REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1006 of 2007

A. Shankar              …Appellant

Versus

State of Karnataka                     …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1.        This criminal appeal has been filed under Section 2(a) of the  

Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,  

1970 against the judgment and order dated 28.2.2007 of the High Court  

of  Karnataka,  Bangalore,  in  Criminal  Appeal  No.1069  of  2000  by  

which  the  High  Court  has  reversed  the  judgment  and  order  dated  

31.10.1998  passed  by  the  XVth Additional  City  Sessions  Judge,  

Bangalore, in Sessions Case No.366 of 1996, acquitting the appellant  

of the charges under Sections 302 and 307 of the Indian Penal Code,  

1860 (hereinafter called `IPC’).

2. Facts  and  circumstances,  as  per  the  prosecution  case  

giving rise to this appeal had been that the law was put into motion by  

younger  brother  of  the  deceased,  Shankara  (PW.8),  who  lodged  a  

complaint orally on 26.3.1996 that the appellant came to the Barber  

Saloon of Murthy Prasad, deceased, on 25.3.1996 at about 8 p.m. and  

demanded Rs.150/-  from the deceased.  Since the deceased did not  

give the money demanded, the accused got angry and threatened that  

he would take care of him later.  Appellant accused again came back at  

9.30 p.m. to the shop of the complainant, sought shelter therein, had  

food, and slept there with the deceased and the complainant.  At about  

2 a.m. the complainant heard sounds and after being awaken  he saw  

that the appellant was hitting his elder brother with a knife on the chest  

and on shouting of the complainant the appellant hit him also with the  

same on the left abdomen and hands and ran away.  Murthy Prasad  

died of assault and the complainant got  injured,  and was taken to the  

hospital for treatment.   

3. On the basis of the said oral complaint, an FIR No.82/96  

dated 26.3.1996 (Ext.P4) was recorded.  The investigation ensued and  

the  appellant  was  arrested  on  31.3.1996.  After  conclusion  of  the  

investigation, charge sheet was filed against the appellant and he was  

2

put to trial under Sections 302 and 307 IPC.  In order to prove the guilt  

of the appellant,  prosecution examined 17 witnesses.   The appellant  

was examined under Section 313 of Code of Criminal Procedure, 1973  

(hereinafter referred to as “Cr.P.C.”) wherein apart from denying the  

evidence against him given by the witnesses directly, he also denied to  

have  gone  to  the  Saloon  of  the  deceased  at  all  as  alleged  by  the  

prosecution.   

4. After considering the entire evidence on record, the Trial  

Court came to the conclusion that prosecution failed to prove beyond  

reasonable doubt that the appellant had committed murder of Murthy  

Prasad or made an attempt to kill the complainant Shankara (PW.8).  

Thus,  vide judgment  and order  dated  31.10.1998,  the  appellant  was  

acquitted of the charges under Sections 302 and 307 IPC.   

5. Being  aggrieved,  the  State  of  Karnataka  preferred  

Criminal Appeal No.1069 of 2000 which has been allowed by the High  

Court convicting the appellant under Section 302 IPC for committing  

the  murder  of  Murthy  Prasad,  deceased  and  awarding  him  life  

imprisonment.  The appellant also stood convicted under Section 324  

IPC for causing injuries to the complainant Shankara (PW.8) and has  

been awarded six months imprisonment and a fine of Rs.5,000/-.  In  

3

default  of depositing the fine to undergo simple imprisonment for a  

period of one month.   Both the sentences have been directed to run  

concurrently. Hence, this appeal.

       6. Shri  Sanjay  Mishra,  learned  counsel  appearing  for  the  

appellant has submitted that the High Court has committed an error in  

interfering with the well reasoned judgment of acquittal by the Trial  

Court  and  relying  upon  the  evidence  on  record  while  ignoring  the  

material  inconsistencies  between the evidence  of  the  witnesses;  and  

medical  and  ocular  evidence.   No  motive  was  proved  by  the  

prosecution to commit the offence.  There had been an inordinate delay  

of 4 hours in lodging the F.I.R. as the murder was alleged to have been  

committed at 2 a.m. while the complaint was lodged at 6 a.m. on the  

same  day,  though the  Police  Station  was  at  a  distance  of  only  one  

kilometre.  There had been discrepancy relating to the seizure and kind  

of weapon used in the offence.  Therefore, the appeal deserves to be  

allowed.

