck and trachea. PW-12-Doctorwas of the opinion that the death was due to haemorrhage and shock asEa result of injury to vital structures of the neck i.e. large vessels andtrachea. MO-1-dagger is 2 feet 6 inches in length and its blade is 1/1/2inches in width. By looking into MO-1-dagger and nature of injury No.1,PW-12-doctor has opined that “….external injury No.1 in Ex.-P11 is notpossible by using MO-1 or MO-2….”. PW-12-doctor further statedFthat if a man is assaulted with MO-1-dagger on his throat two or threetimes, the death is possible.

19. On behalf of the appellants, the learned senior counselcontended that the opinionative evidence of PW-12-doctor does notcorroborate the oral evidence of PW-5 as to the manner in which theGinjury was caused to deceased with MO-1-dagger. In his evidence,PW-12-doctor has further stated that “by looking into the description ofinjury No.1 in Ex.-P11, it cannot be ascertained that it could be causedby using MO-1-dagger repeatedly from twisting.” PW-12-doctor wasrepeatedly cross-examined as to the manner in which injury No.1 couldhave been caused by using MO-1-dagger and the evidence of PW-5 isH

sought to be assailed on the basis of answers elicited from PW-12-doctor.

20. The expert is not a witness of fact. Opinionative evidence ofthe doctor is primarily an evidence of opinion and not of fact. It is only acorroborative piece of evidence as to the possibility that the injuries couldhave been caused in the manner alleged by the prosecution. Unless themedical evidence rules out such possibility of injury being caused in themanner alleged by the prosecution version, the testimony of the eyewitness cannot be doubted on the ground of its inconsistency with medicalevidence. Though at one place, PW-12-doctor has stated that injury No.1could not have been caused by MO-1-dagger, on being further questioned,he has stated that injury No.1 could have been caused by MO-1 eitherby attacking on the throat two or three times or by inflicting injury on thethroat and twisting the weapon. Considering the evidence of PW-12-doctor, there is no merit in the contention as to the alleged variancebetween the medical evidence and the ocular evidence.

21. The learned senior counsel for the appellants then contendedthat the occurrence was at 09.00 am whereas the FIR was registeredonly at 01.15 pm and nearly after a delay of four hours, case wasregistered and the Magistrate received the FIR at 08.00 pm. The learnedsenior counsel for the accused contended that there is animosity betweenthe parties and the delay in registration of FIR and the delay in receipt ofFIR in the court raise serious doubts that the accused had been falselyimplicated in the case. There is, of course, delay in registration of FIRand the receipt of the same in the court. There may be cases where thedelay in FIR gives rise to the suspicion as to the false implication; butwhen the delay is satisfactorily explained, delay in registration of theFIR or receipt of the same in the court would not affect the prosecutioncase. PW-6-husband of PW-5 and father of deceased was away fromthe house and naturally, it would have taken some time for PW-5 andher son PW-7 to lodge the complaint about the occurrence. The effecton the mind of PW-5 on seeing the death of her son, cannot be measured.Being grief-stricken because of death of her son, it might have takensome time for PW-5 and PW-7 to lodge the complaint.

22. FIR in Crime No.44/2002 was registered at 01.15 pm and thesame was received by the Magistrate at 08.00 pm nearly after six hours.There is, of course, some delay in receipt of the FIR in the court. In hisevidence, PW-10-Constable Kalyanamma then attached to SaidapurPolice Station has stated that the distance between Saidapur and Yadgir ABC

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Ais 40 kms. PW-10-Constable has stated that at the relevant time, therewas no train from Saidapur to Yadgir. PW-10-Constable further statedthat though eight buses were plying to Yadgir, at the relevant time, therewere no buses enabling him to reach Yadgir at an earlier time. In ourview, there was no inordinate delay in the receipt of FIR in the court.The findings of the trial court and the High Court that the delay in lodgingBthe complaint and receipt of FIR in the court have been properly explained,do not suffer from infirmity and we do not find any reason to take adifferent view.

