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SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, JJ.
MALLIKARJUN AND OTHERS – Appellants
VERSUS
STATE OF KARNATAKA – Respondent
CRIMINAL APPEAL NO.1066 OF 2009
Decided On : 08-08-2019
(a) Criminal trial - PW 1-4, independent eye witnesses turning hostile - PW5, the mother of deceased an eye witness - Trial court finding evidence of PW5 trustworthy ignoring minor discrepancies, she being an illiterate woman - No error. (Para 9, 12, 13, 15)
(b) Criminal trial - Appreciation of evidence - Minor discrepancies and inconsistent version, if it is otherwise found to be creditworthy - Not fatal to prosecution case. (Para 14)
(c) Criminal trial - Appreciation of evidence - Evidence of a witness cannot be disbelieved simply because he/she appears partisan or is related to the deceased/prosecution witness - PW5 being mother of deceased, her presence is natural - having no reason to falsely implicate the accused - Her evidence rightly relied upon. (Para 16)
(d) Criminal trial - Medical evidence - Opinion of doctor - Expert is not a witness of fact - His evidence is primarily an evidence of opinion - Only a corroborative piece of evidence - Instantly no variance with ocular evidence - Rightly relied upon. (Para 20)
(e) Criminal trial - Lodging of FIR and its production before Magistrate - Plausible delay not fatal to prosecution case. (Para 21, 22)
(f) Criminal trial - Recovery - Panch witnesses turning hostile - Recovery of weapon does not become vitiated - Recovery can be proved on evidence of investigating officer. (Para 23)
(g) Criminal trial - Investigation - case registered u/s 302 IPC - Circle Inspector authorized to investigate - Instantly PSI conducting investigation in absence of Circle Inspector - No infirmity. (Para 24)
(h) Criminal trial - Overt act attributed to accused 4 not corroborated by medical evidence - entitled to benefit of doubt - Acquitted. (Para 25, 26)
Facts of the case:
Appellants-accused Nos.1, 2 and 4 were convicted under Sections 302/34 and 448 IPC and sentenced to life imprisonment and
High Court affirmed the conviction and the sentence.
Finding of the Court:
There is no infirmity in conviction of all accused except accused 4.
Result: Appeal partly allowed.
Key Points: - Minor discrepancies and inconsistent versions in witness testimony, if credibly found, are not fatal to the prosecution. (!) (!) - A witness cannot be disbelieved solely for partisan relation to the deceased or prosecution, if found trustworthy. (!) - Medical evidence is expert opinion and corroborative; it cannot override ocular evidence where consistent. (!) - Plausible delay in lodging FIR or in production before Magistrate is not fatal if plausibly explained. (!) (!) - Recovery of weapons can be proved by investigating officer’s testimony even if Panch witnesses turn hostile. (!) (!) - Investigation can be conducted by PSI in absence of Circle Inspector; lack of Circle Inspector authority is not fatal. (!) - Overt acts attributed to accused not corroborated by medical evidence may justify acquittal for that accused. (!) (!) - Delays in FIR/receipt of FIR explained plausibly may not affect prosecution’s case. (!) (!) - Credibility of PW-5 as natural, illiterate eye-witness and mother of the deceased supported by corroborative materials. (!) (!)
JUDGMENT
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 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 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 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 (MO10) and sample mud (MO-11) were recovered from the scene of occurrence. PW-12-Dr.H.R. Kumar conducted the postmortem (Ex.-P11) on the dead body of deceased Bhimraya on 14.06.2002 at 04.
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