      7. Per  contra,  Ms.  Rashmi  Nandakumar,  learned  counsel  

appearing for the State of Karnataka vehemently opposed the appeal  

contending  that  the  High  Court  has  rightly  reversed  the  findings  

recorded  by  the  Trial  Court  being  the  First  Court  of  Appeal  after  

4

appreciating  the  evidence  properly.   The  Court  below  had  mis-

appreciated the material evidence of the witnesses.  More so, the trial  

Court  had  failed  to  give  due  weightage  to  the  evidence  of  injured  

witness, namely Shankara (PW.8).  Hence, the appeal lacks merit and  

no interference is required.

8. We  have  considered  the  rival  submissions  made  by  

learned counsel for the parties and perused the record.

9.          The  post mortem examination report dated  26.3.1996 revealed  

that following injuries were there on the person of Murthy Prasad:

(1) Vertically placed incised wound over the front of tip of right  thumb measuring 3 cm x 0-5 cms x 0-5 cms deep;

(2)  Incised wound over top of left shoulder measuring 2 cms x 0-5  cms x skin deep;

(3) Incised  wound  over  left  side  of  chest  situated  8  cms  vertically  below left arm fit, measuring 2 cms x 0-5 cms;

(4) Incised wound over left side lower part of chest situated 23 cms  below later 1/3rd of left collar bone, vertical measuring 2 cms x 0-5  cms x 5 cms, deep;

(5) Incised wound over left side lower part of chest situated 20 cms  below left arm fit, oblique measuring 2.5 cms x 0-5 cms x 0-5 cms,  deep;

(6) Incised  wound  over  left  side  lower  part  of  front  of  abdomen  measuring 2.5 cms x 0-5 cms x 1 cms, deep;

(7)Horizontally placed stab wound present over the left side of hip  situated 3 cms behind and 2 cms below the level of left anterior  

5

iliac spine measuring 2.5 cms. x 2 cms x 9 cms deep, the front end  is pointed and back end blunt, margins are clean cut, the wound is  directed  backwards,  downwards,  and  to  right  by  cutting  sciatic  nerve and underlying vessels edged clean cut;

(8) Incised wound over left  side upper part  of  neck situated  2 cms  below middle of ramus of mandible, measuring 1 cms x 0-5 cms x  0-5 cms, deep;

(9)Stab incised wound present over left side back of chest situated 12  cms below the level of 7th cervicle spine 5 cms to left of midline  measuring 3 cms x 1.5 cms chest cavity deep.

         The post mortem report further revealed that so far as injury no.9  

was concerned, the weapon had cut the skin and muscles of chest had  

entered the chest cavity in 5th intercostals space, and pierced the lower  

lobe of left lung on which it measures 2 cms x 0.5 cms x 0.5 cms deep.  

According to the opinion of the Doctor, the death was due to shock and  

haemorrhage as a result of the aforesaid injuries.

10. The medical examination report of complainant Shankara, aged  

18 years dated 26.3.1996 revealed the following injuries on his person :

(1) Incised wound seen on the left side of abdomen measuring 1- 1/2 cm x 0.5 cm x just below the last rib on the left side at  mid clavicular line;

(2) Incised wound seen on the front of right fore at lower 1/3rd  measuring 1-1/2 cm x 1 cm, skin deep;

(3) Incised wound seen on the medial side of left thumb, 2-1/2  cm x 1/2 cm;

6

(4) Incised  wound  seen  on  the  left  upper  arm  on  the  detoid  muscle measuring 1-1/2 cm x 1/2 cm skin deep;

(5) Incised wound seen on the left cheek measuring 1-1/2 cm x  1/2 cm skin deep.

