# SATISH NARAYAN SAWANT v. STATE OF GOA

- **Citation:** [2009] 14 S.C.R. 464
- **Court:** Supreme Court of India
- **Decided:** 2009-09-14
- **Case number:** Criminal Appeal No. 854 of 2002
- **Bench:** Dalveer Bhandari, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satish-narayan-sawant-v-state-of-goa-24969
- **Pages:** 32

## Headnote

Penal Code, 1860 - ss. 304 (Part II) and 302 - Murder
+
c of one and injuries to others by accused persons - Acquittal
by trial court u/ss. 302, 323, 143, 147 and 149- Set aside by
High Court -
Conviction of main accused uls. 302 and
s(f!ntenced to life imprisonment - On appeal, held: Fatal injury
was caused by stabbing and other injuries were superficial in
D nature - There was no intention to kill or to inflict an injury of
a particular degree of seriousness - There wasi provocation .
-\.
and incident happened at the spur of the moment - No delay
in recording FIR nor in sending it to the magistrate - FIR not
hit by provisions of s.162 Cr.P.C. - Eye-witnesses though
E related witnesses, were natural witnesses - Discrepancies
between ocular evidence vis-a-vis medical evidence, not very
vital - Thus, conviction of accused altered to s. 304 (Part-II)
and sentenced to 7 years imprisonment - Code of Criminal
Procedure, 1973 - ss. 162 and 157 - Evidence.
F
According to the prosecution, appellant along with
the other accused and two children had formed an
unlawful assembly and in furtherance of the common
object stabbed the deceased resulting in his death and
assaulted PW1, PW2, PWS and PW18. Accused persons
G were tried for commission of offence u/ss. 302, 323, 143,
147 and 149 IPC. The Trial Court acquitted the accused
persons. High Court convicted the appellant-accused
no.1 uls. 302 IPC and accused nos.2 and 3 for offence
punishable u/s. 323 read with s. 34 IPC. Hence the
H
464
SATISH NARAYAN SAWANT v. STATE OF GOA
465
" r
present appeal by the appellant.
A
Disposing of the appeal, the Court
HELD: 1.1. It is quite clear from the evidence on
record that PW-1- Investigating Officer received the
information about the death of the deceased from PSI of 8
the 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 C
taking place on 10.04.1988 between 8.30 p.m. to 8.45 p.m.
and, 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
·J information received, PW-21 went to the place of D
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
E
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 who
were all ladies. After reaching the police station and at the
F
request of PW-1, 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
G
....._ 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
H
466
SUPREME COURT REPORTS [2009] 14 (ADDL) S.C.R.
A recording the FIR. Besides, the fact of his going to the
~
~
place of occurrence would not amount to making an
investigation. 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
B furtherance of investigation. [Para 14] [481-G-H; 482-A-F]
1.2. Even assuming that PW-21 could have entered
·,
the said information received from PSI of the Police
+
Station in the general diary, yet the said entry could not
c have been held or t

## Text

_Characters 0–39,683 of 64,073. This is a partial read: ask again with offset=39683 for what follows._

[2009) 14 (ADDL.) S.C.R. 464
A
SATISH NARAYAN SAWANT
v.
STATE OF GOA
(Criminal Appeal No. 854 of 2002)
B
SEPTEMBER 14, 2009
[DALVEER BHANDARI AND DR. MUKUNDAKAM
SHARMA, JJ.]
Penal Code, 1860 - ss. 304 (Part II) and 302 - Murder
+
c of one and injuries to others by accused persons - Acquittal
by trial court u/ss. 302, 323, 143, 147 and 149- Set aside by
High Court -
Conviction of main accused uls. 302 and
s(f!ntenced to life imprisonment - On appeal, held: Fatal injury
was caused by stabbing and other injuries were superficial in
D nature - There was no intention to kill or to inflict an injury of
a particular degree of seriousness - There wasi provocation .
-\.
and incident happened at the spur of the moment - No delay
in recording FIR nor in sending it to the magistrate - FIR not
hit by provisions of s.162 Cr.P.C. - Eye-witnesses though
E related witnesses, were natural witnesses - Discrepancies
between ocular evidence vis-a-vis medical evidence, not very
vital - Thus, conviction of accused altered to s. 304 (Part-II)
and sentenced to 7 years imprisonment - Code of Criminal
Procedure, 1973 - ss. 162 and 157 - Evidence.
