Mallikarjun vs State Of Karnataka

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

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- Signature Not Verified Digitally signed by MAHABIR SINGH Date: 2019.08.08 16:37:03 IST Reason:

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

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