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So far contention that there was violation of S. 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 Ratio |
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 Ratio |
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 Ratio |
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 ... |
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 Ratio |
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 Ratio |
We have PWs Ratio |
1, 2, 8 and 18 as eye-witnesses to the occurrence Ratio |
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 Ratio |
Blood was found by the police on the wall of the verandah and in the courtyard Ratio |
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 Ratio |
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 wh... |
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 Ratio |
The said eye-witnesses are consistent about the principal act of the appellant in stabbing the deceased Ratio |
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 Ratio |
This Court has observed as follows in the case of Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270 2008 Indlaw SC 2034, : "11 PRE |
It is to be noted that PWs 7 and 13 were the injured witnesses and PW 10 was another eyewitness and was the informant PRE |
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 PRE |
The mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence PRE |
In law, testimony of an injured witness is given importance PRE |
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 PRE |
The truth or otherwise of the evidence has to be weighed pragmatically PRE |
The court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused PRE |
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 PRE |
Conviction can be made on the basis of such evidence PRE |
The aforesaid eye-witnesses were cross-examined at length but even after such lengthy cross-examination these eye-witnesses account could not be shaken Ratio |
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 Ratio |
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 Ratio |
He further stated that the death was caused due to hemorrhage and shock as a result of stab injury Ratio |
He further stated that Injury No. 1 was sufficient to cause death in the ordinary course of nature Ratio |
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 Ratio |
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 the ocular evidence Ratio |
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 Ratio |
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 Ratio |
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; 1988 Indlaw SC 76 Anwar v. State of Haryana, (1997) 9 SCC 766; 1997 Indlaw SC 2447 Ravi Kumar v. State of Punjab, (2005) 9 SCC 315 2005 Indlaw SC 170; Munivel v. State of T.N., (2006) 9 SCC 394 2006 ... |
All the contentions raised by learned counsel appearing for the appellant were considered by us in the light of evidence on record Ratio |
and we find that none of the aforesaid submissions has any basis Ratio |
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 Ratio |
Before dwelling further into the factual matrix of the case on the basis of which the High Court convicted the appellant u/s Ratio |
302 IPC; it would be useful to briefly recapitulate the law on the point Ratio |
S. 299 and S. 300 IPC deals with the definition of culpable homicide and murder respectively STA |
S. 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 STA |
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 STA |
Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees STA |
The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge STA |
If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed STA |
S. 300 IPC, however, deals with murder although there is no clear definition of murder provided in S. 300 IPC STA |
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 STA |
S. 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable u/s STA |
When and if there is intent and knowledge then the same would be a case of S. 304 STA |
Part STA |
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 S. 304 Part II STA |
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 STA |
In the case of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382, 1976 Indlaw SC 192 this Court observed as follows at page 386: "12 PRE |
In the scheme of the Penal Code, "culpable homicides" is genus and "murder" its specie PRE |
All "murder" is "culpable homicide" but not vice-versa PRE |
Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder PRE |
For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide PRE |
The first is, what may be called, "culpable homicide of the first degree PRE |
This is the greatest form of culpable homicide, which is defined in S. 300 as "murder PRE |
The second may be termed as "culpable homicide of the second degree PRE |
This is punishable under the first part of S. 304 PRE |
Then, there is "culpable homicide of the third degree PRE |
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 PRE |
Culpable homicide of this degree is punishable under the second part of S. 304 PRE |
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 2002 Indlaw SC 1777, observed as follows at page 184: "13 PRE |
Cl PRE |
b) of S. 299 corresponds with cls PRE |
2) and (3) of S. 300 PRE |
The distinguishing feature of the mens rea requisite u/cl PRE |
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 norm... |
It is noteworthy that the "intention to cause death" is not an essential requirement of cl PRE |
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 PRE |
This aspect of cl PRE |
2) is borne out by Illustration (b) appended to S. 300 PRE |
b) of S. 299 does not postulate any such knowledge on the part of the offender PRE |
Instances of cases falling u/cl PRE |
2) of S. 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 ... |
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 PRE |
In cl PRE |
3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding cl PRE |
b) of Section 299, the words "sufficient in the ordinary course of nature" have been used PRE |
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 PRE |
The distinction is fine but real and if overlooked, may result in miscarriage of justice PRE |
The difference between cl PRE |
b) of S. 299 and cl PRE |
3) of S. 300 is one of degree of probability of death resulting from the intended bodily injury PRE |
To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree PRE |
The word "likely" in cl PRE |
b) of S. 299 conveys the sense of probable as distinguished from a mere possibility PRE |
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 PRE |
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 PRE |
Rajwant Singh v. State of Kerala is an apt illustration of this point PRE |
In Virsa Singh v. State of Punjab4 PRE |
1958 Indlaw SC 82 Vivian Bose, J. speaking for the Court, explained the meaning and scope of cl PRE |
It was observed that the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly PRE |
First, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved PRE |
These are purely objective investigations PRE |
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 PRE |
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 PRE |
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