IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 854 OF 2002

Satish Narayan Sawant         …. Appellant

Versus

State of Goa      …. Respondent

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. The  present  appeal  arises  out  of  the  judgment  and  order  dated  

01.07.2002 passed by the High Court of Bombay at Goa in Criminal  

Appeal No. 6 of 2000 convicting the accused-appellant under Section  

302 of the Indian Penal Code (for short the ‘the IPC’) and sentencing  

him to undergo life imprisonment for the offence by setting aside the  

order of acquittal passed by the trial court.   

2.  Facts giving rise to the present appeal may be stated first so as to  

enable  us  to  appreciate  the  arguments  raised  by  the  parties  more  

effectively.

On  19.04.1988  between  8.30  p.m.  and  8.45  p.m.,  Satish  Narayan  

Sawant, the appellant (Accused No. 1) along with two other accused persons  

and  also  with  two  delinquent  children  allegedly  formed  an  unlawful  

assembly and that in furtherance of the said common object stabbed one  

Rauji Dulba Sawant, the deceased and also assaulted Baby Dulba Sawant  

(PW-1),  Ashok Dulba Sawant  (PW-2),  Kunda Rauji  Sawant  (PW-8)  and  

Laxmi Dulba Sawant (PW-18) who are the sister, brother, wife and mother  

respectively of the deceased.  It is also the case of the prosecution that as a  

result of the aforesaid stab injuries given to the deceased, he expired on the  

same day i.e. on 19.04.1988.  P.S. Joaquim Dias (PW-21) who was attached  

to the Ponda Police Station as P.S.I. received a phone call at about 10.45  

p.m. from P.S.I. K.K. Desai of the Panaji Police Station that a person named  

Rauji  Dulba Sawant had been brought in police jeep by police constable  

Jaisingrao  Rane  and  that  while  he  was  being  taken  to  the  Goa  Medical  

College, he expired.   He was informed that the deceased had died as a result  

of stab injuries received and, therefore, he was to take necessary steps.  On  

receipt of the aforesaid message, PW-21 along with ASI Tabit Mamlekar  

went to the scene of offence.   They reached the scene of offence at about  

11.30 p.m. but found the entire place plunged into darkness and with the  

help of torch light, PW-21 surveyed the scene of offence.  During the survey  

made at the place of occurrence, PW-21 noticed some blood-stains in the  

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front courtyard of the house and a pipe of length of about 1 foot or slightly  

less lying in the courtyard having blood-stains.  Thereafter,  PW-21, along  

with P.I. D’Sa gave a call to the inmates of the house to open the door and  

on hearing the call, one lady opened the door. On enquiring from her, PW-

21 learnt that her name was ‘Yeshoda’ who was later on arrayed as Accused  

No. 3.  Two juvenile girls named, Sarita and Sharmila, who are the sisters of  

the appellant were found in the house.   In the meantime, PW-1, PW-2 and  

PW-8 came to  the  house  from whom PW-21 made certain  inquiries  and  

brought them along with Accused No. 3 and her two juvenile girls to the  

Police Station. Not finding the appellant and accused no.2 in the house, Dy.  

S.P. Shri Raikar and P.I. Shri Alan O’Sa were sent in their search.  

After  reaching  the  police  station,  a  complaint,  which  is  marked  as  

Exhibit PW 1/A was lodged by PW-1, in which it was alleged that PW-1,  

PW-8, PW-18, the deceased Rauji and his brother Narayan were residing in  

one house in Banastari and they used to share a common kitchen between  

them.  It  was  further  alleged  by  PW-1 that  two or  three  days  before  the  

Ganesh Festival, deceased Rauji had informed Narayan that he would install  

statue of Lord Ganesh in the house and accordingly, he had purchased the  

same.   Religious ceremony was performed by installing the statue of Lord  

Ganesh  in  the  house  and  while  the  said  religious  ceremony  was  being  

performed,  Accused  No.  2  started  uttering  insults  while  standing  in  the  

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kitchen. Accused No. 3 told the appellant not to do anything in the ceremony  

and insulted the family members of Rauji.

 PW-1 also alleged that on 19.04.1988 the deceased Rauji returned  

from his  duty  at  about  6.30  p.m.  and  thereafter  went  to  purchase  some  

articles.   On his return, he went to take bath and after having bath, he went  

and switched off the light of the room.  As soon as the deceased switched off  

the  light,  the  appellant  came  from the  room and  started  abusing  Rauji.  

There  was  a  heated  exchange of  words  between Rauji  and the  appellant  

switched on the light, which was again switched off by Rauji, the deceased.  

Thereupon,  the  appellant  went  and  removed  the  fuse  of  the  said  light.  

Accused No. 3 had then lit a kerosene lamp and brought the same in the hall.  

There was already an oil lamp burning which was attached to the ceiling by  

a brass chain.   Meanwhile, Accused No. 3 started abusing PW-1, PW-8,  

PW-18,  and the deceased Rauji.    

