MALLIKARJUN AND OTHERSversusSTATE OF KARNATAKA

                          [2019] 11 S.C.R. 609                            609


                 MALLIKARJUN AND OTHERS                                   A
                                  v.
                     STATE OF KARNATAKA
                 (Criminal Appeal No.1066 of 2009)
                         AUGUST 08, 2019                                  B
         [R. BANUMATHI AND A. S. BOPANNA, JJ.]
       Evidence – Of eye-witness – Appreciation of – As per the
prosecution on 14.06.02, PW-7-brother of ‘B’ went to the fields for
ploughing in the early morning, at about 09.00am, ‘B’ went outside
                                                                          C
to attend the call of nature and when he was returning towards his
house, accused no.1, 2 & 4(appellants) along with accused no.3
(absconding) arrived there with weapons– Accused persons
threatened ‘B’ while chasing him saying that they would finish him
off 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 the           D
kitchen and closed the door –Accused persons started pushing the
kitchen door and then ‘B’ came outside –Accused No.2 caught the
head of ‘B’ whereas accused nos.3 and 4 caught his both the legs
and accused no.1 cut the neck of ‘B’ with MO-1-dagger– PW-5,
mother of the deceased ‘B’ raised alarm crying for help –Appellants
                                                                          E
convicted 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 must
be to assess whether the evidence of the witness read as a whole
appears to be truthful – If the evidence of eye witness is found to be
credible and trustworthy, minor discrepancies not affecting the core
of the prosecution case, cannot be made ground to doubt the               F
trustworthiness of the witness – In the instant case, no doubt there
are slight variations in the statement of PW-5 as to when and how
her statement was recorded by the police, but PW-5 is an ordinary
home maker and an illiterate woman– Courts are not to judge the
evidence of ruralites by the same standard and exactitude like any
                                                                          G
other witness– Alleged variations in the statement of PW-5 do not
affect the trustworthiness of PW-5 – PW-5 has no reason to falsely
implicate the accused– Further, based on the disclosure statement
of accused no.1, MO-1-dagger had been seized in the presence of
panch witnesses –No merit in the contention that merely because
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                                 609
610            SUPREME COURT REPORTS                       [2019] 11 S.C.R.


A     the panch witnesses turned hostile, the recovery of the weapon would
      stand vitiated– Evidence of the I.O can be relied upon to prove the
      recovery even when the panch witnesses turned hostile – From the
      evidence of PW-5 and PW-7, the prosecution has proved the overt
      act of accused nos.1, 2 and the same is corroborated by the
      corresponding injuries as spoken by PW-12-doctor – However,
B
      serious doubts arise as to the presence of accused no.4 – Benefit of
      doubt given to him and his conviction is set aside – Conviction of
      accused nos.1 & 2 is confirmed while that of accused No.4 is set
      aside – Penal Code, 1860 – s. 448, 302 r/w s.34 IPC .
            Evidence – Of Expert – Evidentiary value of – Held: Expert
C     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
D     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.
             Criminal Trial – FIR – Delay in registration of – When not
      fatal – Discussed.
E           Disposing of the appeal, the Court
             HELD: 1.1 While appreciating the evidence of a witness,
      the approach must be to assess whether the evidence of a witness
      read as a whole appears to be truthful. Once the impression is
      formed, it is necessary for the court to evaluate the evidence and
F     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
G     witness. Minor discrepancies and inconsistent version do not
      necessarily demolish the prosecution case if it is otherwise found
      to be creditworthy. 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 village at 11.00 am and took her complaint by
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  MALLIKARJUN AND OTHERS v. STATE OF KARNATAKA                           611


obtaining her left thumb impression; whereas PW-17-PSI stated            A
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
                                                                         B
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            C
the dead body of the deceased in the Padasala itself. The alleged
variations in the statement of PW-5, does not affect the
trustworthiness 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 simply         D
because he/she appears partisan or is related to the deceased/
prosecution witness. It is to be ascertained whether 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, PW-5-
mother of the deceased is a natural witness to speak about the
occurrence. PW-5-mother of deceased also explained that how              E
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        F
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. 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-12-Doctor was of the opinion that the death was
due to haemorrhage and shock as a result of injury to vital              G
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,


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612            SUPREME COURT REPORTS                     [2019] 11 S.C.R.


A     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. [Paras 16-18][621-
      B-F; 622-E-F]
B           1.3 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
C     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 No.1 could have been
      caused by MO-1 either by attacking on the throat two or three
D
      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. There is, of course, delay in
      registration of FIR and the receipt of the same in the court. There
E     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 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
F     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. FIR in Crime No.44/2002 was registered at 01.15 pm
G     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 then attached
      to Saidapur Police Station has stated that the distance between
      Saidapur and Yadgir is 40 kms. PW-10-Constable has stated that

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  MALLIKARJUN AND OTHERS v. STATE OF KARNATAKA                           613


at the relevant time, there was no train from Saidapur to Yadgir.        A
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. 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
and receipt of FIR in the court have been properly explained, do         B
not 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 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              C
witnesses. There is no merit in the contention that merely because
the panch witnesses turned hostile, the recovery of the weapon
would stand vitiated. The evidence of the Investigating Officer
can be relied upon to prove the recovery even when the panch
witnesses turned hostile. When a grave crime is registered, the
PSI who is in-charge of the police station cannot wait for the arrival   D
of the Circle Inspector or wait for the instruction to commence
the investigation. 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. Accused No.4 was stated to be working as teacher at            E
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.-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       F
relationship with our mother”. The above words stated in the
FIR prima facie indicate the presence of accused Nos.1 & 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 him. The conviction
of accused No.1 and accused No.2 are based upon proper                   G
appreciation of evidence and the reasonings are well balanced
and no reason is found warranting interference with their
conviction. Conviction of accused No.1 and accused No.2 and


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614            SUPREME COURT REPORTS                        [2019] 11 S.C.R.


