Summary
A three-Judge Bench upheld a conviction under Section 302 read with Section 34 IPC for a knife killing in a market the morning after a quarrel. The eye-witnesses were consistent, the two to three days' delay in recording their statements under Section 161 CrPC was explained by riots in the area and delay in recording statements is not by itself fatal, the informant's examination as a defence witness rather than a prosecution witness was immaterial, and the plea of a heat-of-the-moment killing failed because the appellant had brought the knife with him. The appellant, having served over 14 years, was given liberty to apply afresh for premature release under the remission policy in force at the time of his conviction or a more beneficial one.
Issues
- Whether minor discrepancies in the eye-witness accounts rendered the prosecution case doubtful.
- Whether the delay of two to three days in recording the eye-witnesses' statements under Section 161 CrPC was fatal to the prosecution.
- Whether the prosecution's failure to examine the informant, who was examined as a defence witness, affected the case.
- Whether the conviction under Section 302 IPC should be converted to Section 304 Part I on the ground that the killing occurred in the heat of the moment after an altercation.
- Which remission policy governs the appellant's claim for premature release.
Provisions considered
- Section 302 read with Section 34, Indian Penal Code, 1860The consistent eye-witness evidence that the appellant repeatedly stabbed the deceased, and the concurrent findings of the trial court and the High Court, were held to prove the charge beyond reasonable doubt; minor and immaterial discrepancies, as distinct from contradictions, do not harm the prosecution case. (¶¶ 20, 23)
- Sections 300 and 304 Part I, Indian Penal Code, 1860The plea for conversion to culpable homicide not amounting to murder was rejected: neither side suggested that the knife was picked up at the spot, so the appellant must have come armed with it, showing a prior intention to cause bodily injury with a weapon sufficient to cause death; the case fell within no exception to Section 300. (¶ 23)
- Section 161 (and Section 164), Code of Criminal Procedure, 1973The delay of two to three days in recording the eye-witnesses' statements was explained by the riots that broke out, which occupied the Investigating Officer in maintaining law and order; no adverse inference could be drawn. Surveying the case law, the Court held that Ganesh Bhavan Patel is not authority that delay is always fatal, that explained delay will not aid an accused, that no hard-and-fast rule can be laid down, and that the same reasoning applies to delays in recording statements under Section 164. (¶ 21)
- Section 432 (remission), Code of Criminal Procedure, 1973Relying on State of Haryana v. Jagdish, Bilkis Yakub Rasool and Mafabhai Motibhai Sagar, the Court reiterated that a convict has a right to have his case for remission considered under the policy in force at the date of conviction or, if that cannot apply, a more beneficial policy in vogue, and gave the appellant liberty to apply afresh. (¶¶ 27, 28, 29, 30)
Held
- The prosecution proved its case beyond reasonable doubt: the appellant's presence at the spot and his repeated stabbing of the deceased was the consistent account of the eye-witnesses and was concurrently found by both courts below. A discrepancy must be distinguished from a contradiction; minor and immaterial discrepancies or variances in evidence do not make the prosecution case doubtful (Lekh Raj and later decisions applied). (¶ 20)
- Delay in recording witness statements under Section 161 CrPC, particularly when explained, will not by itself aid the accused; Ganesh Bhavan Patel is not an authority that such delay is always fatal, since there the delay was coupled with a delayed FIR and suspicious circumstances. Here the two to three days' delay was explained by riots in the area which engaged the Investigating Officer in restoring law and order, so no adverse inference arose. No hard-and-fast rule can be laid down; delay must be examined with the peculiar facts of each case. The same applies to delays in recording statements under Section 164 CrPC. (¶ 21)
- It is immaterial that the informant was examined as a defence witness rather than by the prosecution; what matters is that she and her testimony were before the trial court, the prosecution and the other accused had the opportunity to cross-examine her, and her evidence was consistent with the FIR and the other eye-witnesses. (¶ 22)
- A plea that the killing occurred in the heat of the moment after an altercation might have merited consideration had the appellant not been armed with a knife. Since neither side suggested the knife was picked up at the spot, the appellant must have brought it, which shows a prior intention to cause bodily injury with a weapon sufficient to cause death; the intention to kill existed from the beginning and no exception to Section 300 IPC applied, so the conviction could not be converted from Section 302 to Section 304 Part I. (¶ 23)
- A convict cannot claim remission as of right but has a right to have his case considered in accordance with law and the applicable policy; the policy applicable is that in force at the time of conviction, and only if it cannot be applied may a more benevolent policy in vogue be applied. The appellant, having undergone more than 14 years of actual incarceration, was given liberty to apply afresh with a detailed representation for premature release, on which the State must pass a reasoned order within three months having regard to the law stated. (¶¶ 27, 28, 29, 30)
Result
Appeal dismissed; conviction under Section 302 read with Section 34 IPC affirmed. Appellant given liberty to apply afresh for premature release; the State Government to pass a reasoned order within three months of such representation. Registry to return the original records. I.A. No. 21892/2021 dismissed as not pressed.