F
According to the prosecution, appellant along with
the other accused and two children had formed an
unlawful assembly and in furtherance of the common
object stabbed the deceased resulting in his death and
assaulted PW1, PW2, PWS and PW18. Accused persons
G were tried for commission of offence u/ss. 302, 323, 143,
147 and 149 IPC. The Trial Court acquitted the accused
persons. High Court convicted the appellant-accused
no.1 uls. 302 IPC and accused nos.2 and 3 for offence
punishable u/s. 323 read with s. 34 IPC. Hence the
H
464
SATISH NARAYAN SAWANT v. STATE OF GOA
465
" r
present appeal by the appellant.
A
Disposing of the appeal, the Court
HELD: 1.1. It is quite clear from the evidence on
record that PW-1- Investigating Officer received the
information about the death of the deceased from PSI of 8
the 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 C
taking place on 10.04.1988 between 8.30 p.m. to 8.45 p.m.
and, 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
·J information received, PW-21 went to the place of D
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
E
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 who
were all ladies. After reaching the police station and at the
F
request of PW-1, 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
G
....._ 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
H
466
SUPREME COURT REPORTS [2009] 14 (ADDL) S.C.R.
A recording the FIR. Besides, the fact of his going to the
~
~
place of occurrence would not amount to making an
investigation. 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
B furtherance of investigation. [Para 14] [481-G-H; 482-A-F]
1.2. Even assuming that PW-21 could have entered
·,
the said information received from PSI of the Police
+
Station in the general diary, yet the said entry could not
c 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, 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
...
D
persons belonging to the complainant side were not
k
available, therefore, bringing them to the pn!ice station
where there was sufficient light. and recording the
complaint at 3.00 a.m. cannot cast any doubt on the
veracity of the prosecution case. Thus, it cannot be said
that the FIR was hit by the provisions of s. 162 of Cr.P.C.
E [Para 16] [484-B-E]
State of U.P. v. Bhagwant Kishore Joshi (1964) 3 SCR
>- \..,'
71; Animireddy Venkata Ramana and Others v. Public
Prosecutor High Court of Andhra Pradesh (2008) 5 SCC 368,
F Held applicable.
2. The submission that there was violation of s. 157
Cr.P.C is without any basis for the defer.ce never crossexamined PW-21 on the aforesaid issue. So long the
G
defence is not able to establish from the records by
cogent evidence that there was any delay in sending the
J..
FIR to the Magistrate, it cannot be held that there was any
such delay. There is no evidence on record 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
~
H
SATISH NARAYAN SAWANT v. STATE OF GOA
467
by the defence in respect of the said issue which is A
" 'T
sought to be raised at this stage. From the evidence on
-1
record it does not appear 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
B
some explanation or to show as to when the FIR was
sent to and received by the Magistrate. It cannot be said
....
that delay in transmitting the FIR to the Magistrate stands
+
proved. [Para 17] [484-E-H; 485-A]
3.1. PWs. 1, 2, 8 and 18 as eye-witnesses to the c
occurrence 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. D
-
Blood was found by the police on the wall of the
..J
verandah and in the courtyard. It is also established from
the evidence on record 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; Besides, all the said eye-witnesses
E
were inmates of the house and they would know as to
who had given the blows for they specifically stated that
'<, ,j
initially the appellant did not have the knife in his hand
.{
but when the deceased and others went to the balcony
i
then he went inside the house and brought a knife with
F
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. [Para 18 and 19]
[485-8-F]
3.2. The eye-witnesses, although, are related
G
~ 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
H
468
SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A 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 eyewitnesses are
immaterial. [Para 20] [485-G-H]
B
Dinesh.Kumarv. State of Rajasthan (2008) 8 SCC 270,
referred to.
3.3. The eye-witnesses were cross-examined at
"-
length but even after such lengthy cross-examination
+
c 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.