Thereafter, the appellant and the two other alleged accused namely,  

Accused Nos. 2 and 3 and the two juvenile offenders gathered in the hall to  

assault Rauji, the deceased, PW-1 and PW-8.   According to PW-1, in order  

to avoid the assault by all of them, they went to “bulcao” (balcony).   When  

they went there, the appellant went to his mother’s room and brought a knife  

with which he stabbed Rauji.   At that time all the accused persons were in  

the balcony.  It was also alleged that after the deceased Rauji fell down on  

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the ground, Accused No. 3 kicked him.   At that time, the appellant who was  

holding the knife in his hand, handed over the same to Accused No. 3 by  

which she assaulted PW-8 but PW-8 caught the knife in her hand which  

caused injury to her right palm.   Thereafter, according to PW-1, Accused  

No. 3 handed back the knife to the appellant and Accused No. 2 brought the  

oil lamp which was hung in the room and hit the oil lamp on the head of  

Rauji, the deceased.   It was also alleged that when PW-8 tried to intervene,  

the other three accused started assaulting her with fists and slaps.   At that  

time, PW-2 came there and questioned the accused persons as to what they  

were doing, whereupon, the appellant and Accused no. 2 started assaulting  

PW-2 also.   Then, Accused No. 3 told the appellant and Accused No. 2 to  

finish off Rauji first.   PW-8, PW-18 and PW-1 then lifted Rauji and brought  

him in  the  courtyard.    In  the  meanwhile,  residents  of  the  locality  had  

gathered in the courtyard and told the accused persons not to assault Rauji.  

The juvenile offender, Sarita went inside the house and brought out one iron  

pipe which she handed over to the appellant who then hit the said pipe on  

the right leg of PW-1 and also gave a blow with the said pipe on Rauji’s  

right hand.  It was also alleged that the other juvenile offender, Sharmila  

brought a cement block shaped like an elephant trunk, which she handed  

over to Accused No. 3 with which Accused No. 3 started assaulting Rauji.  

PW-1,  however,  intervened  and removed the said piece of  cement  block  

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from the hand of Accused No. 3 but, Accused No. 3 then picked up one  

stone and tried to throw it on Rauji by saying that she was going to kill him  

with that  stone.   However,  PW-1 again intervened and removed the said  

stone from the hand of Accused No.3.  PW– 18 rushed to the rescue of  

deceased Rauji.   The accused then started assaulting her  and PW–8 with  

slaps.  In the meantime, police jeep arrived at the scene and on seeing the  

police jeep, all the accused ran away from the courtyard and went inside.  

PW – 1 and others asked the police to take Rauji to the Hospital whereupon  

the police took him to the hospital in the police jeep along with PW-1, PW –

2  and  PW  –8.  On  the  basis  of  complaint  made  by  PW-1,  an  FIR  was  

registered and the accused came to be arrested.

3. On completion of the investigation, the police submitted the charge-

sheet  against  the  accused  persons  namely  the  present  appellant  

(Accused  No.  1),  Accused  Nos.  2  and  3  and  the  two  juvenile  

offenders, namely Sarita and Sharmila.

4. The trial court framed charges against all the accused persons for the  

offence under Sections 302, 323, 143, 147 and 149 of the IPC.  The  

accused pleaded not guilty and claimed to be tried.  Since there were  

two  juvenile  offenders  there  cases  were  segregated  and  the  trial  

against Accused Nos. 1, 2 and 3 was conducted during the course of  

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which a  number  of  eye-witnesses  were  examined on behalf  of  the  

prosecution.   After  completion  of  the  arguments  the  trial  court  

reserved the verdict.  The trial court passed an order on 04.08.1998  

acquitting all the accused persons from the offences under Sections  

302, 323, 143, 147 and 149 of IPC.

5. Being aggrieved by the aforesaid judgment and order of acquittal the  

State filed an appeal in the High Court against Accused Nos. 1 to 3.  

The High Court by impugned judgment convicted appellant (Accused  

No. 1) under Section 302 IPC and Accused Nos. 2 and 3 were held  

guilty of an offence punishable under Section 323 read with Section  

34 of the IPC.

6. The  appellant  herein,  being  aggrieved  by  the  aforesaid  order  of  

conviction and sentence, filed the present appeal on which we have  

heard  the  learned  counsel  appearing  for  the  appellant  and also  the  

learned counsel appearing for the State.   

7. Mr.  R.  Sundaravardhan,  learned  senior  counsel  appearing  for  the  

appellant  very  forcefully  submitted  that  the  High  Court  was  not  

justified in setting aside the order of acquittal passed in respect of the  

present appellant.  He submitted that although the incident in question  

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had taken place at about 8.45 p.m. the same came to be reported to the  

police at 3.00 a.m.  He also submitted that the police officer (PW-21)  

who received the information about the incident started investigation  

without recording either any general diary (for short G.D.) entry or the  

FIR and, therefore, the FIR which has been proved in the trial court is  

hit by the provisions of Section 162 of the Criminal Procedure Code  

(for short “the CrPC”).  He also submitted that the High Court has not  

given any reason for setting aside the appeal against acquittal which  

was  passed  after  appreciating  the  entire  evidence  on  record.   He  

further  submitted  that  there  was  not  only  shifting  of  time  of  the  

alleged occurrence but also shifting of the place of occurrence from  

the hall to the outside verandah and courtyard to suit the convenience  

of the prosecution case.  He has drawn our attention towards the entire  

evidence on record including the cross-examination part and with the  

help  of  the  same  he  submitted  that  the  entire  alleged  incident  in  

question had taken place when there was complete  darkness at  the  

scene of occurrence.  A scuffle started between the nephew and the  

uncle  in  which  the  accused  persons  also  received  injuries  and,  

therefore, the right of private defence of the appellant was available  

and in that view of the matter, the order of conviction and sentence is  

liable to be set aside.

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8.  It  was  further  submitted  that  the  alleged  eye-witnesses  of  the  

occurrence  were  examined  by  the  police  belatedly  and  that  the  

medical evidence adduced in the case does not in any manner support  

the ocular evidence and if at all it would not be a case of culpable  

homicide amounting to murder but a case of culpable homicide not  

amounting  to  murder.   He  also  submitted  that  if  two  views  are  

possible and if there are lacunae in the case of the prosecution, the  

benefit must go to the accused.  He next submitted that there was no  

evidence on record as to when the FIR reached the Magistrate and that  

none of the courts below considered the said aspect.  He submitted  

that since there was violation of the provisions of Section 162 of the  

CrPC, the accused-appellant is liable to be acquitted.   