11. Dr.  B.R.S.  Kashyap  (PW.5)  who  conducted  post  mortem  

examination on the body of Murthy Prasad explained in his deposition  

in the court that it was not normally possible to cause injuries to the  

deceased with weapon Ext.MO.1 if held with both of its arms together  

while inflicting the injuries.  However, if the sharp edge and tip of the  

scissors is held open while assaulting, the injuries can be caused.  So  

far  as  the  evidence  of  Dr.  H.  Venkatesh  (PW.6)  who  examined  

Shankara (PW.8) complainant  is concerned,  he deposed that injuries  

found on his person could be caused of sharp edged weapon.  Thus, in  

view of the above, there could be no dispute that as per the opinion of  

Doctors, it was possible to cause the injuries found on the person of the  

deceased and the complainant with scissors in case the sharp edge and  

tip of the scissors is held open at the time of assault.

12. Material Contradictions  :

(I) Evidence of Witnesses:

7

Murthyalappa (PW.2), and Smt. Ramanjanamma (PW.3),  

the brother-in-law and sister of the deceased, respectively, deposed in  

the Court that they made a visit to the hospital where Shankara (PW.8)  

had been admitted and he had told to both of them that the appellant  

had  killed  Murthy  Prasad,  and  caused  injuries  to  him.  Though  

Shankara (PW.8) complainant himself deposed in his examination-in-

chief that he came to know about the death of his brother only after  

being discharged from the hospital living therein as indoor patient for  

15 days.   

Shankara (PW.8), while lodging the complaint stated as under:  

“On 25.3.1996 at about 8.00 P.M. the accused younger  brother of Rudresh came to the Super Hair Style Shop  of the deceased, elder brother of the complainant viz.,  Murthy  Prasad  and  demanded  Rs.150/-  from  him.  Since  he  did  not  give  the  money  demanded,  the  accused got angry and threatened that he would take  care  of  him later.  He once  again came back at  9.30  P.M. to the shop of the complainant and with intent to  murder  the  complainant  and  his  elder  brother,  he  sought  shelter  in  the  shop,  had  food  and slept  there  itself.”

But, in the court Shankara (PW.8) deposed:  

“Last year on one day at about 8 p.m. the accused came  to  our  saloon  and  enquired  me  about  my brother.  I  informed the accused that my brother had gone out and  he will be returning soon. Accused stayed in my saloon  only. My brother Murthy Prasad returned to Saloon at  

8

about  9  p.m.  Myself,  my  brother  and  accused  took  meals in the saloon and slept in the saloon.”  

          Thus, it is evident that Shankara (PW.8) in his deposition in  

court did not mention about the first visit of the appellant and demand  

of Rs.150/- from Murthy Prasad.

(II) Medical Evidence & Ocular Evidence:

 As per the medical evidence, injury nos.7 and 9 found on the  

person of Murthy Prasad deceased had been fatal and could be caused  

with the pointed part of the scissors, if used holding sharp edge and tip  

of the scissors open, at the time of assault.   

   In his oral complaint on 26.3.1996, Shankara (PW.8) had  

stated that the accused caused the injuries with knife.  He deposed in  

the Court:

“Accused  was  stabbing  my  brother  with  a  scissors. He stabbed on the stomach of my brother…  Accused also stabbed me from the scissors on my left  side  of  stomach,  on  right  hand  and  on  the  left  shoulder…Now I see the scissors M.O.1, the accused  assaulted  me  and  my  brother  with  M.O.1”.  (Emphasis added)

Thus, it is apparent from the above that Shankara (PW.8) was not  

sure as to whether injuries were caused by knife  or scissors.  No  

explanation came forward as to whether the complainant, Shankara  

9

(PW.8) was capable to understand the distinction between knife and  

scissors.  

(III) Identity of the accused:

As  per  Ramanjanamma  (PW.3),  brother  of  one  Rudresh  

murdered Murthy Prasad. According to Sriram (PW.4), the brother  

of Umesh assaulted them: “I do not know who is brother of Umesh. I  

do not know the accused.” Shankara (PW.8) refers to the accused as  

brother  of  Rudresh.  Abdul  Suban (PW.17)  stated  that  “I  tried  to  

ascertain and search for Rudresh but he was not found. I did not  

enquire  the  father  of  the  accused  and  his  family  members  about  

Rudresh”.