A perusal of record clearly shows that the doctor who
conducted the postmortem (PW-7) stated in his evidence
D that there were total 16 injuries when external
> ,..,
examination was done by him and the knife 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
E 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
)'II
F in the post mortem 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. There is therefore
G 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. Ocular
evidence cannot be brushed aside only because, to some
H extent, it is not in consonance with the medical evidence.
SATISH NARAYAN SAWANT v. STATE OF GOA
469
[Para 21) [486-G-H; 487-A-D]
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)
A
9 SCC 394, referred to.
B
4.1. There is cogent and reliable evidence on record
to prove and establish that the· appellant accused has
~ committed the act of stabbing as a result of which the
deceased died. [Para 22] [489-F]
4.2. 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
c
• accused-appellant also did not have any weapon with o
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 categorically
stated that death due to stab injury was in consequence
of injury no. 1 and all other injuries were superficial in
E
nature. So, it was only injury no. 1 which was fatal in
..,,,
J... nature. 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
F
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
G
scuffle between the parties before the actual incident of
stabbing took place. Therefore, there is provocation and
the incident happened at the spur of the moment In view
of the facts, the instant case cannot be said to be a case
u/s. 302 IPC but it is a case falling u/$. 304 (Part II).
H
470
SUPREME COURT REPORTS [2009] 14 (ADDL.) $.C.R.
A Section 304 (Part II) comes into play when the death is
4
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 d~ath. Thus, the appellant is
B convicted u/s.304 (Part II) and sentenced to undergo
imprisonment for a period of 7 years. [Para 28 and 29]
(494-D-H; 495-A·B]
-
State of A.P. v. Rayavarapu Punnayya (1976) 4 SCC
-+---
c 382; Abdul Waheed Khan v. State of A.P. (2002) 7 SCC 175;
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 Kera/a (2004) 12 SCC 269; S. N. Bhadolkar v. State of
fD
Maharasthra (2005) 9 SCC 71; Jagriti Devi v. State of H. · P. -
JT 2009 (8) SC 648, relied on.
~
Case Law Reference:
(1964) 3 SCR 71
Held applicable
Para 13
E
(2008) s sec 368
Held applicable
Para 15
(2008) 8 sec 210
Referred to
Para 20
(1988) 4
1scc 302
Referred to
Para 21
> ,,
F
(1997) s sec 766
Referred to
Para 21
(2005) 9 sec 315
Referred to
Para 21
(200&) s sec 394
Referred to
Para 21
-(1976) 4 sec 382
Relied on.
Para 25
G
(2002) 1 sec 115
Relied on.
Para 26
~.
_ (2002) 1 sec 691
Relied on.
Para 27
(2003) 10 sec 472
Relied on.
Para 27
H
'*(!-
~
>,
' ......
_,
SATISH NARAYAN SAWANT v. STATE OF GOA
471
(2004) 9 sec 37
(2004) 12 sec 269
(2oos) s sec 11
Relied on.
Relied on.
Relied on.
Para 27
A
Para 27
Para 27
JT 2009 (8) SC 648.
Relied on.
Para 27
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 854 of 2002.
From the Judgment & Order dated 1.7.2002 of the High
Court of Bombay at Goa in Criminal Appeal No. 6 of 2000.
R. Sundaravardhan, Arun R. Pedneker, Chinmoy
Khaladkar, V.N. Raghupathy for the Appellant.
A. Subhashini for the Respondent.
The Judgment of the Court was delivered by
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
B
c
D
E
F
G
H
472
SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
•
A Laxmi Dulba Sawant (PW-18) who are the sister, brother, wife
~
4
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
B the Panda 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
c 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, PW21 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
.
D
•
of torch light, PW-21 surJeyed the scene of offence. During the
survey made at the place of occurrence, PW-21 noticed some
blood-stains in the front courtyard of the house and a pipe of
length Of about 1 foot or slightly !'JSS lying in the courtyard having
E 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, PW21 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
F 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
G 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
H
SATISH NARAYAN SAWANT v. STATE OF GOA
473
t
[DR. MUKUNDAKAM SHARMA, J.]
his brother Narayan were residing in one house in Banastari
A
~ y
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
B
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 kitchen. Accused No. 3 told the appellant not to do
anything in the ceremony and insulted the family members of c
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
D
-)_
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 :md
E
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.
