REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1066 OF 2009

MALLIKARJUN AND OTHERS     ...Appellants

VERSUS

STATE OF KARNATAKA        …Respondent               

J U D G M E N T

R. BANUMATHI, J.

This appeal arises out of the judgment dated 30.05.2008

passed  by  the  High  Court  of  Karnataka  in  Criminal  Appeal

No.124 of 2005 in and by which the High Court affirmed the

conviction  of  the  appellants-accused  Nos.1,  2  and  4  under

Section 302 IPC read with Section 34 IPC and the sentence of

life imprisonment imposed upon each of them.  The High Court

also  affirmed  their  conviction  under  Section  448  read  with

Section 34 IPC and sentence of imprisonment imposed upon

each of them.   

2. The appellants-accused No.1-Mallikarjun, accused No.2-

Ravi and co-accused No.3-Maruti (absconding) are the sons of

1

accused No.4-Balappa. It  is  alleged that  deceased Bhimraya

was having illicit  affair with 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 enmity with the deceased

Bhimraya.   PW-5-  Kamalamma  is  the  mother  of  deceased.

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 the early morning.  At about 09.00 am,

deceased-Bhimraya went outside to attend 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 accused persons were threatening the deceased

while chasing him saying that they would finish him off as he

continues  with  illicit  relationship  with  the  wife  of  accused

No.4/mother of accused Nos.1 to 3.  Deceased-Bhimraya came

into his house, went straight to the kitchen and closed the door.

Kamalamma (PW-5), mother of deceased tried to persuade the

2

accused persons not  to kill  her son.   PW-7-Hanmanth came

from field  but  seeing weapons in  the  hands of  the  accused

persons,  he  did  not  go  inside  the  house;  but  he  saw  the

incident.  All the four accused started pushing the kitchen door

and then deceased came outside the kitchen. Accused No.4-

Balappa  is  alleged  to  have  exhorted  other  accused  to  kill

deceased saying that  he should not  be left  alive as he has

been having an affair with his wife for 4-5 years and both are

tarnishing the image of their family.  Accused No.1-Mallikarjun

inflicted an injury on the left side of waist of deceased with MO-

1-dagger; accused No.2-Ravi assaulted 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.

Accused No.4-Balappa assaulted  the  deceased on  his  back

with the handle of the axe (MO-3).  Accused No.2-Ravi caught

the head whereas accused No.3 and 4 caught both the legs of

the deceased and accused No.1 cut the neck of the deceased

with  MO-1-dagger.   PW-5-mother  of  deceased  raised  alarm

3

crying for help.  PWs 1 to 4 and PW-7 and others came near to

the spot and on seeing them, all accused ran away from there

leaving 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 of deceased lodged complaint before Saidapur Police

Station  which  was  reduced  to  writing  by  PW-17-PSI  S.Y.

Hunshikatti;  based  on  which,  FIR  was  registered  in  Crime

No.44/2002 at Saidapur Police Station under Sections 448, 504

and 302 IPC read with Section 34 IPC.  PW-17-PSI went to the

scene of occurrence and conducted inquest (Ex.-P6) and initial

part of the investigation viz. preparation of the spot panchnama

(Ex.-P7)  in  the  presence  of  PW-8-Chandrappa  and  PW-9-

Mahadevappa  Needgera.   Bloodstained  dagger  (MO-2),

bloodstained handle of the axe (MO-3), bloodstained mud (MO-

10) and sample mud (MO-11) were recovered from the scene

of  occurrence.   PW-12-Dr.H.R.  Kumar  conducted  the  post-

mortem (Ex.-P11) on the dead body of deceased Bhimraya on

14.06.2002 at 04.15 pm.   PW-12-Doctor opined that the death

was caused due to shock and haemorrhage due to injury to the

4

vital organ i.e. neck.       PW-12-doctor further opined that the

injury could have been caused by the knives.   