(IV) FSL Report:

As per Abdul Suban (PW.17), he sent all the seized articles  

including  M.O.1  for  FSL  examination  through  Police  Constable  

2313 on 2.6.1996 and received  back on 7.6.1996.  However,  FSL  

report  was not produced before the Court.  Abdul Suban (PW.17)  

has admitted that he received the Post Mortem report and FSL report  

and after completing the investigation he submitted the charge sheet  

on 27.6.1996. No explanation has been furnished as to why this FSL  

has  not  been  produced  before  the  court  as  it  was  necessary  to  

10

ascertain as to whether M.O.1 was actually used in the commission  

of offence or not.  

(V) Recovery of weapon:  

As per Abdul Suban (PW.17) the accused in the presence of  

panchas had seen the occurrence and also took out a scissors hidden  

under a stone slab near the saloon. He seized the scissors M.O.1 in  

the  presence  of  Panchas  under  Panchnama Exh.  P-8.  As  per  the  

evidence of Ganganarasaiah (PW.9) the scissors was in the bucket  

which was filled with water. The bucket was inside the shop. The  

police  alone  saw  it.   Narayanaswamy  (PW.15)  stated  that  the  

accused told him that he committed the offence and he took out a  

scissors kept under a stone slab. Police seized the same and wrapped  

in a cloth and drawn a mahazar.  He signed the mahazar and stated  

that  M.O.1 was the scissors seized by the police.  

13. The  trial  Court  has  taken  into  consideration  each  and  every  

discrepancy/contradictions  referred  to  hereinabove.  However,  the  

High  Court  has  dealt  with  the  case  observing  that  presence  of  

Shankara (PW.8) at the place of occurrence has not been disputed.  

Injuries found on his person are also supported by the evidence and  

particularly other statements made by Shankara (PW.8) in the Court  

11

which were worth acceptance regarding his staying outside for some  

time. The High Court came to the conclusion that there was nothing  

unnatural in his statement.  However, the High Court did not deal with  

the contradictions referred hereinabove.    

14. The contradiction in the statement of Shankara (PW.8) in the  

court as compared with his statement before the police under Section  

161 Cr.P.C. also demolishes the aspect of motive.  

15. There was delay in lodging the FIR. In the present  case,  the  

alleged occurrence took place at 2.00 p.m. and the police station was  

hardly at a distance of 1 K.M. from the place of the occurrence and  

Shankara (PW.8) had never deposed that he had become unconscious,  

the delay has not been explained.    

16. Abdul  Suban (PW.17),  the  I.O.  consistently  deposed  that  he  

was searching for Rudresh. Admittedly, even as per the prosecution,  

author of the crime had been Shankar-appellant  and not his brother  

Rudresh. We fail to understand as for what reason the I.O. was trying  

to apprehend the brother of the accused.  

17. In all criminal cases, normal discrepancies are bound to occur  

in the depositions of witnesses due to normal errors of observation,  

12

namely,  errors  of  memory  due  to  lapse  of  time  or  due  to  mental  

disposition such as shock and horror at the time of occurrence.  Where  

the  omissions  amount  to  a  contradiction,  creating  a  serious  doubt  

about the truthfulness of the witness and other witnesses also make  

material  improvement  while  deposing  in  the  court,  such  evidence  

cannot  be  safe  to  rely  upon.   However,  minor  contradictions,  

inconsistencies,  embellishments  or  improvements  on  trivial  matters  

which do not affect the core of the prosecution case, should not be  

made a ground on which the evidence can be rejected in its entirety.  

The court has to form its opinion about the credibility of the witness  

and record a finding as to whether his deposition inspires confidence.  

“Exaggerations per se do not render the evidence brittle. But it can be  

one of the factors to test credibility of the prosecution version, when  

the  entire  evidence  is  put  in  a  crucible  for  being  tested  on  the  

touchstone of credibility.” Therefore, mere marginal variations in the  

statements  of  a  witness  cannot  be dubbed as  improvements  as  the  

same  may  be  elaborations  of  the  statement  made  by  the  witness  

earlier.   “Irrelevant  details  which  do  not  in  any  way  corrode  the   

credibility  of  a  witness  cannot  be  labelled  as  omissions  or   

contradictions.” The  omissions  which  amount  to  contradictions  in  

material  particulars,  i.e.,  materially  affect  the  trial  or  core  of  the  

13

prosecution’s case,  render the testimony of the witness liable to be  

discredited.  [Vide:  State  Represented  by  Inspector  of  Police v.  