A     the sentence of imprisonment imposed upon them are confirmed.
      Conviction of accused No.4 is set aside and he is acquitted from
      all 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)
B           12 SCC 187: [2013] 16 SCR 589; Rameshbhai
            Mohanbhai Koli v. State of Gujarat and others (2011)
            11 SCC 111 : [2010] 14 SCR 1 – relied on.
                                 Case Law Reference
      [2013] 16 SCR 589                relied on                Para 14
C     [2010] 14 SCR 1                  relied on                Para 23
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1066 of 2009
           From the Judgment and Order dated 30.05.2008 of the High Court
      of Karnataka at Bangalore in Criminal Appeal No. 124 of 2005
D
            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. Farah
      Hashmi, Advs. for the Respondent.
E           The Judgment of the Court was delivered by
            R. BANUMATHI, J.
            1. 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-
F     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.
G           2. The appellants-accused No.1-Mallikarjun, accused No.2-Ravi
      and co-accused No.3-Maruti (absconding) are the sons of 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


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   MALLIKARJUN AND OTHERS v. STATE OF KARNATAKA                                615
                 [R. BANUMATHI, J.]

the incident and therefore, all the accused were said to be having enmity      A
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,            B
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
                                                                               C
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 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     D
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                  E
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                  F
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 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.            G
      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,


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616            SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A     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
B
      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
C     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
D     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
E     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
F     considering other evidence, the trial court held that the prosecution has
      established the guilt of the accused beyond 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
G     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.

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   MALLIKARJUN AND OTHERS v. STATE OF KARNATAKA                               617
                 [R. BANUMATHI, J.]

       6. Ms. Kiran Suri, learned senior counsel appearing for the            A
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
                                                                              B
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 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       C
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.
                                                                              D
       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            E
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 MOs 2 and 3 from the scene
of occurrence amply support the case of prosecution and the trial court       F
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             G
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
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618             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A     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.
B
             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
C     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
D     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
E     the overt act of the accused. Motive is stated to be the illicit relationship
      of the deceased with 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.
F            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
G     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
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   MALLIKARJUN AND OTHERS v. STATE OF KARNATAKA                                619
                 [R. BANUMATHI, J.]

thereafter she went to the police station along with PW-6. The learned         A
senior counsel submitted that PW-5 could not have been an eye witness
as her evidence suffers from various 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
                                                                               B
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           C
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         D
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 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       E
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.
                                                                               F
       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             G
      (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
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620             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A               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 form an opinion about the credibility of
                the witnesses and the appellate court in normal course would
B
                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)
C               “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
D               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
E               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
F               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 village at 11.00 am and
      took her complaint by obtaining her left thumb impression; whereas PW-
G     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
H     like PW-5 being overawed by the court atmosphere to give varying
   MALLIKARJUN AND OTHERS v. STATE OF KARNATAKA                                621
                 [R. BANUMATHI, J.]

statements. The courts are not to judge the evidence of ruralites by the       A
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
                                                                               B
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 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               C
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,         D
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.           E
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 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         F
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      G
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.
                                                                               H
622               SUPREME COURT REPORTS                       [2019] 11 S.C.R.


A            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 an-
                  terior aspect, extends from the lateral border of right sterno-
                  mastoid muscles to its left side size 10 × 3’. Large vessels of
B                 the neck and trachea were cut.
            ii.   Cut lacerated wound over the root of the nose present size
                  1 ×1 cm.
            iii. Cut lacerated wound over the left eye brow region present.

C           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.
D
            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
E
      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
F     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 which the
G     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
H
   MALLIKARJUN AND OTHERS v. STATE OF KARNATAKA                                 623
                 [R. BANUMATHI, J.]

sought to be assailed on the basis of answers elicited from PW-12-doctor.       A
       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       B
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 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    C
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              D
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         E
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
case. PW-6-husband of PW-5 and father of deceased was away from                 F
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.                             G
      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         H
624             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A     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
B
      the 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 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
C     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
D     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
E     hostile, the recovery of the weapon would stand vitiated. It is fairly well
      settled that the evidence of the 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:-
F           “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
G           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)

H
   MALLIKARJUN AND OTHERS v. STATE OF KARNATAKA                                 625
                 [R. BANUMATHI, J.]

          “10. … even if panch witnesses turn hostile, which happens            A
          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          B
      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           C
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         D
of Police is authorised to conduct investigation 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         E
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                F
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             G
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.-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
                                                                                H
626            SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A     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
B
      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
C     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 from all the charges levelled against him. This
      appeal is partly allowed accordingly.
D
      Divya Pandey                                             Appeal disposed of.




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H