4. Accused No.1 to 3 were arrested on 15.06.2002 at about

11.00 am.  Confessional statement of accused No.1 led to the

recovery of dagger (MO-1) hidden in the haystack of fodder in a

loft of cattle shed of his house.  On completion of investigation,

charge  sheet  was  filed  against  all  the  four  accused  under

Section 448 IPC read with Section 34 IPC 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

documents and also marked material  objects.  The trial  court

rejected the defence plea of  alibi put  forth by accused No.4

who has been working as a teacher at Balichakra village.  Upon

consideration of oral and documentary evidence, the trial court

found that  the delay in registration of  FIR is not  fatal  to the

prosecution case.  Relying upon the evidence of PW-5-mother

of  deceased  corroborated  by  the  medical  evidence  and

considering  other  evidence,  the  trial  court  held  that  the

prosecution has established the guilt  of  the accused beyond

5

reasonable  doubt  and  convicted  accused  Nos.1,  2  and  4

(appellants herein) and also accused No.3 (absconding) under

Section 448 read with Section 34 IPC and sentenced them to

undergo  rigorous  imprisonment  for  six  months  each.   They

were also convicted under Section 302 IPC read with Section

34  IPC  and  sentenced  each  of  them  to  undergo  life

imprisonment.   In  appeal,  the  High  Court  confirmed  the

conviction of the appellants (accused Nos.1,2 and 4) and co-

accused No.3 and also the sentence of imprisonment imposed

upon them.

6. Ms. Kiran Suri, learned senior counsel appearing for the

appellants  submitted  that  the  incident  was  at  09.00  am

whereas the complaint was lodged only at 01.15 pm and the

FIR was received by the Magistrate only at 08.00 pm and there

is an inordinate delay in receipt of FIR by the Magistrate and no

explanation is given for the delay in registration of FIR.  It was

submitted that the unexplained delay in registration of FIR and

delay in receipt of FIR in the court raises serious doubts about

the  prosecution  case  and  there  is  every  likelihood  of  false

implication  of  the  accused  and  this  aspect  has  not  been

6

properly considered by the trial court and the High Court.  It

was further submitted that the evidence of PW-5-Kamalamma-

mother  of  deceased  suffers  from discrepancies  which  vitally

affect the credibility of PW-5 and the evidence of PW-5 cannot

form  the  basis  for  conviction.   The  learned  senior  counsel

assailed the alleged recovery of dagger (MO-1) from accused

No.1 and other material objects from the scene of occurrence

and submitted that without proper appreciation of evidence, the

courts below erred in convicting the appellants.

7. Mr.  Joseph Aristotle,  learned counsel  appearing for  the

State of Karnataka has submitted that there is no discrepancy

in the evidence of two eye-witnesses viz. PW-5-Kamalamma-

mother of deceased and PW-7-Hanmanth and their evidence

are well corroborated by medical evidence.  It was submitted

that  upon  appreciation  of  evidence  of  PW-5  and  PW-7,  the

courts below rightly  held that  the appellants have committed

the murder of deceased.  The learned counsel submitted that

the evidence of Investigating Officers viz. PW-16-Dattappa and

PW-17-PSI  S.Y.  Hunshikatti  and  the  evidence  adduced

regarding the seizure of MO-1-dagger from accused No.1 and

7

MOs 2 and 3 from the scene of occurrence amply support the

case  of  prosecution  and  the  trial  court  rightly  convicted  the

appellants-accused Nos.1,  2 and 4 and absconding accused

No.3 and the High Court rightly confirmed the same and the

impugned judgment warrants no interference.  

8. We have heard learned senior counsel appearing for the

appellants-accused  and  learned  counsel  appearing  for  the

State of Karnataka and carefully considered the submissions

and  perused  the  impugned  judgment  and  the  evidence  and

materials on record.

9. PWs 1 to 4 stated to be the independent eye witnesses

have  not  supported  the  case  of  the  prosecution  and  turned

hostile.  On the morning of 14.06.2002 i.e. date of occurrence,

PW-6-Mareppa-father of deceased went to the Kaulur village to

attend a marriage.   PW-7-Hanmath-brother  of  deceased had

gone to the land for ploughing in the morning.  PW-5-mother of

deceased Bhimraya is the eye witness and PW-7 who came

back from the field for meals also stated that he has witnessed

the occurrence.