Saravanan & Anr.,  AIR 2009 SC 152;  Arumugam v. State, AIR  

2009 SC 331;  Mahendra Pratap Singh v. State of Uttar Pradesh,  

(2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors.  

v. State of Maharashtra, JT 2010 (12) SC 287;  Vijay @ Chinee v.  

State of M.P., (2010) 8 SCC 191;  State of U.P. v. Naresh & Ors.,  

(2011) 4 SCC 324; and  Brahm Swaroop & Anr. v. State of U.P.,  

AIR 2011 SC 280].  

           Where the omission(s) amount to a contradiction, creating a  

serious doubt about the truthfulness of a witness and other witness also  

make  material  improvements  before  the  court  in  order  to  make  the  

evidence  acceptable,  it  cannot  be  safe  to  rely  upon  such  evidence.  

(Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106).

18. If  the  case in hand is  examined in the light  of the aforesaid  

settled  legal  proposition,  the  prosecution  has  definitely  made  an  

attempt  to  establish  the  presence  of  the  accused  in  the  shop  and  

Shankara (PW.8) is the only eye witness. His presence also cannot be  

doubted in view of the fact that he himself got injured in the incident.  

However, the question does arise  as under what circumstances he has  

14

told his sister and brother-in-law that his brother has been killed by  

accused-appellant when in his substantive statement before the court  

he has deposed that he came to know about the death of  his brother  

after being discharged from the hospital and he remained there   as  

indoor patient for 15 days.  Such a statement made in the court also  

creates a doubt as to whether he could be the author of the complaint  

for the reason, that in the complaint lodged by him on 26.3.1996 he  

has stated that his brother had died. Similarly, non-production of the  

FSL  report  in  the  court  by  the  prosecution  is  fatal  as  in  absence  

thereof it was difficult for the court to reach to the conclusion as to  

whether the offence has been committed with M.O.1.   

More so,  after the incident,  Abdul Suban (PW.17) had  

been busy in searching Rudresh, brother of the accused and he made  

no attempt to search the accused.  These factors clearly indicate that  

investigation has not been conducted fairly.  

19. It is settled legal proposition that in exceptional circumstances  

the appellate court under compelling circumstances should reverse the  

judgment of acquittal of the court below if the findings so recorded by  

the court below are found to be perverse, i.e., the conclusions of the  

court  below  are  contrary  to  the  evidence  on  record  or  its  entire  

15

approach in dealing with the evidence is found to be patently illegal  

leading to miscarriage of justice or its judgment is unreasonable based  

on erroneous law and facts on the record of the case. While dealing so,  

the appellate court must bear in mind the presumption of innocence of  

the accused and further that acquittal by the court below bolsters the  

presumption of his innocence. (Vide: Abrar v. State of U.P., (2011) 2  

SCC 750; and Rukia Begum & Ors. v. State of Karnataka, (2011) 4  

SCC 779).  

20. In view of the above, we are of the considered opinion that the  

High Court committed an error in recording the  finding of fact that  

the  prosecution  succeeded  in  proving  the  case  beyond  reasonable  

doubt. The High Court failed to meet the grounds pointed out by the  

trial Court discarding the case of prosecution  and thus, the findings of  

fact recorded by the High Court remain perverse.  

In view of the above, the appeal succeeds and is allowed.  

The judgment and order of the High Court dated 28.2.2007 is hereby  

set aside and judgment and order of the trial Court dated 31.10.1998  

passed in Sessions Case No.366 of 1996 is restored.  The appellant  

has been enlarged on bail by this Court vide order dated 26.7.2010.  

The bail bonds stand discharged.  

                                                    …………….....................J.

16

                                     (Dr. B.S. CHAUHAN)

………............................ J.          (SWATANTER KUMAR)  New Delhi,               June 9, 2011

17