9. Ms.  A.  Subhashini,  learned  counsel  appearing  for  the  respondent-

State,  however,  strenuously  submitted  that  none  of  the  aforesaid  

submissions could be accepted by this Court as it is a foolproof case  

of conviction of the appellant under Section 302 IPC.  She submitted  

that  the  High  Court  rightly  interfered  with  the  order  of  acquittal  

passed by the trial  court  after  critically examining the evidence on  

record.   It  was  submitted  by  her  that  the  trial  court  examined  the  

evidence in the present case in a very summary and cryptic manner  

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and thereby arrived at a wrong conclusion that the accused persons  

were  required  to  be  acquitted.  She  has  drawn our  attention  to  the  

findings recorded by the High Court while setting aside the order of  

acquittal observing that the evidence of eye-witnesses namely PWs. 1,  

2, 8 and 18 is convincing and reliable but so far as the evidence of  

PW-4 is concerned, the High Court has made an observation that he is  

not  a reliable  witness.    Counsel  for the  respondent  has,  therefore,  

taken us through the evidence of PWs. 1, 2, 8 and 18 and on the basis  

thereof submitted that their evidence clearly prove and establish the  

role of the appellant herein in stabbing the deceased with the knife  

which he had brought from the other room with the intention of killing  

the  deceased  and,  therefore,  it  is  a  clear  case  of  conviction  under  

Section 302 IPC.  

10. In the light of the aforesaid submissions of the counsel appearing for  

the parties we have given our in-depth consideration to the facts of the  

present case.   

11. The starting point of the incident in question as indicated from the  

evidence  on  record  is  the  hall  where  apparently  a  dispute  started  

between the parties  with regard to the electricity connection in the  

house.  The deceased tried to put off the light of one particular room  

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at which the appellant and other accused persons became annoyed and  

the appellant switched on the light which was again switched off by  

the deceased.  At this, the deceased became annoyed and the appellant  

removed the fuse of the electricity which act of his plunged the entire  

house into darkness.  It is also clear and established that thereafter a  

lamp was brought by Accused No. 3 to the room besides another lamp  

which was already burning in the said room itself.  But, in any case,  

there was an electricity light post in the front of the house which was  

giving enough light to the house.  There is also evidence on record to  

show that even outsiders were watching the incident from the road  

which indicates that there was sufficient light for them to see what  

was happening in the house where the incident had taken place.  There  

was  indeed  some scuffle  between  the  parties  during  the  course  of  

which Accused No. 1 received simple injuries and the deceased died  

of the two stab injuries inflicted by the present appellant.  The said  

fact is proved by the evidence of PWs. 2, 8, 18 and the complainant  

herself (PW-1).  The deceased was taken to the hospital and while so  

taken he died.  PW-21 who was at that time attached to Konda Police  

Station as PSI was informed at about 10.45 p.m. that the deceased  

while  was  being  brought  in  the  police  jeep  by  a  police  constable  

Jaisingrao  Rane  and  was  being  taken  to  the  Government  Medical  

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College but before the deceased could be admitted he died.  PW-21  

was also informed by said by said PSI K.K. Desai of Panaji Police  

Station that it was a case of assault and that the incident had taken  

place at verandah and that the said matter pertains to his police station  

and, therefore, he should take appropriate action.  On receiving the  

said message he went to the place of occurrence along with PSI K.K.  

Desai  and upon reaching the  place of  occurrence  at  11.30 p.m. he  

found  the  entire  place  plunged  in  total  darkness.   Therefore,  he  

proceeded to survey the place of occurrence with the help of torches.  

He, in his deposition specifically stated    that he found that the back  

door as well as the front door of the house were latched from inside  

and  in  front  of  the  house  there  was  a  road  where  there  was  an  

electricity pole and there was a street tube light by which the house  

could be visible and even the lights of the vehicles were flashed at the  

house.  He stated that although the house had electricity connection,  

but was not having the electricity supply.  He gave instructions to his  

subordinate and also to the people around that nobody should touch  

any article lying at the scene of occurrence.  He stated that he made  

preliminary enquiry and brought Yashoda and her two daughters to  

the police station and sent two other officers in search of Accused  

Nos. 1 and 2 who were not found in the house.  He also stated that he  

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got the complaint registered at the police station which was lodged by  

PW-1 and that on the next day he again went to the scene of offence  

and seized the properties involved in the crime which were sealed.  He  

also recovered the knife at the instance of accused Sharmila which he  

seized.   On 28.04.1988, that  is,  after  about 9 days of the  incident,  

Accused  Nos.  1  and  2  surrendered  before  the  police  and  on  their  

surrender they were taken into custody.  It was found that Accused  

No. 1 was having injury on his back and he was medically examined.  

On medical examination his injury was found to be simple.   

12. Learned counsel appearing for the appellant was critical of the manner  

in which PW-21 initiated the investigation without recording any G.D.  

entry and without getting any FIR recorded.  He submitted that since  

the investigation in the instant case was started by the police without  

recording an FIR, such an FIR is necessarily hit by the provisions of  

Section 162 of the Cr.P.C.  He next submitted that no evidence having  

been led by the prosecution about the time when the FIR reached the  

Magistrate,  therefore,  there  is  also  violation  of  the  provisions  of  

Section 157 of the Cr.P.C.   