8

10. PW-5-mother  of  the  deceased,  in  her  evidence,  stated

that on 14.06.2002 at 09.00 am, deceased Bhimraya went out

to attend the call of nature and when he was coming back to

the house, accused No.1 holding dagger-MO-1, accused No.2

holding dagger-MO-2 and accused No.4 holding handle of the

axe-MO-3 chased the deceased and the deceased went inside

the kitchen and closed the door.  PW-5 stated that she pleaded

with the accused for mercy and asked them not to do anything

to Bhimraya.  The accused, however, pushed the kitchen door

and Bhimraya came outside to the verandah and at that time,

accused No.1 attacked the deceased at his left waist with MO-

1-dagger and accused No.2 stabbed on the nose and left eye

brow  with  MO-2-dagger.   Accused  No.1  again  stabbed  the

deceased on the right elbow.  It is alleged that accused Nos.2

to 4 caught hold the legs and hands of Bhimraya and accused

No.1  inflicted  chop  wound  on  the  neck  of  Bhimraya  and

Bhimraya died on the spot.   PW-7-brother  of  deceased who

came  back  from  the  field  for  meals  also  witnessed  the

occurrence  and  spoke  about  the  overt  act  of  the  accused.

Motive is stated to be the illicit relationship of the deceased with

9

the mother of accused Nos.1 to 3 and wife of accused No.4.  It

is  alleged  that  the  deceased  used  to  go  to  the  house  of

accused  No.4  and  wife  of  accused No.4  used  to  go  to  the

house of deceased.

11. Evidence  of  PW-5  is  assailed  on  the  ground  that  her

evidence suffers from discrepancies and contradictions as to

how and when her statement was recorded and when PW-7

came back to the house.  In her evidence, PW-5 stated that

Saidapur  Police  came  to  the  scene  of  occurrence  and  her

statement was recorded.  PW-5 further stated that the police

took her to the police station and recorded her statement in the

police station.  In her cross-examination, PW-5 stated at one

time “that  at  about  10.00 am village Dalapathi  informed the

police  and  police  came  at  11.00  am  and  recorded  her

statement  and  obtained  her  left  thumb  impression…..”.   In

another version,   PW-5 stated that she was at home till  her

husband (PW-6) came home from village Kaulur and thereafter

she went to the police station along with PW-6.  The learned

senior counsel submitted that PW-5 could not  have been an

eye  witness  as  her  evidence  suffers  from  various

10

discrepancies.  The learned senior counsel for the appellants

submitted that the contradictory versions of  PW-5 as to how

and when her statement was recorded by the police becomes

relevant  in  the light  of  delay in  registering FIR and delay in

sending the FIR to JMFC and this only strengthens the defence

plea of false implication of the accused.   

12. In its judgment, the trial court elaborately discussed about

the presence of PW-5 in the house at the relevant time where

the occurrence had taken place and how PW-5 is the natural

witness.  The trial  court  which had the opportunity of seeing

and observing PW-5 while she was in the witness box,  had

observed that PW-5 has given graphic picture of the incident

and  that  her  evidence  is  trustworthy.   The  trial  court  also

pointed out that   PW-5 being an illiterate woman, her varying

statements as to when and how her statement was recorded by

the police, cannot be the ground for doubting her testimony and

this finding was affirmed by the High Court.  We do not find any

reason to take a different view.

13. While  appreciating  the  evidence  of  a  witness,  the

approach must be to assess whether the evidence of a witness

11

read as a whole appears to be truthful.  Once the impression is

formed, it is necessary for the court to evaluate the evidence

and the alleged discrepancies and then, to find out whether it is

against  the  general  tenor  of  the  prosecution  case.   If  the

evidence of eye witness is found to be credible and trustworthy,

minor  discrepancies  which  do  not  affect  the  core  of  the

prosecution  case,  cannot  be  made  a  ground  to  doubt  the

trustworthiness of the witness.

14. Observing  that  minor  discrepancies  and  inconsistent

version do not necessarily demolish the prosecution case if it is

otherwise found to 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 take

into  consideration  whether  the  contradictions/omissions

had  been  of  such  magnitude  that  they  may  materially

affect  the  trial.  Minor  contradictions,  inconsistencies,

embellishments or improvements on trivial matters without

effecting the core of the prosecution case should not be

made a ground to reject the evidence in its entirety. The

trial court,  after going through the entire evidence, must

12

form an opinion about the credibility of the witnesses and

the appellate court in normal course would not be justified

in reviewing the same again without  justifiable  reasons.

(Vide State v. Saravanan (2008) 17 SCC 587.)”

33. ……. this Court in  Raj Kumar Singh v.  State of Rajasthan

(2013) 5 SCC 722 has observed as under: (SCC p. 740, para

43)

“43.  …  It  is  a  settled  legal  proposition  that,  while

appreciating  the  evidence  of  a  witness,  minor

discrepancies on trivial  matters,  which do not affect  the

core of the case of the prosecution, must not prompt the

court to reject the evidence thus provided, in its entirety.

