2009 Supreme(SC) 1572

2009(6) Supreme 547
SUPREME COURT OF INDIA
Dalveer Bhandari and Dr. Mukundakam Sharma, JJ.
Satish Narayan Sawant — Appellant
versus
State of Goa — Respondent
Criminal Appeal No. 854 of 2002
Decided on 14-09-2009

IMPORTANT POINT:
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.

Headnote:Indian Penal Code, 1860 – Section 302 – Prosecution of appellant along with two other accused persons and also with two delinquent children for allegedly forming an unlawful assembly and in furtherance of the said common object stabbing deceased and also assaulting sister, brother, wife and mother of deceased – Trial court acquitted all accused persons from offences under Sections 302, 323, 143, 147 and 149 of IPC – State Appeal – High Court by impugned judgment convicted appellant Accused 1 under Section 302 IPC and Accused 2 and 3 were held guilty of an offence punishable under Section 323 read with Section 34 of IPC – Appeal thereagainst by accused 1 – Held there was cogent and reliable evidence on record to prove and establish that accused had committed the act of stabbing as a result of which deceased had died – Evidence on record that there was an altercation preceding incident- The place of occurrence was a residence inhabited by both parties - No evidence on record that 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- Factually there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and hence it could not be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness- Records clearly established that there was indeed a scuffle between the parties and during course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place – There was, therefore, provocation and the incident happened at spur of the moment – Instant case could not be said to be a case under Section 302 IPC but it was a case falling under Section 304 Part II IPC – Conviction of appellant altered to one under Section 304, Part II of IPC - Appeal disposed of. (Paras 28 to 30)

        Criminal Procedure Code, 1973 – Section 162 – Conviction of appellant along with two other accused persons for allegedly forming an unlawful assembly and in furtherance of the said common object stabbing deceased and also assaulting sister, brother, wife and mother of deceased-Appeal against conviction on plea that police officer PW-21who received the information about the incident started investigation without recording either any general diary (for short G.D.) entry or FIR and, that FIR which had been proved in trial court was hit by provisions of Section 162 of Crpc - Evidence on record that PW-1 received information about death of deceased from PSI of Panaji Police Station without any detail as to how 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 -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- PW-21 must have been there for quite some time and thereafter returned to police station which must have taken 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 place of occurrence not amounted to making an investigation-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-Held since police officer merely visited the spot and place of occurrence and made some survey which could not be regarded as investigation.-Hence it could not be said that FIR was in any manner hit by provisions of Section 162 of CrPC. (Paras 13 to 16)

       (1964) 3 SCR 71, relied upon

        Criminal Procedure Code,1973 – Section 157 – Conviction of appellant u/s 302 IPC – Appeal against conviction on plea of violation of Section 157 of the CrPC – So far contention that there was violation of Section 157 of the CrPC was concerned, same was held without any basis for the defence never cross-examined PW-21 on said issue-So long the defence was not able to establish from the records by cogent evidence that there was any delay in sending the FIR to the Magistrate, it could not be held that there was any such delay- From evidence on record it did not appear that any suggestion was given to the said witness to the effect that the copy of 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 delay in transmitting FIR to the Magistrate not stood proved in instant case. (Para 17)

       Criminal Trial – Evidence of related witnesses – Admissibility – Eye-witnesses, although, were related witnesses, were natural witnesses for they were the inmates of the house where incident had taken place – The said eye-witnesses were consistent about principal act of the appellant in stabbing the deceased – The discrepancies which were sought to be pointed out were minor discrepancies without in any manner affecting the substratum of prosecution case – Hence minor discrepancies in the evidence of eye-witnesses were immaterial. (Paras 18 to 21)

       (2008) 8 SCC 270, relied

       Facts of the Case :

        1. Appellant was prosecuted along with two other accused persons and also with two delinquent children for allegedly forming an unlawful assembly and in furtherance of the said common object stabbing deceased and also assaulting sister, brother, wife and mother of deceased. Trial court acquitted all accused persons from offences under Sections 302, 323, 143, 147 and 149 of IPC. On State Appeal ,High Court by impugned judgment convicted appellant Accused 1 under Section 302 IPC and Accused 2 and 3 were held guilty of an offence punishable under Section 323 read with Section 34 of IPC.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Held there was cogent and reliable evidence on record to prove and establish that accused had committed the act of stabbing as a result of which deceased had died. Evidence on record showed that there was an altercation preceding incident. The place of occurrence was a residence inhabited by both parties. There was no evidence on record to show that 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. Factually there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and hence it could not be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness. Records clearly established that there was indeed a scuffle between the parties and during course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There was, therefore, provocation and the incident happened at spur of the moment. Instant case could not be said to be a case under Section 302 IPC but it was a case falling under Section 304 Part II IPC. Conviction of appellant was altered to one under Section 304, Part II of IPC .Appeal was disposed of

       Result : Appeal disposed of