13. The issue with  regard to  the  initiation  of  the  investigation without  

recording the FIR was succinctly addressed by this Court in the case  

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of State of U.P. v. Bhagwant Kishore Joshi, (1964) 3 SCR 71, (per  

Mudholkar J.) observed as follows:

“17.  What  is  investigation  is  not  defined  in  the  Code  of  Criminal Procedure;  but  in  H.N. Rishbud and Inder Singh v.  State  of  Delhi1  this  Court  has  described,  the  procedure,  for  investigation as follows: “Thus, under the Code investigation consists generally of the  following steps, (1) Proceeding to the spot, (2) Ascertainment  of the facts and circumstances of the case, (3) Discovery and  arrest  of  the  suspected  offender,  (4)  Collection  of  evidence  relating to the commission of the offence which may consist of  (a) the examination of various persons (including the accused)  and the reduction of their statements into writing, if the officer  thinks  fit,  (b)  the  search  of  places  of  seizure  of  things  considered necessary for the investigation and to be produced at  the trial, and (5) formation of the opinion as to whether on the  material collected there is a case to place the accused before a  Magistrate for trial and if so taking the necessary steps for the  same by the filing of a charge-sheet under Section 173.” This Court, however, has not said that if a police officer takes  merely one or two of the steps indicated by it, what he has done  must necessarily be regarded as investigation. Investigation, in  substance,  means  collection  of  evidence  relating  to  the  commission of the offence. The Investigating Officer is, for this  purpose, entitled to question persons who, in this opinion, are  able to throw light on the offence which has been committed  and is likewise entitled to question the suspect and is entitled to  reduce the statements of persons questioned by him to writing.  He is  also entitled  to  search  the  place of  the  offence and to  search other places with the object of seizing articles connected  with the offence. No doubt, for this purpose he has to proceed  to the spot where the offence was committed and do various  other things. But the main object of investigation being to bring  home the offence to the offender the essential part of the duties  of  an  investigating  officer  in  this  connection  is,  apart  from  arresting  the  offender,  to  collect  all  material  necessary  for  establishing the accusation against the offender. Merely making  some preliminary enquire upon receipt of information from an  anonymous  source  or  a  source  of  doubtful  reliability  for  

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checking up the correctness of the information does not amount  to  collection  of  evidence  and  so  cannot  be  regarded  as  investigation.  In  the  absence of  any prohibition in  the  Code,  express or implied, I am of opinion that it is open to a police  officer  to  make  preliminary  enquiries  before  registering  an  offence and making a full scale investigation into it. No doubt,  Section 5-A of the Prevention of Corruption Act was enacted  for  preventing  harassment  to  a  government  servant  and with  this  object  in  view  investigation,  except  with  the  previous  permission of a Magistrate, is not permitted to be made by an  officer  below  the  rank  of  Deputy  Superintendent  of  Police.  Where,  however,  a  police  officer  makes  some  preliminary  enquiries,  does  not  arrest  or  even  question  an  accused  or  question  any  witnesses  but  merely  makes  a  few  discreet  enquiries  or  looks  at  some  documents  without  making  any  notes, it is difficult to visualise how any possible harassment or  even embarrassment would result  therefrom to the suspect or  the accused person. If no harassment to the accused results from  the action of a police officer how can it be said to defeat the  purpose  underlying  Section  5-A?  Looking  at  the  matter  this  way, I  hold that  what Mathur did was something very much  short of investigation and, therefore, the provisions of Section  5-A were not violated. Since no irregularity was committed by  him  there  is  no  occasion  to  invoke  the  aid  of  the  curative  provisions of the Code.”                                                                    (emphasis underlined)

14. In the instant case, it is quite clear from the evidence on record that  

PW-1 received the information about the death of the deceased from  

PSI of Panaji Police Station without any detail as to how the incident  

had happened and who had caused the incident.  It was a very cryptic  

information received by him regarding the death of a person residing  

within  the  jurisdiction  of  his  police  station pursuant  to an incident  

taking  place  on  10.04.1988  between  8.30  p.m.  to  8.45  p.m.  and,  

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therefore, it appears that there was not enough information available  

to him either to get a G.D. entry recorded or to get an FIR lodged.  In  

order to verify the information received, PW-21 went to the place of  

occurrence  and found the entire  house in  total  darkness.   He went  

around the house and saw blood marks on the walls of the verandah  

and also  in  the  courtyard and came to  learn  about  the  incident  by  

using torch light.  When he reached at the place of occurrence even  

the complainant party was not available there but at a later stage they  

came there.  Therefore, he brought them along with the residents of  

the house who were found to be there namely Accused No. 3 and the  

two  juvenile  offenders  namely  Sarita  and  Sharmila,  who  were  all  

ladies.  After reaching the police station and at the request of PW-1  

the FIR was recorded at 3.00 a.m. in the morning.  He received the  

information about the incident on telephone at about 10.45 p.m. and  

reached the place of occurrence at about 11.30 p.m. and he must have  

been there for quite some time and thereafter returned to the police  

station  which  must  have  taken  another  about  1.30  to  2  hours.  

Therefore, recording of the FIR at about 3.00 a.m. in the morning was  

justified and properly explained and it cannot be said that there was  

any delay in recording the FIR. Besides, the fact of his going to the  

place of  occurrence  would not  amount to  making an investigation.  

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There is no evidence to show that at that point of time, PW-21 seized  

any articles or interrogated any witnesses or took any other action in  

initiating or in furtherance of investigation. The ratio of the decision  

in  Bhagwant Kishore Joshi (supra) is applicable to the facts of the  

present case as the police officer merely visited the spot and place of  

occurrence  and  made  some  survey  which  cannot  be  regarded  as  

investigation.  