The irrelevant details which do not in any way corrode the

credibility of a witness, cannot be labelled as omissions or

contradictions. Therefore, the courts must be cautious and

very particular in their exercise of appreciating evidence.

The  approach  to  be  adopted  is,  if  the  evidence  of  a

witness is read in its entirety, and the same appears to

have in it, a ring of truth, then it may become necessary

for the court to scrutinise the evidence more particularly,

keeping  in  mind  the  deficiencies,  drawbacks  and

infirmities pointed out in the said evidence as a whole, and

evaluate them separately, to determine whether the same

are  completely  against  the  nature  of  the  evidence

provided  by  the  witnesses,  and  whether  the  validity  of

such  evidence  is  shaken  by  virtue  of  such  evaluation,

rendering it unworthy of belief.”

15. No doubt, there are slight variations in the statement of

PW-5 as to when and how her statement was recorded by the

police.  At one place, PW-5 states that the police came to the

13

village at 11.00 am and took her complaint by obtaining her left

thumb impression; whereas PW-17-PSI stated that he was not

knowing about the incident till PW-5 came to the police station

and lodged the complaint at 01.15 PM and before that he has

not  received  any  phone call  from the  village  Dalapathi.   As

pointed out by the trial court, PW-5 is an ordinary home maker

and an illiterate woman.  While in the witness box, it is quite

natural for a witness like PW-5 being overawed by the court

atmosphere to give varying statements.  The courts are not to

judge  the  evidence  of  ruralites  by  the  same  standard  and

exactitude like any other witness.  As pointed out  by the trial

court, the evidence of PW-5 as to the place of occurrence is

corroborated by the spot panchnama (Ex.-P7) drawn by PW-

17-PSI and also the inquest on the dead body of the deceased

in the Padasala itself.  The alleged variations in the statement

of PW-5, in our view, does not affect the trustworthiness of PW-

5 so as to doubt her testimony.

16. Evidence  of  a  witness  is  not  to  be  disbelieved  simply

because  he/she  appears  partisan  or  is  related  to  the

deceased/prosecution witness. It is to be ascertained whether

14

the witness was present or not and whether he/she is telling the

truth or not. The place of occurrence being the house of the

deceased Bhimraya, PW-5-mother of the deceased is a natural

witness  to  speak  about  the  occurrence.  PW-5-mother  of

deceased  also  explained  that  how  she  was  present  in  the

house and how she happened to be in the place of occurrence.

As  pointed  out  by  the  courts  below,  even  after  cross-

examination,  the defence was not  able to establish anything

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  mother  of  deceased,  it  is  highly  improbable  that  PW-5

would have falsely implicated the accused at the instance of

the police or anyone else.

17. In his evidence, PW-7 stated that he went to the field for

ploughing 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 to be the eye witness and in our view,

this submission does not merit acceptance.  The learned senior

counsel for the appellants submitted that the trial court did not

treat PW-7 as an eye witness.  It was elicited from PW-5 that

15

the land where PW-7 had gone for ploughing, is situated far

away and he could not have heard the noise from the land.  It is

in this context, the trial court proceeded under the footing that

even assuming for the arguments sake that the characteristics

of an eye witness is not attached to PW-7 and even then the

same can be taken into consideration to the extent of the place

of commission of offence i.e. in the Padasala of their house and

to the extent of injuries found on Bhimraya.  The trial court thus

did consider PW-7 as an eye-witness.  The trial court recorded

its reasonings under the alternative footing that even assuming

that PW-7 is not considered as an eye witness, his evidence

supports  the  prosecution  case  to  the  extent  of  place  of

occurrence and the nature of injuries and the injuries sustained

by deceased Bhimraya.

18. PW-12-Dr.H.R.  Kumar  who conducted the autopsy,  has

noted the following injuries on the body of deceased Bhimraya:-

i. An  antemortem  chop  wound  present  over  the  neck  in  its

anterior  aspect,  extends  from  the  lateral  border  of  right

sternomastoid muscles to its left  side size 10 × 3’.   Large

vessels of the neck and trachea were cut.

ii. Cut lacerated wound over the root of the nose present size 1

×1 cm.