F
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 th~ G
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 the ground, Accused No.
H
'
'
474
SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A 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
6 · 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
c 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
0 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 t!".en hit the said
pipe on the right leg of PW-1 and also gave a blow with the
E said pipe on Rauji's di;1hl nand. It was also alleged that the
other juvenile offender, Sharrnila 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 from the hand of Accused No. 3 but, Accused
F 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
G 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
H -2 and PW -8. On the basis of complaint made by PW-1, an
--
-j
SATISH NARAYAN SAWANT v. STATE OF GOA
475
[DR. MUKUNDAKAM SHARMA, J.]
~ "
FIR was registered and the accused came to be arrested.
A
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.
B
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 c
3 was conducted during the course of which a number of eyewitnesses 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
--J.
accused persons from the offences under Sections 302, 323, :D
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 E
....t-.
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
F
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
G
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 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
H
476
SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A 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
B 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
c 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
..
D
\--
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.
E
8. It was further submitted that the alleged eye-witnesses
I
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
F 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
G 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.
H
SATISH NARAYAN SAWANT v. STATE OF GOA
477
[DR. MUKUNDAKAM SHARMA, J.)
9. Ms. A. Subhashini, learned counsel appearing for the
A
.,
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
B
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 and
4
thereby arrived at a wrong conclusion that the accused persons
were required to be acquitted. She has drawn our attention to c
I
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
D
.,,.,
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
E
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.
F
....
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
G
to put off the light of one particular room at which the appellant
.. __,.
and other accused persons became annoyed and the appellant
switched on the light which was again switched off by the
dece~sed. At this, the deceased became annoyed and the
appellant removed the fuse of the electricity which act of his
H
478
SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A 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
B 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
c 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.
0 PW-21 who was at that time attached to Kanda 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 College but before the deceased could be admitted
he died. PW-21 was also informed by said by said PSI K.K.
E 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
F 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 a$ well as the front door of the house were
G 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 bywhich 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
H electricity supply. He gave instructions to his subordinate and
••
-t .
SATISH NARAYAN SAWANT v. STATE OF GOA
[DR. MUKUNDAKAM SHARMA, J.]
479
also to the people around that nobody should touch any article
A
-
"
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 got the complaint registered at the police
B
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
-A;-
knife at the instance of accused Sharmila which he seized. On
28.04.1988, that is, after about 9 days of the incident, Accused c
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.
D
- 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,
E
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.
F
13. The issue with regard to the initiation of the
investigation without recording the FIR was succinctly
addressed by this Court in the case of State of U.P. v.
Bhagwant Kishore Joshi, (1964) 3 SCR 71, (per Mudholkar J.)
G
observed as follows:
"17. What is investigation is not defined in the Code of
Criminal Procedure; but in H.N. Rishbud and lnder Singh
v. State of Delhi1 this Court has described, the procedure,
for investigation as follows:
H
A
B
c
D
E
F
G
H
480
SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
"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,
t3) 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 do~bt, 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
SATISH NARAYAN SAWANT v. STATE OF GOA
481
[DR. MUKUNDAKAM SHARMA, J.]
anonymous source or a source of doubtful reliability for A
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 B
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 c
permission of a Magistrate, is not p·ermitted 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
0
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
E
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
F
curative provisions of the Code."
(emphasis underlined)
14. In the instant case, it is quite clear from the evidence
G
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
H
482
SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.
A 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,
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 orderto verify the information received, PW8
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
c 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
0
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.
E 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. There is no evidence to show that
F 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
· G 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
. H 368, at page 374, this Court while considering a similar case
SATISH NARAYAN SAWANT v. STATE OF GOA
[DR. MUKUNDAKAM SHARMA, J.]
observed as follows:
483
"10. Certain basic facts are not denied or disputed.
The deceased died in the bus at about 10.30 p.m. on 236-1998 while travelling to his village home from Tuni. PW
A
1 also sustained injuries in the said incident. Immediately
8
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
C
place where the accident took place and the village .in
question was not much. In ahy 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.
D
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
E
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
F
expected to reach the place of occurrence as early as
possible. It was not necessary for him to take that step only
on the basis of a first information report.