15. In Animireddy Venkata Ramana and Others v. Public Prosecutor,  

High Court of Andhra Pradesh, (2008) 5 SCC 368, at page 374, this  

Court while considering a similar case observed as follows:  

“10. Certain basic  facts  are not  denied or  disputed.  The  deceased died in the bus at about 10.30 p.m. on 23-6-1998  while  travelling to his  village  home from Tuni.  PW 1 also  sustained injuries in the said incident. Immediately after the  incident,  hearing  cries  of  passengers,  the  driver  of  the  bus  stopped the bus. Not only the accused persons fled away, all  others also did, including PWs 3 and 4. They came back after  a short while hearing the cries of PW 1. They acceded to his  request  to  take  the  bus  to  his  house.  From  the  records,  it  appears that the distance between the place where the accident  took place and the village in question was not much. In any  event, the destination of the bus was the said village and they  were bound to take the bus thereat. PW 1 informed about the  incident to PW 2, another son of the deceased.

11. The dead body of the deceased was brought down from  the bus and taken to the house. The conductor of the bus sent  an  information  to  the  Depot  Manager  of  the  State  Road  Transport Corporation at Tuni. The investigating officer was  also informed. A report to that effect might have been noted in  the general diary but the same could not have been treated to  be an FIR. When an information is received by an officer in  charge of a police station, he in terms of the provisions of the  Code was expected to reach the place of occurrence as early  

17

as possible. It was not necessary for him to take that step only  on  the  basis  of  a  first  information  report.  An  information  received in regard to commission of a cognizable offence is  not required to be preceded by a first information report. Duty  of  the  State  to  protect  the  life  of  an  injured  as  also  an  endeavour  on  the  part  of  the  responsible  police  officer  to  reach the place of occurrence in a situation of this nature is his  implicit  duty and responsibility.  If  some incident  had taken  place in a bus, the officers of Road Transport Corporation also  could  not  ignore  the  same.  They  reached  the  place  of  occurrence in another bus at about 1 a.m. The deceased and  the injured were only then shifted to Tuni Hospital.”

16. The ratio of the aforesaid decision is squarely applicable to the facts  

of  the  present  case.   Even assuming  that  PW-21,  the  Investigating  

Officer could have entered the aforesaid information received from  

PSI of Panaji Police Station in the general diary, yet the said entry  

could not have been held or treated to be an FIR.  The information  

received by him was very cryptic and without any detail  about the  

incident  in  question  and,  therefore,  in  any  case,  there  was  no  

possibility of recording an FIR at that stage.  The place of occurrence  

was  in  total  darkness  and  even  the  persons  belonging  to  the  

complainant side were not available, therefore, bringing them to the  

police  station  where  there  was  sufficient  light  and  recording  the  

complaint at 3.00 a.m. cannot, in any manner, cast any doubt on the  

veracity of the prosecution case.  In that view of the matter it cannot  

18

be  said  that  the  FIR was  in  any  manner  hit  by  the  provisions  of  

Section 162 of CrPC.   

17. So far contention that there was violation of Section 157 of the CrPC  

is concerned, the same is also without any basis for the defence never  

cross-examined PW-21 on the aforesaid issue.  So long the defence is  

not able to establish from the records by cogent evidence that there  

was any delay in sending the FIR to the Magistrate, it cannot be held  

that there was any such delay.  There is no evidence on record before  

us to hold either way for no such issue was raised either before the  

trial court or before the High Court nor any evidence was led by the  

defence in respect of the said issue which is sought to be raised at this  

stage. From the evidence on record it does not appear to us that any  

suggestion was given to the said witness to the effect that the copy of  

the FIR was not sent or that it was dispatched late, which if given,  

would  have  given  an  opportunity  to  the  witness  to  afford  some  

explanation or to show as to when the FIR, was sent to and received  

by the Magistrate.  In that view of the matter we do not agree with the  

counsel appearing for the appellant that delay in transmitting the FIR  

to the Magistrate stands proved in the present case.

19

18. The next contention that we proceed to discuss now is about whether  

sufficient light was available at the place of occurrence for the eye-

witnesses to see the occurrence as stated by them in the evidence.  We  

have PWs. 1, 2, 8 and 18 as eye-witnesses to the occurrence.  These  

eye-witnesses have stated that the incident had happened initially in  

the hall where there was some light for Accused No. 3 has brought a  

lamp to the hall and apart from that another lamp was also burning  

which was attached to the ceiling.  Blood was found by the police on  

the wall of the verandah and in the courtyard.  It is also established  

from the evidence on record for it is clearly stated that the street light  

having tube light was giving sufficient light to the place of occurrence  

and that it  was directed towards the house which was the place of  

occurrence.   

19. Besides, all the aforesaid eye-witnesses were inmates of the house and  

they would know as to who had given the blows for they specifically  

stated that initially the appellant did not have the knife in his hand but  

when the deceased and others went to the balcony then he went inside  

the house and brought a knife with which he gave stab injuries to the  

deceased which became fatal and as a result of which the deceased  

died while he was being taken to the hospital.   

20

20. The  aforesaid  eye-witnesses,  although,  are  related  witnesses,  were  

natural witnesses for they were the inmates of the house where the  

incident had taken place.  The said eye-witnesses are consistent about  

the  principal  act  of  the  appellant  in  stabbing  the  deceased.   The  

discrepancies  which  were  sought  to  be  pointed  out  are  minor  

discrepancies without in any manner affecting the substratum of the  

prosecution case and therefore, minor discrepancies in the evidence of  

the eye-witnesses are immaterial. This Court has observed as follows  

in the case  of  Dinesh Kumar v. State of Rajasthan,  (2008) 8 SCC  

270, at page 273  :  

“11. It  is  to  be noted that  PWs 7 and 13 were  the  injured  witnesses  and PW 10 was another  eyewitness  and was  the  informant. Law is fairly well settled that even if acquittal is  recorded in respect of the co-accused on the ground that there  were exaggerations and embellishments, yet conviction can be  recorded if the evidence is found cogent, credible and truthful  in respect of another accused. The mere fact that the witnesses  were related to the deceased cannot be a ground to discard  their evidence. 12. In  law,  testimony  of  an  injured  witness  is  given  importance. When the eyewitnesses are stated to be interested  and  inimically  disposed  towards  the  accused,  it  has  to  be  noted that it would not be proper to conclude that they would  shield the real culprit and rope in innocent persons. The truth  or otherwise of the evidence has to be weighed pragmatically.  The court would be required to analyse the evidence of related  witnesses  and  those  witnesses  who  are  inimically  disposed  towards the accused. But if after careful analysis and scrutiny  of their evidence, the version given by the witnesses appears  to be clear, cogent and credible, there is no reason to discard  the  same.  Conviction  can  be  made  on  the  basis  of  such  evidence.”  