16

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

iv. Cut incised wound over the left side of the chest, anteriorily

10’ below the middle of the clavical size 4 × 2 cm.

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

vi. Chop wound in the loin region left, posteriorly size 4 × 2’ with

coils of intestine seen.

vii. An incised wound over the right thigh in the antero medical

aspect size 2 × 1.

Injury No.1 in Ex.-P11-post-mortem certificate shows that it is

chop  wound  cutting  the  large  vessel  of  neck  and  trachea.

PW-12-Doctor  was of  the opinion that  the death was due to

haemorrhage and shock as a result of injury to vital structures

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 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 not

possible  by  using  MO-1  or  MO-2….”.   PW-12-doctor  further

stated that if a man is assaulted with MO-1-dagger on his throat

two or three times, the death is possible.

19. On behalf  of  the appellants, the learned senior counsel

contended that the opinionative evidence of PW-12-doctor does

not corroborate the oral evidence of PW-5 as to the manner in

17

which the injury was caused to deceased with MO-1-dagger.  In

his evidence, PW-12-doctor has further stated that “by looking

into  the  description  of  injury  No.1  in  Ex.-P11,  it  cannot  be

ascertained  that  it  could  be  caused  by  using  MO-1-dagger

repeatedly from twisting.”  PW-12-doctor was repeatedly cross-

examined as to the manner in which injury No.1 could have

been caused by using MO-1-dagger and the evidence of PW-5

is 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

of the doctor is primarily an evidence of opinion and not of fact.

It is only a corroborative piece of evidence as to the possibility

that the injuries could have been caused in the manner alleged

by  the  prosecution.   Unless  the  medical  evidence  rules  out

such possibility of injury being caused in the manner alleged by

the  prosecution  version,  the  testimony  of  the  eye  witness

cannot  be  doubted  on  the  ground  of  its  inconsistency  with

medical  evidence.   Though at  one place,  PW-12-doctor  has

stated that injury No.1 could not have been caused by MO-1-

dagger, on being further questioned, he has stated that injury

18

No.1 could have been caused by MO-1 either by attacking on

the throat two or three times or by inflicting injury on the throat

and twisting the weapon.  Considering the evidence of PW-12-

doctor,  there is  no merit  in  the contention as to  the alleged

variance  between  the  medical  evidence  and  the  ocular

evidence.

21. The  learned  senior  counsel  for  the  appellants  then

contended that the occurrence was at 09.00 am whereas the

FIR was registered only at 01.15 pm and nearly after a delay of

four  hours,  case was registered and the Magistrate received

the  FIR  at  08.00  pm.   The  learned  senior  counsel  for  the

accused contended that there is animosity between the parties

and the delay in registration of FIR and the delay in receipt of

FIR in the court raise serious doubts that the accused had been

falsely  implicated in the case.   There is,  of  course,  delay in

registration of  FIR and the receipt  of  the same in the court.

There may be cases where the delay in FIR gives rise to the

suspicion  as  to  the  false  implication;  but  when the  delay  is

satisfactorily  explained,  delay  in  registration  of  the  FIR  or

receipt of the same in the court would not affect the prosecution

19

case.   PW-6-husband of  PW-5 and father  of  deceased was

away from the house and naturally, it would have taken some

time for PW-5 and her son PW-7 to lodge the complaint about

the occurrence.  The effect on 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 taken some 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

the same 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  his  evidence,  PW-10-Constable

Kalyanamma  then  attached  to  Saidapur  Police  Station  has

stated that  the  distance between Saidapur  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 were plying to Yadgir, at

the relevant time, there were no buses enabling him to reach

Yadgir at an earlier time.  In our view, 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 lodging the complaint

20

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 a different view.