23. As pointed out earlier, based on the disclosure statement ofaccused No.1, MO-1-dagger which was kept hidden in the haystack ofCfodder in the loft of the cattle shed behind the house of accused No.1had been seized under Ex.-P9-Panchnama in the presence of panchwitnesses PW-8-Chandrappa and PW-9-Mahadevappa Needgera. Thesaid panch witnesses have not supported the prosecution case and turnedhostile. MO-2-dagger and MO-3-handle of the axe were recovered fromDthe scene of occurrence under Ex.-P7-spot panchnama. On behalf ofthe accused, learned senior counsel contended that the evidence of PW-17-PSI as to the recovery of MO-1-dagger at the behest of accusedNo.1 is doubtful and when PWs 8 and 9 have turned hostile, no weightcould be attached to the alleged recovery of MO-1-dagger. There is nomerit in the contention that merely because the panch witnesses turnedEhostile, the recovery of the weapon would stand vitiated. It is fairly wellsettled that the evidence of the Investigating Officer can be relied uponto prove the recovery even when the panch witnesses turned hostile. InRameshbhai Mohanbhai Koli v. State of Gujarat and others (2011)11 SCC 111, it was held as under:-F“33. In Modan Singh v. State of Rajasthan (1978) 4 SCC 435it was observed (at SCC p. 438, para 9) that where the evidenceof the investigating officer who recovered the material objects isconvincing, the evidence as to recovery need not be rejected onthe ground that seizure witnesses did not support the prosecutionGversion. Similar view was expressed in Mohd. Aslam v. State ofMaharashtra (2001) 9 SCC 362.

34. In Anter Singh v. State of Rajasthan (2004) 10 SCC 657, itwas further held that: (SCC p. 661, para 10)

[R. BANUMATHI, J.]

“10. … even if panch witnesses turn hostile, which happensvery often in criminal cases, the evidence of the person whoeffected the recovery would not stand vitiated.”

35. This Court has held in a large number of cases that merelybecause the panch witnesses have turned hostile is no ground toreject the evidence if the same is based on the testimony of theinvestigating officer alone. In the instant case, it is not the case ofdefence that the testimony of the investigating officer suffers fromany infirmity or doubt. (Vide Modan Singh case, Krishna Gopalcase and Anter Singh case.)”

PW-17-PSI has clearly spoken about the recovery of MO-1-daggerat the behest of accused No.1 and MO-2-dagger and MO-3-handle ofthe axe from the scene of occurrence and his evidence cannot bediscarded merely because panch witnesses have turned hostile.

24. The learned senior counsel for the appellants contended thatin the case registered under Section 302 IPC, only the Circle Inspectorof Police is authorised to conduct investigation and PW-17-PSI has noauthority to conduct the investigation and the prosecution case is vitiatedon account of the investigation done by PW-17-PSI who had no authorityto conduct the investigation. If the Circle Inspector was not available inthe police station or on other duty, PSI who was in-charge of the policestation had the power to proceed with the initial investigation. In hisevidence, PW-17-PSI had clearly stated that in the absence of CircleInspector, he has powers to investigate the cases registered includingthe one under Section 302 IPC. When a grave crime is registered, thePSI who is in-charge of the police station cannot wait for the arrival ofthe Circle Inspector or wait for the instruction to commence theinvestigation.

25. From the evidence of PW-5 and PW-7, the prosecution hasproved the overt act of accused Nos.1 and 2 and the same is corroboratedby the corresponding injuries as spoken by PW-12-Dr.H.R. Kumar.Accused No.4 was then stated to be working as teacher at Balichakrawho is said to have attacked the deceased with the wooden handle ofthe axe (MO-3) on the back of deceased. By perusal of post-mortemcertificate (Ex.-P11), there is no injury corresponding to the alleged overtact of accused No.4. As seen from the FIR, in the complaint, PW-5stated that at the time of attacking, the accused stated that “this bastard AB

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Ais having illicit relationship with our mother”. The above words stated inthe FIR prima facie indicate the presence of accused Nos.1 and 2 andthe absconding accused No.3 only who have attacked the deceased.Serious doubts arise as to the presence of accused No.4 and the benefitof doubt has to be given to accused No.4 and the conviction of accusedNo.4 cannot be sustained. The conviction of accused No.1-MallikarjunBand accused No.2-Ravi are based upon proper appreciation of evidenceand the reasonings are well balanced and we do not find any reasonwarranting interference with their conviction.

26. In the result, conviction of accused No.1-Mallikarjun andaccused No.2-Ravi under Section 302 IPC read with Section 34 IPCCand Section 448 IPC read with Section 24 IPC and the sentence ofimprisonment imposed upon them are confirmed and the appeal isdismissed qua accused Nos.1 and 2. Conviction of accused No.4 is setaside and he is acquitted from all the charges levelled against him. Thisappeal is partly allowed accordingly.

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Divya Pandey

Appeal disposed of.

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