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21. The aforesaid eye-witnesses were cross-examined at length but even  

after  such  lengthy  cross-examination  these  eye-witnesses  account  

could not be shaken.  The postmortem report indicates that there were  

sixteen injuries as against the two as adduced in ocular evidence and,  

therefore,  a submission was made by the counsel appearing for the  

appellant that the medical evidence adduced in the present case is not  

supporting the ocular evidence. However, a perusal of record clearly  

shows that the doctor who conducted the postmortem (PW-7) stated in  

his  evidence  that  there  were  in  total  16  injuries  when  external  

examination was done by him and the knife  M. O. 11 could have  

caused the injuries no. 1, 2, 3 and 4. He further stated that the death  

was caused due to hemorrhage and shock as a result of stab injury. He  

further stated that Injury No. 1 was sufficient to cause death in the  

ordinary  course  of  nature.  On  being  cross-examined,  PW-7  

categorically stated that death due to stab injury was in consequence  

of Injury No. 1 and all other injuries were superficial in nature. There  

is no doubt that four injuries are indicated in the postmortem report  

shown to have been received by the deceased but the fact  that  the  

deceased was given stab injuries by the appellant with the help of a  

knife brought by him from inside the house is clearly established from  

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the ocular evidence.  There is therefore one particular injury, being  

injury No. 1 caused because of stabbing and the rest being superficial  

in  nature  could  be  caused  during  scuffle.    Therefore,  the  alleged  

discrepancy cannot be said to be very vital as it has been held by this  

Court  in  several  decisions  that  ocular  evidence  cannot  be  brushed  

aside only because, to some extent, it is not in consonance with the  

medical  evidence.  Reference  in  this  regard  may  be  made  to  the  

decision of this Court in State of U. P. v. Krishna Gopal, (1988) 4  

SCC 302;  Anwar v.  State  of  Haryana,  (1997)  9  SCC 766;  Ravi  

Kumar v. State of Punjab, (2005) 9 SCC 315; Munivel v. State of  

T.N., (2006) 9 SCC 394.  

22. All  the  contentions  raised  by  learned  counsel  appearing  for  the  

appellant were considered by us in the light of evidence on record and  

we find that none of the aforesaid submissions has any basis.  There is  

cogent and reliable evidence on record to prove and establish that the  

accused has committed the act of stabbing as a result of which the  

deceased had died.

23. Before dwelling further into the factual matrix of the case on the basis  

of which the High Court convicted the appellant under Section 302  

IPC; it would be useful to briefly recapitulate the law on the point.  

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24. Section 299 and Section 300 IPC deals with the definition of culpable  

homicide  and  murder  respectively.   Section  299  defines  culpable  

homicide as the act of causing death; (i) with the intention of causing  

death or  (ii)  with  the  intention of  causing such bodily  injury as  is  

likely to cause death or (iii) with the knowledge that such act is likely  

to cause death.   The bare reading of the section makes it crystal clear  

that the first and the second clause of the section refer to intention  

apart  from the knowledge and the third clause refers to knowledge  

alone  and  not  intention.    Both  the  expression  “intent”  and  

“knowledge”  postulate  the  existence  of  a  positive  mental  attitude  

which  is  of  different  degrees.    The  mental  element  in  culpable  

homicide i.e. mental attitude towards the consequences of conduct is  

one of  intention and knowledge.     If  that  is  caused in any of  the  

aforesaid three circumstances, the offence of culpable homicide is said  

to  have  been  committed.    Section  300  IPC,  however,  deals  with  

murder  although there is  no clear  definition of murder provided in  

Section  300 IPC.    It  has  been  repeatedly  held  by  this  Court  that  

culpable  homicide  is  the  genus  and murder  is  species and that  all  

murders are culpable homicide but not vice versa.  Section 300 IPC  

further  provides  for  the  exceptions  which  will  constitute  culpable  

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homicide not amounting to murder and punishable under Section 304.  

When and if there is intent and knowledge then the same would be a  

case of Section 304 Part I and if it is only a case of knowledge and not  

the intention to cause murder and bodily injury, then the same would  

be a case of Section 304 Part II.   The aforesaid distinction between an  

act amounting to murder and an act not amounting to murder has been  

brought out in the numerous decisions of this Court.

25. In the case of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC  

382, this Court observed as follows at page 386:  

“12. In the scheme of the Penal Code, “culpable homicides” is  genus  and  “murder”  its  specie.  All  “murder”  is  “culpable  homicide”  but  not  vice-versa.  Speaking  generally,  “culpable  homicide” sans “special characteristics of murder”, is “culpable  homicide not amounting to murder”. For the purpose of fixing  punishment, proportionate to the gravity of this generic offence,  the  Code  practically  recognises  three  degrees  of  culpable  homicide. The first is, what may be called, “culpable homicide  of  the  first  degree”.  This  is  the  greatest  form  of  culpable  homicide,  which is  defined in Section 300 as “murder”.  The  second may be  termed as  “culpable  homicide  of  the  second  degree”. This is punishable under the first part of Section 304.  Then, there is “culpable homicide of the third degree”. This is  the  lowest  type  of  culpable  homicide  and  the  punishment  provided  for  it  is,  also,  the  lowest  among  the  punishments  provided for the three grades. Culpable homicide of this degree  is punishable under the second part of Section 304.”