23. As pointed out earlier, based on the disclosure statement

of accused No.1, MO-1-dagger which was kept hidden in the

haystack  of  fodder  in  the  loft  of  the  cattle  shed  behind  the

house  of  accused  No.1  had  been  seized  under  Ex.-P9-

Panchnama  in  the  presence  of  panch  witnesses  PW-8-

Chandrappa  and  PW-9-Mahadevappa  Needgera.  The  said

panch witnesses have not supported the prosecution case and

turned hostile.  MO-2-dagger and MO-3-handle of the axe were

recovered  from  the  scene  of  occurrence  under  Ex.-P7-spot

panchnama.  On behalf of the accused, learned senior counsel

contended that the evidence of PW-17-PSI as to the recovery

of MO-1-dagger at the behest of accused No.1 is doubtful and

when PWs 8 and 9 have turned hostile,  no weight could be

attached to the alleged recovery of MO-1-dagger.  There is no

merit  in  the  contention  that  merely  because  the  panch

witnesses  turned  hostile,  the  recovery  of  the  weapon would

stand vitiated.  It is fairly well settled that the evidence of the

21

Investigating Officer can be relied upon to prove the recovery

even when the panch witnesses turned hostile.  In Rameshbhai

Mohanbhai Koli v. State of Gujarat and others (2011) 11 SCC

111, it was held as under:-  

“33. In Modan Singh v. State of Rajasthan (1978) 4 SCC 435 it was observed (at SCC p. 438, para 9) that where the evidence of the investigating officer  who recovered the material  objects  is convincing, the evidence as to recovery need not be rejected on the  ground  that  seizure  witnesses  did  not  support  the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra (2001) 9 SCC 362. 34. In  Anter Singh v.  State of Rajasthan (2004) 10 SCC 657, it was further held that: (SCC p. 661, para 10)

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

35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt.  (Vide  Modan Singh case,  Krishna Gopal case and Anter Singh case.)”

PW-17-PSI  has  clearly  spoken about  the recovery  of  MO-1-

dagger at the behest of accused No.1 and MO-2-dagger and

MO-3-handle of the axe from the scene of occurrence and his

evidence  cannot  be  discarded  merely  because  panch

witnesses have turned hostile.

24. The learned senior counsel for the appellants contended

that  in  the case registered under  Section 302 IPC,  only  the

Circle Inspector of Police is authorised to conduct investigation

22

and PW-17-PSI has no authority to conduct the investigation

and  the  prosecution  case  is  vitiated  on  account  of  the

investigation  done  by  PW-17-PSI  who  had  no  authority  to

conduct  the  investigation.   If  the  Circle  Inspector  was  not

available in the police station or on other duty, PSI who was in-

charge of the police station had the power to proceed with the

initial  investigation.  In  his  evidence,  PW-17-PSI  had  clearly

stated that in the absence of Circle Inspector, he has powers to

investigate  the  cases  registered  including  the  one  under

Section 302 IPC.  When a grave crime is registered, the PSI

who is in-charge of the police station cannot wait for the arrival

of the Circle Inspector or wait for the instruction to commence

the investigation.   

25. From the evidence of PW-5 and PW-7, the prosecution

has proved the overt act of accused Nos.1 and 2 and the same

is corroborated by the corresponding injuries as spoken by PW-

12-Dr.H.R.  Kumar.   Accused  No.4  was  then  stated  to  be

working as teacher at Balichakra who is said to have attacked

the deceased with the wooden handle of the axe (MO-3) on the

back of deceased.  By perusal of post-mortem certificate (Ex.-

23

P11), there is no injury corresponding to the alleged overt act of

accused No.4.  As seen from the FIR, in the complaint, PW-5

stated that at the time of attacking, the accused stated that “this

bastard  is  having  illicit  relationship  with  our  mother”.    The

above  words  stated  in  the  FIR  prima  facie indicate  the

presence of accused Nos.1 and 2 and the absconding accused

No.3 only  who have attacked the deceased.  Serious doubts

arise as to the presence of accused No.4 and the benefit  of

doubt has to be given to accused No.4 and the conviction of

accused No.4 cannot be sustained.  The conviction of accused

No.1-Mallikarjun  and  accused  No.2-Ravi  are  based  upon

proper appreciation of  evidence and the reasonings are well

balanced  and  we  do  not  find  any  reason  warranting

interference with their conviction.   

26. In the result, conviction of accused No.1-Mallikarjun and

accused No.2-Ravi under Section 302 IPC read with Section 34

IPC and Section 448 IPC read with Section 24 IPC and the

sentence of imprisonment imposed upon them are confirmed

and  the  appeal  is  dismissed  qua  accused  Nos.1  and  2.

Conviction of  accused No.4 is set  aside and he is acquitted

24

from all the charges levelled against him.  This appeal is partly

allowed accordingly.  

…………………………..J.                                                                   [R. BANUMATHI]

…………………………..J.                                                              [A.S. BOPANNA]

New Delhi; August 08, 2019

25