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 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 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 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 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 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 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, 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 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.
Criminal Trial – FIR – Delay in registration of – When not fatal – Discussed.
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 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. 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 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, does not affect the trustworthiness of PW-5 so as to doubt her testimony. [Paras 1315] [619-E-F; 620-F-H; 621-A-B]
1.2 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, PW-5mother 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. 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 structures of the neck i.e. large vessels and trachea. MO-1dagger 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. [Paras 16-18][621B-F; 622-E-F]
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 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 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 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 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 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 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. 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 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 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 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 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 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 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 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; 625F-H; 626-A-D] Bakhshish Singh v. State of Punjab and another (2013)
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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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