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26. Placing strong reliance  on the  aforesaid  decision,  this  Court  in  the  

case of Abdul Waheed Khan v. State of A.P., (2002) 7 SCC 175, observed  

as follows at page 184:  

“13. Clause (b) of Section 299 corresponds with clauses (2) and  (3) of Section 300. The distinguishing feature of the mens rea  requisite  under clause (2)  is  the knowledge possessed by the  offender regarding the particular victim being in such a peculiar  condition or state of health that the internal harm caused to him  is  likely  to be fatal,  notwithstanding the fact  that  such harm  would not in the ordinary way of nature be sufficient to cause  death of a person in normal health or condition. It is noteworthy  that  the  “intention  to  cause  death”  is  not  an  essential  requirement  of  clause  (2).  Only  the  intention  of  causing  the  bodily  injury  coupled  with  the  offender’s  knowledge  of  the  likelihood  of  such  injury  causing  the  death  of  the  particular  victim, is sufficient to bring the killing within the ambit of this  clause. This aspect of clause (2) is borne out by Illustration (b)  appended to Section 300. 14. Clause  (b)  of  Section  299  does  not  postulate  any  such  knowledge on the part of the offender. Instances of cases falling  under  clause  (2)  of  Section  300  can  be  where  the  assailant  causes death by a fist-blow intentionally given knowing that the  victim is suffering from an enlarged liver, or enlarged spleen or  diseased heart  and such blow is likely to cause death of that  particular person as a result of the rupture of the liver, or spleen  or the failure of the heart, as the case may be. If the assailant  had no such knowledge about the disease or special frailty of  the  victim,  nor  an  intention  to  cause  death  or  bodily  injury  sufficient in the ordinary course of nature to cause death, the  offence will not be murder, even if the injury which caused the  death,  was  intentionally  given.  In  clause  (3)  of  Section  300,  instead of the words “likely to cause death” occurring in the  corresponding clause (b) of Section 299, the words “sufficient  in the ordinary course of nature” have been used. Obviously,  the distinction lies between a bodily injury likely to cause death  and a bodily injury sufficient in the ordinary course of nature to  cause death. The distinction is fine but real and if overlooked,  may  result  in  miscarriage  of  justice.  The  difference  between  clause (b) of Section 299 and clause (3) of Section 300 is one of  degree  of  probability  of  death  resulting  from  the  intended  bodily  injury.  To  put  it  more  broadly,  it  is  the  degree  of  probability  of  death  which  determines  whether  a  culpable  

26

homicide is of the gravest, medium or the lowest degree. The  word “likely” in clause (b) of Section 299 conveys the sense of  probable as distinguished from a mere possibility. The words  “bodily injury … sufficient in the ordinary course of nature to  cause death” mean that death will be the “most probable” result  of the injury, having regard to the ordinary course of nature. 15. For cases to fall within clause (3), it is not necessary that the  offender intended to cause death, so long as the death ensues  from the intentional bodily injury or injuries sufficient to cause  death in the ordinary course of nature.  Rajwant Singh v.  State  of Kerala3 is an apt illustration of this point. 16. In Virsa Singh v. State of Punjab4 Vivian Bose, J. speaking  for the Court, explained the meaning and scope of clause (3). It  was  observed  that  the  prosecution  must  prove  the  following  facts  before it  can bring a  case under  Section 300 “thirdly”.  First, it must establish quite objectively, that a bodily injury is  present;  secondly,  the  nature  of  the  injury  must  be  proved.  These are purely objective investigations.  Thirdly, it  must be  proved  that  there  was  an  intention  to  inflict  that  particular  injury, that is to say, that it was not accidental or unintentional  or that some other kind of injury was intended. Once these three  elements are proved to be present, the enquiry proceeds further,  and fourthly, it must be proved that the injury of the type just  described  made  up  of  the  three  elements  set  out  above  was  sufficient to cause death in the ordinary course of nature. This  part of the enquiry is purely objective and inferential and has  nothing to do with the intention of the offender. 17. The ingredients of clause “thirdly” of Section 300 IPC were  brought  out  by the  illustrious Judge in his  terse  language as  follows: (AIR p. 467, para 12)

“12.  To  put  it  shortly,  the  prosecution  must  prove  the  following facts  before it  can bring a case under Section 300  ‘thirdly’;

First, it must establish, quite objectively, that a bodily injury  is present;

Secondly, the nature of the injury must be proved; These are  purely objective investigations.

Thirdly,  it  must  be  proved  that  there  was  an  intention  to  inflict that particular bodily injury, that is to say, that it was not  accidental  or unintentional,  or that some other kind of injury  was intended.

Once  these  three  elements  are  proved  to  be  present,  the  enquiry proceeds further and,

27

Fourthly, it must be proved that the injury of the type just  described  made  up  of  the  three  elements  set  out  above  is  sufficient to cause death in the ordinary course of nature. This  part of the enquiry is purely objective and inferential and has  nothing to do with the intention of the offender.”

18. The  learned  Judge  explained  the  third  ingredient  in  the  following words (at p. 468): (AIR para 16) “The question is not whether the prisoner intended to inflict a  serious injury or a trivial one but whether he intended to inflict  the injury that is proved to be present. If he can show that he  did not, or if the totality of the circumstances justify such an  inference, then, of course, the intent that the section requires is  not proved. But if there is nothing beyond the injury and the  fact that the appellant inflicted it, the only possible inference is  that  he  intended  to  inflict  it.  Whether  he  knew  of  its  seriousness, or intended serious consequences, is neither here  nor there. The question, so far as the intention is concerned, is  not  whether  he  intended  to  kill,  or  to  inflict  an  injury  of  a  particular  degree  of  seriousness,  but  whether  he  intended  to  inflict  the  injury  in  question;  and  once  the  existence  of  the  injury  is  proved  the  intention  to  cause  it  will  be  presumed  unless the evidence or the circumstances warrant an opposite  conclusion.”

19. These observations of Vivian Bose, J. have become locus  classicus.  The  test  laid  down  by  Virsa  Singh  case4 for  the  applicability of clause “thirdly” is now ingrained in our legal  system and has become part of the rule of law. Under clause  thirdly of Section 300 IPC, culpable homicide is murder, if both  the following conditions are satisfied i.e. (a) that the act which  causes death is done with the intention of causing death or is  done with the intention of causing a bodily injury; and (b) that  the injury intended to be inflicted is sufficient in the ordinary  course of nature to cause death. It must be proved that there was  an intention to inflict that particular bodily injury which, in the  ordinary course of nature, was sufficient to cause death viz. that  the injury found to be present was the injury that was intended  to be inflicted.

20. Thus, according to the rule laid down in Virsa Singh case4  even if the intention of the accused was limited to the infliction  

28

of  a  bodily  injury  sufficient  to  cause  death  in  the  ordinary  course of nature, and did not extend to the intention of causing  death, the offence would be murder. Illustration (c) appended to  Section 300 clearly brings out this point.

21. Clause (c) of Section 299 and clause (4) of Section 300 both  require knowledge of the probability of the act causing death. It  is not necessary for the purpose of this case to dilate much on  the distinction between these corresponding clauses. It will be  sufficient  to  say  that  clause  (4)  of  Section  300  would  be  applicable  where  the  knowledge  of  the  offender  as  to  the  probability  of  death  of  a  person  or  persons  in  general  as  distinguished  from  a  particular  person  or  persons  —  being  caused from his imminently dangerous act, approximates to a  practical certainty. Such knowledge on the part of the offender  must  be  of  the  highest  degree  of  probability,  the  act  having  been  committed  by  the  offender  without  any  excuse  for  incurring the risk of causing death or such injury as aforesaid.

22. The  above  are  only  broad  guidelines  and  not  cast-iron  imperatives. In most cases, their observance will facilitate the  task of the court. But sometimes the facts are so intertwined and  the second and the third stages so telescoped into each, that it  may  not  be  convenient  to  give  a  separate  treatment  to  the  matters involved in the second and third stages.”

27. The aforesaid principles have been consistently followed by this Court  

in several decisions. Reference in this regard may be made to the decision of  

this Court in Ruli Ram v. State of Haryana, (2002) 7 SCC 691; Augustine  

Saldanha v. State of Karnataka, (2003) 10 SCC 472;  State of U. P. v.  

Virendra Prasad, (2004) 9 SCC 37; Chacko v. State of Kerala, (2004) 12  

SCC 269; S. N. Bhadolkar v. State of Maharasthra, (2005) 9 SCC 71; and  

Jagriti Devi v. State of H. P., JT 2009 (8) SC 648.

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28. That being the well settled legal position, when we test the factual  

background of the present  case on the principles laid down by this  

Court in the aforesaid decisions, we are unable to agree with the views  

taken by the High Court. As already noted, it is quite clear from the  

record that there was an altercation preceding the incident.  The place  

of occurrence is a residence inhabited by both the parties and there is  

no evidence on record that the deceased was armed with any weapon.  

Initially the accused-appellant also did not have any weapon with him  

but during the course of the incident he went inside and got a knife  

with the help of which he stabbed the deceased.  PW-7 in his cross  

examination has categorically stated that death due to stab injury was  

in consequence of Injury No. 1 and all other injuries were superficial  

in  nature.  So,  it  was only Injury No.  1  which was fatal  in  nature.  

Factually  therefore,  there  was  only  one  main  injury  caused due to  

stabbing and that also was given on the back side of the deceased and  

therefore, it cannot be said that there was any intention to kill or to  

inflict an injury of a particular degree of seriousness.   Records clearly  

establish  that  there  was  indeed  a  scuffle  between  the  parties  with  

regard to the availability of electricity in a particular room and during  

the course of scuffle the appellant also received an injury which was  

simple in nature and that there was heated exchange of words and  

30

scuffle between the parties before the actual incident of stabbing took  

place.  There is, therefore, provocation and the incident happened at  

the spur of the moment.  That being the factual position, we are of the  

considered view that the present case cannot be said to be a case under  

Section 302 IPC but it is a case falling under Section 304 Part II IPC.  

It is trite law that Section 304 Part II comes into play when the death  

is caused by doing an act with knowledge that it  is likely to cause  

death but  there is  no intention on the part  of the accused either to  

cause death or to cause such bodily injury as is likely to cause death.  

29. Accordingly, we convict the appellant under Section 304, Part II of  

IPC and sentence  him to  undergo  imprisonment  for  a  period  of  7  

years.   His bail bonds shall stand cancelled and the appellant shall  

surrender immediately to serve out the remaining period of sentence.  

If,  however,  the  appellant  does not  surrender  by himself,  the  State  

shall  take necessary steps to rearrest  him to undergo the remaining  

part of sentence.  

 30. The appeal stands disposed of in terms of aforesaid order.  

……………………………J. [Dalveer Bhandari]

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…………………………..J. [Dr. Mukundakam Sharma]

New Delhi, September 14, 2009

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